Overview

Ask the US Fish and Wildlife Service to withdraw its proposed regulation that would eviscerate the Migratory Bird Treaty Act. This conservation law has worked well to reduce preventable bird deaths.

Take Action

(1) Submit your Comment to US Fish and Wildlife Service. By March 19, 2020, click here to submit your comment at regulations.gov.

(2) Share your comment with your members of congress.

  • Senator Dianne Feinstein: (415) 393-0707, (310) 914-7300, (202) 224-3841, or email.
  • Senator Kamala Harris: (415) 355-9041, (213) 894-5000, (202) 224-3553, or email.

Find your Representative:

  • Rep. Mark DeSaulnier - 11th district: (510) 620-1000, (202) 225-2095, or email.
  • Rep. Nancy Pelosi - 12th district: (415) 556-4862, (202) 225-4965, or email.
  • Rep. Barbara Lee - 13th district: (510) 763-0370, (202) 225-2661, or email.
  • Rep. Jackie Speier - 14th district: (650) 342-0300, (202) 225-3531, or email.
  • Rep. Eric Swalwell - 15th district: 510-370-3322, 202-225-5065, or email.

Suggested Comment

Note: It is best to personalize or modify the wording. You might substitute sentences or paragraphs from the previous Background section. You do not need to be a scientist or expert to submit your comments. The US Fish and Wildlife Service is required to read and address all comments on its proposed rule changes. Environmental groups that have sued the Department of Interior may also be able to use your comments in their court cases.

I am against the proposed regulation to make “incidental takes” under the Migratory Bird Treaty Act (MBTA) legal. This was not the intent of the law and would have a devastating effect on our wild birds. The accidental killing (incidental taking) of birds from oil spills, oil waste pits, utility wires, wind turbines, etc. which have been grounds for penalty will no longer be regarded as illegal. Without the threat of a financial penalty companies and local governments will no longer have the same incentive to protect birds in their daily operations.

The Migratory Bird Treaty Act has been successful in getting companies to design their operations in ways that eliminate preventable bird deaths. It has been estimated that millions of bird deaths have been prevented every year because companies have had an incentive to operate with best practice methods that have greatly reduced bird deaths.

The MBTA is one of our oldest conservation laws. It makes no sense to gut this law when wild bird populations have been decreasing because of habitat loss and excessive use of chemical pesticides and fertilizers. As climate change worsens birds will be even more threatened. We need to increase our protections of birds and all wildlife not weaken the laws that have been protecting them.

Oil and gas companies stand to benefit the most from this proposed regulation. The mission of the Fish and Wildlife Service is to protect wildlife. It is disgraceful that the FWS has instead chosen to issue a regulation that primarily protects the fossil fuel companies to the detriment of the birds the FWS is supposed to protect. The world is in agreement that climate change is one of mankind’s greatest threats ever and to reduce this threat we must drastically reduce our use of fossil fuels. The fact that the FWS is trying to rescue oil and gas companies rather than birds reeks of regulatory capture.

In September 2019 scientists reported that the wild bird population of the US and Canada decreased by almost 30% from its level in 1970. This is a decrease of almost 3 billion birds. This shocking decrease indicates that the ecosystems that we depend on to clean our air and water, to enrich our soil, to grow our crops and to balance our climate systems are in danger.

Birds have been well studied for decades and because of this scientists are confident that this documented decline in the wild bird population of North America is accurate. Insect, fish, amphibian and wild mammal populations have also been declining. The fact that the human population continues to grow while so many other species’ populations are declining does not augur well for our health in the future.

Clearly this is not the time to weaken the MBTA. Instead the FWS should be financing research to develop better techniques for preventing bird injuries and deaths and developing a permitting process for companies that would ensure that they would not be prosecuted for killing birds accidentally if they adopted these best practices. Also the FWS should be implementing programs to improve bird habitat and eliminate use of pesticides on federal lands.

If birds are in trouble, we are in trouble. Protecting wild birds is not just an aesthetic luxury. It is a way of protecting our future. Protecting bird habitats is protecting the ecosystems, the nature, we need to survive.

“Birds are telling us we must act now to ensure our planet can sustain wildlife and people.”

I do not want to live in a world without birdsong. Please FWS do your job and withdraw the proposed regulation to gut the MBTA.

Background

The Migratory Bird Treaty Act (MBTA) of 1918 is one of our oldest conservation laws. It originally covered birds in the US and Canada but was broadened to include birds shared with Mexico, Japan and Russia. Under the MBTA it has been illegal to kill any of the 1,000 plus protected bird species by any means or in any manner without a permit. The unlawful killing or injury of a bird has been punishable by a fine of up to $15,000 and/or 6 months of jail.

