On December 10, 2015, an 18-year-old southeastern Texas man shot two whooping cranes in a rural area located about 18 miles west of Beaumont, Texas. He said he was hunting ducks.
Whooping cranes are migratory birds protected under the Migratory Bird Treaty Act (MBTA). The act’s predecessor, the Migratory Bird Treaty—an agreement between the United States and Great Britain (for Canada)—will be marking its 100th anniversary this year on August 16, 2016. It is one of the oldest wildlife laws ever enacted. In essence, the treaty makes it unlawful to capture, kill or attempt to capture or kill any migratory bird in the United States.
With the shots of his gun, the Texas teenager killed two of just 600 whooping cranes left in the world. Millions of other migratory birds are killed annually, not only by hunters but by the spinning rotors on wind turbines, communications towers, power lines, windows and the disposal, tailings ponds of oil and gas companies.
Can a law crafted 100 years ago—with very few changes since—be relevant for the dangers birds face today?
Antiquated act, or . . .
According to the National Audubon Society, simply put, the Migratory Bird Treaty Act—implemented in 1918—was meant to protect birds from people. To put the law’s age into perspective, it was introduced at a time when milliners were responsible for countless numbers of bird deaths, in order to ornament women’s hats with feathers.
Today, however, milliners pose little threat to birds. The U.S. Fish & Wildlife Service estimates that wind turbine rotors kill 500,000 birds per year, and the death toll could more than double by 2030. While no one knows how many of those dead birds are legally protected under the MBTA, a single death of a migratory bird is a violation.
Annually, power lines kill another 174 million birds. Communications towers cause the deaths of at least four to five million birds per year. Windows, such as those on the Minnesota Vikings stadium, kill at least 100 million to one billion birds per year. Tailings ponds from oil and gas industries regularly kill migratory birds.
The MBTA makes it unlawful to “to pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect” individuals of most bird species found in the United States, unless that taking or killing is authorized—by permit—as a “purposeful take,” such as that for bird banding and marking, scientific collection, bird rehabilitation, raptor propagation and falconry. There is also an authorized incidental take by the U. S. Armed Forces during military-readiness activities. The act, however, makes no explicit exceptions for vital economic activities—such as alternative energy industries—that incidentally harm birds, despite precautions.
And because of that, some are calling for the act to be reformed.
. . . Relevant rule?
Because of its old age, some say the act won’t survive the modern era. Courts have disagreed over whether or not lethal actions need to be intentional in order to be prosecuted under the act. But, say conservationists, without the threat of litigation for all cases of migratory bird deaths, oil and gas companies, wind farms and other industrial operations will be less concerned about preventing the accidental killing of birds.
Already, there have been proposals to whittle away the MBTA’s protections. The U.S. Fish and Wildlife Service is considering establishing more general authority to permit incidental take through general authorizations, individual permits or interagency memoranda of understanding. Critics of the “looser” permit process say that if companies start to feel as if it’s easy to become exempt from the law’s rules, they’ll have little incentive to take serious measures to protect birds or even apply for a permit.
Attacks on the act include one in 2014, when the House Natural Resources Committee accused the U.S. Fish and Wildlife Service of selectively targeting oil and gas companies and demanded that the agency supply records for every prosecution under the law since 2009—a request that took one-quarter of the service’s staff away from their normal duties. In 2012, Representative Jeff Duncan of South Carolina proposed reducing fines for all energy producers that kill nonendangered migratory birds.
We rely on birds for a whole host of ecological functions, including pest control, pollination and seed dispersal. Unfortunately, unlike so many other environmental laws that have been stripped of their powers in recent years, the Migratory Bird Treaty Act may be effectively rendered obsolete by Congress in the coming months. In any event, the centennial of the treaty this fall should invite a public discussion about this vital act.
The Texas teenager who shot the whooping cranes just a couple of months ago, Trey Joseph Frederick, posted on his Facebook page that one of his favorite quotes is: “If it flies, it dies.” He now faces charges under the MBTA.
Perhaps the killing of birds for frivolous reasons isn’t an old problem, after all, and the act still holds a punch precisely where it’s needed.
Do you think the MBTA is due for an overhaul in order to address today’s threats to birds? Or should the law stand as it is, whether the killing of migratory birds is intentional or not?
Here’s to finding your true places and natural habitats,