I. Introduction
When Ernesto Pulido, a contractor for the U.S. Postal Service, trimmed trees outside a post office Oakland, California in June 2014, he was certainly not worried about violating a federal law. But, the Migratory Bird Treaty Act (MBTA) makes it illegal to “take” or kill by any means 1,026 species of birds. (16 USCA §§ 703 to 708, 709a, 710, 711). When five black-crowned night herons (Nycticorax nycticorax) fell out of a tree and were injured as a result of Mr. Pulido’s actions, he was investigated by the U.S. Fish and Wildlife Service (FWS) on suspicion of violating the MBTA and faced up to $15,000 in fines and up to six months in jail. After public outcry on Mr. Pulido’s behalf and an intervention by a state congressman, the charges were never filed. (No Charges For Tree Trimmer Blamed For Injuring Protected Birds At Oakland Post Office, CBS San Francisco and Bay City News Service (June 6, 2014), available at http://sanfrancisco.cbslocal.com/2014/06/06/no-charges-for-tree-trimmer-after-protected-birds-injured-at-oakland-post-office-ernesto-pulido-darrell-issa-federal-charges-us-fish-and-wildlife-service-migratory-bird-treaty-act/). But the outcome, had charges been pressed, would have been hard to predict given the significant split in the courts over the scope and intent of the MBTA.
The MBTA was passed in 1918 to combat over-hunting and poaching that was decimating bird populations. At that time, the market for birds was dominated by the enormous demand not for food but for feathers by the millinery industry to adorn women’s hats. The Act made it a federal crime to take birds or bird parts (which includes feathers) without special permission from the Secretary of the Interior. No language was included in the statute to require intent for a prosecution under the MBTA, and no description was given as to the specific types of activities that were prohibited by the Act (no definition was provided for “take”.) While hunting and poaching were made illegal by the MBTA, so were accidentally steering a wagon over a bird’s nest or picking up an egg shell.
The demand for feathered hats has waned. Today, the greatest threat to birds is the loss and/or degradation of habitat due to development or disturbance. (Migratory Bird Mortality: Many Human-Caused Threats Afflict Our Bird Populations, U.S. Fish & Wildlife Service (January 2002), available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Hazards/Mortality-Fact-Sheet.pdf). Additionally, hundreds of millions of birds are killed every year due to collisions with human structures, poisonings, and attacks by domestic and feral cats. Id. There is no question that the need for the protection of migratory birds has not abated in the last 100 years. But, it is clear that the nature of the threat has drastically changed. Yet, the “broad and general” language of the MBTA remains mostly unaltered from the original 1918 text. (Michael J. Bean, The Evolution of National Wildlife Law: Revised & Expanded Edition, Environmental Defense Fund, Inc. (1983), page 74). While prosecutions continue for suspected violations of the MBTA, courts vary substantially in their interpretation of the Act with respect to whether the legislative history or the modern realities should dictate what sort of behavior and intent is necessary for a conviction.
This uncertainty has important operational and economic implications for some of the biggest industries in the United States whose activities unintentionally but surely kill birds. Oil and gas companies are frequently the defendants in MBTA cases. Wind energy companies are very eager to understand their potential liability under the MBTA, but so far they have received mixed signals. The broad scope of the MBTA also has implications for all private citizens, as discovered by Mr. Pulido. The Act protects many migratory birds species that are rare, but also includes birds that we think of as being common, such as the American crow (Corvus brachyrhynchos). Many people are collecting feathers, nests, or eggs that have fallen out of trees without realizing that they are breaking a federal law. Part II of this paper summarizes the history of the MBTA. Part III describes the current version of the law, including administrative responsibilities, the criteria used to define the list of covered birds species, the types of behavior that trigger enforcement, and the penalties for violators. Part IV covers the major legal controversies that characterize the split in the courts’ decisions and proposed amendments. Part V highlights some of the MBTA issues making headlines today. Part VI concludes with questions about the Act’s future, and Part VII is a timeline of the important moments in the MBTA.
II. History of the MBTA
A. Origins of federal wildlife regulation
Modern wildlife laws in the United States can trace their history back to early English legal restrictions conserving wildlife, such as the Statute of Westminster II enacted in 1285 to set taking seasons for salmon, (Dale D. Goble and Eric T. Freyfogle, Federal Wildlife Statutes: Texts and Contexts, Foundation Press (2002), page vi), and even earlier to ancient Roman laws stating that animals ferae naturae (undomesticated animals) belong in common to citizens of the state. (Geer v. Connecticut, 161 U.S. 519, 522 (1896)). By the late 17th century, the American colonies each began to create hunting laws to prevent the depletion of wildlife resources by imposing gear restrictions, bag limits, and licensing requirements. (Goble and Freyfogle at vi). After the American revolution, the tradition of enacting wildlife laws at the state level continued (referred to as the “state ownership doctrine”; Goble and Freyfogle at viii.) The authority of states, to the exclusion of the federal government, to regulate hunting was supported by the courts with decisions such as in Geer v. Connecticut, where the Supreme Court held that the States owned the wild animals within their borders in trust for their residents, and that “the right to preserve game flows from the undoubted existence in the state of a police power.” (Geer at 534).
But, state hunting laws were often ineffective, and over-harvesting continued as exemplified by the notorious buffalo slaughter and the extinction of the passenger pigeon. (Goble and Freyfogle at vii). Just four years after Geer, Congress made a “very cautious first step in[to] the field of federal wildlife regulation” with the Lacey Act of 1900. (Bean at 17). As authorized by the commerce clause (U.S. Const. art. I, § 8, cl. 3), the Lacey Act (16 U.S.C. §§ 701, 3371–3378) strengthened the states’ wildlife conservation laws by making the interstate transport of wild animals or birds killed in violation of state law a federal crime. Then, in response to the rampant hunting of migratory birds for their feathers (a practice known as “millinery murder” because the feathers were primarily used for women’s hats), in 1913 Congress passed its first national wildlife conservation law, the Weeks–McLean Act (ch. 145, 37 Stat. 828, 847-848), declaring all migratory game and insectivorous birds “to be within the custody and protection of the United States.” The Act was passed as a rider to an appropriation bill for the Department of Agriculture, and was almost immediately challenged and declared unconstitutional largely on the basis of states’ property rights over game established in Geer. (U.S. v. McCullagh, 221 F. 288 (D. Kan. 1915)). In 1918, President Wilson replaced the Weeks-McClean Act with the Migratory Bird Treaty Act.
B. The origin of MBTA: treaty with Great Britain and subsequent treaties
In 1916, the United States entered into a treaty with Great Britain for the protection of migratory birds. (Convention with Great Britain [on behalf of Canada] for the Protection of Migratory Birds, art. I, 39 Stat. 1702, T.S. No. 628 (1916)). The treaty divided bird into three groups (migratory game birds, migratory insectivorous birds, and other migratory nongame birds), set hunting seasons, described exceptions for Eskimos and Indians, and explained a permitting process to obtain exceptions to liability (for scientific purposes or under exceptional conditions when certain birds had become pests to agriculture.) The MBTA enabled the provisions of the 1916 treaty and decreed that all migratory birds and their parts were fully protected by the federal government. (U.S. Fish & Wildlife Service, A Guide to the Laws and Treaties of the United States for Protecting Migratory Birds, (Aug, 6, 2014, 11:02 AM), http://www.fws.gov/migratorybirds/regulationspolicies/treatlaw.html). The Secretary of the Interior was delegated the power to promulgate the regulations to implement the prohibitions of the Act and to determine when, if at all, migratory birds protected under the Act could be taken. Statutory authority and responsibility for enforcement of the Act were later assigned to the FWS within the Department of the Interior.
