One Hundred Years of Bird Protection Now Threatened

By Jackie Burns

Imagine you are a duck on migration.  Flying high overhead, the view is great.  But it is getting to be time to rest and feed, so you are looking for a place to stop.  Ahead you see a reflective pond.  Looks like a good place to land.  Just as you’re landing you notice a peculiar smell.  Then you are there and trapped.  What looked like water was really an oil pond.

Well groomed feathers insulate the bird by trapping air.  Oil fills those spaces inhibiting the bird’s ability to keep its body temperature steady.  Also, the bird now begins to sink instead of float.  Let’s say our bird was close to the edge, and manages to climb out.  Now it begins to groom, ingesting the oil, causing internal injuries.

What is the Migratory Bird Treaty Act (MBTA)?

This year, 2018, is the 100th anniversary of the Migratory Bird Treaty Act (MBTA).  In 1918, this law codified an agreement between the US and Great Britain (for Canada) to protect birds that spend parts of their lives in each of our countries.  It was a time when birds were over-harvested, primarily for feathers that were used in the fashions of that day, or for meat.  Just a few years earlier the passenger pigeon became extinct.

Fashions have changed, and most of us don’t eat enough wild bird meat to threaten their existence.  The types of threats birds face have changed, but the need to protect birds has not.  This hundred-year-old law, because it was written in broad language has served well to protect birds, but a new interpretation threatens to gut its effectiveness.

The Migratory Bird Treaty Act does three things:

  1. It prohibits hunting, taking, killing, capturing, possessing, sale, transporting, and exporting migratory birds, their feathers, eggs or nests.
  2. It provides for the establishment of refuges to protect bird habitat.
  3. It encourages monitoring bird populations.

Under this treaty and law, non-native species are not protected.  Game species, such as wild turkey and waterfowl, have limited protection with regulated hunting and monitoring of population.

Since that time other countries have been added: in 1936 with Mexico, in 1972 with Japan, and in 1976 with the Soviet Union (now Russia).  Even with this treaty and law our bird populations are a fraction of what they were in 1918, primarily due to habitat loss.

What threatens Bird Populations Today?

Today’s threats to bird populations include things like high tension power lines, communication towers, oil pits, and windmills.  Those building and maintaining these things don’t intend to kill birds, but combined, these four things kill millions of birds each year.  Since the 1970s if the losses are egregious, these companies might be prosecuted for this ‘incidental take’ under the MBTA.  Fines for oil spills, like the Exxon Valdes, and the BP Deepwater Horizon spills have been substantial, with the proceeds going to treat oiled birds and clean and protect their habitat.  These fines and the work for birds that they afforded would not have happened without this law.

This treaty and law have also brought people together to work on solutions that save birds, or at least limit losses.  With the law as incentive, companies have worked with conservationists.  Now smaller oil ponds are often covered so that birds can’t land in them, windmills are designed to make it difficult for birds to perch on them, high tension power lines are spaced so that long-winged birds can’t touch multiple lines at once – electrocuting themselves and lighting on towers may be modified to keep them visible to planes while making them less attractive to birds … inexpensive effective solutions

Current Changes

So, why am I talking about what will happen without this landmark law?  For two reasons:  the Trump administration has re-interpreted the law and a bill is in the House of Representatives, that, if passed, will change the law.

At the end of the year, while we were celebrating the holidays the Department of the Interior, under Secretary Zinke, issued its re-interpretation of the Migratory Bird Treaty Act.  Under the new interpretation, companies are not liable for ‘incidental take.’  That is, individuals and organizations can not be fined or prosecuted for accidentally killing birds, incidental to the work (such as power transmission) that they do.

The second change–the ‘Secure American Energy Act’ (HR4239)–is awaiting a vote in the House of Representatives.  It includes what National Audubon Society has called the ‘bird killer amendment.’  This amendment, introduced by Liz Cheney of Wyoming, protects energy operators from having to prevent bird deaths.  Ms. Cheney says, “Our operators take multiple precautions to ensure migratory birds, as well as other wildlife, are not injured during their operations, but if these precautions fail, the current language could impose criminal liability for the taking of the bird, even though it’s accidental.”

Many operators take precautions that help birds because of the incentive the law provides.  Without the law as an incentive some companies might continue the solutions that help birds, but they may lose a competitive advantage to those willing to skimp on things that don’t add to the bottom line.

Year of the Bird

So, here we are starting 2018, which National Audubon Society, and 100 other non-profits have designated ‘The Year of the Bird’ facing new threats to our feathered friends.  What can we do?  Write to your congressional representatives opposing HR4239.  Also write to Secretary Zinke, US Department of Interior opposing the re-interpretation of the Migratory Bird Treaty Act.  Thanks.



Cornell Lab of Ornithology.  April 1, 2009.  “What Is The Migratory Bird Treaty Act?”  All About Birds.  Online.

Hart, David.  November 4, 2014.  “Conservation Corner:  How Oil Dependence is Killing Ducks.”  Wildfowl, Online.

Leslie, Jacques.  February 14, 2018.  “Another Trump Victim: Migratory Birds,”  LA Times. Online.

National Audubon Society.  January 26, 2018.  “The Migratory Bird Treaty Act, Explained.”  Online.

Petrusich, Amanda.  Feb. 28, 2018.  “Don’t Mess With the Birds!” The New Yorker. Online.

US Fish and Wildlife Service. “Migratory Bird Treaty Act.”  Online.