Nation's Landmark Bird Protection Law Likely to See Major Changes

It was passed in an age when the biggest threat to wild birds was thought to be market hunters. Now that industrial development and massive changes in habitat pose far larger threats to most bird species, The Migratory Bird Treaty Act of 1918, or MBTA, might seem a little out of date.

But as those threats mount, the MBTA is more important than ever.

That's why recent moves to adapt the MBTA to changing modern circumstances are very important. Done right, those changes could give a tool to law enforcement agencies to crack down on the worst environmental violators. But if those changes aren't done right, they could pull the law's teeth -- and consign North American birds to more and more deaths.

On the face of it, the MBTA is pretty straightforward. Passed in 1918 as part of a treaty agreement with Great Britain and Canada, the law it makes it a crime to harm any member of a listed bird species.That harm can take any one of a number of forms. Here's the language of the MBTA:

There's a hint in that somewhat opaque language as to why the MBTA was passed in the first place. That reference to "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"? It's talking about hats.

An aviary on your head

A bit more than a century ago using bird parts in hats was extremely fashionable, and we're not just talking about feathers stuck in hat bands. Some of the women's hats worn in those days trended looked like museum dioramas, with entire stuffed birds and their nests stuck to them. In 1886 Frank Chapman, ornithologist at the American Museum of Natural History, went on two short birding walks in the streets of Manhattan and saw at least 39 species as he walked... but those birds weren't perched in street trees. Instead, they were affixed to approximately three quarters of the 700 or so women's hats Chapman counted as he walked, with cedar waxwings, common terns, and northern flickers especially well represented.In both the U.S. and Great Britain, the fad for avian hats did nearly incalculable damage to wild bird populations around the world. "From the trackless jungles of New Guinea," wrote conservationist W.T. Hornaday in 1913,

There were almost certainly other threats to wild birds back then, from unregulated sport hunting to the cutting of forests that likely did in the passenger pigeon and the ivory-billed woodpecker, and it's not hard to see the stain of 19th century sexism in the near-total focus on "frivolous" women's hats as a root cause of bird population declines. But the millinery trade was indeed a serious threat, with demand for plumage pushing the value of feathers of certain species higher, per ounce, than gold.

And that's what the MBTA in its original form was mainly intended to address. As befit a law written to curb an abusive fashion industry that had scoured the world for feathers and bird parts, the MBTA was phrased as a near-absolute prohibition on hurting listed birds or possessing or trading in their body parts.

A century later

Things are quite different now than they were in 1918. We've managed to convert far more of North America from the open and intact habitat on which wild birds depended to cities, farms, and industrial developments. The advent of relatively inexpensive plate glass in the 1960s, and the subsequent increase floor-to-ceiling windows in urban buildings, brought with it one of the biggest threats North American birds face. The continent's network of transmission lines, guyed communication towers, and other industrial infrastructure brought another threat, as did the 20th century's increase in the continent's outdoor cat population.

And just about the time the MBTA was signed, the advent of the Model T launched a century of private automobile ownership. Roadkill became a thing, as did birds becoming poisoned or slicked in crude oil being extracted, shipped, and refined to serve the nation's growing fleet of cars.

Estimates of raw numbers of Norther American birds killed for the millinery trade, the trade that prompted passage of the MBTA, range well into the millions per year. But a recent U.S. Forest Service survey of human-cased bird mortality from modern causes puts bird deaths from window and structure collisions alone at possibly more than a billion birds per year, along with perhaps 130 million deaths from power line accidents, four or five million per year from collisions with transmission tower guylines, at least 100 million per year from outdoor cats, at least 1.5 million per year from drowning in oil pits, and 60 million annual bird deaths from collisions with vehicles.

Figures like the above have been used by defenders of the energy industry to downplay the significantly lower number of bird deaths from wind facilities, which the USFS study estimated at potentially around 37,000 birds per year. For that matter, the same argument has been made to downplay bird deaths from from oil development (1.5 million deaths in oil pits per year, and around 100,000 birds per year from oil spills.)