Similar migratory bird protection treaties were subsequently signed with Mexico (1936, amended in 1972), Japan (1972), and Russia (1976), and amendments to the MBTA implemented these treaties along with that of Great Britain. While their common theme was to conserve migratory bird populations, the purpose of and details of the treaties varied. Some nations wished to protect the birds as a food supply or as predators of insects, and others sought to preserve them for their sporting, commercial, and aesthetic value. (Tyson Lies, Strict Liability is For the Birds: A Comparison of Take Under MBTA and ESA, 43 Tex. Envtl. L.J. 197, 201 (2013)). The Mexican and Japanese treaties also called for the establishment of “refuge zones” and “sanctuaries and other facilities,” respectively, where the taking of listed birds would be prohibited. (Bean at 69).
C. Important Amendments
When originally enacted in 1918, the MBTA described a single, strict liability crime for all violations of any provision of the Act. (Act as of July 3, 1918, ch. 128, § 2, 40 Stat. 755, 755). In 1960, the “Violations and Penalties” section § 707 was amended to create separate misdemeanor (for the violation of any provision of the act; § 707(a)) and felony crimes (for sale or take with intent to sell; § 707(b)) with strict liability still applying for both felony and misdemeanor violations. (Sept. 8, 1960, Pub.L. 86–732, 74 Stat. 866). The felony provisions were amended in 1986 to require that a violator “knowingly” take a migratory bird to be held liable, after some courts questioned whether imposing felony liability under the act comported with due process. (November 10, 1986, Pub.L. 99–645, 100 Stat 3582).
In 1978, § 712 was enacted as part of the Fish and Wildlife Improvement Act of 1978 (Pub.L. 95-616, § 3(h) (2), (3), Nov. 8, 1978, 92 Stat. 3112) which allowed the indigenous inhabitants of the State of Alaska take migratory birds to collection of their eggs to satisfy “their own nutritional and other essential needs, as determined by the Secretary of the Interior.” (16 U.S.C.A. § 712).
In 2002, Earthjustice successfully sued the Department of Defense to stop the United States military’s live fire training exercises on the island of Farallon de Medinilla (FDM; near Guam) “because such exercises allegedly kill[ed] and otherwise harm[ed] several species of migratory birds without a permit, in violation of the . . . MBTA.” (Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161, 163 (D.D.C. 2002)). The military had used FDM for training exercises since 1971, and had applied for a permit from the FWS pursuant to MBTA regulations that would allow them to incidentally harm birds. The permit was denied because with the small and variable population sizes for some species on the island, even “the proposed take of five birds could have significant impact on local nesting populations.” (Id. at 167). Soon after this decision still in 2002, the Bob Stump National Defense Authorization Act amended the MBTA to declare that it did “not apply to the incidental taking of a migratory bird by a member of the Armed Forces during a military readiness activity authorized by the Secretary of Defense or the Secretary of the military department concerned.” (Pub.L. No. 107-314, § 315, 116 Stat. 2458, 2509-10.) The decision in Pirie against the military was then vacated. (Ctr. for Biological Diversity v. England, 02-5163, 2003 WL 179848 (D.C. Cir. Jan. 23, 2003)).
The list of birds protected under the MBTA is occasionally revised with the most recent update to the list occurring on November 1, 2013 when spellings were corrected, common names and scientific names were updated, and 23 species were added and 4 were removed for a variety of reasons including prior inadvertent omission, new distributional records, and taxonomic changes. (FWS Revised List of Migratory Birds, 78 Fed. Reg. 65,844 (November 1, 2013), available at http://www.fws.gov/policy/library/2013/2013-26061.html).
D. Legal challenges
In the years following the passage of the MBTA, the states having traditionally enjoyed exclusive control of wildlife regulations balked at the new, preemptive federal control of MBTA just as they had done in response to the Weeks-McLean Act, and its constitutionality was challenged. In 1920 in Missouri v. Holland, the State of Missouri tried to bar the enforcement of the MBTA within its boundaries based on the state ownership doctrine championed in Geer. But, the Court upheld the MBTA stating that “[w]ild birds are not in the possession of anyone” (State of Missouri v. Holland, 252 U.S. 416, 434 (1920)) and that ”[i]t is not sufficient to rely upon the States.” (Id at 435).
Private citizens have tried to argue that the prohibitions dictated by the MBTA constitute unconstitutional takings because they deprived them of a property right without just compensation in violation of the Fifth Amendment. Such claims have been uniformly denied (Bean at 78), even when the Court has found that prohibitions described in the MBTA would deny a citizen “the most profitable use of [their] property.” (Id at 89). For example, in Bailey v. Holland, after the government established a waterfowl refuge where it planned to erect improvements to protect the habitat and in which migratory bird hunting was prohibited, the owner of property adjacent to the refuge argued that the government should pay him for the lands in which he was also unable to hunt as prohibited by the MBTA. But, the Court held that when “the Government purchases certain land in order to do more than prohibit hunting, it does not follow that compensation must be made for all land closed to hunting.” (Bailey v. Holland, 126 F.2d 317, 324 (4th Cir. 1942)). More recently, the District Court for Western Kentucky held similarly that “[n]o property interest subject to due process protections is implicated in governmental regulation and control of the hunting of migratory birds.” (Johnson v. U.S. Dep't of Interior, 185 F. Supp. 2d 713, 715 (W.D. Ky. 2001)).
Challenges have been made to authorize rule-making that limits the extent and the means of taking migratory birds. Plaintiffs have asserted that this authority exceeds the powers described in the conventions with Great Britain, Japan, Russia, and Mexico which they argue are limited to determining the duration of any permissible hunting season. Courts have upheld this authority as a valid exercise of power conferred under the conventions and under the commerce clause. For example, in Cochrane v. U.S. a hunter argued that the MBTA authorized only “legislation that defined or limited the close season period for hunting, and did not deal with the number of birds that might be killed in a day or how the sportsman might hunt the birds during the open season.“ (Cochrane v. U.S., 92 F.2d 623, 626 (7th Cir. 1937)). But the Seventh Circuit held that a “greater power`like the authority to deprive the hunters of any open season carries with it the “lesser power“ such as the ability to limit open season for limited purposes only. (Id). In contrast, challenges have been made that the enforcement of the MBTA has been too lenient rather than to strict. (Bean at 84). For example, in 1982 in Humane Soc. of U.S. v. Watt, the plaintiff argued that the Secretary of the Interior should not have allowed continued hunting of black ducks when there was some evidence of long-term population decline. (Humane Soc. of U.S. v. Watt, 551 F. Supp. 1310, 1312 (D.D.C. 1982)). The Court held that the cause and seriousness of the decline was uncertain, and that the Act “does not impose upon the Service a mandatory duty to prohibit the hunting of any species whose population, for whatever reason, is declining.“ (Id. at 1319).
