Date: 7/18/20 10:16 am
From: birdrecords <birdrecords...>
Subject: [NHBirds] Action Alert: Keep Migratory Bird Protection in Place
Something all birders should be aware of. Your comments make a difference.
Becky Suomala

From: NH Audubon [mailto:<emedia...>]
Sent: Saturday, July 18, 2020 11:14 AM
Subject: Action Alert: Send your comments by Monday night!



Speak out NOW to keep migratory bird protections in place.

Submit comments by Monday night.

You can make your voice heard in opposition to new rules governing enforcement of the Migratory Bird Treaty Act. The new rules eliminate “incidental take” (i.e., harming migratory birds accidentally) as a violation of the Act, and require that violations must be intentional to warrant prosecution. Since it is extremely difficult to prove intent in a court of law, the new rules would make the law virtually impossible to enforce.

At a small scale, this means that there would be no fine for running over a Common Nighthawk nest in a gravel pit or trampling a Piping Plover chick on a coastal beach unless it could be proved that it was done on purpose. At a larger scale, it means that there would be no fines under the Act for an oil spill that kills hundreds of shorebirds and waterbirds because there was no intent to harm birds.


The Migratory Bird Treaty Act (MBTA) of 1918 is the foundation of modern bird conservation and provides significant protections for native birds. For most of its history, the MBTA has generally been interpreted through a standard that makes any unauthorized taking of migratory birds an illegal action, regardless of intent. However, there have been inconsistencies in interpretation among different jurisdictions. In December 2017, the Principal Deputy Solicitor of the Department of the Interior issued a legal opinion (M-Opinion 37050) “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” M-Opinion 37050 concluded that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions intentionally or purposefully "taking” migratory birds, their nests or their eggs.

In February 2020, the U.S. Fish and Wildlife Service published a proposed rule that created a formal regulation from this legal opinion. The proposed rule eliminated incidental take, requiring that pursuing, hunting, taking, capturing, or killing, migratory birds (or attempting to) must be deliberate in order to be a violation of the Act.

NH Audubon joined with eight other independent Audubon societies in a letter opposing the proposed rule<>.

The Options:

The U.S. Fish and Wildlife Service is now seeking comments on a draft Environmental Impact Statement<> regarding the proposed rule, which presents three alternatives:

* The No Action Alternative
* Action Alternative A
* Action Alternative B
Under the No Action Alternative, the Fish and Wildlife Service would continue to enforce the Act according to the legal opinion, but there would be no formal regulation.

Alternative A would codify the legal opinion in a regulation that eliminates penalties for incidental take.

NH Audubon will be submitting comments in support of Alternative B, which would withdraw the legal opinion and issue regulations that include incidental take.


We are providing all of this information to encourage you to make your voice heard during this opportunity for public comment. You can submit your own comments directly to the government’s portal<>. Below is a bulleted list of points you might want to include. Comments are due before midnight on Monday, June 20, so don’t delay!

Your comments do not need to be long and complicated. Here is a possible format:

I care about birds because...

I strongly support Alternative B because this alternative [choose a few of the below]

* Supports the intent and wording of the original Migratory Bird Treaty Act of 1918.
* Narrows the Act’s prohibitions “by any means or in any manner” to only deliberate actions taken with the intent to harm migratory birds.
* Upholds international treaty obligations the United States holds with Canada, Mexico, Japan, and Russia.
* Maintains a balance between economic goals and the conservation of bird populations.
* Maintains critical incentives for industry to avoid or minimize bird mortality through the application of best management practices and simple, common sense precautions.
Many of America’s bird populations are more threatened than ever. Please keep the Migratory Bird Treaty Act strong by implementing Alternative B.

Thank you for this opportunity to provide comments.

Photo: Piping Plover and chick by Debra Powers.






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