Birders and U.S. Federal Laws

The Migratory Bird Treaty Act (16 U.S.C. 703-712) (hereafter "the Act") is the cornerstone for migratory-bird conservation and protection in the U.S. The Act was established in response to the unregulated and indiscriminate taking of birds. Plume hunters at the turn of the century had nearly decimated the continental population of Snowy Egret (Egretta thula) and other related species. At about the same time, market hunting caused the near-extinction of several shorebird species, including among others the Eskimo Curlew (Numenius borealis), Hudsonian Godwit (Limosa haemastica), and Lesser Golden Plover (Pluvialis dominica). Many state laws were enacted at the turn of the century in an attempt to curtail market hunting.

In 1913, Congress recognized the plight of many bird species and declared that it was illegal to shoot birds in the U.S. except in accordance with regulations promulgated by the Secretary of Agriculture (37 Stat.847). In 1916, the Secretary of State negotiated a treaty with Great Britain (acting for Canada) which provided protection of birds migrating between the two countries (39 Stat. 1702). The Canadian Convention was supplemented by a treaty with Mexico in 1936 (50 Stat. 1311), one with Japan in 1972 (25 U.S.T. 3329), and one with the Soviet Union that was ratified in 1978.

There are no concrete data to suggest that the Act alone has been responsible for the "saving" of individual migratory bird species. The dramatic increase in populations of Hudsonian Godwit, Lesser Golden-Plover, "Giant" Canada Goose (Branta canadensis), and several herons, however, can, in part, be attributed to the curtailment of market hunting brought on by the Act.

The Migratory Bird Treaty Act

The Act implements a series of treaties that provide for the international protection of migratory birds (Cogging and Patti 1979). It is a strict-liability law wherein there is no requirement to prove intent to violate any of its provisions.

Wording in the Act makes it very clear that most actions that result in "taking" or possession (permanent or temporary) of a protected species can be a violation. Specifically, the Act states:

Unless and except as permitted by regulations . . . it shall be unlawful at any time, by any means, or in any manner to pursue, hunt, take, capture, kill...possess, offer for sale, sell...purchase...ship, export, import . . .transport or cause to be transported . . . any migratory bird, any part, nest, or eggs of any such bird . . . included in the terms of the conventions between the United States and Great Britain (acting for Canada)...the United States and the United Mexican States . . . and the United States and the Government of Japan" (emphasis added).

The word "take" is defined as meaning "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect" (50 CFR 10.12).

The provisions of the Act are nearly absolute; "except as permitted by regulations" is the only exception (Cogging and Patti 1979). Examples of permitted actions that do not violate the law are the possession of a hunting license to pursue specific gamebirds, legitimate research activities, display in zoological gardens, bird-banding, and similar activities.

Which Species are Protected?

Among the 1043 bird species naturally occurring in the U.S. and its possessions, 868 species (83 percent) are protected by the Act, 75 species or subspecies (9 percent) are protected in all or a portion of their range by the Endangered Species Act (16 U.S.C.1531) (hereafter "ESA"), and 43 species (5 percent) are protected by both laws. All of the 175 species not protected by either the Act or the ESA belong to groups not covered by any of the migratory-bird treaties (e.g., all of the Galliformes and introduced species as well as island species belonging to groups not covered by the Act).

What Might be a Violation of the Act?

One example of a violation of the Act occurred in Arizona in the 1970s. A nesting pair of Common Black-Hawks (Buteogallus anthracinus) was found in an area frequented by birders. Overly enthusiastic individuals, in their attempts to observe and photograph the pair, caused the nest and its contents to be abandoned. Although no one was charged in this incident, the collective actions of the birders resulted in the "taking" of migratory birds because the eggs were "killed" as a result of the parent birds' absence.

There are a number of incidents involving rails, birders, and violations of the Act. Several examples of Black Rails (Laterallus jamaicensis) being pursued, captured, and photographed in the hand exist for the eastern and western seaboards of the U.S. In the mid-1970s, a group of Wisconsin birders chased a Yellow Rail (Coturnicops noveboracensis) around a sandy area in Milwaukee harbor. Eventually, the exhausted rail was stepped on by an overly enthusiastic human. The "take" provision of the Act was violated by the attempted capture and killing of the bird.

A practice used by some birders to view hole-nesting birds is to repeatedly hit the side of a nest tree, causing the adult birds to leave the hole. This activity can be considered "taking" if the bird is intentionally chased from its nest and the inadvertent death of young birds or abandonment of eggs occurs.

