Birders in the US are celebrating thanks to a court decision (thanks, U.S. District Court Judge Valerie Caproni!) on August 11, 2020 protecting the Migratory Bird Treaty Act (MBTA), an act that has been around since 1918 and involves not just the US but Canada, Mexico, and Japan. The MBTA was threatened, (surprise, surprise) by the current administration. We’re all pleased, of course, by Judge Caproni’s decision, but what does this mean exactly?

The US Fish and Wildlife Service website explains what the treaty does: ‘The Migratory Bird Treaty Act prohibits the take (including killing, capturing, selling, trading, and transport) of protected migratory bird species without prior authorization by the Department of Interior U.S. Fish and Wildlife Service.’ The website also has an Excel spreadsheet with a list of more than one thousand species that are protected. That’s a start, of course, but what does that mean?

Let’s take a look at the History (Audubon society).

• 1800s: With essentially zero regulations in place, market hunters decimate U.S. bird populations, in part so that well-to-do women can wear hats adorned with ornamental feathers. By the end of the century, Labrador Ducks and Great Auks are extinct, soon to be joined by Passenger Pigeons, Carolina Parakeets, and Heath Hens. Numerous other species stand on the brink. Outrage over these alarming trends leads to the formation of the first Audubon societies, as well as other conservation groups.

• Much more history, not here because I won’t violate Fair practices. Several laws passed, expanding and refining the laws.
• 1970s: For the first time, U.S. prosecutors begin charging not just hunters who violate the MBTA, but also oil and gas, timber, mining, chemical, and electricity companies. Though not directly targeting wildlife, these industries incidentally cause millions of bird deaths each year that could have been avoided with simple infrastructure modifications, according to the U.S. Department of Justice. In publicly available documents, the DOJ states that it will first notify companies of a violation and work with them to correct it. But if they “ignore, deny, or refuse to comply” with best management practices, then the “matter may be referred for prosecution.” 
• 1972: An amendment to the MBTA protects an additional 32 families of birds, including eagles, hawks, owls, and corvids (crows, jays, and magpies). Even more species have been added since, bringing the total number to 1,026—almost every native species in the United States. With such additions, the word “‘migratory” in the act’s title becomes largely symbolic—many birds that do not embark on actual migrations are still protected. 

EcoWatch also has a good write-up: ‘The Migratory Bird Treaty Act (MBTA) has for over 100 years offered protections to 1,000 different types of birds, instigating penalties for companies whose projects or infrastructure harm them. Yet, in 2017, the Interior Department’s Solicitor Daniel Jorjani, a former Koch Industries employee, advised punishing the oil and gas industry, construction companies, and others only if their work intentionally kills birds, effectively ending the spirit of the law that asks for the migratory patterns of birds to be considered when developing a project.

“The opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations,” Caproni wrote in a decision vacating the opinion, calling it “an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds,” according to The Hill.

From the Washington Post: ‘The changes made by the Trump administration largely benefited oil companies, which have paid most of the fines for violating the act, according to an analysis by the National Audubon Society.

‘In the administration’s view, even BP, the company responsible for the 2010 Deepwater Horizon oil spill in the Gulf of Mexico that led to the deaths of an estimated 1 million birds, would not be liable for punishment under the law. A landowner who destroys endangered owl nests without checking before building a barn or an oil company that fails to cover a tar pit that birds could dive into and be killed could not be held responsible as they have for decades.

‘Caproni determined that allowing the U.S. Fish and Wildlife Service police to enforce the act only if officials could prove intent was a violation of the federal Administrative Procedure Act and vacated the changes. In striking down the rule change, she admonished the Interior Department with a passage from To Kill a Mockingbird, saying, “It’s not just a sin to kill a mockingbird; it’s a crime.”’

This was an important decision. I don’t know how the current administration is doing with respect to finding and penalizing those guilty of harming our feathered friends, but at least this court was still on the side of birdkind.

Mother said they could theorize about humans later. “For now, all you nestlings need to know is how dangerous they are.” – Hunters of the Feather