For more than a century, the Migratory Bird Treaty Act (MBTA) has helped ensure that we can continue to study and enjoy birds in North America by flatly prohibiting the unauthorized “taking” of migratory birds. The initial threats that gave impetus to the MBTA were centered on the unchecked taking of birds such as egrets for the plume trade and the mass slaughter of waterfowl and shorebirds for human consumption. By the mid-20th century, however, conservation challenges have shifted, and today the most significant mortality threats came not from illegal hunting but from industrial hazards such as oil waste pits, power lines, oil spills, radio towers, and more. Those hazards — many of them preventable with use of reasonable best management practices and technologies — have resulted in the annual “incidental taking” of hundreds of millions of migratory birds. Thanks to thoughtful, decades-long leadership and occasional careful law enforcement by the Fish and Wildlife Service, the MBTA has provided the key legal incentive for industry to minimize many of these hazards. In addition, fines paid for MBTA violations have provided resources to protect and restore bird habitats, such as the $100 million paid by BP paid for birds killed during the Deepwater Horizon oil disaster in the Gulf of Mexico.
Under the current Administration, a 2017 legal opinion by the Department of the Interior (DOI) reinterpreted the law and ended all enforcement of the prohibition of incidental take of migratory birds, including by oil spills. This is the most significant attack on the MBTA in its history. Despite the serious concerns raised about the legal opinion by Flyway Councils, states, Members of Congress, former leaders of the Fish and Wildlife Service, and hundreds of organizations, DOI has doubled down and proposed a rule to cement this policy in MBTA regulations. More information is available in this Audubon alert.
Adding insult to injury, this proposed ruling comes at a time when alarm bells are ringing once again over the perils migratory birds face. For example, members of the AOS Conservation Committee and other leading scientists co-authored the article “Decline of the North American Avifauna” in the journal Science last fall, which indicated that the continent’s bird populations have decreased by 3 billion birds in just 50 years. At same time, Audubon’s science team released a report highlighting concerns about the impacts of climate change on birds in North America.
DOI is in a rush and has chosen the unusual step of concurrently asking for public comments on (1) DOI’s draft regulations and (2) the “scoping” phase of an analysis of the impacts under the National Environmental Policy Act (NEPA). So how can AOS members take action?
We encourage you to contribute your comments. It is particularly important to cite published research when offering your recommendations and perspective as an expert. For example, you can cite studies on the impacts of industrial hazards on birds or offer recommendations on how the Fish and Wildlife Service should evaluate impacts of the proposed rule on bird populations and the services they provide to people and ecosystems. Concise comments based on sound evidence are most effective. You can comment on either or both proposed rules by clicking here. (The first “Comment Now” button is to submit comments on the types of information the government should consider when drafting an Environmental Impact Statement related to the take of migratory birds, and the second “Comment Now” button is to submit comments on the DOI’s proposed update to MBTA enforcement regulations.) The comment period closes March 19.
The Ornithological Council (OC) has already submitted comments on the NEPA Scoping Notice on behalf of AOS and other ornithological societies. In its comments, OC explains how impacts on wild populations are assessed and how those assessments serve as the scientific basis in the case of an objection to the adequacy of an environmental assessment under NEPA.
We all know that bird populations face many threats today, and those threats go far beyond what is covered in the MBTA. However, the MBTA — including its general prohibition on taking birds regardless of intent — is the very foundation of federal bird conservation. The legacies of both AOS and Audubon are inextricably bound with the MBTA (see historical note below). Let’s look to the past for inspiration and act today to protect the MBTA and the futures of the birds we study and enjoy.
In 1876, ornithologist J.A. Allen published “On the Decrease of Birds in the United States,” which rang the alarm that birds were in serious peril and helped spark the movement to protect them. In the coming years, Allen and other visionary leaders would help form the American Ornithologists’ Union and the first Audubon Societies. These organizations shared many founding members and leaders and worked hand in hand to draft and pass model laws to protect birds in dozens of individual states. However, it soon became clear that only federal protections would provide sufficient safeguards for birds that migrate across political boundaries. These efforts led to the signing of the Migratory Bird Conservation Convention with Canada in 1916 and the hard-fought passage of the MBTA two years later. Conventions with Mexico, Japan, and Russia were later added and all are implemented by the MBTA.
Stan Senner, Vice President for Bird Conservation at the National Audubon Society and Elective Member of AOS since 1990
Tom Sherry, Professor of Ecology and Evolutionary Biology at Tulane University and AOS President-Elect
Peter Dunn, Distinguished Professor of Biological Sciences at the University of Wisconsin–Milwaukee and Chair of the AOS Ad-Hoc Public Responsibility Committee
Pete Marra, Professor and Director of the Georgetown Environment Initiative at Georgetown University and Co-Chair of the AOS Conservation Committee