Hunters have also challenged the prohibition on hunting “[b]y the aid of baiting, on or over any baited area” which is a prosecutable violation under the MBTA even without certain knowledge that an area has been baited (the statute only requires that a person if the person “knows or reasonably should know“; § 704(b)(1)). But, courts almost always followed the holding in U.S. v. Reese, where hunters were instructed to “investigate at their peril conditions surrounding the fields on which they seek their quarry.” (U.S. v. Reese, 27 F. Supp. 833, 835 (W.D. Tenn. 1939)). Furthermore, the Sixth Circuit held that even an accidental seed spill that occurs during a normal agricultural operation or a normal soil stabilization practice constitutes “baiting” for the purposes of the MBTA and that hunters using this bait to aid in the take of migratory birds can be convicted of violating §704(b)(1) because “it is the effect the spill could have on migratory game birds that must be considered in determining whether an area is baited, not the intent of the individual that caused the spill.” (U.S. v. Strassweg, 143 F. App'x 665, 667 (6th Cir. 2005)).
III. The MBTA today
A. Administration, rulemaking
The U.S. Fish and Wildlife Service, created in 1940 as a bureau within the Department of the Interior, is now the lead federal agency for the management of migratory birds and conducts this management, in part, under the authority of the MBTA.
The Office of Information and Regulatory Affairs in the Office of Management and Budget reviews all significant rules promulgated by the FWS pursuant to the MBTA (Exec. Order No. 12866, 58 Fed. Reg. (1993), available at http://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf), and these regulations “must be based on the best available science[, and that the rulemaking process] must allow for public participation and an open exchange of ideas.” (Exec. Order No. 13563, 76 Fed. Reg. 3821 (2011), available at http://www.reginfo.gov/public/jsp/Utilities/EO_13563.pdf).
B. Which birds are protected?
Only “native” migratory bird species are protected under the MBTA, which are birds that occur “in the United States or its territories as the result of natural biological or ecological processes.” Protection does not include “introduced” (non-native) migratory bird species, which occur ”solely as a result of intentional or unintentional human-assisted introduction.” An exception is made if the introduced migratory bird species was: (1) native to the United States or its territories and extant in 1918, (2) extirpated after 1918 throughout its range in the United States and its territories; and (3) reintroduced as a part of a program carried out by a Federal agency. (16 U.S.C. § 703). Protection also does not extend to the killing or sale of migratory game birds bred on farms and preserves “for the purpose of increasing the food supply.” (16 U.S.C. § 711).
In the 1970s, the Secretary of the Interior began to regularly publish a list of species protected under the Act. The protected list (available at http://www.fws.gov/migratorybirds/RegulationsPolicies/mbta/List%20of%20MBTA%20Protected%20Species%20December%202013.pdf) now includes 1,026 bird species after the most recent on December 2, 2013 when spellings were corrected, common names and scientific names were updated, and 23 species were added and 4 were removed for a variety of reasons including prior inadvertent omission, new distributional records, and taxonomic changes. (See http://www.fws.gov/migratorybirds/RegulationsPolicies/mbta/MBTA%20LIst%20of%20Brds%20Final%20Rule.pdf).
Seventy-four of the species on the MBTA list are also designated as endangered or threatened in all or some portion of their U.S. range under provisions of the Endangered Species Act of 1973 (16 U.S.C. 1531–44; 50 CFR 17.11), but “[n]o legal complications arise from the dual listing as the two lists are developed under separate authorities and for different purposes.” (78 Fed. Reg. at 65,849).
C. Activities prohibited (what is required to trigger enforcement?)
The MBTA makes it:
unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or 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.
(§ 703).
The MBTA 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 a baited area or to place bait to aid in the taking of birds. (§ 704).
The MBTA makes it unlawful to “ship, transport, or carry . . . from one State . . . to or through another . . . any bird, or any part, nest, or egg thereof, captured, killed, taken, shipped, transported, or carried at any time contrary to the laws of the State . . . in which it was captured, killed, or taken.” (§ 705).
Some defendants have tried to nitpick these lists of prohibited activities to avoid conviction, such as in Andrus, where a man selling artifacts containing bird parts lawfully acquired before the Act’s passage argued that this activity was not expressly prohibited. But, the Court held that a “flat proscription“ on the sale of wildlife, which prohibits sale without regard to the legality of the taking, is a traditional legislative tool for enforcing conservation policy. (Andrus v. Allard, 444 U.S. 51, 61 (1979)). Without an explicit statutory exemption for pre-existing avian artifacts, the Court held that the MBTA “was intended to embrace the traditional conservation technique of banning transactions in protected birds, whenever taken.“ Id.
D. Penalties
The MBTA creates two types of consequences for violations of its provisions: criminal penalties and forfeitures. It is a misdemeanor to violate any provision of the Act with punishment of a maximum fine of $15,000 or imprisonment up to six months or both, (§ 707(a), but it is a felony to “knowingly” take a bird with the intent to sell or to sell a bird with penalty of a maximum fine up to $2,000 or imprisonment up to one year or both. (§ 707(b)-(c)).
The United States may seize all guns, traps, nets and other equipment, vessels, and vehicles used in pursuing, hunting, taking, trapping, ensnaring, capturing, killing, or attempting to take, capture, or kill any migratory bird with the intent to sell the bird. Upon conviction, a court may require that these items be forfeited in addition to any other assigned penalties. (§ 707(d)).
E. Intent
The misdemeanor charge of the MBTA, (§ 707(a)), remains a strict liability crime just as it was in 1918 when the MBTA was first passed (meaning that a person can be found guilty of violating the MBTA without having intended to commit the prohibited acts). However, to address the constitutional issues of due process and notice that arise with the potentially longer jail stay, a 1986 amendment, (November 10, 1986, Pub.L. 99–645, 100 Stat 3582), changed the felony violation, to require that a person “knowingly” take a migratory bird with the intent to sell or “knowingly” sell a migratory bird. (§ 707(b)(1)-(2)). Then in 1998, Migratory Bird Treaty Reform Act, (Migratory Bird Treaty Act Amendments, Pub.L. No. 105-312, 112 Stat. 2956, available at http://www.gpo.gov/fdsys/pkg/PLAW-105publ312/pdf/PLAW-105publ312.pdf), amended the MBTA to eliminate the strict liability standard for hunting involving bait, and it is now unlawful to take migratory game birds by the aid of bait if the person “knows or reasonably should know” that an area is baited. (§ 704(b)(1)).
Only a few cases provide a functional definition of knowledge as required for a conviction under § 707(b) or § 704(b)(1). In Pitrone, a taxidermist who was convicted of hunting migratory birds to stuff and then sell argued that he did not know his behavior violated the MBTA. But the First Circuit held that “knowingly” does not require that a defendant knew his behavior was unlawful, and instead requires no more than that “the defendant kn[e]w he was engaging in the prohibited conduct.” (U.S. v. Pitrone, 115 F.3d 1, 2 (1st Cir. 1997)). The Court referred to the legislative history surrounding the passage of the 1986 amendment where Congress explained that . . . “It is not intended that proof be required that the defendant knew the taking, sale, barter or offer was a violation of the subchapter, nor that he know the particular bird was listed in the various international treaties implemented by this Act.” (Id. at 5).
In Gayhart, the defendant argued that he did not “know” that a red tailed hawk was a migratory bird and so could not be held liable for a felony under § 707(b). The court rejected this argument, holding that, in interpreting the language of § 707(b), “the word ‘knowingly’ modifies only the verbs which follow it and, thus, refers only to the [d]efendant's behavior in taking and selling a bird—not his state of awareness as to the specific identity of the bird in question.” (U.S. v. Gayhart, 827 F. Supp. 2d 736, 738 (E.D. Ky. 2011)).
In Ashurst, the court affirmed a conviction of a hunter for taking migratory birds with the aid of bait under § 704(b)(1), holding that he met the standard of “knows or reasonably should know” because a reasonable trier of fact could have concluded that the pond was baited, and that Mr. Ashurst failed to make a reasonable inspection to determine whether it was baited. (U.S. v. Ashurst, 2:11-PO-124-MEF, 2012 WL 1344824 (M.D. Ala. Apr. 18, 2012)).
F. Exceptions and permitting
The MBTA authorizes the Secretary of the Interior to “allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg” after considering “the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” as long as these activities are “compatible with the terms of the conventions,” (16 U.S.C § 704(a)), and the permitting process is described in the Code of Federal Regulations. (50 C.F.R. § 20 Migratory Bird Hunting and and 50 C.F.R. § 21 Migratory Bird Permits.) Consequently, each year the FWS adjusts the rules governing annual sport and subsistence harvests for migratory game bird species. But, while the Secretary of the Interior has 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 inconceivable, 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.” (U.S. Fish & Wildlife Service, Birds Protected by the Migratory Bird Treaty Act: Game Birds and Hunted Species, (Aug, 6, 2014, 8:18 PM), http://www.fws.gov/migratorybirds/regulationspolicies/mbta/gmebrd.html).
FWS also issues thousands of special purpose permits for “other direct take activities” that would be otherwise prohibited, such as taxidermy, falconry, propagation, scientific and educational use, and depredation (for birds posing a threat to humans), and for federal and private land management which may result in bird mortality. (U.S. Fish & Wildlife Service, Migratory Bird Program: Permits, (Aug, 6, 2014, 8:25 PM), http://www.fws.gov/migratorybirds/mbpermits.html). However, there must be a “sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justification[, and s]pecial purpose permits are not generally granted, and particularly not for general development and construction projects.” (Tyson Lies, Strict Liability is For the Birds: A Comparison of Take Under MBTA and ESA, 43 Tex. Envtl. L.J. 197, 216 (2013)).
Government entities are not automatically exempt from the MBTA permitting requirements. For example, after a 1997 memorandum from the Director of FWS stating that federal agencies no longer needed to obtain a permit before taking or killing migratory birds, (Humane Soc'y of the U.S. v. Glickman, 217 F.3d 882, 884 (D.C.Cir.2000)), government agencies made plans, without requesting an MBTA permit, to kill Canada geese in Virginia that were destroying property and posing hazards to aircraft. But, in Glickman, the court held that the MBTA that requires everyone must obtain a permit before attempting to kill or capture or take a protected bird outside of any designated hunting season. (Id. at 885). More recently, in 2001 President Clinton signed an executive order titled “Responsibilities of Federal Agencies to Protect Migratory Birds” which requires any federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations to coordinate with the FWS. (Exec. Order No. 13186, 66 Fed. Reg. 3853 (2001), available at https://www.fws.gov/migratorybirds/Partnerships/migbrdeo.pdf).
However, some courts have held that this permitting requirement for the government only applies to the direct, purposeful taking of birds and not to incidental mortalities. In Protect our Communities Foundation v. Jewell, a conservation organization challenged the Bureau of Land Management’s decision to approve the right-of-way needed by a company building wind turbines in California without requiring a permit under the MBTA for the bird mortalities that would inevitably be caused either through collisions with the wind turbine equipment or through habitat modification or destruction. The court held against the conservation organization stating that “[f]ederal agencies are not required to obtain a permit before acting in a regulatory capacity to authorize activity . . . that may incidentally harm protected birds.” (Protect our Communities Found. v. Jewell, 13CV575 JLS JMA, 2014 WL 1364453 (S.D. Cal. Mar. 25, 2014)).
In Winnett, the defendant argued that he was protecting his property and should, therefore, be exempt from liability under the MBTA when he shot a red tailed hawk that attacked his chickens. The court held that there were no federal cases to support a federal right to defend property against protected wildlife and that even if that right did exist, the defendant did not show that he had exhausted all other legal alternatives such as constructing fenced enclosures, utilizing overhead netting, eliminating perch sites or seeking a FWS depredation permit. (U.S. v. Winnett, CRIM.A. 02-10272-RBC, 2003 WL 21488645 (D. Mass. June 23, 2003)). In Morgan, the Fifth Circuit held that a hunter exceeded the daily bag limit in violation of the MBTA, despite the hunter’s belief that leaving other hunters' birds would constitute wanton waste. (U.S. v. Morgan, 311 F.3d 611 (5th Cir. 2002)).
G. Typical plaintiffs and defendants
Environmental groups have used MBTA as legal authority on which to base lawsuits to minimize migratory bird mortality with mixed results. For example, in Center for Biological Diversity v Pirie, Earthjustice successfully sued the Department of Defense to stop their live fire training exercises on Farallon de Medinilla, a remote island in the Pacific Ocean, because they had not obtained an MBTA permit. (Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002)). The military had used FDM for training exercises since 1971, and had applied to the FWS for a permit for incidental “take” migratory birds on FDM resulting from those exercises. The permit was denied because with the small and variable population sizes for some species on the island, even “the proposed take of five birds could have significant impact on local nesting populations.” (Pirie at 167). But in 2003, the Pirie decision was vacated after the 2002 amendment to the in § 315 of the Bob Stump National Defense Authorization Act declaring that the MBTA did “not apply to the incidental taking of a migratory bird by a member of the Armed Forces during a military readiness activity authorized by the Secretary of Defense or the Secretary of the military department concerned.” (Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub.L. No. 107-314, § 315, 116 Stat. 2458, available at http://www.gpo.gov/fdsys/pkg/PLAW-107publ314/pdf/PLAW-107publ314.pdf).
Energy companies are frequent defendants in MBTA cases, and courts have split on whether their operations which are not directed at migratory birds but do cause mortality violate the MBTA. Some courts interpret the MBTA to hold any mortality that results from commercial activity as a criminal “taking”, but have required proximate cause for a conviction to address the due process issues, such a lack of notice, that are raised by the imposition of strict liability. 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 strictly 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. (U.S. v. Moon Lake Elec. Ass'n, Inc., 45 F. Supp. 2d 1070 (D. Colo. 1999)). Moon Lake argued that the MBTA only applied to the intentionally harmful “physical conduct normally exhibited by hunters and poachers” (Id. at 1071). But, the court held that the MBTA applied to taking and killing “by any means or in any manner,” § 703, not just hunting or poaching, (Id. at 1075), that the Act did not “suggest in any way that only direct applications of force constitute ‘killing’ or ‘taking,’” (Id. at 1078), and that the plain language of the Act made it clear that intent was “irrelevant.” (Id. at 1073-4). The court also stated that proximate cause was necessary for a conviction under the MBTA and found Moon Lake's power lines were both the actual and proximate cause of the birds' deaths. (Id. at 1077).
