Migratory Bird Treaty Act of 1918

Under United States Code Title 16, Chapter 7, Subchapter II, the Migratory Bird Treaty Act of 1918 is the United States legislation implementing the convention between the U.S. and Great Britain (for Canada). It replaced the Weeks-McLean Act, which had become effective in 1913. The United States subsequently entered into similar agreements with four other nations (Canada, Mexico, Japan and Russia) to protect migratory birds. The statute makes it unlawful to pursue, hunt, take, capture, kill or sell birds listed therein ("migratory birds"). The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs and nests. Over 800 species are currently on the list.

The statute is broken down into ten sections, 703 through 712 (16 USC 703 through 712). Note that § 709 is omitted, but § 709a Authorization of appropriations is included and active, making eleven listed sections (including § 709 Omitted).

Sections

History

The Migratory Bird Treaty Act of 1918 (aka MBTA) was first enacted to implement the 1916 convention between the United States and Great Britain for the protection of birds migrating between the U.S. and Canada. This offered much-needed protection to many bird species during a time when commercial trade in birds and their feathers was popular. Prior law in the U.S. that covered these areas include the Lacey Act (1900) and the Weeks-McLean Law (1913).

Since 1918, similar conventions between the United States and Mexico (1936), Japan (1972) and the Union of Soviet Socialists Republics (1976, now Russia) have been incorporated into the MBTA. Some of these conventions stipulate protections not only for the birds themselves, but also for habitats and environs necessary for the birds' survival.

An exception to certain provisions of the MBTA regarding the use and possession of feathers and parts of birds of prey is provided for by the eagle feather law (50 CFR 22.22). This federal statute permits Native American enrolled members of federally recognized tribes to obtain and use feathers and parts from birds of prey such as the golden eagle and bald eagle.

Recent Revisions

In the 24 August 2006 edition of the Federal Register, the U.S. Department of the Interior's Fish and Wildlife Service proposed adding 152 species, removing 12 species, and correcting/updating the common or scientific names of numerous others. [1] Reasons for the proposed revisions include birds mistakenly omitted previously, new evidence on geographic distribution, taxonomic changes, etc. In addition the mute swan (Cygnus olor), which was afforded temporary protection due to court order since 2001, is formally excluded from protection in the proposal due to "nonnative and human introduced" status. The previous update to the list occurred on 5 April 1985.

Impact on Private Property Owners

Migratory birds may seek respite within trees or on buildings considered private property. The Migratory Bird Treaty Act of 1918 prohibits the removal of all listed species or their parts (feathers, eggs, nests, etc.) from such property. However, in extreme circumstances, a federal permit might be obtained for the relocation of listed species (in some states a state permit is required in addition to a federal permit). Pursuant to the spirit of the treaty, it is not trivial to obtain a permit; the applicant must meet a certain criteria as outlined in Title 50, Code of Federal Regulations, 21.27, Special Purpose Permits.^[1]

The permit applicant is generally a contractor who specializes in wildlife relocation. When hiring a contractor to trap and relocate any animal from one's property, the private property owner is well advised to attain proof of such permits before any trapping activity begins, as trapping without the necessary paperwork is common in the United States.

Most wildlife management professionals consider relocation actions undue harm to the birds, particularly since relocated birds (being migratory) often return to the same property the next year. In the case of trapping and relocation, harm is brought on by or can result in:

• Breaking, a term describing increased susceptibility to disease brought on by the stress of capture and relocation
• Difficulty in establishing territory at the new location
• Separation of family members and the stunting of juveniles' natural progression into adulthood

Partial Listing of Covered Species

American Black Vulture Coragyps atratus, one of the species covered under the treaty.

The following is a sampling of some of the more commonly known birds of the over 800 species covered under the treaty:

• Bald Eagle, Haliaeetus leucocephalus
• Black-capped Chickadee, Parus atricapillus
• American Black Vulture, Coragyps atratus
• Northern Cardinal, Cardinalis cardinalis
• Cedar Waxwing, Bombycilla cedrorum
• Cliff Swallow, Hirundo pyrrhonota
• Barn Owl, Tyto alba
• Common Nighthawk, Chordeiles minor
• Downy Woodpecker, Picoides pubescens
• Gray Catbird, Dumetella carolinensis
• Northern Mockingbird, Mimus polyglottos
• Mourning Dove, Zenaida macroura
• Red-tailed Hawk, Buteo jamaicensis
• Red-winged Blackbird, Agelaius phoeniceus
• Swamp Sparrow, Melospiza georgiana
• Turkey Vulture, Cathartes aura
• American Crow, Corvus brachyrhynchos
• Common Raven, Corvus corax
• Ruby-throated Hummingbird, Archilochus colubris

Game Birds and Hunted Species

The migratory bird conventions with Canada and Mexico define "game birds" as those species belonging to the following families:

• Anatidae (swans, geese, and ducks)
• Rallidae (rails, gallinules, and coots)
• Gruidae (cranes)
• Charadriidae (plovers and lapwings)
• Haematopodidae (oystercatchers)
• Recurvirostridae (stilts and avocets)
• Scolopacidae (sandpipers, phalaropes, and allies)
• Columbidae (pigeons and doves).

