5th US Appeals Court Weakens Migratory Bird Act

The 5th U.S. Circuit Court of Appeals has ruled that the Migratory Bird Treaty Act only applies to the intentional killing of birds, overturning a ruling against a petroleum company involving the death of 35 birds in open petroleum tanks. This ruling significantly weakens the Act because, if widely applied, it would require the government to prove intent.

More details  in the article at SFGate: Federal court: Intent matters in migratory-bird deaths

John

As a lover of wildlife I have always been comforted to know the MBTA prevents intentional takes.  

And Is not the "spirit" of the law meant to prevent intentional takes only ?   Honestly, I do not know.

Never considered a gray area scenario.  

Good point you make….i.e., that if widely applied it could require the government to prove intent.

This court ruling just might make the MBTA more visible to the general public, than the nests it was written to protect.  

1.  IMHO, the Migratory Bird Treaty Act has been relatively unknown throughout its existence…to date.  

2.  It is certain that the thoughtless killing of millions of young, native birds has gone unnoticed or unreported since the MBTA's inception (1918).    

Through all those years, people did do not know (and still do not) that destroying the nest of ANY native bird is in violation of a federal law.  Did you know that the United Stated Fish and Wildlife Service has designated almost all of our native bird species as migratory ?  And that because almost all of them are  migratory, to at least some extent.  

Obviously, nesting birds must assure their nests are inconspicuous or/and inaccessible.  For many, this means "cover".  Many species nest among us, but we rarely see the evidence, except for the carrying of nesting material or the appearance of young begging a foraging parent to continue feeding them. 

Passerine birds begin nesting earnestly just as soon as Spring foliage makes it difficult to see inside the vegetation….and not before.  And this includes "old" fields, ones that have not been mowed for several years.

So, any medium to large-scale brush removal activity or old field mowing, from say….late May through at least August is almost certain to cause the destruction of at least some nesting of our small, native birds.   

Now wouldn't you say that this has happened countless times since the MBTA's 1918 inception?   Just consider the haying/farming operations alone.  

Have you ever seen any type of land clearing operation stop because a little bird nest was being destroyed ?  I haven't.  But I would like to see this become routine practice.  I would love to read about some whistle-blowing here.  

And it just may happen, as more people become aware of the MBTA and what it protects. 

This is a treaty which the courts have little to say about its wording, and then the countries involved (Canada and Mexico in North America) can protest.  It then has to go to international arbitration.  Treaties are not subject to arbitrary court decisions.  Naturally this is a right wing court based in New Orleans.