Migratory Bird

Summary: Climate change is quickly transforming habitats. Species in affected regions are facing extinction as they are unable to migrate to suitable environments. This Note discusses assisted migration, the intentional human-assisted movement of imperiled species to suitable habitats outside of their historic range, as an important—though controversial—conservation tool. There are, however, no comprehensive assisted migration regulations in the United States. This Note argues that the U.S. Fish & Wildlife Service (FWS) should be the agency to issue regulations regarding assisted migration because FWS already has broad authority under the Endangered Species Act to conserve wildlife. This Note proposes that new regulations should be based upon existing FWS frameworks.

Summary: In this case, various environmental groups filed suit against the Bureau of Land Management (BLM) and the Department of the Interior, arguing that the BLM should not have granted right-of-way on federal lands to a proposed energy project because the project would violate the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act. The plaintiffs also argued that the BLM’s environmental impact statement (EIS) for the project was not sufficient according to the National Environmental Policy Act (NEPA). Ultimately, the court held in favor of the defendants and found that the EIS was sufficient under the NEPA and that by granting the right-of-way, BLM was not violation the MBTA or the Bald and Golden Eagle Protection Act. The court found that the EIS was sufficient under the NEPA because it included all the necessary information and was broad enough as to not force the BLM into automatically accepting the proposal. Additionally, the court held that the BLM was not in violation of the MBTA or the Bald and Golden Eagle Protection Act because the BLM was acting in a “purely regulatory capacity” and the BLM’s action could directly or proximately cause a violation under the MBTA or the Bald and Golden Eagle Protection Act.

Summary: This Nevada law makes it unlawful for any person to hunt or take any dead or alive birds, nests of birds or eggs of birds protected by the Migratory Bird Treaty Act of July 3, 1918 (16 U.S.C. §§ 703 et seq.) or accompanying regulations.

Summary: Friends of Animals (“FOA”) appeals an order of the United States District Court for the Eastern District of New York granting summary judgment in favor of defendants-appellees William Clay in his official capacity as a Deputy Administrator in the Department of Agriculture-APHIS and the FWS. FOA challenged FWS's issuance of a “depredation permit” to the Port Authority of New York and New Jersey authorizing the emergency “take” of migratory birds that threaten to interfere with aircraft at JFK Airport. FOA argues that FWS's own regulations unambiguously prohibit it from issuing such a permit and that the permit should therefore be set aside as the product of agency action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The District Court granted summary judgment for defendant FWS. On appeal, this court affirmed that ruling. FOA pointed out that the "emergency take" regulation at 50 C.F.R. § 21.41 does not authorize FWS to issue a permit that allows the emergency take of a migratory bird irrespective of its species, but instead requires a "species-specific" inquiry. However, this court disagreed, finding that "§ 21.41 does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety." Further, the court found the specific requirements in § 21.41 concern only applicants seeking a permit and not the FWS itself. In this situation, the court found the 2014 permit's emergency-take provision satisfied § 21.41. The District Court's order was affirmed.

Summary: Per Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: This Convention was signed in Moscow on November 19, 1976, and approved by the Senate on July 12, 1978. Documents of ratification were exchanged October 13, 1978, in Washington, D.C., and the exchanged Convention was implemented on November 8, 1978, by P.L. 95-616 (92 Stat. 3110), which amended the Migratory Bird Treaty Act of 1978 (16 USC 703-711; 40 Stat. 755). The Convention provides for the protection of species of birds that migrate between the United States and the Soviet Union or that occur in either country and "have common flyways, breeding, wintering, feeding or moulting areas." It also encourages actions to identify and protect important habitat against pollution, detrimental alteration, and other environmental degradation, and to cooperate in measures to protect migratory birds identified as being in danger of extinction. This international agreement remains in force for 15 years and will thereafter be renewed automatically on an annual basis subject to termination by either party.

Summary: Per Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: This 1916 treaty adopted a uniform system of protection for certain species of birds which migrate between the United States and Canada, in order to assure the preservation of species either harmless or beneficial to man. Sets certain dates for closed seasons on migratory birds. Prohibits hunting insectivorous birds, but allows killing of birds under permit when injurious to agriculture. The Convention was signed at Washington, D.C., on August 16, 1916, and ratified by the United States on September 1, 1916, and by Great Britain on October 20, 1916. Documents of ratification were exchanged on December 7, 1916. Implementing legislation for the United States was accomplished by enactment of the Migratory Bird Treaty Act in 1918 (16 USC 703-711; 40 Stat. 755). Canada and the United States signed an agreement on January 30, 1979, to amend the treaty to allow subsistence hunting of waterfowl outside of the normal hunting season, but it was never ratified by the Senate and never took effect. The treaty was amended in 1995 to establish a legal framework for the subsistence take of birds in Alaska and northern Canada by Alaska Natives and Aboriginal people in Canada. The Senate provided its advice and consent to the amendments in November, 1997. The treaty was formally implemented in 1999.

