This year, we celebrate the centennial of a treaty of importance to everyone interested in conserving birds: the Convention between the United States and Great Britain for the Protection of Migratory Birds, better known as the Migratory Bird Treaty. Britain signed on behalf of Canada. Later amendments implemented treaties between the U.S. and Mexico, the U.S. and Japan, and the U.S. and the Soviet Union. The treaties form the foundation of the collaboration necessary to conserve birds that migrate across international borders.

The convention was signed on August 16, 1916. The centennial is a good date for the purposes of observances and events, but it also presents an opportunity to ask why, a hundred years on, the treaty hasn’t done a better job preventi

ng birds from being killed and populations from declining. Below, I identify four problems that have kept the act from being enforced effectively and suggest ways each could be solved. I’ll start by reviewing the history of the act, the species it protects, and its liability and criminal penalty provisions, and by asking whether it is sufficient as a bird-conservation measure for today and the future.

First assertions of authority

Readers interested in international affairs will appreciate that the Migratory Bird Treaty was not effective upon signing by President Woodrow Wilson in ­December 1916, nor was it effective upon ratification by Congress as the Migratory Bird Treaty Act (MBTA) in July 1918. It became implementable only in 1920, after the Supreme Court upheld it in the case of Missouri vs. Holland. Thus, the history of the MBTA shows that a single public-policy action, even one taken by the president, is rarely sufficient to accomplish the original goal. Rather, a sequence of legislative actions has to be tested before the original intent can become implemented.

But even that series of events is not nearly sufficient to understand how the Migratory Bird Treaty emerged and was ultimately successful. The treaty had its roots in the Lacey Act of 1900, with which the federal government first asserted its authority on the issue of birds across the states. The act established stiff fines for interstate shipment of the “dead bodies or parts thereof of any wild animals or birds” killed or in possession in violation of existing state laws. It also established federal control over the “introduction of American or foreign birds or animals in localities where they have not heretofore existed.” The latter was incredibly visionary. Similar bills had failed in 1896, 1897, and 1898.

Another piece of foundational legislation was the Weeks-McLean Act of 1913, which sought to give the Secretary of Agriculture the power to set hunting seasons nationwide but failed, because of constitutional weakness. (See sidebar “14,964 egrets,” below.) The Migratory Bird Treaty filled that gap. In the end, the treaty became the basis for all bird and wildlife legislation that followed, including the Migratory Bird Conservation Act (1929), the Migratory Bird Hunting and Conservation Stamp Act, commonly known as the Duck Stamp Act (1934), the Bald and Golden Eagle Protection Act (1940), and the Endangered Species Act (1973).

The key provision of the MBTA was the establishment of a federal prohibition, unless permitted by regulations, to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, included in the terms of this Convention… for the protection of migratory birds… or any part, nest, or egg of any such bird.”

One might think that this profoundly comprehensive prohibition would have both started and finished the job of bird protection in one fell swoop. Obviously, however, that was not the outcome, as populations continue to decline to this day. So it’s important to make a distinction: The MBTA did succeed in conserving those species that are hunted, primarily waterfowl, under regulations that are worked out annually with state wildlife agencies and other partners, such as Ducks Unlim­ited. Species that are not consumed, however, have not received as much attention. The larger problem is that the number of waterfowl species is 58, while the remaining non-waterfowl, and nonhunted species, number over 900. Thus, most of the resources available for conservation have been invested in only about eight percent of the species covered by the MBTA.

Protected species

The history of the MBTA is a good example of how policy and culture profoundly influence the implementation of law. And it brings up a question about the 968 species that are outside that culture: How could birds continue to be killed without permits, given the substantial protection enacted so long ago? A perceptive reader may recall the phrase “any ­migratory bird, included in the terms of this Convention” and wonder which species were included. As it turns out, not every species was protected in the original MBTA.

You can see the list of species enumerated by the original act in the sidebar at right. Although it’s difficult to ascertain quickly which species might have been left out, the most conspicuous group is raptors. But it wasn’t just raptors; 32 families of birds were omitted from the original treaty and the subsequent statute. They were added only in 1972. In fact, the list of species included for protection has been adjusted many times over the years, for various reasons. The latest list was published on November 1, 2013. It contains 1,026 species.

