Update: Read the comments filed by the Ornithological Council.
Today, the U.S. Fish and Wildlife Service (Service) is proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.
This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.
Background: the USFWS under this Administration developed a policy known as an M-Opinion, which is internal agency policy, stating that the law does not prohibit incidental take of migratory bird species protected under the Migratory Bird Treaty Act.
The policy has been in litigation in the U.S. District Court for the Southern District of New York for some time and is still pending. It is unlikely to be adjudicated before June of this year and any decision will be appealed.
Throughout this time, the USFWS has stated that it intends to promulgate a formal regulation. Doing so would obviate one of the key aspects of the legal challenge - that there was no opportunity for public input. Under the Administrative Procedure Act, public input is required when a formal regulation is proposed.
Field season is right around the corner! If you haven't already applied for your permits/renewals, do it ASAP.
URGENT NEWS FOR THOSE NEEDING PERMITS FROM USFWS REGION 8: This information was received by the Ornithological Council on 23 Jan 2020:
Our office is currently very short-staffed and is experiencing a backlog of one year with processing permits and mail.
Do not follow up with a hard copy unless asked to do so or if you are sending a processing fee through the mail. The only way we can accept processing fees is with a hard copy check or money order payable to the U.S. Fish and Wildlife Service.
Reports – if you are submitting a report, no further action is needed.
Applications – if you are submitting an application. No further action is needed; however, we do recommend following up with our office if you have not heard from us after 6 months.
Questions – if you have a question, a response may require research and time. We appreciate your patience and will respond to your inquiry at our earliest opportunity.
The Ornithological Council has been encouraging the USFWS to develop an online permitting system since 2002 and congratulates the agency on reaching this important junction - online permit applications. We encourage everyone to register; if you encounter any problems or questions, please let us know and we will relay them to the USFWS.
The Airborne Hunting Act applies to "any contrivance used for flight in the air" and prohibits "harassment" which is defined as "disturb, worry, molest, rally, concentrate, harry, chase, drive, herd, or torment." Does this mean that ornithologists can't use small unmanned aircraft (SUA) to study birds? IF YOU HAVE APPLIED FOR A STATE PERMIT TO USE DRONES (A STAND-ALONE PERMIT OR AS PART OF YOUR STATE SCIENTIFIC COLLECTING PERMIT, PLEASE CONTACT THE ORNITHOLOGICAL COUNCIL. We want to hear about your experience, particularly if you were NOT working collaboratively with a state or federal agency. UPDATE 27 March 2018: A PowerPoint explaining all U.S. laws that pertain to the use of drones to study wildlife has been posted on BIRDNET.
UPDATE JAN 2019: AS A RESULT OF THE ORNITHOLOGICAL COUNCIL'S EFFORTS, THE U.S. FISH AND WILDLIFE SERVICE WILL BE ISSUING A NEW REGULATION - PROBABLY IN THE THIRD QUARTER OF 2019 - TO ALLOW THE USE OF DRONES TO STUDY BIRDS. Of course, as the shutdown drags on, the work needed to develop this new regulation will be delayed.
What is the Ornithological Council and why should you support it?
The Ornithological Council is a great resource for ornithologists. We help researchers navigate the permit maze, address animal welfare concerns, publish the peer-reviewed Guidelines to the Use of Wild Birds in Research. The Ornithological Council is the voice of scientific ornithology. Learn more here!