Rules

February 06, 2021

Buried in the middle of my Saturday paper I found an article on changes the Biden administration has taken to protect migratory birds.  During the last administration, the Interior Department had sided with industry groups and sought to end criminal prosecution of accidental, yet preventable bird deaths.  The Migratory Bird Treaty Act of 1918 (MBTA) is a US federal law for the protection of migratory birds between the United States and Great Britain/Canada.  The law is of constitutional interest as it uses federal treaty-making power to override the provisions of state law.  The principle that the federal government may do this was upheld in the case Missouri v. Holland.  In a defense of the treaty, Judge Caproni on August 11, 2020 wrote in a decision, “It is not only a sin to kill a mockingbird, it is also a crime.”  The highest profile case under the MBTA was the $100 million settlement by British Petroleum after the 2010 Gulf oil spill killed 100,000 birds.  This illustrates how fragile bird populations can be.

Kansas is on the main route for many migratory birds between Canada and the southern US/northern Mexico.  When I lived in southeastern Kansas a local farmer’s field was inundated by migrating Canadian Geese.  For nearly four days geese would stop in the evening and fly off in the morning as they moved north.  The paper estimated there were around 80,000 geese who had stopped on these 80 acers and the small pond they held.  The geese were drawn by the water and abundant milo the farmer annually left standing in the field as fodder for the migrants.  While this was done on purpose, it had never attracted so many birds.

The MBTA is critical to protecting and restoring declining bird populations.  The statute makes it “unlawful without a waiver to pursue, hunt, take, capture, kill, or sell” nearly 1,100 species of birds listed as migratory birds.  The statute does not discriminate between live or dead birds and grants full protection to any bird parts including feathers, eggs, and nests.  Some exceptions allow for scientific collection and for enrolled members of Native American Indian Tribes to use feathers for religious purposes.  The Act was enacted in an era when many bird species were threatened by the commercial trade in birds and bird feathers and was one of the first federal environmental laws.  Similar Acts with other nations have been incorporated into the MBTA.  Some of these provisions stipulate protections not only for the birds, but for habitats and environs necessary for the birds’ survival.

Thoughts:  There have been 150 bird (recorded) species lost globally since 1500 CE.  Of those, 132 have been classified as ‘Extinct’ and four as ‘Extinct in the Wild’ (populations only surviving in captivity).  An additional 14 species have been classified as ‘Critically Endangered (Possibly Extinct)’ and one as ‘Critically Endangered (Possibly Extinct in the Wild)’.  While the reason for extinction can rarely be pinned to a single cause, extinction most often occurs when new threats develop that are “outside the evolutionary experience of species” (read humans and human pets).  Some believe if we block existing rules or reduce their penalties people will do the right thing on their own.  Try telling that to the 12% if bird species that are predicted to go extinct in the 21st century.  Follow the science.  Change is coming and it starts with you.

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