USFWS proposes to authorize drone use under MBTA and Eagle permits

[Laura Bies]

The Migratory Bird Treaty Act, the source of many protections for native birds in the U.S., does not prevent the harassment of migratory birds. However, the Airborne Hunting Act does prohibit the use of aircraft, including unmanned aircraft systems or drones, to harass any wildlife, including migratory birds. This has resulted in confusion for a number of years regarding the use of drones for ornithological research.

Current regulations authorize the harassment of migratory birds under the AHA only for activities under depredation permits issued by the U.S. Fish and Wildlife Service. Those AHA regulations have not been substantively revised since they were promulgated in 1974. The Ornithological Council has been calling for changes to the AHA regulations to clearly allow the use of the drones for wildlife research for several years.

In 2017, the Ornithological Council asked the Department of the Interior’s Office of the Solicitor to advise the U.S. Fish and Wildlife Service, other federal agencies, and state agencies that the use of drones for wildlife research is not subject to the Airborne Hunting Act. The OC also asked that if the Solicitor determined that the use of drones to study wildlife is subject to the AHA, then the Solicitor should address the need for federal permits because there are few, if any, state laws pertaining to drone use for wildlife research and monitoring.

In 2018, the OC filed a petition for rule-making, asking the USFWS to issue permits for the use of drones to study wildlife. That petition proposed the changes necessary for the USFWS to issue permits under the AHA, since, if the Solicitor were to determine that the use of drones for wildlife research was covered by the AHA, permits would be needed.

Although an official determination has not been made by the Solicitor, the regulatory changes proposed recently by the USFWS includes a proposal to continue authorizing aircraft use (including drone use) that may potentially harass migratory birds under migratory bird permits or eagle permits and to expand the authorization to include any appropriate Part 21 (Migratory Bird Treat Act) or Part 22 (Eagle) permit, not just depredation permits. If finalized, the proposal would eliminate the current regulatory confusion as to the use of drones for ornithological research. The authorization to use drones could then be requested under any MBTA or Eagle permit.

Comments on the proposed changes are due 31 July.

In recent years, the Department of the Interior banned the use of drones by department personnel. That policy was overturned in late 2022. Read the OC’s letter thanking the department for this change.

Read the OC’s Fact Sheet on Drone Use.

Additional resources regarding drone use and the AHA.

About the Ornithological Council

The Ornithological Council is a consortium of scientific societies of ornithologists; these societies span the Western Hemisphere and the research conducted by their members spans the globe. Their cumulative expertise comprises the knowledge that is fundamental and essential to science-based bird conservation and management.  The Ornithological Council is financially supported by our member societies and the individual ornithologists who value our work. If the OC’s resources are valuable to you, please consider joining one of our member societies or donating directly at Birdnet.org. Thank you for your support!