Summary: Per Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: This 1936 treaty adopted a system for the protection of certain migratory birds in the United States and Mexico. Allows, under regulation, the rational use of certain migratory birds. Provides for enactment of laws and regulations to protect birds by establishment of closed seasons and refuge zones. Prohibits killing of insectivorous birds, except under permit when harmful to agriculture. Provides for enactment of regulations on transportation of game mammals across the United States-Mexican border. Signed in Mexico City, February 7, 1936, this treaty was ratified by the President of the United States on October 8, 1936, and documents of ratification were exchanged on March 15, 1937, in Washington, D.C. United States implementation of the treaty was accomplished by amending the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-711; 40 Stat. 755) on June 20, 1936 (49 Stat. 1556). The treaty was amended March 10, 1972 (23 U.S.T. 260; T.I.A.S. 7302) to add 32 additional families of birds including eagles, hawks, owls, and Corvidae family. The treaty was amended in 1995 to establish a legal framework for the subsistence take of birds in Alaska and northern Canada by Alaska Natives and Aboriginal people in Canada. The Senate provided its advice and consent to the amendments in November, 1997. The treaty was formally implemented in 1999.

Summary: Per Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: This 1972 Convention is designed to provide for the protection of species of birds which are common to both countries, or which migrate between them by (1) enhancement of habitat, (2) exchange of research data, and (3) regulation of hunting. It was signed in Tokyo on March 4, 1974, with ratification advised by the Senate of March 27, 1973, and documents of ratification exchanged September 19, 1972. The Convention entered into force September 19, 1974. An agreement amending the annex to the Convention by adding the Maloy Bittern was effected by exchange of notes September 19, 1974, entering into force December 19, 1974 (25 UST 3373; TIAS 7990). This exchange also included a list of endangered birds as provided for in Article IV of the Convention. Implementing legislation for the United States was achieved by enactment of P.L. 93-300, June 1, 1975 (88 Stat. 190), amending the Migratory Bird Treaty Act of 1918 (16 USC 703-711; 40 Stat. 755), as amended. By a 1988 exchange of diplomatic notes, Convention appendices were updated to correct common names of species, scientific names, and to both add and delete species on the list based upon the latest scientific knowledge.

Summary: CITGO was convicted of multiple violations of the Clean Air Act and its regulations, and the Migratory Bird Treaty Act of 1918 (“MBTA”). CITGO urged the 5th Circuit to reverse the Clean Air Act convictions because the district court erroneously instructed the jury about the scope of a regulation concerning “oil-water separators.” CITGO also contended that the MBTA convictions were infirm because the district court misinterpreted the statute as covering unintentional bird kills. The 5th Circuit agreed with both contentions, holding that CITGO's equalization tanks and air floatation device were not oil-water separators under the Clean Air Act's regulations and that “taking” migratory birds involved only “conduct intentionally directed at birds, such as hunting and trapping, not commercial activity that unintentionally and indirectly caused migratory bird deaths. The district court’s decision was reversed and remanded with instructions.

Summary: A grand jury indicted Defendants on multiple counts of, among other things, knowingly and willfully conspiring to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles, in violation of the Migratory Bird Treaty Act (MBTA) (Count I) and unlawfully trafficking in migratory bird parts (Count II – IV). On appeal, as at the district court, Defendants argued that the counts to which they pled guilty were improperly charged as felonies because it was only a misdemeanor under the MBTA to sell migratory bird feathers. The court concluded first, that even under Defendants' interpretation of the MBTA, Count I charged a felony; and, second, that in regard to Count II, the allegations stated a misdemeanor only, not a felony. Accordingly, the court affirmed in part, as to Count I, but reversed in part as to Count II. The court also vacated the sentence on both Counts, vacated the felony conviction on Count II, and remanded for proceedings consistent with this opinion. On remand, the Defendants were given the option to withdraw their guilty pleas with regard to Count II, or the district court might consider whether to resentence their convictions on that count as misdemeanors.