Exposed oil is lethal to birds and small wildlife that come into contact with it. Birds that do manage to escape can die from starvation or the toxic effects of ingesting oil while preening. (Photo provided by USFWS)

During the late 19th and early 20th centuries, the use of feathers in women’s hats was all the rage. To meet fashion industry demand for their elegant plumage, several North American bird species (e.g. egrets, herons) were hunted to near-extinction.

To safeguard migrating birds from overhunting and unregulated commercial trade in bird feathers, the Migratory Bird Treaty Act, a covenant between the United States and Canada, was enacted in 1918. It’s one of the nation’s oldest conservation laws.

Since its passage, the MBTA has been expanded to protect more than 1,000 species of migrating birds (e.g. eagles, hawks). It’s also led to similar treaties with Mexico, Japan and Russia, and has included immunities from penalty for falconry, scientific collection and Native American religious ceremonies.

The MBTA makes it “unlawful … to pursue, hunt, take, capture, kill, (or) sell … any migratory bird (or) any part, nest, or egg of any such bird … unless authorized under a permit issued by the Secretary of the Interior.” Some regulatory exceptions apply. The most recognized is a hunting license and Migratory Bird Hunting and Conservation Stamp (duck stamp).

For decades, the landmark legislation was recognized as applicable to death caused by human activity, either intentionally or unintentionally — thereby incentivizing collaborations between industry and the federal government to minimize the annual number of migratory bird deaths by eliminating largely avoidable, potentially deadly hazards. Efforts include the use of weighted draglines (long lines of baited hooks) on commercial fishing boats, the use of closed tanks or nets over oil and gas company wastewater ponds and pits, and flashing red lights, as opposed to steady red light, to warn pilots away from industrial towers (e.g. wind turbines, communications towers) since several songbird species (e.g. warblers) are attracted to uninterrupted light.

Disciplinary action against inadvertent violations have included a $100 million fine as partial settlement by British Petroleum, used to restore habitat for waterfowl and other birds in the Gulf of Mexico, after more than a million birds were killed during the 2010 Deepwater Horizon oil rig catastrophe, and a $1 million fine levied against Duke Energy after Duke was held responsible for raptor deaths at a Wyoming wind farm, in 2013. PacifiCorp Energy, one of the West’s leading power companies, paid more than $10.5 million in 2009 for the inadvertent electrocution of 232 eagles along power lines and at its substations. PacifiCorp says it now retrofits 10,000 utility poles a year to make them less likely to electrocute birds.

In December of 2017, however, the U.S. Department of the Interior, under the leadership of then-Secretary, Ryan Zinke, in a reversal of the policies of all prior administrations, issued an opinion to federal wildlife police stating that “the take of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds.” The interpretation pertained to private citizens as well as industries that inadvertently kill game or non-game birds. A letter signed by a wide-ranging group of former Interior Department officials, from every administration since Gerald Ford’s, urged Zinke to suspend the “ill-conceived” opinion.

Ironically, at the same time that DOI was reinterpreting the MBTA, the National Geographic Society, in partnership with the National Audubon Society, Birdlife International, and the Cornell Lab of Ornithology, were proclaiming 2018 the Year of the Bird, in honor of the 100th anniversary of the act.

On June 13 of this year, the House Natural Resources Committee’s Subcommittee on Water, Oceans and Wildlife held a hearing to consider several new pieces of legislation. Included was a discussion of the Migratory Bird Protection Act of 2019, a draft bill that explicitly includes a prohibition against unintentional take, defined as “the killing or taking of migratory birds that directly and foreseeably results from, but is not the intended purpose of, covered commercial activity.” Enactment would supersede the administration’s 2017 reinterpretation.

Several witnesses testified regarding the draft, including Amanda Rodewald, a Cornell University Department of Natural Resources professor and senior director of conservation science at the Cornell Lab of Ornithology, who told the subcommittee that she was “not arguing that we should try to eliminate all human-caused mortality of birds, (but that) we can and should take active steps to reduce harm where possible.” Rodewald added that “The U.S. has shown the world, by example, how healthy environments, strong economies and vibrant communities are compatible and mutually reinforcing. Yet the reinterpretation of the act has weakened protections granted to birds and, in doing so, has undermined the broader environmental and economic benefits to Americans.”

In recent years, federal courts had been split over whether the MBTA applies to birds killed as a result of otherwise legal activities. But in a victory for conservationists and migratory birds, the Southern District of New York ruled, on July 31, that a lawsuit, National Audubon Society v. Department of the Interior, brought before the court by Audubon and other conservation groups can move forward.

The fight to protect migratory birds continues.