Topic: The Migratory Bird Treaty Act: How it
applies
to the federal government
Background
Analysis
Executive Order
Update January 2005:
Status of interagency memoranda of agreement and appointment of Interagency Council for the
Conservation of Migratory
Birds
Background: Two U.S. Circuit Court cases held that the Migratory Bird Treaty Act does not apply to the federal government and its agencies. In response to these two cases, the U.S. Fish and Wildlife Service issued guidance to the regions where those two circuit courts are located (Circuit Court decisions apply only in the Circuit where they were issued) to cease the issuance of permits to federal agencies.
Concerned about these legal decisions and the U.S. Fish and Wildlife Service guidance, some conservation organizations pressed the Clinton Administration for an Executive Order stating that the Migratory Bird Treaty Act applies to the federal government.
In 2000, the U.S. Court of Appeals for the District of Columbia Circuit held that the Migratory Bird Treaty Act does apply to the federal government (The Humane Society of the United States v. Glickman, Case No.99-5309, decided 18 July 2000). Unlike other U.S. District Courts, the decisions of the U.S. Court of Appeals for the D.C. Circuit pertaining to federal agencies apply nationwide.
In response to the concerns of the conservation organizations, and after the HSUS v. Glickman case was decided, the Director of the U.S. Fish and Wildlife Service issued a Director's Order making it clear that the Migratory Bird Treaty Act applies to the federal government.
On 10 January 2001, President Clinton issued an Executive Order (.pdf file) prescribing the responsibilities of federal agencies to protect migratory birds.
Analytical note: The two original court cases actually involved two separate issues. In both cases, the claim was made by the plaintiffs (conservation organizations) that the Migratory Bird Treaty Act applied to USDA Forest Service timber sales because logging would result in the take of migratory birds. This kind of take is known as incidental or indirect take because the effect on migratory birds occurs incidental to some other activity conducted for some other purpose. There are a number of court cases on this issue, with varying conclusions. It has been argued that “indirect take,” or take incidental to some other lawful activity, does not fall within the meaning of the statute. So, for instance, the act of striking a bird that flies into the path of a moving car would not be considered a take. Such an argument was made by the defendant in the case of U.S. v. Moon Lake Electric Association, 98-CR-228-B (D.Colo., 20 January 1999). In response, the court said (citing Mahler v. U.S. Forest Service, 927 F.Supp.1502 (D.Or.1991), that construing every killing within the statute, such as deaths caused by automobiles, planes, plate glass modern office buildings or picture windows in residential dwellings into which birds fly, would offend reason and common sense. The Moon Lake opinion stated that a finding of liability under the MBTA requires a showing of proximate causation - that the death of the bird would have to be reasonably anticipated or foreseen as a natural consequence of the wrongful act, so “because the death of a protected bird is generally not a probable consequence of driving an automobile, piloting an airplane, maintaining an office building, or living in a residential building with a picture window, such activities would not normally result in liability” under the MBTA. The courts have held that migratory bird deaths resulting from otherwise lawful activities in which there was no intent to kill birds are actionable under the MBTA. In U.S. v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), a prosecution for the deaths of birds that consumed waste water containing toxic substances was upheld. The accidental poisoning of birds resulting from misapplication of pesticides was also considered actionable. U.S. v.Corbin Farm Serv., 444 F. Suppl.510 (E.D.Cal.), aff'd on other grounds, 578 F.2d 259 (9th Cir.1978); Several cases involving the maintenance of hazardous conditions, such as oil sump pits, without protective measures to keep birds away from the oil, have been successfully prosecuted. U.S. v. Stuarco Oil Co., 73-CR-129 (D. Colo., 17 August 1973); U.S. v. Union Texas Petroleum, 73-CR-127 (D.Colo., 11 July 1973); U.S.v. Equity Corp., Cr.75-51 (D.Utah, 8 Dec.1975).More recently, a challenge to the MBTA's applicability to avian mortality from collisions with power lines was rejected. Moon Lake, supra.