The Migratory Bird Treaty Act, which implements the conventions, grants the Secretary of the Interior the authority to establish hunting seasons for any of the migratory game bird species listed below. In actuality, the Fish and Wildlife Service has determined that hunting is appropriate only for those species for which there is a long tradition of hunting, and for which hunting is consistent with their population status and their long-term conservation. It is inconceivable, for example, that we will ever see legalized hunting of plovers, curlews, or the many other species of shorebirds whose populations were devastated by market gunners in the last decades of the 19th century.

Although the Migratory Bird Treaty Act considers some 170 species to be "game birds," less than 60 species are typically hunted each year. The Fish and Wildlife Service publishes migratory game bird regulations in the Federal Register. Those species for which hunting regulations have been established at some point during the past 10 years are designated with an asterisk (*) in the following list. However, such a designation does not necessarily indicate that a given species can be taken legally in your State or locality. For regulations specific to your locality, you should consult with your State's natural resource agency. Source: The list of hunted species was taken primarily from Appendix 2 of the Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (SEIS 88), U.S. Fish and Wildlife Service

Controversy

This article's Criticism or Controversy section(s) may mean the article does not present a neutral point of view of the subject. It may be better to integrate the material in those sections into the article as a whole.

Unlike the Endangered Species Act the MBTA is relatively unknown to the general public and causes little controversy. Those who do know about the MBTA often learn about it when they hear that species such as the ubiquitous American crow, considered a pest or an annoyance in many places, cannot be legally killed, but to date there have been no serious attempts to have species stripped from the treaty.

One issue involves a small uninhabited island in the Pacific Ocean known as Farallon de Medinilla located 150 miles north of Guam. The target range there is the United States Pacific Fleet’s only U.S.-controlled range available, and conveniently accessible from bases in Guam, for live-fire training. In addition, the air and sea space in the Farallon de Medinilla area provides sufficient room for the many different attack profiles which need to be rehearsed. During the peak of Vietnam War operations, ordnance delivered on the island was estimated at 22 tons per month, but is considerably less now.

The Navy has far more mitigation procedures to prevent environmental damage in the present day than they did in the 1960's. In compliance with the National Environmental Policy Act of 1969 they prepared an Environmental Impact Statement.^[2] However, the Navy could not guarantee that no bird protected by the MBTA would be killed, despite the precautions. The Fish and Wildlife Service could not grant a permit without such a guarantee, and no permit has been issued. The Navy argued that it had done its best to comply with environmental laws, and should be permitted to operate under the Impact Statement prepared for NEPA. Vice Speaker Joseph P. DeLeon Guerrero, R-Saipan, noted that the U.S. military “is thorough and meticulous in monitoring the impact of the bombing [drills]” on Farallon de Medinilla.

Earthjustice sued for a temporary restraining order of tests because the navy did not comply with the MBTA, although they did comply with the other environmental laws. As a result a law was introduced by congress (H.R. 4546) to amend the Migratory Bird Treaty Act of 1918 to make it lawful for the Department of Defense to "take" (kill) migratory birds during a "military readiness activity". (Readiness activities are defined as all training activities and military operations related to combat and the testing of equipment for combat use.) The record in congress noted that "A recent federal court ruling indicated that the Navy had violated the Migratory Bird Treaty Act by incidentally taking migratory birds without a permit during training exercises near Guam. The House report indicates that the exemption provision is intended to address the lack of permit authorization for incidental takings, so that essential training exercises may proceed. It appears that the language used in the bill would not authorize the issuance of permits, but more broadly would state that the part of the Migratory Bird Treaty Act that articulates unlawful behavior does not apply to a military readiness activity.^[3]

See also

• Agreed Measures for the Conservation of Antarctic Fauna and Flora
• Convention on Biological Diversity
• Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES)
• Endangered Species Act
• Environmental agreement
• Ramsar Convention
• sinkbox
• Missouri v. Holland

References

1. ^ 50 C.F.R. 21.27
2. ^ "NOI to prepare EIS". November 28, 1995. http://www.epa.gov/EPA-IMPACT/1995/November/Day-28/pr-1537.html. 
3. ^ "Order Code RL31456 Report for Congress". http://digital.library.unt.edu/govdocs/crs//data/2002/upl-meta-crs-2518/meta-crs-2518.ocr. Retrieved 09 January 2009. 

External links

• Migratory Bird Treaty on Cornell's U.S. Code Collection
• List of bird species covered under the Migratory Bird Treaty
• U.S. Fish and Wildlife Service's guide to U.S. laws protecting migratory birds (including the Migratory Bird Treaty)