Penalties for violation

The MBTA has teeth, due to a combination of strict liability and criminal penalty provisions. Both misdemeanor and felony convictions are provided for, the latter requiring intent. Various investigations and sting operations have led to fines; the confiscation of guns, boats, and vehicles; the loss of hunting privileges; and jail time. As with all law enforcement, prosecutorial discretion plays a role — only certain cases are judged worthy of the time and expense involved in collecting evidence, with an eye also to the likelihood of conviction.

Although the MBTA provides for penalties, it does not give the U.S. Fish and Wildlife Service, the agency with the statutory authority and responsibil­ity for enforcement, the power to compel violators to take steps to prevent mortality. That is, the agency can fine, confiscate property, and imprison violators, but it has no authority to require particular actions. Fortunately, coordination with other federal and state agencies, education, and the cooperation of industries can lead to successful resolutions. However, many conservationists believe that noncompliance is still far too common.

The penalty and strict liability provisions of the MBTA have encouraged citizens to try to enlist it in the protection of habitat. For example, they have argued that cutting trees during the nesting season inevitably destroys nests and that, therefore, timber harvest should be seen as a violation. Because courts have returned conflicting decisions in cases in which this line of reasoning was argued, it is helpful to return to the original intent of the legislation, as some of the courts have.

Congressional intent

Some authorities have argued the legislative intent of the MBTA was to prevent direct, intentional take, not what has now come to be called “incidental take” — a byproduct of normal land-use activities, such as logging and farming. They have also pointed out that the MBTA was enacted during the First World War more as “a food-conservation measure” than as a bird-conservation tool, as we think of it today. The senator who introduced the bill observed that “this law is aimed at the professional pothunter” and “nobody is trying to do anything here except to keep pothunters from killing game out of season.”

Most interestingly, some argue that the intent was not just about protecting birds for food; it was about protecting birds as the protectors of food. The sponsoring senator explained that “enough birds will keep every insect off of every tree in America, and if you will quit shooting them, they will do it.” It is noteworthy that this appreciation of the role of birds in protecting crops was codified many decades before the concept of ecosystem services was popularized in the literature of conservation biology.

Others observers suggest, because of the explicit and plain language used, that the MBTA in no way limits its scope to issues of hunting. In numerous cases, courts have upheld a broad interpretation, saying that Congress did not imply a narrow view of take. Today, courts interpret the MBTA in substantially different ways. There is ongoing tension between intent demonstrated by legislative history and the current realities of human-caused bird mortality.

The overarching problem is that the MBTA is violated every day in many places, and that enforcement is not even close to adequate. Due to the strict liability provision, every collision, electrocution, shooting, and poisoning, and every action that might be construed as an attempt to do these things, is a violation. According to recent research, the number of human-caused deaths of individual migratory birds in the U.S. ranges between hundreds of millions and well over a billion annually.

Problem No. 1: Lack of resources

Most of the problems, according to interviews I’ve conducted with Fish and Wildlife Service employees, result from a mismatch of policy intent and implementation capacity. The hundreds of species identified in the MBTA occur in every habitat under the jurisdiction of the federal government except the deep ocean. Because some type of human activity affects each habitat, an “attempt to take, capture or kill” can be argued essentially everywhere and at almost any time of the year.

Compounding the problem, the funding and personnel available to the agency are severely limited, and there is a similar lack of resources to monitor and assess bird populations, by which species and populations could at least be prioritized more effectively for enforcement action. Good population data are available for some species, but the long-term population trends of many species are not well known. Thus, the population-level impact of the many sources of mortality cannot be put in perspective. As a result, prosecutorial discretion in law enforcement is not applied in a systematic, logical way. Rather, only the most egregious cases attract investigation, and then only if there is no serious political opposition and the odds of conviction are high.

It is simple, in concept, to lobby for more federal resources — larger budgets and larger staffs — for population monitoring, law enforcement, and other activities. But that has not been a successful strategy so far. Expenditures for bird conservation represent a trivial portion of the federal budget, but to date there has been no successful action to increase those resources significantly.

