Thursday, August 8, 2019

A Renewed Fight to Protect Migratory Birds

bird covered in oil courtesy USFWSDuring the late 19th and early 20th centuries, the use of feathers in women’s hats was all the rage.

To meet fashion industry demand for their elegant plumage, several North American bird species (e.g. egrets, herons) were hunted to near-extinction.

To safeguard migrating birds from overhunting and unregulated commercial trade in bird feathers, the Migratory Bird Treaty Act (MBTA) was enacted in 1918. The covenant between the United States and Canada is one of the nation’s oldest conservation laws.

Since its passage, the MBTA has been expanded to protect more than 1,000 species of migrating birds (e.g. eagles, hawks). It’s also led to similar treaties with Mexico, Japan, and Russia, and has included immunities from penalty for falconry, scientific collection, and Native American religious ceremonies.

The MBTA makes it “unlawful… to pursue, hunt, take, capture, kill, (or) sell… any migratory bird (or) any part, nest, or egg of any such bird… unless authorized under a permit issued by the Secretary of the Interior.” Some regulatory exceptions apply. The most recognized is a hunting license and Migratory Bird Hunting and Conservation Stamp (duck stamp).

For decades, the landmark legislation was recognized as applicable to death caused by human activity, either intentionally or unintentionally; thereby incentivizing collaborations between industry and the federal government to minimize the annual number of migratory bird deaths, by eliminating largely-avoidable, potentially-deadly hazards. Efforts include the use of weighted drag-lines (long lines of baited hooks) on commercial fishing boats; the use of closed tanks or nets over oil and gas company wastewater ponds and pits; and flashing red lights, as opposed to steady red light, to warn pilots away from industrial towers (e.g. wind turbines, communications towers), since several songbird species (e.g. warblers) are attracted to uninterrupted light.

Disciplinary action against inadvertent violations have included a $100 million fine as partial settlement by British Petroleum, used to restore habitat for waterfowl and other birds in the Gulf of Mexico, after more than a million birds were killed during the 2010 Deepwater Horizon oil rig catastrophe.  A $1 million fine was levied against Duke Energy, after Duke was held responsible for raptor deaths at a Wyoming wind farm in 2013. PacifiCorp Energy, one of the West’s leading power companies, paid more than $10.5 million in 2009, for the inadvertent electrocution of 232 eagles along power lines and at its substations. PacifiCorp says it now retrofits 10,000 utility poles a year to make them less likely to electrocute birds.

In December of 2017, however, the U.S. Department of the Interior (DOI), under the leadership of then-Secretary, Ryan Zinke, in a reversal of the policies of all prior administrations, issued an opinion to federal wildlife police stating that “the take of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds.”

The interpretation pertained to private citizens as well as industries that inadvertently kill game or non-game birds. A letter signed by a wide-ranging group of former Interior Department officials, from every administration since Gerald Ford’s, urged Zinke to suspend the “ill-conceived” opinion.

Ironically, at the same time that DOI was re-interpreting the MBTA, the National Geographic Society, in partnership with the National Audubon Society, Birdlife International, and the Cornell Lab of Ornithology, were proclaiming 2018 the Year of the Bird, in honor of the 100th anniversary of the Act.

On June 13th of this year, the House Natural Resources Committee’s Subcommittee on Water, Oceans, and Wildlife held a hearing to consider several new pieces of legislation. Included was a discussion of the Migratory Bird Protection Act of 2019, a draft bill that explicitly includes a prohibition against unintentional take; defined as “the killing or taking of migratory birds that directly and foreseeably results from, but is not the intended purpose of, covered commercial activity.” Enactment would supersede the Administration’s 2017 re-interpretation.

Several witnesses testified regarding the draft, including Amanda Rodewald, a Cornell University Department of Natural Resources Professor and Senior Director of Conservation Science at the Cornell Lab of Ornithology, who told the Subcommittee that she was, “not arguing that we should try to eliminate all human-caused mortality of birds, (but that) we can and should take active steps to reduce harm where possible.”

Rodewald added that “The U.S. has shown the world, by example, how healthy environments, strong economies and vibrant communities are compatible and mutually reinforcing. Yet the re-interpretation of the Act has weakened protections granted to birds and, in doing so, has undermined the broader environmental and economic benefits to Americans.”

