Migratory Birds and the Law

In December 2017, the U.S. Department of the Interior issued an opinion concluding that the Migratory Bird Treaty Act, enacted 100 years ago, only applies to “purposeful killing” of migratory birds, not to incidental killing. The decision was applauded by the energy industry but alarmed the conservation community. 

Bird migration is a natural wonder and a subject of study for naturalists and environmentalists. But it has also been at the center of national environmental policy.

The late 1800s saw an enormous increase in commercial hunting and poaching of birds to supply the fashion industry with feathers and expensive restaurants with bird meat. By the early years of the 20th century, several species had disappeared and many others were driven to the brink of extinction. 

Hunting laws were the province of individual states; there was no federal oversight. In its 1896 Greer v. Connecticut decision, the U.S. Supreme Court affirmed that, absent a federal law, states owned all game and wildlife within their borders and could regulate their harvest and management. 

However, a patchwork of state hunting laws did not help migratory birds, which do not live in a single state. Protection of birds was seen by then as a worthwhile goal and clearly in need of federal legislation.

The first such law was the Lacey Act, enacted by Congress in 1900. That law relies on the power of Congress to regulate interstate commerce and, as such  it passed constitutional muster. In its current form, the law makes it a federal crime to engage in “interstate or foreign commerce involving any fish, wildlife or plants taken, possessed or sold in violation of state or foreign law,” among other provisions.

That was a good start, but the law did not prove very effective at first. So in 1913, the Senate adopted a resolution asking President Woodrow Wilson to convene with the governments of other nations to come up with rules for the protection and preservation of birds. The first such convention took place in 1916 between the U.S. and Great Britain acting on behalf of Canada, then a part of the British Empire. The two countries agreed to stop hunting of all insect-eating birds and to establish specific hunting seasons for game birds, in order to ensure the preservation of species “considered beneficial and harmless to man.”

That approach paved the way to passage of the law. The Constitution grants the president the power to enter into treaties with other nations, with the advice and consent of the Senate. The Senate ratified the treaty, and to implement it, Congress passed the Migratory Bird Treaty Act in 1918, making it a federal crime to “pursue, hunt, take, capture or kill” a migratory bird without a permit or to sell any of its parts, including nests, eggs and feathers. The law was challenged, but in 1920 the U.S. Supreme Court ruled that it did not violate states’ rights. It remains federal law to this day, and treaties with Mexico, Japan and the Soviet Union (now Russia) have also been signed.

In recent years, the act has been interpreted as making unintentional or accidental killing of birds a federal crime. For example, it has been used to prosecute energy companies for the deaths of thousands of migrating birds killed by wastewater pits or wind power turbines. Federal courts have sided with both sides in these cases; the Department of the Interior’s opinion mentioned above purports to eliminate the perceived ambiguity in the language of the law.

Fearing prosecution, various industries have worked with environmental groups to mitigate the effect of their infrastructure on migrating birds. The department’s opinion, in effect, means that henceforth mitigation will be simply voluntary.

One hundred years on, the Migratory Bird Treaty Act may need to be amended.

Joseph Pentheroudakis is an artist and avid birdwatcher. He lives on Herron Island.

On the Wing
On the Wing