What is realistic is adjusting the existing budget and staffing capacity within the Fish and Wildlife Service to meet bird-conservation needs better under the MBTA. This can be accomplished via a personnel-­management approach commonly employed within many federal agencies. That is, when an employee retires or moves to another location, his or her position is abolished and the opening is moved to where it’s needed and then filled by a candidate possessing the required skills.

Most of the positions currently devoted to consumptive outdoor activities, such as hunting and fishing, are obvious sources of such positions and resources. The number of Americans involved in consumptive activities has been declining steadily for decades across the U.S., and the trends are similar across states. Although traditional support for hunting and fishing is strong within the wildlife culture of North America, the demographic trends are clear: Americans are moving to nonconsumptive wildlife activity in general and birding in particular. This structural solution is totally within the control of the agency. Of course, there are internal battles over this sort of reallocation of resources, but strong leadership can be effective in restructuring. We have yet to see this leadership.

Problem No. 2: Statute is too broad

It’s clear that a strict enforcement of the MBTA, without any exceptions, would create a never-­ending scope of potential liability. In the most extreme case, the act could impose criminal liability on a person for the death of a bird under circumstances where no criminal liability would be imposed for even the death of another person. Enforcement has never been taken to anywhere near these extremes, but the result is that defining the act’s scope has been left to the courts. Decisions have varied greatly, resulting in confusion and ­likely reluctance on the part of law enforcement.

Conservationists and environmentalists are loath to open conservation laws to revision because the mood in Congress over recent decades has been anything but pro-environment. They fear, understandably, that any revision would result in a net loss to the standing of conservation in law and regulation. Despite this backdrop, some believe that incidental-take regulations are the solution to the many problems with MBTA enforcement. Incidental take, implemented via a permit system, would allow individuals and companies to avoid prosecution for killing migratory birds if the mortality was incidental to the operations being performed. As is the case with other permits that the Fish and Wildlife Service issues under the MBTA, the regulations would have to be thought out thoroughly. The impact of any mortality on the viability of bird populations would have to be monitored diligently.

Many conservationists would like to see regulations that prohibit activities that disturb bird habitats during the nesting season, when such activities are likely to destroy nests. This seems the most logical and justifiable next step in expanding enforcement. Although many of us would very much like to see this implemented, these type of regulations are not likely under the current political climate.

Another realistic step is to encourage a more rigorous use of environmental-impact analysis under the National Environmental Policy Act (NEPA). In the past, NEPA analysis often gave only cursory attention to the dozens or even hundreds of species of migratory birds affected by a given activity. The same has been true of the analysis of impacts on amphibians, reptiles, butterflies, and other nongame species, unless the species was listed under the Endangered Species Act. The dismissal of impacts on “lesser” species has been due to tradition, lack of information, and lack of interest by management. The tremendous advances in our knowledge of the status and needs of migratory birds have made a lack of thorough NEPA analysis unacceptable.

Problem No. 3: Free-riding

A perception also exists in the Fish and Wildlife Service — again, according to employees I interviewed — that “partners will do it.” This has been my personal experience in recent years as well, ever since funding for discretionary federal programs has been decreasing. The benefit of building public-private partnerships that began with the creation of Waterfowl Joint Ventures in 1986 has, in this way, backfired. The partnership framework allows any given partner to free-ride without real consequences. That’s part of the appeal in these partnerships — every organization does what it can, given its own missions and resources. But the structure also provides ready cover for inaction. In respect to the MBTA, private-sector partners obviously do not have the legal authority to enforce the law, but they do have the ability to bring suits and thereby force the service to take action where appropriate.

The solution to free-riding has to come from the culture and leadership within the agency. Certain public agencies excel because they have missions and organizational cultures that reinforce excitement, pride, creativity, and success — the National Park Service, for example. One analyst has described this as “mission mystique,” and I have experienced it in both the Bureau of Land Management and the Fish and Wildlife Service.

These agencies naturally attract people who bring their own missions, which align nicely with the agencies’ missions. That is, it’s not just that the agencies create great mystiques that attract people who become converts; many of the employees already are converts. They already are dedicated to the mission.

