TWS raises concerns over migratory bird act interpretation

By Emily Ronis

A new interpretation of the Migratory Bird Treaty Act would allow incidental take of migratory birds such as wood ducks (Aix sponsa). ©Fabian Viana

In a recent letter, The Wildlife Society urged Interior Secretary Ryan Zinke to reconsider a new interpretation of the Migratory Bird Treaty Act — an interpretation that allows for the accidental take of migratory birds. The new approach reverses the longstanding interpretation of the century old-law that regulates take — the harm or killing — of migratory birds.

The act has long been interpreted as having authority to prohibit both the intentional take of migratory birds and their accidental — or incidental — take. However, a memorandum released in December changed this interpretation, asserting that the act only prohibits intentional take. Activities that accidentally harm or kill migratory birds no longer violate the MBTA.

“We are asking that you reaffirm the longstanding prior interpretation of the Act, restoring those protective measures that have been so successful, and request the U.S. Fish and Wildlife Service to continue development of an incidental take permitting program for companies that use best conservation practices,” TWS writes in the letter.

TWS is concerned that this new interpretation will limit the ability of wildlife agencies and professionals to successfully conserve migratory bird populations, as mandated by the 1916 Migratory Bird Treaty. In signing this treaty, Canada and the United States agreed to take action to protect North America’s bird populations after unregulated market hunting caused dramatic declines in several species by the turn of the century. The treaty’s mandates became law when Canada passed the 1917 Migratory Bird Convention Act and the United States passed the 1918 Migratory Bird Treaty Act.

In the letter, TWS argues that while hunting pressure is no longer a driver of bird declines, incidental take is a significant threat to migratory birds. An estimated 64 million birds are incidentally killed by power lines each year, while 5 million are killed by communication towers and almost 600,000 are killed by wind energy operations.

Wildlife professionals and agencies have relied on previous interpretations of the MBTA to provide industries and businesses with legal incentive to implement programs minimizing incidental take of birds. Eliminating liability for incidental take reduces both incentive and opportunities to mitigate such take in cooperation with business and industry.

This year marks the 100th anniversary of the MBTA and it remains a vital piece of legislation, especially in guiding yearly decisions on migratory bird hunting regulations. The U.S. Fish and Wildlife Service recently proposed migratory bird hunting season dates and bag limits for the 2018-19 season.

The Migratory Birds Convention Act continues to guide migratory bird regulations in Canada. The Department of the Environment recently released its notice of proposed hunting dates, bag limits, and possession limits for the 2018-19 and 2019-20 hunting seasons.

Read TWS’ position statements on Impacts of Wind Energy Development on Wildlife and Wildlife Habitat and The North American Model of Wildlife Conservation, under which migratory birds and other wildlife are considered an international resource.

Emily Ronis is a Policy Communication Intern at The Wildlife Society. Read more of Emily's articles.