The courts have also ruled that other legal activities that result in bird deaths are not actionable. Specifically, habitat modification or degradation resulting from the sale of timber does not violate the MBTA. Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir.1991).
The other issue involved in these cases was whether the MBTA applied to the federal government at all. In both cases, the courts ruled that it does not apply - no matter whether the take is direct or incidental. Although both courts discussed the definition of "take" under the MBTA, neither court based its ruling on the nature of the activity. Both courts premised their rulings on the inapplicability of the law to the federal government.
Neither the Executive Order nor the Director's Order resolve the issue of incidental take. Under the Director's Order, federal agencies will have to obtain permits for the same activities for which permits are issued to researchers and others. In other words, they will need banding permits, taxidermy permits, scientific collecting permits, and depredation permits. The U.S. Fish and Wildlife Service regulations do not provide for permits for any other type of activity. So, for instance, there continues to be no MBTA permit for timber sales, grazing leases, mining activities, the application of pesticides and herbicides, licensing of communications towers, channelization of rivers, draining of wetlands, or other such activities conducted by the federal government (or state governments or private individuals, for that matter).
The Executive Order does not change the provisions of the MBTA or the regulations issued under the MBTA. Indeed, a statute can be changed only by the Congress. An Executive Order can only interpret existing law. This Executive Order makes it clear that the federal government must take into account the effects of its activities on migratory birds and specifies a number of affirmative actions agencies must take (subject to funding - which could severely restrict agencies' response to this Executive Order).
Director's Order, U.S. Fish and Wildlife Service (note: Director's Orders are temporary. This order expired 6 August 2003 and was superceded by a section of the U.S. Fish and Wildlife Service Manual - 724 FW 2).
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Washington, D.C. 20240
DIRECTOR'S ORDER NO. 131
SUBJECT: Applicability of the Migratory Bird Treaty Act to Federal Agencies and the Requirement for Permits
Sec. 1 What is the purpose of this Order? This order clarifies Service policy regarding the applicability of the MBTA to Federal agencies and the issuance of permits to agencies.
Sec. 2 To whom does this Order apply? This order applies to all Service employees who administer, oversee, and enforce the migratory bird permit program.
Sec. 3 What are the authorities for this order? Migratory Bird Treaty Act, 16 U.S.C. 703-712; 50 CFR 21; and 50 CFR 13.
Sec. 4 What are the definitions for some terms in this Order?
a. Migratory bird is any species listed in 50 CFR 10.13, or which is a mutation or a hybrid of any such species, including any part, nest, or egg.
b. Take (as defined in 50 CFR 10.12) means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.
Sec. 5 How does the Migratory Bird Treaty Act apply to Federal agencies?
a. On July 18, 2000, the United States Court of Appeals for the District of Columbia held in Humane Society v. Glickman, 217 F. 3d 882 (D.C. Cir. 2000), that the MBTA applies to Federal agencies. As the Federal government decided not to appeal this decision, and as all Federal agencies are subject to the jurisdiction of the D.C. Circuit, we will implement the MBTA consistent with this decision. Therefore, it is our position that take of migratory birds by Federal agencies is prohibited unless authorized pursuant to regulations promulgated under the MBTA.
b. Under the MBTA, it is unlawful "by any means or manner, to pursue, hunt, take, capture [or] kill" any migratory bird except as permitted by regulation (16 U.S.C. 703-704). The regulations at 50 CFR 21.11 prohibit the take, possession, import, export, transport, sale, purchase, barter, or offering of these activities, except under a valid permit or as permitted in the implementing regulations.
c. We administer permits to take migratory birds in accordance with regulations at 50 CFR 21, including, but not limited to, 50 CFR 21.21 (import and export), 50 CFR 21.22 (capture of birds for banding and release), 50 CFR 21.23 (scientific collecting and education), 50 CFR 21.27 (special purpose for rehabilitation, education, and other compelling purposes), 50 CFR 21.28-29 (falconry), 50 CFR 21.30 (raptor propagation), 50 CFR 21.41 (depredation permits). In addition to these individual permits, general depredation orders allow take, without an individual permit, provided evidence clearly shows that specific species are causing or are about to cause serious damage to crops or other specific interests (50 CFR 21.42-47).
