Birds, Birders, and Bird Hunters Score Major Victory
A federal court overturned a Trump administration reinterpretation of the Migratory Bird Treaty Act that had upended one hundred years of enforcement of industry interests responsible for killing billions of birds, including waterfowl- a law with long-standing, bi-partisan protections for migratory birds.
The Idaho Wildlife Federation, along with the National Wildlife Federation and our partner state Federations across the country led the effort to overturn this disastrous decision.
The MBTA is one of America’s oldest and most successful wildlife protection laws, and has been interpreted for decades by administrations of both parties to protect migratory birds from incidental takes, particularly foreseeable yet unintentional takes by commercial activities.
Birds are unique among wildlife. They are prevalent upon all our landscapes and, among wildlife, human interaction with birds is unparalleled. Whether it is game bird and waterfowl hunting, everyday sightings, active bird watching, pest control, or pollination, Americans enjoy and need birds. This is no time to weaken or rollback protections for birds. While decades of safeguards from the MBTA and other wildlife statutes have saved many species from extinction or serious decline, birds today face multiple threats and many species are in trouble. A troubling report issued by the journal Science last year found an alarming 29% decline in bird population numbers over the last half-century due to factors like habitat loss and increased use of pesticides. In order to effectively stop and reverse these declines and recover America’s wildlife, it is critical that the MBTA remain an effective tool in addressing foreseeable threats to birds.
The MBTA has been a critical conservation measure benefiting hunters, bird watchers, and wildlife enthusiasts. Passed after the massive decline of many birds in the late 19th and early 20th century due to unregulated over-hunting and unrestricted commercial trade, the MBTA has played a vital role in saving many migratory bird species from extinction and decline, including species such as the Snowy Egret and waterfowl like the Wood Duck. The law is a sensible but strong act that provides protections for over 1,000 species while allowing for the regulated hunting of many bird and waterfowl species. It has been thoughtfully applied to protect birds not only from senseless slaughter, but also from preventable deaths caused by industrial activities, such as open mining pits and oil spills.
Since at least the early 1970s, administrations under both parties have consistently and judiciously applied the MBTA to ensure that large scale industrial operations like oil production, transmission lines, commercial fishing operations and renewable energy producers take common sense measures and use best management practices to prevent countless readily avoidable bird deaths. These actions have not only protected at risk birds, but have helped keep many species off the Endangered Species List and benefited other species. The law has also been vital to ensuring that when companies act irresponsibly to cause major environmental harm to migratory birds, there is accountability and at least some restitution. For instance, after the Gulf of Mexico oil spill, which killed more than one million birds, federal officials used the MBTA to ensure BP made recovery payments of $100 million which is being used to restore habitat for waterfowl and other birds. This investment in critical recovery efforts would not have been possible without strong protections under the Act.
Enforcement of the Act has generally been fair and judicious. In the vast majority of instances, FWS sought a cooperative approach where it would give industry notice of practices that posed risks to birds, give the industry time to put in place best management practices that would protect birds from unnecessary risks, and only take enforcement action against those actors that ignored warning and refused to take protective actions. The proposed rulemaking would have codified an ill-founded December 22, 2017 legal opinion put forth by the Deputy Solicitor of the Department of Interior, M-37050 entitled “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” This opinion and the proposed rule reverses decades of contrary interpretation and is in contradiction to the intent and plain meaning of the law as well as several federal court rulings.
The proposed rule would have relieved major industrial operations from accountability for many easily preventable bird deaths. NWF and others challenged the legality of M-Opinion 37050, and with this finding, are vindicated in our belief that the MBTA plainly requires the protection of migratory birds from incidental takes.
As top interior officials from the Nixon, Ford, Carter, Bush I, Clinton, Bush II and Obama Administrations have noted in a letter opposing the DOI M-opinion, a bi-partisan solution can be found that resolves any ambiguity in the MBTA but preserves the Act’s critical role in protecting birds from foreseeable harm from industrial activities.
IWF board member Molly Lipps hunts for waterfowl at CJ Strike Wildlife Management Area.