The Migratory Bird Treaty Act (MBTA) is a federal law in the United States that protects over 1,000 species of birds that migrate or are sold across state lines. The law makes it illegal to hunt, kill, buy, sell, or possess listed migratory birds or their parts, nests, or eggs without a permit. However, there are some species that are excluded from protection under the MBTA. In this article, we will discuss what birds are excluded from the MBTA and why.
History of the Migratory Bird Treaty Act
The MBTA was passed in 1918 in order to implement a 1916 treaty with Great Britain (on behalf of Canada) to protect birds that migrated across the United States and Canada. Additional treaties with Mexico, Japan, and Russia were signed in the 1930s and 1970s to protect migratory birds across these countries.
The MBTA makes it illegal to pursue, hunt, take, capture, kill, possess, sell, purchase, barter, import, export, or transport any migratory bird, or any part, nest, or egg of any such bird listed in the statute without authorization from the Department of the Interior. Over 1,000 species are currently protected under the MBTA.
Birds Excluded from the Migratory Bird Treaty Act
While the MBTA protects over 1,000 species of migratory birds, there are some birds that are not covered under its protections. Birds that are excluded from the MBTA include:
Nonnative Species
The MBTA only covers native bird species that are listed in the statute. Any birds that are nonnative to the United States, also known as exotic or introduced species, are not protected. Some examples of nonnative bird species excluded from MBTA protections include:
- House sparrow
- European starling
- Rock pigeon
These species are not native to North America and were introduced through human intervention and activities like shipping and trade. Since they did not naturally occur in the United States or migrate here, they are not covered by the MBTA.
Game Birds
Game birds that are legally hunted according to state, federal, tribal, or territorial law are excluded from MBTA protections. These birds can be legally hunted during established hunting seasons determined by local jurisdictions. Some examples of game birds that can be legally hunted include:
- Pheasants
- Quail
- Doves
- Grouse
- Wild turkey
- Waterfowl like ducks and geese
As long as hunters follow relevant regulations and laws, they can legally harvest these birds which are excluded from the additional federal protections of the MBTA.
Feral and Domesticated Species
Birds that have been domesticated or escaped captivity to live in the wild, known as feral species, are also exempt from MBTA protection. Examples include:
- Feral pigeons
- Domesticated ducks and geese
- Pet parrots or parakeets that escape
Since these birds are not truly wild and naturally migrating species, they are excluded from the MBTA. Protection and management of feral and domesticated birds falls under state jurisdiction.
Reasons for Exclusions from the Migratory Bird Treaty Act
There are several reasons why some bird species have been excluded from protections under the Migratory Bird Treaty Act:
Nonnative Species
Nonnative species were not the targets of conservation for the original 1918 treaty between the U.S. and Canada or subsequent treaties with other nations. These treaties aimed to protect birds naturally occurring and migrating between the treaty nations. Therefore, nonnative species introduced by human activities have no protections.
Game Birds
Game birds like pheasants, quail, and wild turkey are still abundant in the wild and popular for recreational hunting. Excluding them from MBTA protections allows state wildlife agencies to manage legal regulated hunting of these species which contributes substantial economic benefits. As long as their populations remain healthy, they do not require strict federal protections.
Feral and Domesticated Birds
Feral pigeons, escaped pet parrots, and domestic ducks and geese are already substantially adapted to living with close human contact. They do not require federal protections aimed at conserving wild migratory species and their natural habitats. States can enact any appropriate laws to manage these human-adapted species.
Population Abundance
Some excluded birds like European starlings, house sparrows, and rock pigeons are abundant generalist species that thrive living close to human habitation. Their abundant populations mean they have lower conservation concern and do not require strict federal protections.
Federalism
Leaving some common birds under state-level jurisdiction allows for recognition of federalism principles in wildlife management. States can decide appropriate regulations for species like rock pigeons or feral pigeons that mainly interact with human populations locally, while the federal MBTA focuses on broad national-level conservation.
Enforcement of the Migratory Bird Treaty Act
The U.S. Fish and Wildlife Service enforces the provisions of the MBTA relating to prohibited taking, killing, selling, or possession of protected migratory birds. Enforcement approaches include:
- Undercover investigations and sting operations related to poaching or black-market bird trafficking
- Monitoring of compliance by entities that kill birds incidentally like oil and gas companies, utility operators, and commercial fishers
- Inspections of taxidermy shops, breeding facilities, and aviaries
- Investigations of bird deaths from environmental contamination
- Coordinating with Customs and Border Protection to detect illegal bird imports
Violators of the MBTA can face maximum criminal penalties of up to 2 years imprisonment and $250,000 in fines for felony offenses. Misdemeanor violations carry maximum penalties of 6 months imprisonment and $15,000 in fines. Civil penalties up to $25,000 per violation may also be assessed.
Since the MBTA imposes strict liability, intent does not have to be proven for penalties to apply. However, enforcement is often focused on egregious violations involving deliberate poaching, trafficking, or deaths from preventable environmental contamination incidents.
Recent Controversies
There has been some recent controversy over the MBTA’s protections for incidental bird deaths caused by industry activities like oil pits, power lines, wind turbines, or communications towers.
Weakening of the MBTA
In 2017, the Interior Department issued a legal opinion stating the MBTA does not prohibit incidental bird deaths from lawful activities. This weakened the ability to penalize and deter industry hazards to birds. However, this controversial interpretation was overturned in 2021, reinstating that incidental bird deaths can be penalized under the MBTA.
Scope of Protections
Debate continues around the appropriate scope of strict liability for industrial hazards under the MBTA. Some argue penalties should be limited to only foreseeable, preventable hazards most likely to cause bird deaths. Others advocate for broad strict enforcement to incentivize industries to implement best practices that protect migratory birds.
Federal vs State Jurisdiction
There are also debates around the division of authority between federal and state governments. Critics argue the MBTA grants the federal government excessive reach over wildlife management. However, supporters counter the MBTA is necessary to address national and international level threats to migratory bird populations.
Conclusion
While the Migratory Bird Treaty Act provides broad protections for over 1,000 migratory bird species, some birds like nonnative species, game birds legally hunted under regulation, and feral/domesticated species remain excluded from coverage under the law. These exclusions recognize differences in conservation status, retention of state wildlife management authority, and focus the MBTA on wild birds naturally migrating internationally or interstate.
Ongoing debates continue around the appropriate scope and mechanisms of enforcement of the MBTA, highlighting the complex balancing of environmental concerns, industrial growth, federalism, and other factors in wildlife conservation policy. Careful evaluation of exemptions and enforcement approaches can help maximize protections for migratory birds while minimizing burdens on lawful economic activities.