FROM FRIEND TO FOE: THE COMPLEX AND EVOLVING RELATIONSHIP OF THE FEDERAL GOVERNMENT AND THE MIGRATORY BIRDS IT IS BOUND TO PROTECT

摘要

The year 2018 marked the 100th anniversary of the signing of the Migratory Bird Treaty Act (MBTA or the Act), which has protected hundreds of bird species from death and even extinction over the past century. Unfortunately, the Trump Administration appears dedicated to eviscerating the Act's effectiveness in honor of this auspicious occasion, hi December 2017, the United States Department of Interior (DOI) reversed approximately fifty years of federal government policy by excluding "incidental takes" from coverage under the Act. "Incidental takes," unlike direct takes such as hunting or poaching, consist of bird deaths caused unintentionally, and constitute the vast majority of bird deaths in the present day. This Article presents an analysis of the DOI's new policy on incidental takes under the Act. It begins by providing a retrospective of the MBTA from its origins at the beginning of the twentieth century to its evolution through the modem day. It looks first to the history of the Act and the international Migratory Bird Treaties, then considers major amendments to the Act. It presents some of the greatest current threats to birds, which generally constitute incidental takes, including deaths caused by habitat loss, pesticide use, and climate change. It then examines the legal parameters of incidental take, including incidental takes caused by the government itself, as well as the complex issue of whether federal government incidental takes are covered by the Act. It considers the DOI's new opinion, evaluating its significance as well as environmental groups' lawsuit filed in May challenging this new opinion. This Article argues that the current poMtical threats to the MBTA, and the DOI's new legal opinion in particular, have transformed the federal government from being one of birds' greatest friends to their foe. It concludes that the DOI's current position must be corrected to cover incidental take under the MBTA. Moreover, the DOI should strengthen its stance on incidental take by clarifying that the federal government itself may be found liable for incidental takes. It is only through so doing that the MBTA can continue to be an effective statute over the next 100 years and combat the greatest global environmental threat of our time: climate change.