Centennial of the Migratory Bird Treaty: Will It Survive Another 100 Years?

Candice Gaukel Andrews February 9, 2016 8
Whooping cranes number only about 600. This crane family was photographed at its wintering grounds at Aransas National Wildlife Refuge in Texas. ©Klaus Nigge/USFWS

There are only about 600 whooping cranes left. This crane family was photographed at its wintering grounds at the Aransas National Wildlife Refuge in Texas. ©Klaus Nigge/USFWS

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 . . .

A hundred yeas ago, milliners decorated fashionable women’s hats with feathers—such as this one from the head of a whooping crane—and were responsible for countless numbers of bird deaths. ©USGS

Milliners once decorated fashionable women’s hats with feathers—such as this one from the head of a whooping crane. ©USGS

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.

By the late 1880s, unregulated hunting and habitat destruction had caused the wood duck population to decline to alarmingly low levels. Thanks to the MBTA, their population numbers have rebounded. ©Ingrid Taylar, flickr

By the late 1880s, unregulated hunting and habitat destruction had caused the wood duck population to decline to alarmingly low levels. Thanks to the MBTA, the birds have rebounded. ©Ingrid Taylar, flickr

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.

Hopefully, the MBTA will be able to protect birds such as whooping cranes for another 100 years. ©USDA/John Noll.

Hopefully, the MBTA will be able to protect birds, such as whooping cranes, for another 100 years. ©USDA/John Noll.

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,

Candy

8 Comments »

  1. Carolyn E. Balls April 16, 2016 at 2:55 pm - Reply

    All hunting should be illegal!

  2. Karen Schneller-McDonald April 16, 2016 at 2:16 pm - Reply

    Without the Migratory Bird Treaty Act, there would be absolutely no incentives for industrial wind energy producers to limit bird mortality from collisions with turbine blades. Despite its shortcomings, the Act is still a critical piece of environmental protection legislation. If anything, it should be strengthened.
    And to soften the standard for ‘unintentional’ takes would be a huge mistake: everyone would be making this claim just to escape the provisions of the law.
    We can protect birds more effectively and still reap the benefits of clean energy like wind; but rather than the MBTA it is the behemoth wind turbines with low efficiency to produce energy that are truly antiquated. Let’s improve our capacity to capture wind energy AND our ability to protect migratory birds, at the same time. It is only a matter of the will to do so.

  3. Patrick P. Stafford April 16, 2016 at 2:12 pm - Reply

    Very informative and helpful post! Thank you.

  4. Ramakrishna Venkatasamy April 16, 2016 at 2:11 pm - Reply

    There will obviously a couple of things to deal with immediately; The firsts being the avidity of hunters and hunting, and their total ignorance about wildlife and species; and the second being the avidity of those planning the exploitation of resources for profit, at whatever costs to the natural world. So I suppose the pressures for changes for the worse will be high.

  5. Beverly Shann April 16, 2016 at 12:59 pm - Reply

    Our ancestors put in place these treaties, covenants, and organizations to protect our wildlife, environmental and therefore ourselves and should be seen as sacrosanct. The only case for amendments is when new un-perceived threats due to globalization and implications created by technology afford less protection than was intended. New treaties can however be drawn up to deal with these issues.

  6. Laurence Hutchinson February 28, 2016 at 1:09 pm - Reply

    Shame there is no migratory fish treaty, it would have saved many species.

  7. Matt Holmes February 16, 2016 at 3:57 pm - Reply

    It would be sad to see our habit of expecting less and less from conservation, (generation after generation) also erode what has clearly been an effective policy. It’s bad enough that we are perpetually diminishing the status quo ensuring that future generations don’t realize what they’ve lost. Bad memories, especially intergenerationally is why we write important things down and agree to them in the first place. It’s hard enough to care when you lose something that is already rare…. Thus the need for resilient, if “historic,” legislation.

  8. Karen Schneller-McDonald February 10, 2016 at 6:12 am - Reply

    Without the Migratory Bird Treaty Act, there would be absolutely no incentives for industrial wind energy producers to limit bird mortality from collisions with turbine blades. Despite its shortcomings, the Act is still a critical piece of environmental protection legislation. If anything, it should be strengthened.
    And to soften the standard for ‘unintentional’ takes would be a huge mistake: everyone would be making this claim just to escape the provisions of the law.

    We can protect birds more effectively and still reap the benefits of clean energy like wind; but rather than the MBTA it is the behemoth wind turbines with low efficiency to produce energy that are truly antiquated. Let’s improve our capacity to capture wind energy AND our ability to protect migratory birds, at the same time. It is only a matter of the will to do so.

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