Migratory Bird Treaty Act of 1918

The Migratory Bird Treaty Act of 1918 (MBTA), codified at 16 U.S.C. §§ 703–712 (although §709 is omitted), is a United States federal law, first enacted in 1918 to implement the convention for the protection of migratory birds between the United States and Canada.[1] The statute makes it unlawful without a waiver to pursue, hunt, take, capture, kill, or sell nearly 1,100 species of birds listed therein as 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. A March 2020 update of the list decreased the number of species to 1,093.[2]

Some exceptions to the act, including the eagle feather law, are enacted in federal regulations (50 CFR 22), which regulate the taking, possession, and transportation of bald eagles, golden eagles, and their "parts, nests, and eggs" for "scientific, educational, and depredation control purposes; for the religious purposes of American Indian tribes; and to protect other interests in a particular locality." Enrolled members of federally recognized tribes may apply for an eagle permit for use in "bona fide tribal religious ceremonies."[3]

The United States Fish and Wildlife Service issues permits for otherwise prohibited activities under the act. These include permits for taxidermy, falconry, propagation, scientific and educational use, and depredation, an example of the last being the killing of geese near an airport, where they pose a danger to aircraft.

The Act was enacted in an era when many bird species were threatened by the commercial trade in birds and bird feathers. The Act was one of the first federal environmental laws (the Lacey Act had been enacted in 1900). The Act replaced the earlier Weeks-McLean Act (1913). Since 1918, similar conventions between the United States and four other nations have been made and incorporated into the MBTA: Mexico (1936), Japan (1972) and the Soviet Union (1976, now its successor state Russia). Some of the conventions stipulate protections not only for the birds themselves, but also for habitats and environments necessary for the birds' survival.

Constitutionally this law is of interest as it is a use of the federal treaty-making power to override the provisions of state law. The principle that the federal government may do this was upheld in the case Missouri v. Holland. In a defense of the treaty, Federal Judge Valerie Caproni on August 11, 2020, wrote in a decision, "It is not only a sin to kill a mockingbird, it is also a crime."[4][5]

After an update to administrative law on January 5, 2021, the United States Department of the Interior ceased to enforce penalties under the Migratory Bird Treaty Act for the accidental killings of birds by businesses or individuals.[6] This change was revoked on October 4, 2021.[7]

  1. ^ "Migratory Bird Management Information: List of Protected Birds (10.13) Questions and Answers". US Fish & Wildlife Service. Retrieved 7 August 2015.
  2. ^ "Migratory Bird Program | Conserving America's Birds". U.S. Fish & Wildlife Service. 26 April 2020. Retrieved 2020-12-14.
  3. ^ "Electronic Code of Federal Regulations". Archived from the original on 2012-01-19. Retrieved 2011-06-30.
  4. ^ Fears, Darryl (August 12, 2020). "Quoting 'To Kill a Mockingbird,' judge strikes down Trump administration rollback of historic law protecting birds". Washington Post. ISSN 0190-8286. Retrieved 2020-12-14.
  5. ^ "Victory! Federal Judge Rules Administration's Bird-Killing Policy is Illegal". Audubon. 2020-08-11. Retrieved 2020-12-14.
  6. ^ Puko, Timothy (January 5, 2021). "U.S. to Remove Penalties for Accidentally Killing Migratory Birds". Wall Street Journal. Retrieved 2022-01-08.
  7. ^ US Fish and Wildlife Service. "Governing the take of migratory birds under the Migratory Bird Treaty Act". U.S. Fish & Wildlife Service Migratory Birds - Migratory Bird Treaty Act (MBTA). US FWS. Retrieved 8 February 2022.