Application of the Migratory Bird Treaty Act to State Departments of Transportation

Focus Area

Wildlife & Ecosystems

Subcommittee

Natural Resources

Status

Archived

Cost

$100,000-$249,000

Timeframe

1-2 years

Research Idea Scope

Background:

The U. S. Congress enacted the Migratory Bird Treaty Act (MBTA) in 1918 to implement several international treaties.  The treaties were entered into because of concerns about the decline of some bird populations due to plume and market hunting.  The MBTA prohibits the “take” of migratory birds, their nests, eggs or young without authorization in the form of a permit or hunting license.  Violations of the MBTA are criminal and actionable (no prior knowledge by the violator required).  It is unlawful “by any means or manner, to pursue, hunt, take, capture, or kill” any migratory bird. 

For purposes of the MBTA, migratory birds are those listed in 50 CFR 10.13.  The list includes all bird species that could cross an international boundary. In addition, the Bald Eagle (BE) is now be regulated primarily under the MBTA and  the Bald and  Golden Eagle Protection Act (BEGEPA) because of the delisting of the Bald Eagle under the federal Endangered Species Act (ESA) on  August 8, 2007.   About the only birds not protected under the MBTA are some of the exotics or invasive species (i.e., house sparrows, rock doves (feral pigeons), and starlings and mute swan).  The gallinaceous game birds (turkey, quail, pheasant, etc.) are also not protected by the MBTA but are protected by state game laws. 

The language of the MBTA and subsequent court rulings have created confusion among the state DOTs and the U.S. Fish and Wildlife Service (USFWS) regarding the application of the MBTA.  This has led to a range of interpretations and consequent actions, some adversely impacting state DOTs. 

There is currently a great deal of confusion regarding the application of the MBTA.  Interim guidance issued by USFWS on August 17, 1999, as a result of another court case (Humane Society vs. Glickman) advised the service to “adopt an extremely cautious position with respect to the intentional take of migratory birds by federal agencies.”    Neither USFWS nor the Federal Highway Administration (FHWA) has been able to provide clear guidance as to how state DOTs should proceed under the MBTA.

FHWA personnel informed some of the state DOTs in July 2000, that a new Federal Executive Order (EO) to address the MBTA situation was expected at any time and before the change of the current administration (January 2001).  The EO was expected to require the development of a Memorandum of Understanding (MOU) between the USFWS and other Federal agencies.  The executive order was issued in 2001 and the MOU between USFWS and FHWA never materialized.

The confusion over varying interpretations and application of the MBTA impacts both cost and program delivery at the state DOTs.  As one example, during the summer of 2000, work on a state DOT project was halted due to MBTA issues.  The project was a bridge replacement and involved taking down an existing bridge with nests occupied by swallows.  An individual reported the work on the bridge to USFWS.  USFWS implied that enforcement action would be taken if swallows were killed by the bridge project. Work was halted on the bridge for three months until the swallows finished nesting.  The delay in work cost the state DOT approximately $90,000. This is only one example of how the MBTA has affected DOT projects.

Research Objective:

The objective of this study is an analysis on the appropriate application of the MBTA to federal and State DOTs, which can serve as the basis for the MOU between USFWS and FHWA which was anticipated but never produced and a guidebook of best practices to be used by state DOTs in their efforts to comply with the MBTA.

Specific Tasks:

Task 1:  Review the MBTA, and any amendments that have been passed, agency guidance (USFWS, FHWA, etc.), court cases.

Task 2: Develop a paper on the appropriate application of the MBTA to federal and state DOTs.

Task 3: Conduct a workshop with FHWA, USFWS and selected DOTs to determine primary impacts to DOTs and key issues that require resolution.

Task 4: Develop a guidebook of best practices to comply with the MBTA.

Suggested By

Dianna Noble, SCOE Natural Systems and Ecological Communities Subcommittee

Submitted

10/19/2007