Is Your Company Unknowingly Violating the Migratory Bird Treaty Act?

When it comes to the federal Migratory Bird Treaty Act, there is no room for error—consequences apply even if an individual or company is unaware of violations.

When signed into law almost 100 years ago, the Migratory Bird Treaty Act (MBTA) of 1918 aimed to prevent the unregulated hunting of migratory birds. In that day and age, a bird’s plumage was literally used as a “feather in the cap” in the fashion industry alongside many other commercial trade endeavors, making many bird species in need of protection. The passage of the MBTA meant that ALL activities related to taking or killing migratory birds or their eggs, parts, and nests were considered illegal and subject to fines and punishment. In the past century, the MBTA’s scope expanded to cover more than 1,000 migratory bird species under several treaties and conventions.

The law has been enforced by the United States Fish and Wildlife Service (USFWS), within the U.S. Department of the Interior, and interpreted by many courts as a strict liability crime. This means that even those who indirectly and unintentionally kill a migratory bird, through actions such as failing to prevent birds from being electrocuted by power lines, can be charged with a misdemeanor, which carries fines and possible jail time. Those who knowingly violate the act can get a felony charge carrying up to a $250,000 fine and up to two years in prison. This applies to each affected bird.

The MBTA has posed a key challenge for various industries whose daily activities could inadvertently result in the “take” of migratory birds, including energy, real estate development, transportation, forestry, and others. The MBTA has significant operational and economic implications, particularly if a company is charged with multiple violations.

In May 2015, the USFWS announced that it would evaluate the potential impacts of a permit system for regulating and authorizing incidental take and potential mitigation requirements. The anticipated rulemaking would address how to set up a permit system and would define “take” under the MBTA. To date, no proposed rule or environmental impact statement has been issued. However, the U.S. Department of the Interior’s Office of the Solicitor issued a memorandum on January 10, 2017 that reaffirmed the MBTA’s broad prohibitions on taking and killing migratory birds, including “take” that is incidental to industrial or commercial activities.

The team at EDGE has the expertise and experience to help your project successfully navigate the complex issues associated with the Migratory Bird Treaty Act. Our staff has experience identifying suitable habitats for species protected under the MBTA and consulting with the USFWS. EDGE can also identify and assist with the implementation of appropriate measures to avoid impacts to avian species and, where impacts are unavoidable, negotiating mitigation for impacts to species protected under the MBTA.

Contact EDGE, and we can provide further insight into the Migratory Bird Treaty Act.