In framing their policy on the Migratory Bird Treaty Act, the Interior Department has created what debaters and negotiators call a “strawman fallacy.” It made an argument that the MBTA’s strict liability was making criminals of farmers who tear down dilapidated barns, or homeowners who trimmed trees, or automobile drivers who accidentally hit birds. In fact, this argument is hollow. There is no evidence of such enforcement occurring, because it hasn’t.
The history of MBTA enforcement is unquestionably and radically cooperative. The U.S. Fish and Wildlife Service has constructed a broad and comprehensive framework of cooperative agreements, outlining best practices, and defining the pathway to MBTA compliance. These agreements span across the federal government, including the Department of Defense, Department of Energy, Department of Agriculture, Federal Highway Administration, Federal Energy Regulatory Commission, NOAA Fisheries, National Park Service, and Bureau of Land Management.
They include agreements across broad industry sectors such as electric utilities, wind power, and building and tower construction. It is, in my opinion, an example of how government should function. This cooperative approach has supported economic enterprise while conserving migratory birds. And in fact, that’s why we have an MBTA – to conserve and protect migratory birds.
And at the foundation of this framework is the decades-long interpretation, across Republican and Democratic Administrations, that the MBTA strictly forbids the take of migratory birds, including take that is incidental to otherwise lawful activity. Were it not for the potential MBTA liability, most of these cooperative agreements would have never been consummated. And without that liability, most will wither with time, under pressures of mission and profit.
And the real tragedy is that the Department didn’t need to go in this direction, and particularly when evidence continues to mount that migratory birds are in great peril from a vast array of threats. Rather, it could have continued along the path that we had begun to blaze during the Obama Administration, transforming this existing and broad framework of cooperative agreements into expansive general permits, providing government and industry with assurance of compliance, and supporting more effective enforcement where necessary.
So, I want to thank Congressman Lowenthal and his cosponsors for their leadership in introducing H.R. 5552, which will enact this type of permit program. It restores the legal protection for birds, but allows the U.S. Fish and Wildlife Service to issue permits that will ratify compliance, rather than using “enforcement discretion” which is, admittedly, an uncomfortable currency of compliance for many industries.
We need a Migratory Bird Treaty Act that actually protects migratory birds. Congressman Lowenthal, please count on the Association of Zoos and Aquariums and our members for support.
In fact, in 2019, AZA added North American Songbirds to its signature Saving Animals From Extinction, or SAFE, Program, with 29 AZA member participants and external partners including American Bird Conservancy and the U.S. Fish and Wildlife Service.
The SAFE North American Songbird Program recognizes the growing concern over wildlife trafficking and illegal trade of songbirds and songbird body parts and is working with partners to develop an awareness campaign that will communicate how the MBTA can be used as a conservation tool, what it prohibits, and what to do for suspected violations.
Thank you for inviting us to participate in today’s panel, and I look forward to questions and discussion.