Wetland Wednesday

February 12, 2020

Migratory Bird Treaty Act (FWS-HQ-MB-2018-0090)

I thought we would take a short break or all of the wetlands topics and jump into a new related regulation. The Migratory Bird Treaty Act (MBTA) is undergoing a facelift as it relates to how or why a migratory bird may be killed.

The regulation change is short enough to be posted here: Scope: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.

The relevant portion of the current MBTA reads, “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.”

At issue is whether the “bird killer” indented to kill the migratory bird or was it an accident. The intention of the new regulation is to eliminate the ambiguity associated with a passive (accidental) kill. If the kill is passive the killer is not liable for the kill. I really hope this does not translate to people.

An example of a passive kill is all the birds killed by the BP Gulf oil spill. BP was held liable and had to pay damages for the millions of birds killed as a result of the spill. They did not mean to do it, but nevertheless they had to pay for the damages. This new regulation would mitigate the liability.

It is clear that the intention of his new regulation is to insulate certain industries from MBTA liabilities. However, if a kill could reasonably be foreseen, then the kill is not passive.

Windmills are a great example of a bird chopper. Every day birds are killed by the giant windmills. It is an example of an active kill. It can be predicted an even requires daily monitoring of the nights work. Biologists often are hired to do the grisly bird counts after the windmills are installed.

This regulation is being challenged by a number of environmental and birding groups. One interesting twist is that it appears that some of the challenges bring up renewed FWS and state agency scrutiny over potential project impacts to certain avian species under the Endangered Species Act, Bald and Golden Eagle Protection Act. You still have time to comment on this rule at regulations.gov. More to come I’m sure.