In stark contrast to Moon Lake, in U.S. v. Brigham Oil & Gas the court held that the terms take and kill “are action verbs that generally denote intentional behavior” (U.S. v. Brigham Oil & Gas, L.P., 840 F. Supp. 2d 1202, 1212 (D.N.D. 2012)), and that the company was not liable for deaths or injuries caused by its use of reserve pits.
Then in U.S. v. Citgo Petroleum Corp., the District Court for S.D. Texas found that the company could be held strictly liable when migratory birds were killed as a “direct result” of being exposed to waste oil in uncovered, open-air tanks. (U.S. v. CITGO Petroleum Corp., 893 F. Supp. 2d 841, 847 (S.D. Tex. 2012)). The Court held that the company’s conduct satisfied the due process required for strict liability because the facts showed that they had proximately caused harm to protected birds: it was reasonably foreseeable that CITGO's operation of open-air tanks would result in bird deaths (Id. at 847), and Citgo was aware for years that bird mortality was happening and did nothing to stop it. (Id. at 848). The Court also distinguished the case from Brigham because in failing to cover the tanks, they had broken both the Clean Air Act and Texas law. (Id. at 847).
Private citizens also continue to be prosecuted for violating the MBTA. For example, a pilot who caused a container ship, to collide with the San Francisco Bay Bridge and discharge approximately 53,000 gallons of oil into San Francisco Bay killing more than 2,400 birds of about 50 species was sentenced to serve 10 months in federal prison by U.S. District Court Judge Susan Illston for the Northern District of California. (http://www.watereducation.org/aquafornia-news/prison-sentence-cosco-busan-pilot-pilot-sentenced-serve-10-months-federal-prison). In June 2014 in Albuquerque, New Mexico, a man plead guilty to a felony charge for selling or offering to sell bald eagle feathers after being caught through an undercover FWS investigation when he allegedly sold a feather fan containing 21 feathers and a medicine wheel containing eight feathers to an undercover agent for $1,000. (http://www.justice.gov/usao/nm/press-releases/2014/Jun/229%20-%202014-06-25_smith_pr.html).
IV. Legal controversies and proposed amendments
The the drastic changes in society and technology since the original passage of the MBTA in 1918 along with its broad language have resulted in several significant areas of legal uncertainty and unpredictability in the courts.
A. What does “take” mean?
No definition of “take” is given in the MBTA itself. In 2001, President Clinton explained for the purposes of the MBTA, that “‘[t]ake’ means take as defined in 50 C.F.R. 10.12, and includes both ‘‘intentional’ and ‘unintentional’ take” (Exec. Order No. 13186, 66 Fed. Reg. 3853 (2001), available at https://www.fws.gov/migratorybirds/Partnerships/migbrdeo.pdf), but did not clarify whether take refers solely to hunting or poaching activities or instead could be any activity that purposefully or incidentally harms birds. The MBTA was passed at a time where hunting and poaching were the biggest threats to migratory birds and some commentators argue that Congress only meant for the MBTA’s prohibitions only apply to these activities. Even the drafters of the MBTA did not agree on the scope of the MBTA, (Lies at 202), and the legislative history suggests, that Congress intended the MBTA to regulate more than just hunting and poaching, such as agriculture and the draining of swamps and meadows. (Moon Lake Electric Ass'n, Inc. at 1080). Amendments to the MBTA have yet to expressly clarify which acts the MBTA criminalizes. (Lies at 203). The 1960 amendment added a felony charge clearly directed at commercial hunters who take birds with the intent to sell but the charge could be applied to anyone who sells birds regardless of how they were obtained. § 707(b)(2). And the list of protected species includes “a number of songbirds and other birds not commonly hunted.” Therefore, “Congress imposed criminal penalties on those who killed these birds as well as on persons who hunted game birds.” (U.S. v. Corbin Farm Serv., 444 F. Supp. 510, 532 (E.D. Cal. 1978) aff'd, 578 F.2d 259 (9th Cir. 1978)).
The consequence of this uncertainty is that while a number of courts have determined that the MTBA is limited in its intended scope to the types of activities engaged in by hunters and poachers, an almost equal number of courts, however, have concluded that the MBTA reaches other conduct that results in the taking and killing of migratory birds. (CITGO Petroleum Corp. at pg 843). For example, in 1978 in U.S. v. Corbin Farm Serv., the Ninth Circuit denied the owner of an alfalfa field and an aerial pesticide distributor their motion to dismiss charges of violating the MBTA when they sprayed a field and killed some birds holding, in part, that the “legislative history of the Act reveals no intention to limit the Act so that it would not apply to poisoning.” (U.S. v. Corbin Farm Serv. at 532). Then 1992, the Ninth Circuit held that logging in northern spotted owl habitat causing harm to birds did not violate MBTA because the definition of “take” in the MBTA was limited to conduct engaged in by hunters and poachers. (Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 303 (9th Cir.1992)). In Newton Cnty. Wildlife Ass'n in 1997, the Eighth Circuit Court of Appeals held that “it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds.” (Newton Cnty. Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir.1997)). In Brigham (citing Newton Cnty. Wildlife Ass'n as the controlling precedent), the court reasoned that because it “is well-established that a court is required to construe a criminal statute narrowly” and held “that the use of reserve pits in commercial oil development is legal, commercially-useful activity that stands outside the reach of the federal Migratory Bird Treaty Act,” and “[l]ike timber harvesting, oil development and production activities are not the sort of physical conduct engaged in by hunters and poachers, and such activities do not fall under the prohibitions of the” MBTA. (U.S. v. Brigham Oil & Gas at 1211).
Another problem with interpreting “take” to include any activity is that such a broad reading could lead to “absurd results,” since millions of birds are killed in non-hunting scenarios such as accidental poisonings, building window strikes, and predation by house cats. (Id. at 1212). The defendant in Corbin suggested that if a “judge or any person were driving down the road, out of duck season, and an American Widgeon flew into the car and was killed, prosecution under The Migratory Bird Treaty Act would be justified.” (U.S. v. Corbin Farm Serv. at 535).
B. Intent required for conviction and proximate cause
An equally vigorous debate continues over whether the MBTA refers solely activities directed at and with the intent of killing birds, or instead could be any activity that purposefully or incidentally harms birds. When Congress revised the felony charge in 1986 to require that a violator “knowingly” take with intent to sell or sell birds, they did not revise the misdemeanor provisions of the Act. This has been interpreted to mean that Congress was “apparently content with courts' interpretations that had imposed strict liability for incidental and unintended takes,” (Lies at 203), and plaintiffs have sought liability for both intentional and unintentional takings. (Benjamin Means, Prohibiting Conduct, Not Consequences: The Limited Reach of the Migratory Bird Treaty Act, 97 Mich. L. Rev. 823, 824 (1998)). But, some courts have rejected this broad interpretation.
