Migratory Bird Treaty Act of 1918
The Migratory Bird Treaty Act of 1918 (MBTA),
Some exceptions to the act, including the
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
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
After an update to administrative law in January 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under the Migratory Bird Treaty Act for the accidental killings of birds by businesses or individuals.[6] This change was revoked on October 4, 2021.[7]
Sections
- § 703: Taking, killing, or possessing migratory birds unlawfully
- § 704: Determination as to when and how migratory birds may be taken, killed, or possessed
- § 705: Transportation or importation of migratory birds; when unlawful
- § 706: Arrests; search warrants
- § 707: Violations and penalties; forfeitures
- § 708: State or Territorial laws or regulations
- § 709: Omitted
- §709a: Authorization of appropriations
- § 710: Partial invalidity; short title
- § 711: Breeding and sale for food supply
- § 712: Treaty and convention implementing regulations; seasonal taking of migratory birds for essential needs of indigenous Alaskans to preserve and maintain stocks of the birds; protection and conservation of the birds
History
Louis Marshall had a key influence as an intervenor on a landmark case before the Supreme Court underscoring the right and responsibility of the federal government for environmental protection and conservation. In a friend of the court brief in Missouri v. Holland on behalf of the Association for the Protection of the Adirondacks, Marshall successfully persuaded the court to uphold the Migratory Bird Treaty Act of 1918, between the United States and Canada.[8] As characterized by Adler, Marshall argued, "the United States did have the power to create such legislation; that Congress was well within its rights; and that the Act was constitutional"; and, further, "If Congress possessed plenary powers to legislate for the protection of the public domain, then it had to take into account all possibility for such protection", including protection of migratory birds, "these natural guardians" against "hostile insects, which, if not held in check ... would result in the inevitable destruction" of "both prairie and forest lands". According to Handlin, Marshall's intervention "was a major factor in the decision."[9]
Recent revisions
In the August 24, 2006 edition of the
On January 9, 2001 the
At least one state reacted to the new Supreme Court ruling by restoring isolated wetlands protection: 2001 Wisconsin Act 6, is the first of its kind nationwide to restore wetlands regulation to the state after federal authority had been revoked. It restores protection to over one million acres (4,000 km²) of isolated wetlands in Wisconsin. On May 7, 2001, Wisconsin Governor Scott McCallum signed a bill protecting wetlands by placing Wisconsin wetlands regulation under the jurisdiction of the Wisconsin Department of Natural Resources. Bipartisan state legislators fully supported the bill and felt it was necessary after the Supreme Court ruled that the federal clean water act didn't give the corps authority over decisions involving isolated wetlands.[12]
Impact on private property owners
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
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 above. 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 unlikely, 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.[clarification needed] 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.
Legal cases
One issue involves a small uninhabited island in the Pacific Ocean known as Farallon de Medinilla located 150 miles (240 km) 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 U.S. Navy has far more mitigation procedures to prevent environmental damage in the present day than they did in the 1960s. In compliance with the National Environmental Policy Act of 1969 they prepared an Environmental Impact Statement.[14] 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 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.[15]
Proposed amendments
- jewelry, clothing, and hunting equipment that are made from parts of migratory birds, particularly feathers.[16][17] The bill passed in the United States House of Representatives in a voice vote on September 8, 2014.[18]
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
- Bald and Golden Eagle Protection Act
- Environmental agreement
- Ramsar Convention
- Sinkbox
- Missouri v. Holland
- Migratory Birds Convention Act, the Canadian law implementing the treaty
- Migratory Bird Treaty or Convention
References
- ^ "Migratory Bird Management Information: List of Protected Birds (10.13) Questions and Answers". US Fish & Wildlife Service. Retrieved 7 August 2015.
- ^ "Migratory Bird Program | Conserving America's Birds". U.S. Fish & Wildlife Service. 26 April 2020. Retrieved 2020-12-14.
- ^ "Electronic Code of Federal Regulations". Archived from the original on 2012-01-19. Retrieved 2011-06-30.
- ISSN 0190-8286. Retrieved 2020-12-14.
- ^ "Victory! Federal Judge Rules Administration's Bird-Killing Policy is Illegal". Audubon. 2020-08-11. Retrieved 2020-12-14.
- ^ Puko, Timothy (January 5, 2021). "U.S. to Remove Penalties for Accidentally Killing Migratory Birds". Wall Street Journal. Retrieved 2022-01-08.
- ^ 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.
- ^ ^ Reznikoff, Charles, ed. 1957. Louis Marshall: Champion of Liberty. Selected Papers and Addresses. 2 vols. p. 1177 Philadelphia: The Jewish Publication Society of America, frontispiece
- ^ Reznikoff, Charles, ed. 1957. Louis Marshall: Champion of Liberty. Selected Papers and Addresses. 2 vols. p. xviii Philadelphia: The Jewish Publication Society of America, frontispiece
- ^ "Solid Waste Agency Of Northern Cook Cty. V.Army Corps Of Engineers". Law.cornell.edu. Retrieved 2018-09-21.
- ^ Duhigg, Charles; Roberts, Janet (2010-02-28). "Rulings Restrict Clean Water Act, Foiling E.P.A". The New York Times. Retrieved 2010-05-12.
- ^ Fantle, Will. "How We Won The Battle For Isolated Wetlands in Wisconsin". www.wsn.org.
- ^ 50 CFR 21.27
- ^ "NOI to prepare EIS". November 28, 1995.
- ^ "Order Code RL31456 Report for Congress". 15 July 2002. Retrieved 9 January 2009.
- ^ "CBO – H.R. 3109". Congressional Budget Office. 20 August 2014. Retrieved 8 September 2014.
- ^ "H.R. 3109 – Summary". United States Congress. Retrieved 8 September 2014.
- ^ "H.R. 3109 – All Actions". United States Congress. Retrieved 8 September 2014.
Further reading
- Coggins, George Cameron, and Sebastian T. Patti. "The Resurrection and Expansion of the Migratory Bird Treaty Act." U. Colorado Law Review 50 (1978): 165+.