Proposed change to Migratory Bird Treaty Act in final public review

Last February, the U.S. Fish and Wildlife Service published a proposed rule to “clarify prohibitions” concerning the “incidental take” of migratory birds under the Migratory Bird Treaty Act. The move has been criticized as a ploy to codify Trump-era deregulation before President-Elect Joe Biden can take office. The FWS will come to a final decision at the end of December.

The migratory bird act was originally passed in 1918 to protect a wide range of bird species from human-caused harm. The act prohibits the unauthorized “take” of migratory birds – killing, maiming, capturing, or otherwise harming them – and imposes fines for violators.

Historically, the term “take” has included the unintentional killing or wounding of birds. If birds are smothered in open oil pits or collide with unprotected power lines, for example, the responsible individual or corporation could be prosecuted. Shooting migratory birds in most circumstances is also prohibited under the act, but hunting migratory birds for subsistence in Alaska is allowed with the proper license.

In 2018, the Trump administration issued a legal opinion stating that unintentional killing was not included in the definition of “take,” and stopped prosecuting cases of incidental harm.

On December 27, the FWS will decide whether this interpretation should become an explicit part of the migratory bird act. If the change fails to pass, the incoming Biden administration could go back to prosecuting unintentional takes right away. But if it goes through, it would be a much longer process to change the law back to its original restrictions.

Proponents of the change argue that it clarifies a vague law and gives assurance of legal immunity to people and companies that may be overly concerned with killing birds. “Advocacy groups have spent decades twisting and contorting a clear law through regulatory overreach,” said Alaska Governor Mike Dunleavy in a statement. “This proposed rule will restore logic and rationality to an important and successful environmental law.”

Others, including environmental and tribal groups, have criticized the change as counter to the original intent of the act and harmful to bird populations already under threat.

When the legal opinion was first published, 17 former Interior officials wrote an open letter to then-Secretary of the Interior Ryan Zinke stating that “this legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970’s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds.”

While the FWS reports that only an average of 46 accidental takes were prosecuted annually before 2018, groups advocating against the change argue that the explicit condoning of incidental killing would empower oil and gas companies – which are the strongest proponents of the change – to ignore safety measures, which could have a signifi

cant impact of bird populations.

In rural Alaska, the issue isn’t just a question of environmental conservation but also of economic and food security, as many residents of rural Alaskan communities rely on migratory birds as an important food source.

Migratory birds are critical to food security for communities across the state, from Bristol Bay to the North Slope.

While the cost of basic food supplies can be astronomical in stores across rural Alaska, migratory birds offer an essential source of food that’s both accessible and affordable, especially in the spring after winter freezer food start to run out but before the summer salmon run.

Feathers from migratory birds also play a large role in many artistic traditions, so the harvesting of birds is important for cultural practices as well as subsistence.

If migratory bird populations drop as a result of unregulated accidental takes, it could have a devastating impact on communities across rural Alaska.

The FWS released a draft Environmental Impact Statement in June, after which a federal district court judge vacated the original legal opinion that proposed the change, ruling that it “runs counter to the purpose of the MBTA to protect migratory bird populations.”

While the court decision does not prohibit Trump’s FWS from deciding in favor of the change, it does suggest that the decision could be struck down in the courts after it goes through, although it’s uncertain how long that process could take.

On Nov. 27 FWS published the final Environmental Impact Statement which is out for 30day public review after which the FWS will issue a record of decision. For more information go to https:// www. fws. gov/ regulations/mbta/