In 1978 in U.S. v. Corbin Farm Serv., the Ninth Circuit denied the the motion to dismiss of owner of an alfalfa field and an aerial pesticide distributor charged with violating the MBTA when they sprayed a field and killed some birds. The plaintiffs argued that they did not intend to kill the birds. But, the court “declare[d] that the MBTA can constitutionally be applied to impose criminal penalties on those who did not intend to kill,” and held that the proper standard for liability was not intent but whether they had acted with “reasonable care under the circumstances.” (U.S. v. Corbin Farm Serv. at 536). Conversely, in Brigham the court held that take “refers to conduct directed at birds, such as hunting and poaching, and not acts or omissions having merely the incidental or unintended effect of causing bird deaths.” (U.S. v. Brigham Oil & Gas at 1208).
Despite the disparity in these holdings, there is some predictability in how intent will be handled in MBTA cases because the courts have looked to the type of activity involved to decide if it requires intent versus strict liability. In hunting or baiting cases, such as U.S. v. Reese in which the court affirmed the conviction of defendants for baiting a field to lure mourning doves, the courts have generally upheld strict liability for take violations. This has also been true in poisoning cases, perhaps because “the dangerous nature of poisons puts the offender on notice that he would need to exercise care to protect the environment and the public.” (Lies at 207). For example, in 1978 the Second Circuit in U.S. v. FMC Corp., the court held a pesticide manufacturer strict liability whose waste water discharge poisoned birds on a storage pond. The court held that even though the discharge was unintentional and that FMC had taken remedial measures after they knew that there was a problem, FMC was engaging in “extrahazardous activities” for which strict liability was appropriate. (U.S. v. FMC Corp., 572 F.2d 902, 907 (2d Cir. 1978)). Whereas, for habitation modification or destruction, such as timber harvest, the courts have held that the MBTA did not apply to the indirect take it caused. (see Seattle Audubon Soc'y v. Evans). In U.S. v. Apollo Energies, Inc., the Tenth Circuit affirmed in part and reversed in part the convictions of two Kansas oil drilling operators who were charged with violating the Act after dead migratory birds were discovered lodged in a piece of their oil drilling equipment. (U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010)). The Court held that a misdemeanor violation of the MBTA is a strict liability crime but that due process is only satisfied if defendants: (1) proximately caused the harm to protected birds and (2) have adequate notice that their conduct is a violation of the Act. (Id. at 682).
Courts are decidedly split, however, on the strict liability question related to indirect take by otherwise lawful commercial activity. (U.S. v. CITGO Petroleum Corp. at 843). Some courts interpret the MBTA to hold any mortality that results from commercial activity as a criminal “taking”, but have required proximate cause for a conviction to address the due process issues, such a lack of notice, that are raised by the imposition of strict liability. 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 strictly 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. Moon Lake argued that the MBTA only applied to the intentionally harmful “physical conduct normally exhibited by hunters and poachers.” (U.S. v. Moon Lake Electric Ass'n, Inc. at 1071). But, the court held that the MBTA applied to taking and killing “by any means or in any manner,” § 703, not just hunting or poaching, (Id. at 1075), the Act did not “suggest in any way that only direct applications of force constitute ‘killing’ or ‘taking,’” (Id. at 1078), and that the plain language of the Act made it clear that intent was “irrelevant.” (Id. at 1073-4). The court also stated that proximate cause was necessary for a conviction under the MBTA and found Moon Lake's power lines were both the actual and proximate cause of the birds' deaths.
However, in U.S. v. Brigham Oil & Gas the court held oil and gas companies' use of reserve pits did not violate the MBTA prohibition against taking of protected birds. Since the death or injury was not intentional, the court reasoned that the criminal statutes must be construed narrowly, and that MBTA “is vague and ambiguous as it relates to criminal sanctions for lawful, commercial activity that may indirectly injure or kill migratory birds.” (U.S. v. Brigham Oil & Gas at 1211). In U.S. v Chevron USA, Inc., the District Court refused a plea agreement in which Chevron pled guilty to violations of the MBTA for 35 brown pelicans killed in an oil rig because the Act was “clearly not intended to apply to commercial ventures where, occasionally, protected species might be incidentally killed as a result of totally legal and permissible activities.” (U.S. v. Chevron USA, Inc., CRIM. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009)).
Subsequently in U.S. v. CITGO Petroleum Corp., the District Court for S.D. Texas found that the company could be held strictly liable when migratory birds were killed as a “direct result” of being exposed to waste oil in uncovered, open-air tanks. The Court held that the company’s conduct satisfied the due process required for strict liability because the facts showed that they had proximately caused harm to protected birds: it was reasonably foreseeable that CITGO's operation of open-air tanks would result in bird deaths, (CITGO Petroleum Corp. at 847), and Citgo was aware for years that bird mortality was happening and did nothing to stop it. (Id. at 848). The Court also distinguished the case from Brigham because in failing to cover the tanks, the defendants had broken both the Clean Air Act and Texas law. (Id. at 847).
C. Proposed amendments
With these significant legal controversies, it is not surprising that Congress is exploring options for amending the MBTA. A bill has been introduced in the Senate (2013 CONG US S 1650) to extend § 703 so that “Authentic Alaska Native Articles of Handicraft or Clothing” are exempt from the prohibitions against sale of items containing non-edible migratory bird parts. A bill was placed on the calendar in the Senate (2013 CONG US S 2363) to consider an amendment to § 704(b) that would explicitly exclude from the “baited areas” that are criminalized in § 712 any areas that have been treated with a normal agricultural practice, have standing crops that have not been manipulated, or have standing crops that have been or are flooded. Another bill was introduced (2013 CONG US HR 4797) in the House to reduce liability of energy producers (§ 707) by requiring knowing intent for a conviction under the misdemeanor charge (§ 707(a) (i.e., no longer a strict liability crime) and adding an exception to decriminalize takes, killing or harm of migratory birds that is incidental to operation of otherwise unlawful activity. And finally, a bill was introduced (2013 CONG US HR 1788) in the House to accelerate the issuance of take permits for control of excessive cormorant populations by authorizing States, along with the Secretary of the Interior, to issue such permits. (§ 708).
V. Issues making headlines
With industries, individuals, and agencies all looking for ways to avoid costly liability under the MBTA, the letter and spirit of the statute have been zealously scrutinized. The courts, Congress, and the FWS have attempted to provide clarification, but questions remain over such major issues as which species are actually protected or whether proactive steps measures to minimize migratory bird mortality will shield potential defendants.
A. Mute swans: non-indigenous species
In Hill, a major disagreement erupted over whether non-native species should be on the list of those protected by the MBTA. (Hill v. Norton, 275 F.3d 98 (D.C.Cir.2001)). The Court in Hill concluded that the mute swan, in the family Anatidae, was part of that list. Even though the mute swan was thought to be a European species originally brought to the United States for ornamental purposes, the Court held that the bird was protected by the MBTA because the Canada and Mexico conventions expressly cover the family Anatidae. In response to the Hill decision, Congress enacted the Migratory Bird Treaty Reform Act (MBTRA) to amend the MBTA so that “only to migratory bird species that are native to the United States or its territories” are protected,16 U.S.C. § 703(b)(1), and the FWS announced that the mute swan would be removed from the protected list. (Final List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 70 Fed.Reg. 12,710, 12,713 (Mar. 15, 2005)).
