The Migratory Bird Treaty Act (MBTA) was passed in 1918 to combat over-hunting and poaching that supplied the enormous demand for feathers to adorn women’s hats, when it was clear that the state-level hunting laws were insufficient and bird populations were being decimated. At first, the Act was based on a single, 1916 treaty between the United States and Great Britain (on behalf of Canada) to protect migratory birds. Some states challenged the authority of the federal government to make hunting regulations, arguing that wildlife was the property of their citizens. But in 1920 in Missouri v. Holland, the Supreme Court upheld the MBTA stating that “[w]ild birds are not in the possession of anyone.” Later, similar treaties were signed with Japan, Russia, and Mexico, and protection for the birds covered in these treaties was added to the MBTA.
The Act makes it a federal crime to “take” birds or bird parts (which includes feathers) or to kill birds without special permission from the Secretary of the Interior, but does not describe the specific types of activities that are prohibited. So, while unpermitted hunting and poaching are illegal under the MBTA, potentially so are accidentally steering a wagon over a bird’s nest or picking up an egg shell. The MBTA also prohibits any person from taking any migratory game bird by the aid of baiting if the person knows or reasonably should know that the area is baited, or to place bait to aid in the taking of birds. Only “native” migratory bird species are protected under the MBTA, and there are now 1,026 species protected by the Act, including 74 rare birds also on the Endangered Species list, such as the spectacled eider (Somateria fischeri), and common birds such as the American crow (Corvus brachyrhynchos).
Almost 100 years later, the nature of the threats faced by migratory birds bear little resemblance to those in 1918. Today, the greatest threat to birds is the loss and/or degradation of habitat due to development or disturbance. Additionally, hundreds of millions of birds are killed every year due to collisions with human structures, poisonings, and attacks by domestic and feral cats. There is no question that migratory birds still need legal protection. But, considerable debate has erupted regarding at least two important issues over the modern role of the MBTA in the protection migratory birds.
First, there has been sizable controversy over the MBTA’s mens rea element (what sort of knowledge or intent a defendant must have to be convicted of violating the Act), and several amendments have been made to address the challenges raised by defendants and courts. For example, in 1918 when it was first passed, the MBTA enforced strict liability for all violations of any provision of the Act (meaning that a person could be found guilty without having intended to commit the prohibited acts or knowledge that they committed a prohibited act.) But in 1960, the MBTA was amended to create separate misdemeanor (for the violation of any provision of the act) and felony crimes (for sale or take with intent to sell), and then in 1986 the felony crime was changed so that a person had to “knowingly” take a migratory bird in order to be convicted.
Second, there is substantial disagreement over the actus reus (mean which acts constitute criminal behavior) under the MBTA. Some courts have broadly interpreted the MBTA to criminalize any activities that harm or kill birds. For example, in U.S. v. Moon Lake Electric Ass'n, Inc., the U.S. District Court for the District of Colorado held an electrical distribution cooperative liable after it failed to install inexpensive equipment on its power poles that would have prevented electrocutions causing the death or injury of 38 birds. And in U.S. v. Citgo Petroleum Corp., the District Court for the Southern District of Texas found the company to be liable when migratory birds were killed in uncovered, open-air waste oil tanks because it was “reasonably foreseeable” that the open-air tanks would result in bird deaths, and because CITGO was aware for years that bird mortality was happening and did nothing to stop it.
Conversely, other courts have held that the MBTA only prohibits unpermitted hunting and poaching, arguing that these were the activities that Congress intended to limit when Act was first passed. For example, in U.S. v. Brigham Oil & Gas, the court held that the terms “take” and kill “are action verbs that generally denote intentional behavior,” and that the company was not liable for deaths or injuries caused by its use of oil reserve pits. In 1997 in Newton Cnty. Wildlife Ass'n, the Eighth Circuit Court of Appeals held that “it would stretch this 1918 statute far beyond the bounds of reason” to convict a company of committing a crime for activities such as timber harvesting, that indirectly result in the death of migratory birds."
With the courts divided as to its meaning, the outcome for a defendant charged with violating the MBTA can be unpredictable. This is problematic both for developers who want to avoid liability and conservationists who could use MBTA as a tool to protect migratory birds. It could also be harmful to proactive wildlife conservation because, for example, government agencies cannot guarantee developers immunity from prosecution under the MBTA in exchange for investments in features to protect the environment. For example, in 2013 the Department of Justice made it clear that not even wind farms will be cut any slack when Duke Energy was sentenced to pay $1 million in fines for the deaths of 163 birds because they had “failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite prior warnings about this issue.” With dissent in the courts and with large industry players demanding answers, it would not be surprising if the Supreme Court were to agree to hear an appeals case. If the Court does not take up an MBTA case soon, then with this level of uncertainty, it is arguable that Congress should take action that will unify the courts.