Sunday, July 29, 2018



The Migratory Bird Treaty Act of 1918 (MBTA) has been the single most important protection for our incredible migratory bird resources in all of history. It served to implement theMigratory Bird Treaty signed by the U.S. and Great Britain (on behalf of Canada) in 1916. In short, it prevents anyone not otherwise permitted to “at any time, by any means, or in any manner to hunt, take, capture [or] kill” any protected [listed] migratory birds.”But now there are some serious, even dangerously debilitating problems being proposed that will completely disable (if not destroy) the protections offered by this Act.

Those problems can all be boiled down to one word: Reinterpretation.
The Department of Interior (DOI) is proposing to substantially change the legal definition of the single word “take” as it is found in the MBTA. And changing the traditional and venerated meaning of that single word bodes ill if not evil for all of our migratory birds. 

Here is what I am talking about. Almost exactly 100 years ago the Congress passed the earliest and most important conservation law, the MBTA. Among other things it established the Federal Government’s authority to regulate the “take” of birds, including the prohibition against taking certain non-game birds such as eagles, hawks, songbirds and other birds not historically considered to be “game” birds. The language used in that Act was clear, straightforward and enforceable. Specifically it states, “Unless an individual has a valid permit, “it shall be unlawful at any time, by any means, or in any manner” to “hunt, take, capture [or] kill” migratory birds.” Furthermore, it does not discriminate between live or dead birds, and it also protects any bird parts including feathers, eggs, and nests. There are over 800 bird species currently listed. But now there is a big problem. Under a new, precedent setting Department of Interior  Solicitor’s Opinion (dated Dec. 22, 2017), the prohibitions on “take” have been dramatically changed. Taking a protected migratory bird is now limited only to killings when “the actor [is] engaged in an activity the object of which was to render an animal subject to human control.

The single most important activity in the entire MBTA (taking or attempting to take migratory birds), a prohibited activity that has been clear and straightforward for 100 years, is essentially now being limited only to hunters and their activities regarding migratory game birds.In fact this contrived new standard is contrary to every other previous Administration’s interpretation of the law. It is abhorrent for almost countless reasons. Primarily it reduces the MBTA’s effectiveness (or even usefulness) with respect to protecting migratory birds from almost any other (previously illegal) “take” activity.Here is a short list of dangers that already have or will continue to be adversely affecting all migratory birds. Oil spills can occur almost any time and in any place.

The Exxon Valdez grounding and subsequent oil spill in the Prince William Sound is just one good example.

Tens of thousands of protected migratory birds were either killed or severely oil covered in that incident. With the law and regulations in place before this Solicitor’s decision was announced the birds were illegally killed or injured under the “take” provisions of the MBTA and prosecutions against the culprits were successful. But under these new regulations any birds found in a similar situation were never taken at all, and therefore no person, corporation or entity would or could be prosecuted. That is criminal.Oil pits and seeps are another major problem. They are places where crude oil has, for whatever reason, been deposited on the land’s surface. This might be from a leak, a broken pipe, or any of several other causes. To birds in flight these areas look like bodies of water.

The Fish and Wildlife Service (FWS) has, in the past, required these areas to be covered or otherwise subjected to remedial action, and fines have been levied. Under this new definition, every single dead or oil-soaked migratory bird would be an unprotected “thing.”Poison pits are one of my biggest pet peeves. I once spent eleven months investigating and successfully prosecuting a major pesticide company for the unintentional killing of hundreds if not thousands of migrating birds. Here is the official court summary of that case (U.S. vs FMC):“FMC operated a plant which manufactured various pesticides, requiring large amounts of wastewater which was stored in a pond. The pond attracted waterfowl during migration, some of which died. FMC attempted various measures to keep birds away from the pond. But, the Court held that FMC had engaged in an activity involving the manufacture of a highly toxic chemical and had failed to prevent this chemical from escaping into the pond and killing birds. The Court, therefore, held that this was sufficient to impose strict liability on FMC.”Future prosecutions like this would be dead in the (poison) water before they ever got started (pun definitely and sadly intended).High voltage electric likes are a deadly obstacle for migrating birds and local-living eagles, hawks and other birds of prey. In some areas (migratory bird historical migration routes) these lines are utterly deadly, accounting for thousands of deaths every spring and fall.
But once again this new and unwarranted definition would leave those deaths to go unpunished.

Wind turbines, the bane of landscapes in certain areas from the Atlantic to Pacific Oceans and from the Canadian to the Mexican borders, are no doubt one of the two primary reasons for this disgraceful change in the definition of “take” with respect to migratory bird protection. The owners/operators of these windmills have long lamented the fines imposed by the FWS for so many illegal bird deaths. After all, it cuts down on their overly massive profits.
The other probable cause for the definition change are the many solar collection establishments pock-marking our nation (especially in western states). Their immense displays of solar panels kill virtually every bird that has the audacity to fly over them. The workers at these solar firms even have a name for birds dead in the air as they are falling.

“There goes another ‘smoker.’ These operators definitely want to be let of the hook for their killings. Loss of profits, don’t you know.There are many other commercial killers of protected migratory birds, such as commercial fishing operations (set gill-nets kill countless diving birds), that often go unnoticed by most people. But they are still deadly, and they will also be “off the hook” if this new definition of migratory bird take is permitted to remain standing. It essentially reduces the MBTA to nothing more than only a bird hunting statute. The MBTA implements international treaties ratified by the U.S. Senate.

Any Administration action that would affect the MBTA should have been done only after consultation with Canada, Mexico, Russia and Japan, and the U.S. Senate. Instead this Department, or possibly this Administration, has unilaterally decreed that the definition of “take”now refers only to the sport hunting of migratory game birds, and offers no other protections to those same birds or any other migratory birds.In an unprecedented show of solidarity opposing this new interpretation, former career FWS professionals responsible for administering the MBTA joined with former political leaders from FWS and DOI, both Republican and Democrat and representing every Administration dating back to the 1970’s, signed a letter to Secretary Ryan Zinke on January 10, 2018 expressing strong opposition to this ill-conceived limitation of one of America’s most important and effective conservation laws. To date, this coalition of leaders has not received a response to this letter. 

If we want to really continue to protect our migratory bird resources, we cannot accept or condone the DOI’s actions. “The take of birds, eggs or nests occurring as the result of an activity,the purpose of which is not to take birds, eggs or nests, is not prohibited by the MBTA” simply cannot be allowed to become the operational norm of the USFWS.As the MBTA is one of the oldest and most important foundation laws protecting wildlife, the FWS Retirees Association ( urges all members (and all other interested persons) to express their concern and objection to this new legal interpretation to both Secretary Zinke and their Members of Congress, both House and Senate.

Len Lisenbee is the Daily Messenger’s Outdoor Columnist.
Contact him at lisenbee@frontiernet .net

No comments: