Public Comments Processing
U.S. Fish and Wildlife Service MS:JAO/1N
5275 Leesburg Pike
Falls Church, VA 22041-3803
Re: RIN 1018-BD76; Docket Number FWS-HQ-MB-2018-90090; Regulations Governing the Take of Migratory Birds. Proposed Rule
On behalf of the 238 accredited zoos and aquariums of the Association of Zoos and Aquariums (AZA), we respectfully submit the following comments in opposition to the US Fish and Wildlife Service’s (USFWS) proposed rule governing the incidental take of migratory birds.
AZA is a non-profit organization dedicated to the advancement of accredited zoos and aquariums in the areas of animal care and husbandry, conservation, education, science and recreation. AZA's accredited aquariums, nature centers, science centers and zoos annually host more than 200 million visitors, collectively generate more than $22 billion in annual economic activity, and support more than 208,000 jobs across the country. In 2018, AZA-accredited facilities spent over $230 million on field conservation in over 130 countries benefiting over 880 species and subspecies, including over 240 species listed as endangered or threatened under the ESA. The expertise of AZA-accredited aquariums and zoos in scientific research, conservation breeding, and wildlife rescue and rehabilitation is supported by their premier role in conservation education. AZA and its members are vital to the conservation of the world’s threatened and endangered species.
Collectively, AZA members represent some of the foremost authorities on avian care, husbandry, and behavior. AZA member institutions also play a critical role in the conservation of birds in their natural habitats through broad-based education and research activities. Over 200 AZA institutions care for birds in their collections.
AZA was very concerned by the Interior Department’s December 22, 2017, announcement of a new legal memorandum (M-37050) reinterpreting the Migratory Bird Treaty Act (MBTA) regarding incidental take. We strongly believed that the legal opinion was contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, which held that the MBTA strictly prohibits the unregulated killing of birds. This law was passed to implement the first of four bilateral treaties with countries with which we share migratory bird populations (Canada, Mexico, Japan, and Russia). Its intent, and USFWS’ obligation in enforcing it, is to conserve migratory bird populations.
The Solicitor’s Opinion interpreted MBTA’s straightforward language — “it shall be unlawful to hunt, take, capture, kill ... by any means whatever ... at any time or in any manner, any migratory bird” (emphasis added)— to mean that the killing of migratory birds violated the Act only when “the actor [is] engaged in an activity the object of which was to render an animal subject to human control.”
AZA is concerned that USFWS has used this opinion to promulgate a proposed rule that posits that the MBTA’s prohibitions on pursuing, taking, capturing, killing, or attempting to do the same apply only to actions that are directed at migratory birds, their nets or their eggs. This creates an unacceptable loophole in the MBTA, allowing entities to engage in activities that frequently kill migratory birds so long as those activities are not solely directed at migratory birds, their nests or their eggs. As the Solicitor’s Opinion acknowledged, several district and circuit courts have soundly rejected the narrow reading of the MBTA that is being embraced in this proposed rule.
AZA recognizes that reasonable people and organizations can disagree about the extent to which prosecutions under the MBTA are appropriate for activities that are not intended to kill birds but are reasonably likely to do so. Substantial progress has been made over the years to define the limits of this law through refined interpretations, court decisions, and common sense. Over the years, career professionals and political leadership in the USFWS, the Department of the Interior and Department of Justice have also adapted to ensure that the enforcement of this law fairly balances the goal of economic progress with the impact of that progress on bird populations.
Under the MBTA, competing interests have worked hard, and in good faith, to strike a balance with entities that have had significant impacts on birds, such as oil and gas, coal, electric utilities, commercial fishing, communications, transportation, national defense, and others to reasonably address unintended take. Successes in applying the law to minimize the incidental killing of birds are numerous. For example, the Federal government has worked with: 1) oil producers to ensure that exposed crude oil waste pits were covered with nets to keep birds from landing in them; 2) commercial fishing operations to reduce the drowning of seabirds in fishing lines and nets; 3) wind energy companies to improve the siting of turbines to avoid and minimize the killing of birds. It has never been the goal to entirely eliminate the unintentional killing of birds, but when there are techniques and technologies that can be used at reasonable cost to protect bird populations; we all have a responsibility to do so.
The MBTA can and has been successfully used to reduce negligence on the part of those who simply do not recognize the value of birds to society or the practical means to minimize harm to them. In a world where connections to nature are becoming ever more tenuous, birds are the wildlife that Americans encounter daily. Whether we are conservationists, birdwatchers, hunters, zoo professionals or just citizens who enjoy the natural world, conserving birds is a part of our wildlife heritage and a national common interest. In addition, we must consider how our treaty partners in Canada, Mexico, Japan and Russia view this new interpretation. Only a few years ago, the U.S. exchanged formal diplomatic notes with Canada reaffirming our countries’ common interpretation that incidental killing of birds was prohibited by the treaty.
We fully recognize that strict liability for take violations under the MBTA must be tempered with common sense notions of reasonable predictability and readily available alternatives. We are anxious to explore this balance and provide the Service with an approach that we can all support, and one that will continue the proud record of U.S. leadership in conserving migratory birds.
AZA respectfully requests that the Service revoke this proposed rule and open a dialogue involving all relevant interests to determine a sensible path forward that builds on a consensus between the protection of migratory birds and judicious economic development. We would be pleased to work with the Service toward this end.