Sec. 6 How does a Federal agency obtain a permit to take migratory birds? To apply for a permit, the applicant must complete the Service application form (form 3-200) tailored to the specific type of activity for which the permit is needed and submit the application to the Regional Migratory Bird Permit Office responsible for the State in which the agency office is located. Applications are available from the issuing office or on the Internet at http://permits.fws.gov/birdbasics.html. Applications and permits for banding and marking migratory birds are available from the U.S. Geological Survey, Patuxent Wildlife Research Center, Bird Banding Laboratory, 12100 Beech Forest Road, Laurel, MD 20708-4037 (telephone: 301-497-5790).
Sec. 7 How will the Service evaluate applications for the take of migratory birds by Federal agencies? We will consider and evaluate the applications in the same manner as we do for private citizens and in accordance with the requirements and criteria set forth in the specific regulations in 50 CFR 21 and the general permit regulations at 50 CFR 13.
Sec. 8 What other requirements may come with the permit? We will place conditions on permits based on the activities authorized, including, but not limited to, a requirement to file a report on the species and quantity of birds taken as a result of the permit.
Sec. 9 What is the effective date of this Order? This Order is effective immediately.
Sec. 10 When does this Order expire? This Order will
expire
on December 31, 2001, unless amended, superseded, or revoked. We
will include the contents of this Order in Part 724 of the Fish and
Wildlife
Service Manual.
/sgd/ JAMIE RAPPAPORT CLARK
DIRECTOR
Date: December 20, 2000
STATUS January
2005 : Although the Executive Order required agencies to have
complete MOUs developed and implemented within two years (i.e., by 10
January 2003), only one MOU has been completed to date. Other
agencies have completed draft MOUs and approximately half have been
reviewed
internally by the signatory agency and the Service.
The MOUs will not be made available for
public review. For a short while,
completion of any of the
MOUs was on hold, per the direction of Special Council to the
Secretary,
until
the Solicitor's Office
of the Department of the Interior finalized an opinion concerning the
scope of criminal prohibitions
against “take”
provided by the MBTA. Finalized MOUs
will be made available through the Federal
Register and posted on the Service’s web page.
No Interagency Council for the Conservation of
Migratory Birds has been appointed. In a sense, the Federal Agency
Subcommittee of the U.S. North American Bird Conservation Initiative
Committee serves that function.
PROGRAM CONTACT: Division of Migratory Bird Management - Cyndi Perry, Chief, Branch of Bird Conservation, or Marie Strassburger, Biologist, 703/358-1714
AGENCIES CURRENTLY
DEVELOPING MOUs (as of August 4; provided by Marie Strasburger):
Department of Agriculture
Forest Service - draft being developed
Natural Resource Conservation Service and Farm Services Agency - draft
being developed
Animal and Plant Health Inspection Service/Wildlife Services - in review
Department of Commerce
National Marine Fisheries Service (NOAA Fisheries) - draft being
developed
Department of Energy
Bonneville Power Authority - in review
Federal Energy Regulatory Commission - in review
Department of Defense
Department of Defense, general - draft being developed
Army Corps of Engineers - in final review
Department of Homeland Security
Coast Guard - signed
Federal Emergency Management Agency - no action
Department of the Interior
Bureau of Reclamation - draft being developed
Bureau of Land Management - draft being developed
Minerals Management Service - draft being developed
National Park Service - in final review
Office of Surface Mining - in final review
U.S. Geological Survey - draft being developed
Department of State - no
action
Department of Transportation
Federal Highway Administration - no action
Federal Aviation Administration - draft being developed
Independent Agencies
Environmental Protection Agency - draft being developed
Federal Communications Commission - no action
Federal Energy Regulatory Commission - draft in review
US Agency for International Development - no action
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