The MBTA has not led to many convictions but the law has been considered effective because many companies have adopted best practice methods of operation to avoid preventable bird deaths. The solutions have frequently been simple and inexpensive such as covering oil waste pits with nets to stop waterfowl from landing on them, spacing electrical wires far enough apart to enable eagles to fly between them without being electrocuted, placing blinking lights on top of communication towers to keep migrating songbirds birds away and siting wind turbines outside known bird migration routes. Estimates suggest that the MBTA has prevented millions of bird deaths annually.

This all changed in December 2017 when the Department of Interior (DOI) issued a judicial opinion that the MBTA does not prohibit “incidental take” (Incidental take refers to the accidental killing of a bird protected by the MBTA). For 100 years the courts had accepted that accidental killing of a protected bird was illegal under the MBTA.

In 1991 Exxon was convicted of violating the MBTA as a result of the Exxon Valdez oil spill and was fined $150 million for killing an estimated 250,000 birds. (It ended up paying only $25 million of this penalty though it did pay additional millions to restore wildlife habitat.) After the 2010 Deepwater Horizon oil disaster BP paid $100 million for killing an estimated 1 million birds as a result of the MBTA. The money was used to restore bird habitat.

Indeed it is the oil and gas companies that have lobbied for years to have the MBTA apply only to intentional killings, eliminating the threat of financial penalties for any bird deaths from oil spills, methane leaks or oil waste pits. Now the US Fish and Wildlife Service (FWS), an agency in the Department of the Interior, is proposing to codify the DOI’s December 2017 judicial opinion on incidental take into a new regulation. If adopted this new regulation will have devastating consequences for birds.

The reckless and dangerous nature of this harmful regulation is highlighted by the recent news that the wild bird population in North America (US and Canada) has declined by 3 billion birds (about 30% of the total population) since 1970. Most of this decrease is a result of habitat loss (especially conversion of grassland, forestland, and desert to agriculture) and chemical pesticide/fertilizer use (necessary for our industrial method of farming). As the negative effects of climate change intensify these trends will only worsen.

Birds are an indicator species. They are the best and most studied group of wildlife. Bird populations have been monitored by scientists and citizen scientists for decades. They are barometers of environmental health. Their massive decline is a signal that the earth’s biological systems, our ecosystems, are in trouble. We need healthy ecosystems to remove pollutants from our air and water, to enrich our soil, to grow nutritious food and to regulate our climate systems.

Other forms of wildlife (insects, amphibians, fish, mammals) are also suffering population declines, though it is more difficult to say with certainty how great these declines have been because their populations have not been as well documented as those of birds.

Several environmental groups (National Audubon Society, Center for Biological Diversity, Defenders of Wildlife, NRDC and American Bird Conservancy) sued the Department of the Interior after it issued its judicial opinion reversing the illegality of the incidental killing of wild birds. Attorney Generals from 8 states (including California) filed suit a few months later. The court cases are still in process, but unfortunately the US Fish and Wildlife Service (FWS), has ceased investigating most bird deaths and has even advised companies and local governments that certain bird protective measures are no longer necessary.

If a different President is elected this year a new judicial opinion could be issued early next year returning interpretation of the MBTA to that existing from 1910 -2017. However if this proposed regulation is adopted it will be more difficult to reverse it should a different President be elected.

There is much discussion among ecologists as to whether or not we are experiencing a sixth mass extinction. There is no doubt that the loss of local biodiversity is a threat to the nature we enjoy and the vital services it provides us. Please comment now against this proposed regulation.

References

Bring Birds Back, “3 Billion Birds Gone, Together we can bring them back”, 3billionbirds.org.
Friedman, Lisa, “Trump Administration Moves to Relax Rules Against Killing Birds”, newyorktimes.com, 1/30/20.
Fritzpatrick, John and Marra, Peter, “Opinion:The Crisis for Birds is a Crisis for Us All”, newyorktimes.com, 9/19/19.
Jorjani, Daniel, Principal Deputy Solicitor, “Opinion M-37050, Subject: MBTA Does Not Prohibit Incidental Take”, Department of Interior, 12/22/17.
McGlashen, Andy, “Federal Government Moves to Gut America’s Most Important Bird Law”, audubon.org, 1/30/20.
National Audubon Society, “Audubon Lawsuit Seeks to Restore Protections for Migratory Birds”, audubon.org, 5/24/18.
National Audubon Society, “Preventable Bird Deaths are No Longer Punishable Offenses”, audubon.org, 2/7/20.
Zimmer, Carl, “Birds Are Vanishing from North America “, newyorktimes.com, 9/19/19.