Center for Conservation Biology expresses concern over new interpretation of Migratory Bird Treaty Act

‘Incidental take’: Two northern gannets tangled in a long-line fishing rig. Fishing bycatch is a major cause of seabird mortality. Bryan Watts says the new MBTA interpretation affords no protection for such accidental bird deaths. Photo by Bryan Watts Photo - of - Hide Caption

Bryan Watts, the director of the Center for Conservation Biology, has dedicated much of his professional life to keeping birds safe. Now, he’s worried that a new federal interpretation of a century-old law will result in the deaths of millions of birds.

A 41-page memo issued just before Christmas by Daniel Jorjani, a deputy solicitor in the U.S. Department of the Interior, essentially changes the focus of the Migratory Bird Treaty Act (MBTA) by stating the DOI will only prosecute in the event of birds killed purposefully.

Watts explained that the memorandum reverses a long-standing policy that allows the U.S. Fish & Wildlife Service (a unit of the Interior Department) to take action in the event of accidental bird deaths — known as “incidental take.”

He explained that the MBTA was enacted in 1918 at a time of rampant bird killing — widespread market gunning and the hunting of terns and egrets for the millinery trade. It also was a period in which many bird species were hunted to extinction — Watts mentioned the extirpation of the passenger pigeon, heath hen and Labrador duck.

“So the original intent of the act was to stop the widespread decline of all these species. It happened that the main agent of the decline at the time was hunting and most people associate the Migratory Bird Treaty Act with hunting,” Watts said. “But the intent of the act was not about limiting hunting — it was to protect bird populations.”

Watts said the law’s focus on protecting bird populations endowed the Migratory Bird Treaty Act with a versatile quality that kept it relevant through the decades, long after shooting birds was the main cause of bird loss.

“Today, the act is rarely used today to prosecute someone for shooting a bird. That’s just not part of our culture today,” he said. “We’ve had generations of education of the population. It happens — people do shoot protected birds — but it’s not the main driver of decline any more.”

In recent years, the big bird kills have been accidental events related to contaminant spills or from large-scale strikes at wind farms or other structures. All of these bird deaths are classified as “incidental take,” and under the Jorjani interpretation, no longer within the MBTA’s purview, Watts said.

Jorjani’s memorandum said the MBTA was stifling economic development, a hanging “sword of Damocles over hosts of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

Watts counters that prosecutions under the MBTA were quite rare and the value of the law’s inclusion of incidental-take came in a couple of ways. He said that one way was that the MBTA encouraged industry to seek the advice of the U.S. Fish &Wildlife Service when planning installations.

“If a company is planning on, say, installing a wind turbine, Fish & Wildlife could tell them that if they moved the turbine to a different site, it would be much better for the birds,” Watts explained. The second way the pre-Jorjani MBTA worked was in fixing fines and negotiating settlements following environmental disasters.

“The BP Deepwater Horizon oil spill killed a bunch of birds and BP was fined heavily for that. They wouldn’t be now, right? Because they weren’t intentionally killing birds,” Watts said.

There are still some legal safeguards for bird populations, Watts mentioned the usual patchwork of state laws and regulation. Bald and golden eagles have their own protections, but he points out that the federal Endangered Species Act is itself endangered. He said the Migratory Bird Treaty Act has saved “millions, probably billions” of individual birds and has been responsible for the viability of a large number of bird species.

“The Migratory Bird Treaty Act is how most birds in North America are protected. It’s the first line of defense to protect populations, and this pretty much pulls the rug out from under it,” Watts said. “This is a serious blow.”

The Center for Conservation Biology is a joint program of William & Mary and Virginia Commonwealth University. Bryan Watts has written an opinion piece on the new interpretation of the Migratory Bird Treaty Act.