Based on this announcement, the Maryland Department of Natural Resources initiated a plan to kill adult mute swans in the Chesapeake Bay which were damaging the bay’s ecosystem. The plan was challenged by the Humane Society who argued that the MBTRA was ambiguous on whether the mute swan should be excluded from the protected list because of its provision stating that it was the “sense of Congress” that the Act was consistent with preceding migratory bird conventions that United States had with Canada and Mexico which had included the family Anatidae. But, the court rejected the Humane Society’s “creative attempt to weave ambiguity out of clarity” (Fund for Animals, Inc. v. Kempthorne, C.A.D.C. 2006, 472 F.3d 872, 877)), and held that the MBTRA “plainly” excluded the swans. (Id. at 873).
B. Wind energy
While wind farms promise a cleaner energy alternative with significant environmental advantages over petroleum based alternatives, the Department of Justice has made it clear that wind farms will not be cut any slack when it comes to the MBTA. In 2013, in the first ever criminal enforcement of the MBTA for unpermitted avian takings at a wind project, Duke Energy was sentenced to pay fines, restitution and community service totaling $1 million for the deaths of 163 birds and was placed on probation for five years, during which it was required to implement an environmental compliance plan aimed at preventing bird deaths. (The U.S. Dept. of Justice, “Utility Company Sentenced in Wyoming for Killing Protected Birds at Wind Projects“, available at http://www.justice.gov/opa/pr/2013/November/13-enrd-1253.html). A FWS representative explained that while they work “cooperatively with companies that make all reasonable efforts to avoid killing migratory birds during design, construction and operation of industrial facilities,” Duke 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.”
Wind power projects are known to cause bird mortality, and the FWS has aided to developed specific methods of minimizing and avoiding the risks. In 2003, the FWS issued its first interim guidance about how wind project developers could avoid impacts to wildlife from wind turbines which was then replaced in 2012 by the Land-Based Wind Energy Guidelines (LBWEG) (available at http://www.fws.gov/windenergy/docs/weg_final.pdf). The LBWEG require “due diligence” during the pre-construction stage, such as wildlife surveys, consultations with agency professionals, and careful siting of the turbines, but do not relieve companies of their obligations to comply with the MBTA, the Bald and Golden Eagle Protection Act (BGEPA), the Endangered Species Act (ESA), or any applicable laws. (LBWEG at 1-2). Instead, the FWS stated that it would exercise “discretion” and focus “its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid the take.” (LBWEG at 6).
Of particular interest and concern to developers in the wind energy industry, the LBWEG do not offer any means for companies to guarantee their avoidance of liability under the MBTA. The LBWEG describe special permitting available under BGEPA that specifically authorizes limited, non-purposeful (incidental) take of bald and golden eagles by companies taken in the course of conducting lawful activities such as operating utilities. The LBWEG also explain how the take of federally listed species incidental to a lawful activity may be authorized through formal a consultation with the ESA or with an incidental take permit issued upon the completion of a satisfactory habitat conservation plan. No analogous permitting process is defined for the MBTA.
VI. Conclusion
Despite being almost 100 years old, there are many important, unanswered legal questions about the MBTA. The Act has been interpreted to cover a broad range of hunting and otherwise lawful, non-hunting activities. Both individuals and multimillion dollar companies are charged and convicted for violations. Vigorous debate continues over what is and should be the intent required for a conviction. Commercial operators including timber companies, the oil and gas industry, and wind energy producers are uncertain about potential liability. And, some commentators have questioned the fact that many species on the protected list are known to be common and, perhaps, are not in need of protection. About a quarter of the listed birds are known to be “in trouble,” and there is incomplete population data on about one third of the species on the MBTA list. (Migratory Bird Mortality: Many Human-Caused Threats Afflict Our Bird Populations, U.S. Fish & Wildlife Service (January 2002), available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Hazards/Mortality-Fact-Sheet.pdf). Given this uncertainty along with the rapid changes in technology and land use practices that have the potential for big impacts on migratory birds, it is arguable that the breadth of the protected list is an “insurance policy” that conservatively cushions our inability to exactly prescribe which species do belong.
It is certainly plausible that as questions accumulate about the authority of the MBTA, federalism questions will arise. The courts have primarily agreed that the treaties authorizing the MBTA “sought to preserve, in the words of Justice Holmes, ‘a national interest of very nearly the first magnitude,’” (Missouri v. Holland at 435). The early litigation challenging the constitutionality of the MBTA all cut in favor the federal government’s authority to preempt the states’ police powers over their wildlife resources. The Act clearly explains that states are permitted to make or enforce laws consistent with the MBTA, and to pass regulations which further protect migratory birds, provided that such laws are consistent with the respective Conventions and that open seasons do not extend beyond those established at the national level. § 708. State statutes in contradiction to or less restrictive than the MBTA are not permissible. But bills such as 2013 CONG US HR 1788, seek to shift federal authority for bird management into the States’ hands. Conflict of law questions are also conceivable as courts struggle with due process and notice issues. The existence of a state law on point could be evidence that an MBTA knew or should have known what reasonable precautions should have been taken to avoid an unwanted taking. Conversely, the absence of a state statute be viewed as the absence of sufficient constitutional notice.
Court opinions are at odds as to risks of over-enforcement and “absurd results” arising from this breadth. In Moon Lake Electric Ass'n, Inc., the court opined that proximate cause was a necessary element for a misdemeanor conviction and so “[b]ecause the death of a protected bird is generally not a probable consequence of driving an automobile, piloting an airplane, maintaining an office building, or living in a residential dwelling with a picture window, such activities would not normally result in liability.” (Moon Lake Electric Ass'n, Inc. at 1085). The court in FMC stated that “the sound discretion of prosecutors and courts” (U.S. v. FMC Corp. at 905) would be sufficient to avoid absurd prosecutions, like a child who brings home a feather. But, in Brigham, the court was highly concerned with the “vague and ambiguous [language of the MBTA] as it relates to criminal sanctions for lawful, commercial activity that may indirectly injure or kill migratory birds,” and reasoned that criminal statutes such as the MBTA must be construed narrowly as not to improperly expand the purpose envisioned by its drafters. (U.S. v. Brigham Oil & Gas, L.P. at 1211). The proximate cause requirement it is not part of the MBTA’s statutory language and so it remains to be seen whether the courts will continue reading this element into the MBTA, or whether Congress decides to officially amend the Act to make it so.
