By John McFerrin
The United States Fish and Wildlife Service has announced that it will cut the malarkey and go back to protecting migratory birds the way it always had. It will go back to the interpretation of the Migratory Bird Treaty Act which it had always had and enforce it accordingly.
The Migratory Bird Treaty Act is the United States’ effort to implement a 1916 treaty between the United States, Mexico, and Great Britain (agreeing on behalf of Canada) to protect birds that migrate among the three countries. The treaty was later expanded to include Russia and Japan. It prohibits pursuing, hunting, taking, capturing, killing, or attempting to do the same migratory birds, their nests, or their eggs.
For a century everybody–agencies, the birds, the public, everybody—assumed that the Migratory Bird Treaty Act protected birds from all killing, whether specifically intended or not. Going out and intentionally killing a bird was, of course, prohibited. Doing something such as destroying habitat that also resulted in the deaths of birds was also prohibited, even if the primary purpose of the habitat destruction was something other than killing birds.
Beginning in 2017 the Fish and Wildlife Service set out to change the way the law was interpreted. It started off with a legal opinion, issued by the Fish and Wildlife Service’s lawyer, saying that only actions that have as their goal the killing of birds would be prohibited. Actions that had another purpose but resulted in the deaths of birds would not be prohibited. Shooting a migratory duck would be prohibited; causing its death by draining wetlands would not be.
Opinions don’t last; regulations do. A different administration could change it. To make its interpretation more durable, the Fish and Wildlife proposed a regulation saying that the Act only prohibited the killing of migratory birds when that was the goal of the activity.
The regulation removed protection for migratory birds from the only real threats they face. Although there are rare exceptions, we don’t routinely and deliberately kill birds. There was a time when migratory birds were hunted for their feathers but times have changed. There was a time when four and twenty blackbirds might be baked in a pie but the nursery rhyme reflects the eighteenth century, when it first appeared in print.
Instead of being hunted for their feathers or baked in a pie, the threats birds face are modern ones–oil pits and spills, high-tension power lines, communications towers, etc. Birds can die when they land on an uncovered oil waste pit that appears to be typical pond, or run into an unseen power line. According to studies, power lines kill up to 64 million birds a year. Communications towers are estimated to kill up to 7 million birds per year, and uncovered oil waste pits account for up to another 500,000 to 1 million bird deaths every year. Data on wind turbines are harder to come by, but current estimates are approximately 234,000 bird deaths a year.
The regulation made the Fish and Wildlife Service less effective in addressing these threats. Although the regulation was briefly in effect, in its latest action the Fish and Wildlife Service has abandoned it. It lasted longer than an adult Mayfly but not by that much. As things turned out, its life was shorter than the attorney’s opinion.
What just happened
The Fish and Wildlife Service has announced that it has abandoned its efforts to change the interpretation of the Migratory Bird Treaty Act. It will go back to assuming that the Act prohibits not only the killing of birds when that is the goal of the activity but the killing of birds when the killing is the result of, but not the purpose of, the activity.
In the course of announcing this change of interpretation, the Fish and Wildlife Service also summarized its enforcement policies. As the Service pointed out, migratory birds face so many hazards that it could not take enforcement action in every situation.
The Service indicated that it would probably not take enforcement action when a member of the public was doing otherwise legal activities and accidentally killed a migratory bird. Neither would it take enforcement action when a person or entity was following what the Service calls “beneficial practices.”
The Fish and Wildlife Service maintains a website (www.fws.gov/birds/management/project-assessment-tools-and-guidance/conservation-measures.php ) where it lists practices that people and companies can use to avoid deaths of migratory birds. It contains links to different categories: Buildings, Glass & Lighting, Communication Towers, Coal-bed Methane, Hunting & Fishing, Electric Utility, Fluid Mineral Practices, Mining Claim Markers, Outdoor Lighting, Transportation, Vegetation Management, and Wind Energy. Companies doing otherwise legal activities who are following such beneficial practices are unlikely to face prosecution.
The Service would tend to take enforcement action where the activity is otherwise illegal. It would also take enforcement action where the deaths of migratory birds was foreseeable and “beneficial practices” are not used.
Getting off the merry-go-round
The Fish and Wildlife Service has taken a long trip over the past five years just to end up back where it began. There is a possibility that Congress will fix things so that future trips are unnecessary
Congress could address this through the Migratory Bird Protection Act of 2021, now pending. That Act would make clear what the Migratory Bird Treaty Act does. It would make clear that the Act prohibits more than purposeful actions to kill birds. It would prohibit actions in which the bird deaths result incidentally from other activities which do not have killing birds as their primary goal. It would, in other words, restore the historic interpretation of the Act.
The Migratory Bird Protection Act of 2021 is not exactly blazing through Congress. It was introduced in July, 2021. It was assigned to a committee but has never been taken up. It has 75 sponsors (none from West Virginia). There is no related bill in the Senate.