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  • Writer's pictureChristen & Bernadette


The protection of migratory birds has been a focus of environmental law for more than one hundred years. Now, those protections are in danger of being diluted. The federal agency in charge of protecting migratory birds has proposed a rule change that will codify a narrow definition of “take” under the Migratory Bird Treaty Act (MBTA). The proposed change essentially guts those protections.

The MBTA became necessary largely because of overhunting and … fashion.

For instance, the Great Egret (Ardea alba) (right) and the Snowy Egret (Egretta thula) were hunted frivolously in the 1800s for their beautiful feathers -- all to adorn ladies’ hats. The director of the New York Zoological Society and former chief taxidermist at the Smithsonian, William Hornaday, estimated that " in a single nine-month period the London market had consumed feathers from nearly 130,000 egrets" and that "[i]t was a common thing for a rookery of several hundred birds to be attacked by plume hunters, and in two or three days utterly destroyed."

Feathers were even used to decorate high-society dinner plates.

One legal opinion describes the relentless pursuit of birds in the 1800’s thusly:

One author, describing hunters descending upon a single pigeon nesting ground,

reported " [h]undreds of thousands, indeed millions, of dead birds were shipped out at a

wholesale price of fifteen to twenty-five cents a dozen." …. Further, commercial hunting was

not limited to traditional game birds-estimates indicated that 50 species of North American

birds were hunted for their feathers in 1886.9 Thus, largely as a result of commercial hunting,

several species, such as the Labrador Ducks, Great Auks, Passenger Pigeons, Carolina

Parakeets, and Heath Hens were extinct or nearly so by the end of the 19th century.

Passenger Pigeons in particular faced catastrophic decline between 1860 and 1880, and

extinction by 1914. These alarming trends became the impetus for the MBTA.

Specifically, the MBTA (16 U.S.C. 703 et seq.) was enacted in 1918 to help fulfill the United States' obligations under the 1916 “Convention between the United States and Great Britain for the protection of Migratory Birds.”

Section 2(a) of the MBTA provides that, unless permitted by regulations, it is unlawful:

at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to

take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase,

purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or

imported, deliver for transportation, transport or cause to be transported, carry or cause to be

carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any

part, nest, or egg of any such bird, or any product, whether or not manufactured, which

consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof.

People could face fines or criminal prosecution if they violated the MBTA.

“Taking” or “killing” did not have to be intentional (This is a concept known as “strict liability”). For example, construction or fracking activity that resulted in the death of migratory birds could be a violation of the act. Those deaths are referred to as “incidental takes.”

Until recently, “incidental takes” were considered violations of the MBTA.

That has changed.

The first changes came though federal court opinions. United States Federal courts are charged with the interpretation of laws when they are challenged. By 2015, three federal Circuit courts (the Fifth, Eighth, and Ninth) determined that “taking” under the MBTA requires “deliberate acts done directly and intentionally to migratory birds.” In other words, an incidental take should not be considered a violation of the MBTA. Read the Fifth Circuit case here.

The gutting continued in 2017. The Secretary of the Interior, who has broad authority to issue regulations under the MBTA, issued a legal opinion that the MBTA does not include an “incidental take.” The opinion states “[f]or the reasons explained below, this Memorandum finds that, consistent with the text, history, and purpose of the MBTA, the statute's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” (bold emphasis added). Note that the Department of the Interior includes the U.S. Fish and Wildlife Service, which is the federal agency with the primary responsibility for managing migratory birds.

Fast forward to 2020. On January 30, 2020, the U.S. Fish and Wildlife Service released a Notice of Proposed Rulemaking (“NOPR”) that would adopt the Department of the Interior’s 2017 interpretation that the prohibitions of the MBTA only apply to actions “directed at” migratory birds, their nests, or their eggs. The proposed regulations explicitly state that an incidental taking or killing of a migratory bird is not prohibited by the MBTA. The public comment period for the proposed change just ended.

The new rule is troublesome. Each year, millions of migratory birds die as a result of flying into oil waste pits, methane releases, power lines, and other construction, chemical, or energy-related activities. These activities are no longer considered violations under the MBTA. This change makes sense for purely accidental kills – a plane strikes a bird, for example – but it makes no sense when the activity is known to cause millions of bird deaths and is addressable.

We can only imagine how glorious it would be to see flocks in their heyday. People would likely be amazed at the thousands of birds that would swarm, swirl, and turn in the skies (likely similar to starling murmurations). Alexander Wilson, a famous author on bird life, estimated that a flight he observed in Kentucky in 1806 reached 2.23 billion birds.

Many others noted similar findings, including John James Audubon, known for his detailed illustrations of birds, who observed a group that darkened the sky for three days.

These images remind of us of Genesis 1:20: Then God said, “Let the water swarm with living creatures, and let birds fly above the earth across the expanse of the sky.”

We imagine Passenger Pigeons filling the skies did just that. The loss of the Passenger Pigeon would likely have been prevented if the MBTA of 1918 had already been in place. That is one fact we will never know.

Let's prevent the next Passenger Pigeon catastrophe. Let's strengthen our environmental laws, not gut them.

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