2018, the year of the bird, may not actually be the best year for birds. Instead, the most comprehensive bird protection law in the U.S. has been weakened.
One hundred years after the passing of the Migratory Bird Treaty Act (MBTA), the U.S. Fish and Wildlife Service changed how the law is enforced under the Trump administration. Now actions that incidentally result in migratory bird death and injury (known as “incidental take”) are legal as long as no other laws are broken. This update clarified in an M-Opinion issued in November.
Congress passed the Migratory Bird Treaty Act in 1918 in response to overly-aggressive “takes.” In the late 1800s, Americans shot and killed passenger pigeons and other birds without concern for species conservation, making animal bodies into hats, scarves, and other accessories. In 1914, the last passenger pigeon, a member of a species that once was so plentiful that their flocks were said to have darkened the skies for days, died.
In response, the MBTA made it illegal to take any migratory birds. That means no shooting them, trapping them, poisoning them, taking eggs, touching or damaging their nests. The Audubon Society credits the MBTA with saving the Snowy Egret, the Wood Duck and Sandhill Crane.
For the last 100 years, this law meant that pretty much anything you might do with a migratory bird could violate the MBTA, even if you have no intention of hurting or touching a bird. Cutting down a tree with a blue jay nest in it violates MBTA; putting up a power line that shocks an owl violates MBTA. Even picking a feather up from the ground, of any MBTA-listed species is a violation, and punishable by up to six months in jail and a $15,000 fine.
Notably, this update to the law only reflects incidental take, a U.S. Fish and Wildlife spokesperson told Newsweek in an email. It’s still illegal to intentionally kill a migratory bird, and many birds, such as eagles, are still protected from incidental take by other laws.
The Washington Post has reported that the greatest beneficiaries of the change are oil and gas companies. They reported that in 90 percent of fines came from oil and gas companies, including from oil spills that killed millions of birds. Environmental disasters still carry legal ramifications, but the MBTA will no longer have the power to prosecute actions that incidentally harm birds.