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  • GOP trying to block enforcement of Migratory Bird Treaty Act via appropriations bills

    Fern Davies
    • Ornithological Council

      The House has passed an appropriations bill (H.R. 2578) for the Departments of Commerce, Justice, and Related Agencies with one unbelievable rider - it "enjoins" the use of appropriated funds for use in prosecuting or holding liable any corporation or person for a violation of section 2(a) of the Migratory Bird Treaty Act.


      UPDATE 8 JULY: GREAT NEWS: The Duncan amendment is no more. It was removed from the CJS appropriations bill weeks ago and was never approved by the House Interior appropriations subcommittee. It was thought that he would try to introduce it when the full House considered the Interior appropriations bill, but he has not done so. There's more bird-blues on Capitol Hill still to come, including a provision that blocks ESA-listing of the Greater Sage-Grouse and Duncan's H.R. 493, which would amend the MBTA to preclude incidental take. Fortunately, H.R.493 is not moving and has few co-sponsors as Congress heads into the long August recess. If things change, we'll let you know so check back often.


      Read full article for more info.

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    Update 25 June: As feared, Duncan won't give up. He has now proposed an amendment to H.R.2822: ‘‘:Provided further, That none of such funds and appropriations may be used to enforce any prohibition under the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) or the Act of June 8, 1940 (chapter 278; 16 U.S.C. 668 et seq.; popularly known as the Bald Eagle Protection Act) on the accidental [sic; he is actually alluding to incidental take, not accidental take] taking of birds, before the date of the issuance of a rule that exempts such takings from such prohibitions’’.


    Although Duncan purports to be concerned about the unfairness of the prosecution for incidental take (which has been very, very rare and only after industries have had ample warning that they need to take measures to prevent such take), this provision bars any enforcement under the MBTA, even for deliberate or intentional take. Someone could go out and kill hundreds or thousands of birds and the USFWS and the Justice Department would be powerless to do anything.


    If you are concerned about this measure, write your members of Congress! Use the webform for your representative on House.gov, be sure to include your full address and zip code, keep it short and to the point. Make clear what you are asking (i.e., please vote against [bill number] and give your reason.


    Update 15 June: The Senate version of the CJS appropriations bill that came out of the full appropriations committee on 6/11 does not contain any provisions pertinent to the MBTA or MBTA enforcement but Rep. Duncan (the sponsor of the amendment in the House bill) is pushing for the provision to be included in a manager's amendment. A manager's amendment is usually a package of smaller amendments so if any one is important, they usually all go through. They usually negotiate the manager's amendment in advance so it is almost certain to go through. Therefore, there is still a very real chance that this bill could become law.

    Since this is an election year, there is a big push to get appropriations done before the August recess so this could move extremely fast. It is therefore very important, if this bill is of concern to you, that you voice your concern to your Senators ASAP.



    Hard to believe, but true. Congressman Jeff Duncan (R., S.C.) offered an amendment to the House appropriations bill for Commerce, Justice, and Related Agencies (H.R.2578) that reads,

    "None of the funds made available by this Act may be used to prosecute or hold liable any person or corporation for a violation of section 2(a) of the Migratory Bird Treaty Act (16 U.S.C. 703(a)."


    Which, of course, is the heart of the MBTA:


    §703. Taking, killing, or possessing migratory birds unlawful (a) In general

    Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972, and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976.


    And even harder to believe, but true, but it sailed through. Unless stopped by the Senate or removed in conference committee, it will become law because, of course, the President does not have a line-item veto.


    Why did this happen? Hard to imagine that it wasn't a response to the USFWS announcing that it plans to issue a programmatic impact statement and a regulation to control the incidental take of birds. Of course, the USFWS has been, for some years, enforcing the MBTA against power line companies and companies that maintain oil or chemical waste pits. It has been pushing other industries such as the telecommunications industry and the wind power industry to mitigate the impacts of their activities via "voluntary guidelines." The wind industry has already pushed back by persuading Mr. Duncan to sponsor H.R. 493 which would expressly exempt incidental take.


    If this provision becomes law, its duration is limited to one year, as it is part of an annual appropriations bill. For that one year, it will be open season on all birds, as no one need fear prosecution.

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    So does this mean you don't need permits? NO, it does not mean you do not need permits! Even if enacted, this legislation does not revoke the Migratory Bird Treaty Act. It means only that the USFWS would be prohibited from using appropriated funds to enforce the law for the one year covered by this appropriations bill (1 October 2016 - 30 September 2017). 


    The regulations requiring permits would still be in effect and it would reflect poorly on the ornithological community if researchers were to work without permits on the theory that they couldn't be prosecuted. 


    But that theory holds no water in any case. First, the statute of limitations (the legal time limit on how long after a violation an offense can be prosecuted) is five years. Second, the MBTA also includes civil penalties and it is probable that the imposition of civil penalties would not be barred. And third - and most important - you could find yourself ineligible for future permits!


    Though permits can be a thorn in the side and some aspects of permit policy or implementation can be problematic, let's not forget that permits are the means by which the USFWS allows ornithologists to do something that others are not allowed to do. 

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