Year of the Bird, 100 Years of the Migratory Bird Treaty Act, and Incidental Take

By Russ Schipper
While the 100th anniversary of the Migratory Bird Treaty was announced and celebrated in 2016, 100 years after it was first signed, the Treaty was only ratified by the US Senate in January 1918, making this the 100th year that the Migratory Bird Treaty ACT (MBTA) has been in effect. The good it has done on behalf of migratory birds is legendary.
As a tribute to that major bird conservation treaty, over 50 organizations, including the Cornell Lab of Ornithology, the National Audubon Society, and Birdlife International, have named 2018 as the the Year of the Bird, in part honoring the passage of the MBTA. While ASK wasn’t quite prominent enough to be asked to be a part of it, we are certainly with them in spirit and hopefully actions. The threats to birds are different today than 100 years ago. Then it was more slaughtering them for food, as in Passenger Pigeons, and for feathers for decorating hats and such. Today, undisputedly the greatest cause of declining bird populations of many species is habitat loss, with a long list of markedly lesser causes. But now there is a new threat on the block and it comes from our own Federal government in the form of the US Department of the Interior’s Office of the Solicitor. On December 22, 2017, the new Principle Deputy Solicitor Daniel H. Jorjani sent out a memo titled, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” a genuine slap in the face for the Year of the Bird.
By incidental take, they are referring to, for example, if some sort of extraction business has a holding pond with oily wastewater that ducks unknowingly land in and eventually succumb as a result of oil-soaked feathers. If the situation was assessed, the company can see the problem and remedy the “incidental take” by preventing the ducks from getting to the pond via netting. With this new interpretation of the MBTA, the companies cannot be charged with an infraction of the MBTA and therefore they have no incentive to act on behalf of the birds.
While certainly important, this action is one of what are likely many “under the radar” methods that the Trump Administration is using to dismantle and undermine this country’s environmental regulations. It seems to me that our response needs to be to contact our legislators and be sure that they understand what we think about that and to be sure they in fact know about it.
The Center for Conservation Biology has an opinion by Bryan Watts on this that lays things out nicely. Here is the link to the opinion:

Using the sword of Damocles to decapitate The Migratory Bird Treaty Act

If you would like to see the government memorandum, it can be found at:
Or contact me at and I’ll send the links to you.