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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Montana federal court distinguishes 9th Circuit case, grants deference, and upholds FWS grizzly bear biological opinion | Main| The ESA and the Bureau of Reclamation: water vs. wildlife? »

No recourse: the limitations of the Migratory Bird Treaty Act

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How is it possible that a mockingbird can get more legal protection than an endangered wood stork?  It makes little sense, but it is, for now, the law.  The Migratory Bird Treaty Act, passed in 1918 to implement an international treaty stopping reckless hunting of migratory birds, may in some ways be more powerful (or restrictive, depending on one's perspective) than the vaunted Endangered Species Act.

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More than meets the eye: the MBTA-protected mockingbird. (Photo by Ryan Hagerty, from U.S. Fish and Wildlife Service)

Both the Endangered Species Act (ESA) and the Migratory Bird Treaty Act (MBTA) include a prohibition against take of species.  And indeed, the ESA's prohibitions against "take" of bird species are more substantial than the MBTA.  But there is a significant distinction between these two laws.  

The ESA includes clear legal mechanisms to authorize the incidental take of birds like the wood stork.  Pursuant to the ESA, FWS can authorize take of wood storks through an incidental take statement in a bioligical opinion, or in an incidental take permit.  Moreover, both a biop, and a permit, can be issued based on a case-by-case basis, after consideration of the particular facts in question.  Construction of a project impacting wood storks nests, for example, might be authorized if it did not jeopardize the species as a whole, or if the proponent created a habitat conservation plan for the wood stork that minimized and mitigated for the potential harms.  

In contrast, the MBTA provides fewer mechanisms to escape its strict-liability language that reaches even unintentional take of migratory birds.  While standing "depredation orders" and special categories of permits allow take of some species -- for example, birds destroying crops -- these orders cover only a limited number of circumstances.  So the same project proponent who might obtain a biological opinion or propose a habitat conservation plan to cover impacts to wood storks may have no way to avoid the potential civil or criminal violations of the MBTA when the project destroys the habitat of the mockingbird.  

In sum, for a landowner desiring to be law abiding, the ESA provides plenty of ways to avoid wrongdoing.  But under the MBTA, the landowner's only choice might be to close a blind eye, and hope that the law enforcement folks at U.S. FWS don't find out.  

P.S. for the litigators.  One other very important distinction exists between these two laws.  Whereas the ESA includes a citizen suit provision, allowing environmentalists to enforce the law as "citizens attorneys general" through the federal courts, the MBTA does not create such private rights of action.


To learn more about the MBTA, visit the following resources:
FWS webpage discussion of the MBTA, and related summary.
Statutory text of the MBTA.
MBTA provisions in the Code of Federal Regulations
"How the MBTA applies to the Federal Government," by the Ornithological Council.
Executive Order on federal agency implementation of the MBTA.
Congressional Research Service Report on the ESA, MBTA, and Department of Defense
Learn more about the MBTA Reform Act of 2005, revisiting the list of species protected by the MBTA as a result of Maryland's controversy over efforts to eradicate the mute swan, a nuisance (and exotic) species for the Chesapeake Bay.