Alternately, it is urged that prosecutorial discretion and the permitting process are the proper and sufficient limits on the potential breadth of the MBTA. This seems to be the opinion of the FWS, at least with respect to wind energy producers, when they explained in the LBWEG that those who took reasonable measures to avoid incidental take would be unlikely to be charged with MBTA violations. Others counter that prosecutorial discretion could lead to unpredictability that threatens highly desirable land uses such as food production or timber supply. (Means at 835). And, permitting is only available for activities directed at migratory birds but not for incidental death (Means at 838), so cannot be used to limit scope of MBTA for unintentional deaths. (Means at 837). Questions also continue as to when permitting is required, such as in Salazar when the court support the Department of the Interior’s decision to approve a plan to operate a wind energy facility on public land in California without requiring the energy company to frst obtain permits because there was insufficient evidence “that a permit is required under the MBTA for an unintentional killing of migratory birds.” (Protect our Communities Found. v. Salazar, 12CV2211-GPC PCL, 2013 WL 5947137 (S.D. Cal. Nov. 6, 2013)).
As compared to the Endangered Species Act, even strong proponents of the MBTA would have to concede that it is highly unpredictable. (Lies at 209). This is problematic both for developers who want to proactively avoid liability and conservationists who could use MBTA as a tool. It is also harmful to proactive wildlife conservation. The limitations on exceptions and on the availability of permits means that government cannot, for example, guarantee a developer immunity from prosecution under the MBTA in exchange for investments in features to protect the environment. To avoid extended litigation, some companies are simply pleading to misdemeanors. But if an entity is operating on federal land under a federal lease, then they have agreed to follow the laws of the land could lose their lease with a misdemeanor pleading. (Christine R. Fritze, Professor, University of North Dakota School of Law, available at http://www.youtube.com/watch?v=lyLSfJL5KyE)).
With dissent within and between the circuits and with large industry players demanding answers, it would not be surprising the Supreme Court were to agree to hear an appeals case. There is some predictability in the enforcement of the Act. For example, it is not unreasonable that the courts would apply strict liability for conduct not directed at birds only, like in FMC, when migratory birds are harmed or killed by extra-hazardous materials. However, this may not be enough certainty for organizations with a large financial investment riding on the MBTA. Certainly entities who are charged with strict liability violations will defend themselves by arguing that it is not explicitly explained in the language of the Act. If the Court does not take up an MBTA case soon, then with this level of uncertainty, it arguable that Congress should take action that will unify the courts. (Christine R. Fritze, Professor, University of North Dakota School of Law, available at http://www.youtube.com/watch?v=lyLSfJL5KyE)).
VII. Timeline
1916 - treaty for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). (Convention with Great Britain [on behalf of Canada] for the Protection of Migratory Birds, art. I, 39 Stat. 1702, T.S. No. 628 (1916)).
1918 - Migratory Bird Treaty Act is enacted (enables 1916 treaty). (July 3, 1918, c. 128, §§ 1, 10, 40 Stat. 755, 757).
1936 - treaty between the U.S. and Mexico (Convention between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, February 7, 1936, 50 Stat.1311, T.S. No. 912) (amended in 1972 to include protection for the environment of migratory birds).
1960 - amendment: violations of MBTA would constitute a misdemeanor resulting in a fine of not more than $500 or imprisonment of not more than six months. Selling migratory birds would be subject to fine of not more than $2000 and imprisonment could not exceed two years. Guilty offenses would constitute a felony. (Sept. 8, 1960, Pub.L. 86–732, 74 Stat. 866 (16 § 707)).
1969 - amendments to the Lacey Act (P.L. 91-135) repealed the provisions of the MBTA prohibiting the shipment of wild game mammals or parts to and from the U.S. or Mexico unless permitted by the Secretary of the Interior. The definition of "wildlife" under these amendments does not include migratory birds, however, which are protected under the MBTA. (Dec. 5, 1969, Pub.L. 91–135, § 10, 83 Stat. 282 (16 § 705)).
1972 - treaty with Japan (Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, March 4, 1972, 25 U.S.T. 3329 (T.I.A.S. No. 7990)).
1974 - amendment to include the provisions of the 1972 Convention between the U.S. and Japan for the Protection of Migratory Birds and Birds in Danger of Extinction. This law also amended the title of the MBTA to read: "An Act to give effect to the conventions between the U.S. and other nations for the protection of migratory birds, birds in danger of extinction, game mammals, and their environment." (June 1, 1974, Pub.L. 93–300, § 1, 88 Stat. 190 (16 § 703)).
1976 - treaty with Russia. (Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, November 19, 1976, 29 U.S.T. 4647 (T.I.A.S. No. 9073)).
1978 - amendments of Fish and Wildlife Improvement Act of 1978 amended the MBTA to authorize forfeiture to the U.S. of birds and their parts illegally taken, for disposal by the Secretary of the Interior as he deems appropriate. These amendments also authorized the Secretary to issue regulations to permit Alaskan natives to take migratory birds for their subsistence needs during established seasons. (Nov. 8, 1978, Pub.L. 95–616, § 3(h), 92 Stat. 3111 (16 § 706)).
1978 - Senate approves Convention Between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment (T.I.A.S. 9073; signed on November 19, 1976). Public Law 95-616 ratifies a treaty with the Soviet Union specifying that both nations will take measures to protect identified ecosystems of special importance to migratory birds against pollution, detrimental alterations, and other environmental degradations.
1986 - Emergency Wetlands Resources Act amends MBTA to require that felony violations must be "knowingly" committed. (November 10, 1986, Pub.L. 99–645, 100 Stat 3582).
1998 - Migratory Bird Treaty Reform Act amends MBTA to make it unlawful to take migratory game birds by the aid of bait if the person knows or reasonably should know that the area is baited. This provision eliminates the "strict liability" standard that was used to enforce Federal baiting regulations and replaces it with a "know or should have known" standard. These amendments also make it unlawful to place or direct the placement of bait on or adjacent to an area for the purpose of taking or attempting to take migratory game birds, and makes these violations punishable under title 18 United States Code, (with fines up to $100,000 for individuals and $200,000 for organizations), imprisonment for not more than 1 year, or both. The new amendments require the Secretary of Interior to submit to the Senate Committee on Environment and Public Works and the House Committee on Resources a report analyzing the effect of these amendments and the practice of baiting on migratory bird conservation and law enforcement. The report to Congress is due no later than five years after enactment of the new law. (Oct. 30, 1998, Pub.L. 105–312, Title I, §§ 102, 103, 112 Stat. 2956 (16 §§ 704, 707)).
1998 - P.L. 105-312 also amends the law to allow the fine for misdemeanor convictions under MBTA to be up to $15,000 (rather than $5000).
2001 - court order, temporary protection for the mute swan.
2004 - Migratory Bird Treaty Reform Act of 2004 amende §703 to exclude non-native species. (See 70 FR 12710, March 15, 2005). (Pub. L. No. 108-447, 118 Stat. 2809, 3071–72).
2006 - mute swan, which was afforded temporary protection due to court order since 2001, is formally excluded from protection in the proposal due to nonnative and human introduced status. (see http://www.gpo.gov/fdsys/pkg/CHRG-108hhrg90953/html/CHRG-108hhrg90953.htm).
2013 - most recent revision to the list of migratory birds covered by the MBTA. (FWS Revised List of Migratory Birds, 78 Fed. Reg. 65,844 (November 1, 2013), available at http://www.fws.gov/policy/library/2013/2013-26061.html).