“When Emily Dickinson writes, ‘Hope is the thing with feathers that perches in the soul,’ she reminds us, as the birds do, of the liberation and pragmatism of belief.”
The Migratory Bird Treaty Act is one of our nation’s oldest environmental statutes. It was passed decades before the major environmental law renaissance of the 1970s, and is lesser known than the more contemporary wildlife protection statutes that dominate headlines and political debate, such as the Endangered Species Act. The Migratory Bird Treaty Act is a broadly written criminal statute that is unique in the way it provides for the blanket protection of over one thousand native bird species in North America, regardless of whether they are listed as endangered. The Migratory Bird Treaty Act is thus a critically important tool for bird conservation, as it provides legal protection for millions of individual migratory birds that forage, nest, and migrate in an increasingly developed landscape. Nevertheless, the Migratory Bird Treaty Act faces many critics, because its scope potentially criminalizes any human activity that causes the death of a migratory bird, and because it relies on the Fish and Wildlife Service’s prosecutorial discretion to temper its broad reach.
Debate over whether the Migratory Bird Treaty Act prohibits incidental take has pitted industrial actors against bird conservationists, and created a circuit split that is made more confusing by courts’ conflicting interpretations of the basic elements of the Migratory Bird Treaty Act as a criminal statute. Without more clarity, the future and efficacy of the Migratory Bird Treaty Act are uncertain; however, courts can transform the statute into the effective conservation measure it was intended to be by applying a consistent proximate cause analysis when reviewing alleged violations. A criminal statute that imposes broad liability constrained by prosecutorial discretion may be the best model for addressing diffuse environmental harms in a rapidly changing world. And, clarifying the scope of the Migratory Bird Treaty Act with a consistent legal standard would make it more fair, predictable, and effective in protecting migratory birds in the United States.