Santa Ana National Wildlife Refuge in Texas hosted a Golden-crowned Warbler (Basileuterus culicivorus) and a Yellow-faced Grassquit (Tiaris olivacea) from late January to early February 1990. Excessive pressure by birders caused refuge personnel to cordon off an area of the refuge frequented by the grassquit to ensure some protection of both the vegetation and the grassquit. Despite the site's being prominently fenced, numerous birders crossed over the cordon, trampling and destroying vegetation. Their behavior may have ultimately caused the birds (both the warbler and grassquit) to depart the area. Although no violation of the Act occurred, these activities took place on a National Wildlife Refuge in violation of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee; 80 Stat.927) (hereafter, the "Refuge Administration Act").

Although the Act does not specifically prohibit harassment to view birds, it is a different matter with the ESA. The ESA specifically prohibits people from harassing endangered or threatened species. In general, intentional or negligent actions that cause an endangered or threatened species to significantly change its normal behavior patterns (e.g., nesting, feeding, shelter) to the extent that the likelihood of injury to the animal may occur can be considered harassment under the ESA (50 CFR 17.3).

Some Legal Precedents

The maximum criminal penalty for an individual violating the Act is a $5000 fine and a six-month jail term for each count (18 U.S.C.571; 16 U.S.C. 707). In the case of United States v. Corbin Farm Services, 444 F. Supp. 510, (E.D. California 1978) the defendants were charged with killing ten American Wigeon (Anas americana) by aerial application of a pesticide. The defendants claimed their actions were not a violation of the Act because poisoning is not expressly forbidden and because they had no intent to kill the birds. The court, however, decided that negligence, not intent, was the key element of the case, and the defendants were fined. The Corbin decision upheld a statute imposing criminal liability for acts without intent to violate where the violator is in a position to prevent the harm and penalties are minor (Cogging and Patti 1979).

The Court in United States v. Schultze (28 F. Supp. 234) determined that "it was not the intention of Congress to require guilty knowledge or intent to complete the commission of the offense, and that accordingly scienter [knowledge] is not necessary." The Court in United States versus Schultze found the defendant guilty "even though there was no evidence of any guilty knowledge or intent upon his part at the time of the commission of the offense."

Coggins and Patti (1979) summarized the issue by suggesting that for a criminal violation of the Act, the deed: (1) must be purposeful; (2) it must involve some potentially lethal agent; (3) there must be some degree of culpability in the action; and (4) the consequences for bird mortality must be generally foreseeable. The violation may also involve causing direct physical injury to the bird even if the bird is not killed.

Using the criteria spelled out by Coggins and Patti (1979), it is apparent that the following types of actions would not be considered a violation of the Act: (1) walking down a trail through a forest and causing birds to flush from a tree branch; (2) "pishing" to arouse the attention of birds and draw them closer for observation; (3) stepping from a car or other hiding place and inadvertently causing a flock of birds to flush; and (4) driving a vehicle past a flock of resting birds and causing them to take flight. The best rule of thumb is to use common sense. If you are in doubt about the outcome of your intended action, do not proceed with your plan! In the long run, not only is the image of birders tarnished, but the species for which the law was enacted to protect are further harmed.

For instance, a White-winged Tern (Chlidonias leucopterus) and a probable Greater Golden-Plover (Pluvialis apricaria) were observed at Bombay Hook National Wildlife Refuge in Delaware in July 1989. There was considerable debate over the correct identity of the plover. One way to differentiate it from the similar Lesser Golden-Plover is to observe the color of the underwing. When Faanes arrived at the refuge to look for the plover, he met a group of birders who already had the bird in their scopes. Unfortunately for those individuals, the bird was uncooperative and would not raise its wings. One of the individuals in the group strongly suggested that a friend with a remote-controlled airplane should be brought in to "buzz" the plover and make it take flight (on a National Wildlife Refuge, no less!). The action of flying a model airplane over the bird probably would have been a violation of the Refuge Administration Act. In any case, this suggested action does not constitute ethical conduct on the part of birders.

What Can Birders Do?

We believe that the American Birding Association is the most appropriate forum for encouraging all birders to embrace the Act and for encouraging others to do so as well. Most important, Federal regulatory agencies must rely on the assistance of the public in protecting public resources agency personnel cannot be everywhere at once. If you encounter someone conducting himself in a way that might be a violation of the Act, ESA, or the Refuge Administration Act, contact the nearest office of the U.S. Fish and Wildlife Service immediately. Record a description of the individual(s), their vehicle, the time and location of the incident, and specifically what occurrence may have violated the law. If you are present on a National Wildlife Refuge when an incident occurs, proceed immediately to the refuge headquarters, where you can provide the information or obtain the phone number of the nearest special agent.

Our ultimate goal should be the protection of birds and their habitats for future generations to enjoy. We believe that the combined efforts of all birders in policing our own ranks is the most effective method to ensure that the birds which we all enjoy will remain numerous in perpetuity.

Acknowledgments

We thank Assistant U.S. Attorney Doug Semisch and Fish and Wildlife Service Special Agents John Cooper, Mike Elkins, Diane Fries, and Terry Grosz for their comments on earlier drafts of the manuscript.

Reference