The point is, the U.S. Fish and Wildlife Service has, or at least had, a mission mystique. If it’s slipped in recent years, it can come back. The agency is loaded with dedicated people, but they are not getting the support and leadership they deserve. A good leader could reignite the agency’s mystique, attract more public support for the MBTA and what it can do for bird conservation, and greatly improve the resources coming to the agency for MBTA enforcement.

However, the lack of leadership is evident even in the very goals that have been set for the MBTA centennial celebration. One of the agency’s “topline key messages” reads: “The Service aims to coordinate and galvanize efforts to protect migratory birds for the generations to come.” Note the passive word coordinate rather than the active lead, and also the weasel word aims. There isn’t even a full commitment to coordinating.

This may seem like nitpicking, but it’s not; the wishy-washiness reveals the mindset of the service today. One need only contrast its statement with what Associate Justice Oliver Wendell Holmes Jr. wrote when the Supreme Court upheld the constitutionality of the MBTA in Missouri vs. Holland (1920): “Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power…. But for the treaty and the statute, there soon might be no birds for any powers to deal with.” That’s leadership.

Problem No. 4: Public awareness

It’s likely that most Americans, including most birders, have never even heard of the MBTA. The Endangered Species Act is better known, despite the fact that it is applied to a relatively small proportion of the bird species in the country. Of course, the ­Endangered Species Act addresses high-profile species that win lots of media attention. The Bald ­Eagle and Peregrine Falcon are examples and great success stories. Yet the MBTA has much more potential ­because it applies to all native bird species in the U.S.

The main potential benefit of more public awareness is that it could lead to more resources for MBTA implementation and to the political actions outlined above. Because the Fish and Wildlife Service currently does not have the leadership necessary to accomplish this increase in awareness, despite the huge opportunity presented by this year’s MBTA centennial, it is up to the partners in bird conservation to elevate that awareness.

The prime partner in this campaign is the North American Bird Conservation Initiative (NABCI). NABCI has functioned as a board of directors for the bird-conservation community, not only in the U.S. but also in Mexico and Canada. Recall that the U.S. has treaties with both countries that have been rolled into the MBTA.

The American NABCI committee consists of representatives of all major federal natural-resource agencies, all major bird-conservation nongovernmental organizations, and the 50 state fish and wildlife agencies. As such, it potentially has great power to direct conservation activities within the U.S. This includes not only direct influence on the Fish and Wildlife Service through the committee itself, but also indirectly through the mobilization of the memberships of the nonfederal partners. Thus, one may wonder why such influence has not been brought to bear.

It seems that all of the pieces needed for a significant change in MBTA implementation are in place: a powerful statute, ever-increasing conservation needs, and a surging interest in birding in the U.S. What’s lacking more than any other single thing may be a classic policy entrepreneur to make it happen. To date, no individual or group has taken on the challenge and opportunity of assembling the ready pieces of a new policy and shepherding it through the various hallways in public policy.

Repeating Oliver Wendell Holmes’ observation in 1920, “a national interest of nearly the first magnitude is involved.” If, 100 years later, we can do no more than repeat this sentiment, what have we achieved? Over 900 species of birds continue to wait for an answer. They cannot wait forever.

In the end, the biggest problem is that the MBTA is a regulation, and, as such, it is a reactive measure. It does not have the capacity to be proactive. It cannot buy land, restore habitats, or change land management at large scales. It cannot fund research or monitoring programs. For these conservation actions, we need Joint Ventures, the North American Wetlands Conservation Act, State Wildlife Grants, and the Neotropical Migratory Bird Conservation Act. And we need them to be funded at much higher levels than they are now.

Terry Rich is an Honorary Member of the Cooper Ornithological Society and a Fellow of the American Ornithologists’ Union. He served as the national Migratory Bird Program Coordinator for the Bureau of Land Management from 1992 to 2000, and as Partners in Flight National Coordinator from 2000 to 2014. He is currently pursuing a PhD in public policy from Boise State University.

This article was published in our August 2016 issue. Subscribe.

 

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Originally Published September 25, 2016