In recent years, Federal courts had been split over whether the MBTA applies to birds killed as a result of otherwise legal activities. But, in a victory for conservationists and migratory birds, the Southern District of New York ruled, on July 31st, that a lawsuit; National Audubon Society v. Department of the Interior; brought before the court by Audubon and other conservation groups can move forward.

The fight to protect migratory birds continues.

Photo of bird covered in oil courtesy USFWS.

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Richard Gast is a retired Extension Program Educator and has been contracted by Cornell Cooperative Extension Franklin County to continue his informative and thought provoking articles.




9 Responses

  1. Chris says:

    No secret on who opposes the Act:

    “Disciplinary action against inadvertent violations have included a $100 million fine as partial settlement by British Petroleum, used to restore habitat for waterfowl and other birds in the Gulf of Mexico, after more than a million birds were killed during the 2010 Deepwater Horizon oil rig catastrophe. A $1 million fine was levied against Duke Energy, after Duke was held responsible for raptor deaths at a Wyoming wind farm in 2013. PacifiCorp Energy, one of the West’s leading power companies, paid more than $10.5 million in 2009, for the inadvertent electrocution of 232 eagles along power lines and at its substations. PacifiCorp says it now retrofits 10,000 utility poles a year to make them less likely to electrocute birds.”

  2. Mary cronk says:

    Where were you guys last year when sabbatis circle road was threatened ? No problem now but did anyone raise red flags?
    Think local, too

    • John Warren says:

      Is there a point you’re trying to make? Or is it just your secret?

      • mary m cronk says:

        no secret … but in NY the highway work is allowed to make plans( when deemed as emergency ) that may impact an important wildlife areas.

        This happened last year when an emergency culvert replacement forced NYS 30 down an 8 mile Important Bird Area — Sabbatis Circle (near Long Lake) during April and May… bird migration timeframe.

        (Adirondack Explorer published something about it last year.)

        This is continuing around the state. In Binghamton, NY… an emergency culvert replacement has allowed water level of largest marsh in Broome County to drain. It has been 6 months and no sign of any highway work starting despite the “emergency repair”. The birds have moved out of the marsh and the fish have likely died. DEC is aware of the issue… but the work has all the required permits.

        I assume our need of infrastructure work is superceding our wildlife concerns, particularly when it comes to important bird areas.

        I know about the Wildlife Bird act and it works nationally… but how about local?
        There are similarities on a local scale.

        • Cranberry Bill says:

          Well Mary, I cannot resist posting a reply, because you are obviously the right person to take the lead on this. If I were you, I would contact my state representative and just go over and cronk him/her where it counts.

          • MARY M CRONK says:

            cranberry bill

            I don’t live near you. sorry bill, maybe you should. I contacted many people about the Binghamton problem but I wrote what they told me in my reply. Sorry you are so sarcastic

            Maybe I should contact washington? The marsh near my house is listed as federally protected… What a joke.

        • Boreas says:

          Mary,

          I understand you concern. Your assumption is correct – people will always trump wildlife. But all is not lost! The short-term procedures you mention, while obviously detrimental for a season, typically will not impact wildlife a great deal over time. Birds and other critters usually can adapt because they have evolved to do so. A severe drought or breach in a beaver dam would have a similar effect, so some wildlife die that cannot move elsewhere or otherwise make due. But any surviving wildlife will continue to stop or use the area when the water levels return.

          But proper timing of these projects can be problematic. Drop the levels sooner and you affect vegetation and breeding, perform it later and you affect reptiles and amphibians going into preparation for winter or fish movements to deeper water. Whenever you do it, wildlife will be affected in the short term. Luckily most species can rebound quite well from something like this. An ongoing or repeating project that would last several years would obviously be much more detrimental.

          • Tim-Brunswick says:

            Darn good response Boreas and definitely on target…my compliments!

          • Mary says:

            Yes but the two biology profs i know from binghamton university backed this up after a field trip. So they calked the DEC as did members of the local Audubon and the sierra club.
            Water disappeared in late winter and no highway work or repair is done yet.

            Largest “protected federal wetland” in our county… no big deal

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