Celebrating a Century of Bird Protection
This article was featured in the Summer 2018 issue of Explore. The story was updated in June 2020.
By Margo Servison, Conservation Program Coordinator
& Joan Walsh, Bertrand Chair of Ornithology
If you know the story of Mass Audubon, you may recall that the organization was founded by two women who fought to end the killing of birds for fashion. The practice was so widespread that, at one point, feathers were worth more than gold by weight.
As it turns out, these founding mothers didn’t just create Mass Audubon—they began the movement that led to the passage of one of the strongest conservation laws in history.
This year marks 100 years since Congress passed the Migratory Bird Treaty Act (MBTA) of 1918 into law. The act, which makes it illegal to kill or possess native birds, ended a particularly bleak period for birds. And over the last century many birds were on the path to recovery.
Unfortunately, the protections afforded them by the MBTA are currently in jeopardy.
A MBTA Primer
Despite having “migratory” in its name, the MBTA protects almost all of North America’s native birds, regardless of whether they migrate or not. Some native birds, such as ducks and other game birds, can be hunted during prescribed hunting seasons but are protected outside of the hunting season. Only a very few native species have no protection under the MBTA.
Northern Cardinals? Protected. Snowy Owls? Protected. Wood Ducks? Protected. All in all, the MBTA keeps more than 1,000 species of birds safe.
A Take on "Take"
As with many laws, there is always the question of interpretation. For the MBTA, the biggest debate involves something called “incidental take.” This refers to instances in which a bird, a nest, or eggs are damaged or destroyed during the engagement of an otherwise lawful activity. Misdemeanor convictions can result in penalties of hefty fines, jail time, or both.
Businesses worried about violating the MBTA can work with the U.S. Fish and Wildlife Service to implement best practices that reduce the killing of many native birds. Prosecutions are rare, and incidental take permits are issued that allow for some loss, as long as the business uses best practices to limit deaths.
The MBTA has motivated conservationists and businesses to come together. It has allowed for emerging industries, such as wind energy, to develop without the fear of prosecution as long as they follow best practices and acquire the proper permits for the birds they might kill as they conduct their operations.
MBTA at Risk
In December 2017, the Department of the Interior’s Office of the Solicitor wrote a memo stating that it does not consider any incidental take a violation of the MBTA. This means that no one will be held responsible for any bird deaths, regardless of scale or repeated violations, caused by any otherwise lawful activity. Only those protections afforded to some species by state laws or by the federal and state endangered species laws would still apply.
As a result, companies responsible for millions of bird deaths each year have no incentive to pursue steps to prevent these losses (i.e., it will no longer cost them money to ignore best management practices for birds). This is bad for birds, bad for all wildlife, and bad for people.
What You Can Do
One hundred years after its passing, we need to speak up for the strongest version of this invaluable law.
The MBTA at Work in New England
On April 27, 2003, a Bouchard Transportation Company oil tank barge struck rocks near Westport and spilled an estimated 98,000 gallons of oil. Almost 100 miles of coastline in Massachusetts and Rhode Island were affected, and thousands of loons, terns, dunlins, and gulls were killed. Important nesting habitat for federally endangered Piping Plovers and Roseate Terns was also seriously damaged.
In 2010, Bouchard agreed to a $10 million fine for violating the MBTA and the Clean Water Act. In 2014, Bouchard paid another $13 million to compensate for injury to migratory birds. The funds have been used to protect and restore affected coastal habitat. Without the protection against “incidental take,” the company would not have had to pay this fine to offset the significant damages it caused. That would have left the cost up to the stressed state budget and taxpayers.
Now, a portion of those funds are being used to steward the land and create a new trail at Allens Pond Wildlife Sanctuary in Westport.