Recent scientific evidence indicates that the breeding population of birds in North America is nearly 30% smaller than it was 50 years ago — a decline of some 3 billion individuals in all. The causes are varied and complex, but they include habitat loss and degradation, intensification of industrial agriculture and global climate change.
Until recently, U.S. citizens could trust in the century-old Migratory Bird Treaty Act to help counterbalance this avian conservation crisis. Since 1918, this bedrock law has outlawed the hunting, killing, capturing or collecting of migratory birds — and their eggs or nests — without a permit. From loons to longspurs, terns to tanagers, the treaty protects migratory birds across North America, and the myriad values — recreational, ecological, economic and spiritual — by which they enrich our lives.
That landmark piece of legislation is now under siege. For decades, courts have interpreted the treaty as applying to “incidental takes” — the unintentional harm or death of a bird that is the direct and foreseeable result of a person or entity’s actions. Courts have acted with discretion when applying this interpretation, preventing absurd results such as penalizing farmers who inadvertently mow over nests in a hayfield or citizens whose pet cat kills a bird.
The incidental take interpretation, however, has been successfully applied in many cases where agency or industry negligence has resulted in bird mortality. For example, after its catastrophic Deepwater Horizon oil spill in 2010, BP was required to pay a $100 million fine under the treaty.
Over the past 50 years, this legal interpretation has compelled industry to use best practices, such as covering oil waste pits and spacing electrical power lines to avoid electrocution, that have prevented countless avian deaths.
The Achilles’ heel of the treaty is its lack of language expressly outlining incidental takes. Over the years, this has led to inconsistent rulings between courts in different circuits and caused confusion for those trying to abide by the law. In late 2017, the U.S. Department of the Interior issued a memo reinterpreting the law to apply only to direct and purposeful harm or death, claiming that this will help erase confusion. Under the department’s decision, entities that kill or harm birds through chemical contamination or oil spills, for example, will no longer be liable. The current administration has now proposed to legally encase this position in an administrative rule.
This action would effectively legalize the negligent and indiscriminate killing of birds, as long as it was done “unintentionally.” Billions of birds, not to mention the ecological services and recreational benefits they provide, are at stake.
Despite being a small state, Vermont is anything but immune from this decision. A study published by the Vermont Center for Ecostudies in 2017 showed that Vermont’s forest bird populations declined by approximately 14% across 31 unmanaged forest sites between 1989 and 2013. Common yellowthroats, Canada warblers and yellow-rumped warblers were among those species that experienced the sharpest declines.
Of particular concern were the 45% declines documented in 11 aerial insectivores (species that consume flying insects) over the 25-year study period. These sobering results accord with a continental trend that ornithologists have observed for at least two decades. Although scientists believe that this trend is predominantly linked to widespread declines in insect populations, reduced protection under the Migratory Bird Treaty Act will certainly not promote their recovery.
Birds are intrinsic to life in the Green Mountain State. Over the years, 382 species have been documented in Vermont, and 201 of these are known to breed here. As the state with the highest proportion of self-reported birders (39%) and where wildlife-watching generated approximately $289 million in 2011, reinterpretation of the treaty will likely damage our ecosystems and economy.
Although some claim that the proposed rule change provides needed clarification, its main accomplishment would be to tear a hole in the primary law safeguarding our nation’s birds, at a time when they most need our protection.
Thankfully, conservation activists at both the federal and state level are stepping up to try to fill the conservation gap.
Nationally, H.R. 5552 — the Migratory Bird Protection Act — is under consideration. This bill would amend the treaty to reestablish that, contrary to the current administration’s reinterpretation, the law prohibits incidental take. In line with other states, Vermont has introduced H.683, “an act relating to prohibiting incidental take of migratory birds.”
Vermont Center for Ecostudies partner Audubon Vermont is working hard to ensure passage of this far-sighted law, with broad support from the statewide bird conservation community. As a research and conservation science organization, the Vermont Center for Ecostudies generally lets its science do the talking and does not wade into policy issues often, or lightly. In this case, the science is clear, and the conservation impacts damaging.
We must all make our voices heard.
We implore Vermonters to take action for birds. Comment on the proposed U.S. Fish and Wildlife Service rule change before the March 19 deadline (go to regulations.gov and search for “Migratory Bird Permits”). Urge your congressional representatives to support H.R.5552 and your legislators in Montpelier to support H.683.
Birds that we all cherish — from barn swallows to eastern bluebirds, Baltimore orioles to common loons — hang in the balance.
The time to act is now.
Chris Rimmer is executive director and Jason Hill is a conservation biologist with the Vermont Center for Ecostudies in White River Junction. For more information, visit vtecostudies.org.