We've commented here before on the flaws in that argument: raw numbers of "bird deaths" provide only the roughest of guides to an industry's actual ecological impact.

But those numbers are important in the context of the MBTA, and that's for this reason: every single one of those billion-plus deaths of birds is potentially a single violation of the MBTA. Any inadvertent death of a bird protected by the MBTA could conceivably be treated as a misdemeanor violation of the Act, with penalties ranging up to six months' imprisonment and $5,000 in fines. That's for one bird, and fines are doubled for organizations. (Deliberate and conscious harm to birds is a felony under MBTA, with steeper fines and jail sentences possible.)

In other words, if every single one of the one billion birds thought to die each year were followed up as a misdemeanor MBTA violation, the resulting fines could pay off the national debt in less than four years.

The U.S. law everyone breaks

With annual violations well above a billion, the Migratory Bird Treaty Act might well be the most-violated law in the United States. And obviously, the U.S. Fish and Wildlife Service, the federal agency charged with enforcing the Migratory Bird Treaty Act, couldn't track down every violation of the MBTA even if it wanted to. So USFWS has, for some decades, engaged in a kind of triage in which it pursues some MBTA violations and not others.

Despite that triage, however, and the fact that the vast majority of people who violate the Migratory Bird Treaty Act will never experience so much as a conversation with a USFWS staff person, the MBTA has long been considered a "strict liability" prohibition on killing birds. That means it doesn't matter if you meant to hurt birds, or if you knew that hurting birds was banned by the MBTA; if you cause harm to a bird species protected by the MBTA and you don't have a permit to do so, you've broken the law and you could be found guilty.

Most of us violate the MBTA mainly with our cars or our living room picture windows, and for us, this is all academic. But companies who do business in ways that pose potential threats to MBTA-protected bird species aren't so sanguine. For those corporations, that "strict liability" standard can be troublesome, making them liable for large fines and the possibility of significant legal expenses even if they take what might seem reasonable precautions against hurting listed bird species.

Some courts have been sympathetic to the concerns of business. In 2012, a district court dismissed charges of violating the MBTA against operators of North Dakota oil fields in which protected species of birds had died in oil waste lagoons. That judge ruled that the MBTA was never intended to apply to industrial activities that weren't targeted directly at the birds.

The federal Court of Appeal in the Eighth Circuit, covering the northern plains states, upheld that ruling. The western states' Ninth Circuit Court ruled similarly in a case in its jurisdiction. But the Tenth Circuit, covering interior Southwestern states from Oklahoma to Utah, has ruled in favor of the strict liability standard.

When the same federal law is interpreted in different ways by federal judges in different parts of the country, that's a problem. And it's one that USFWS may be trying to address in the next few months, with a new rule allowing companies to seek "take permits" under MBTA that would allow them to do business and kill birds by accident without fear of prosecution as long as they follow federal wildlife agency guidelines.

Fixing the problem -- or making it worse

In mid-February, USFWS quietly sought approval from the Executive Branch to develop just such a take permit system for MBTA. It's not known how closely the proposed program would mirror similar permits available under the Endangered Species Act, or whether the permits would be offered only to certain industries. (The energy industry is probably a safe bet.)

Bird protection activists are taking a supportive but cautious tack on the idea. In a February press release, Michael Hutchins of American Bird Conservancy's wind energy campaign agreed that something needs to be done to retool the MBTA to cover modern threats to birds. "Enforcement of the MBTA is currently inconsistent at best, and this needs to change. Many of our ecologically important migratory bird species -- even the most common -- are in precipitous decline and require additional protections."

An across the board change in the form of a new take permit system, or some other method for making MBTA policy more systematic, would certainly help corporations' sense of security in contenting with what is now a mutually contradictory set of caselaw.

Whether such a change would help declining North American bird species will likely depend on whether federal agencies craft and implement the new rules to protect the birds' well-being, rather than the well-being of corporate executives.