November 15, 2018

Global Trends in Protection of Migratory Birds

Robert V. Percival and Garrett S. Kral

For more than a century, protection of migratory birds has been an important goal of international law. In 1916, the United States entered into its first international treaty for the protection of migratory birds with England (acting on behalf of Canada). Shortly thereafter, the United States entered into additional treaties for the protection of migratory birds with Mexico, Japan, and Russia. Although these treaties have been a success, deteriorating global environmental conditions have affected the heath of migratory bird populations.

This article reviews the history of the treaties and developments surrounding the Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712 [hereinafter MBTA or the Act], which governs the protection of migratory birds in the United States. It analyzes the very different interpretations of the Act’s application to “incidental takes” by the U.S. Department of the Interior in the Obama and Trump administrations, and it examines global trends affecting the protection of migratory birds in Canada, Mexico, Japan, Russia, and China.

Migratory birds fly vast distances without regard for political boundaries. For example, the magnolia warbler—a common songbird weighing only 0.5 ounces—winters in the Yucatán Peninsula and summers in the Boreal Forest in Canada, unwittingly subjecting itself to the protection of two international treaties. The warbler travels thousands of miles each year in search of food and breeding grounds. The Arctic Tern has a continuous circumpolar breeding distribution with a flight path covering the Arctic and sub-Arctic regions of Europe, Asia, and North America. Weighing roughly 3.5 ounces, with an average wingspan of 31 inches, and an average life span of 30 years, the Arctic Tern travels over 1.5 million miles during its lifetime—or the equivalent of three trips to the moon and back. The sooty shearwater, second only to the Arctic Tern for the longest migration of any species in the world, weighs less than two pounds and has a wingspan of roughly 40 inches. The species, which gets its name from the way it flies across empty ocean with its wings nearly “shearing” the saltwater, flies more than 40,000 miles each year with a flight path mimicking the Arctic Tern, but avoiding the Arctic and sub-Arctic regions. The bar-tailed godwit makes the longest nonstop flight of any migratory bird species in the world. Flying nonstop for roughly nine days, the bird traverses the Pacific Ocean, journeying over 7,000 miles from New Zealand to China in search of its familiar breeding grounds. During its migration, the bar-tailed godwit does not eat or sleep.

History of Efforts to Protect Migratory Birds

During the late nineteenth century, commercial hunting devastated wild game populations in the United States and abroad. Five million birds were being killed annually, driven largely by a desire to satisfy burgeoning demand for the use of bird feathers in hats. Several species of migratory birds, including Labrador ducks, greats auks, passenger pigeons, Carolina parakeets, and heath hens had become extinct or were in danger of extinction at that time. To protect wild game from illegal hunting, in 1900 the U.S. Congress adopted the first federal wildlife law, the Lacey Act (16 U.S.C. §§ 3371–3378), which prohibited the shipment across state lines of game taken illegally. In 1903, President Theodore Roosevelt issued an executive order establishing the first national wildlife refuge at Pelican Island in Florida. Recognizing that these measures were inadequate in and of themselves to protect bird populations from millinery murder, Congress passed the Migratory Bird Act of 1913, which gave the U.S. Secretary of Agriculture the authority to regulate the hunting of migratory birds. See Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law 17 (3d ed. 1997). The constitutionality of the 1913 Act was questioned because the reach of the federal government’s power to regulate interstate commerce was viewed very narrowly at the time.

Recognizing that many birds crossed international borders during their annual migrations, the U.S. Senate in 1913 adopted a resolution requesting the president to propose to the governments of other countries the negotiation of a convention for the protection of birds. On August 16, 1916, the governments of the United States and Great Britain, representing the Dominion of Canada, signed the Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702 [hereinafter Canada Treaty], the first of several international treaties for the protection of migratory birds. This convention, which was ratified by both countries in December 1916, had the express purpose of saving from indiscriminate slaughter, and of insuring the preservation of, migratory birds that are either useful to man or are harmless. The Canada Treaty listed specific migratory birds to be protected by each of the parties and obligated the parties to establish closed seasons during which there could be no hunting and a continuous closed season for a period of 10 years for those particularly endangered migratory birds (with a provision for the issuance of permits to take some portion of this group of birds). The treaty also prohibited the taking of nests or eggs of migratory game (except for scientific or propagating purposes) and provided that the parties would propose to their respective law-making bodies the necessary measures for ensuring the execution of the treaty.

The U.S. Congress promptly enacted legislation to implement the treaty in 1916, and Canada adopted the Migratory Birds Convention Act (MBCA) in 1917. The U.S. Congress subsequently adopted the landmark Migratory Bird Treaty Act (MBTA), which became law on July 3, 1918. The MBTA replaced the more vulnerable 1913 Act and made it illegal to kill, capture, or sell listed migratory birds. Violations were a misdemeanor criminal offense, punishable by an initial fine of no more than $500 and/or up to six months in jail; the maximum statutory fine has since been increased to $15,000. 16 U.S.C. § 707(a).

The MBTA spawned the U.S. Supreme Court’s famous Missouri v. Holland decision, 252 U.S. 416 (1920), when the State of Missouri sought to bar a federal game warden, Ray Holland, from enforcing regulations issued to implement the MBTA by the U.S. Secretary of Agriculture in July and August of 1918. Missouri maintained that the MBTA and its implementing regulations infringed on the state’s sovereign rights protected by the Tenth Amendment. In an opinion written by Justice Oliver Wendell Holmes, the Supreme Court upheld the constitutionality of the MBTA based on the president’s treaty power. In his majority opinion, Justice Holmes stated that the “treaty in question does not contravene any prohibitory terms found in the Constitution.” Id. at 434. Further, Justice Holmes rejected the claim that “it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.” Id. Justice Holmes went on to note that the “whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away.” Id. While expressing “[n]o doubt” that “the great body of private relations usually fall within the control of the State,” Justice Holmes nevertheless concluded that “a treaty may override [the State’s] power.” Id. As Justice Holmes explained:

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of the opinion that the treaty and the statute must be upheld.

Id.

In 1936, the United States entered into an international agreement with Mexico to ensure that migratory bird species would not be exterminated. Like the Canada Treaty, the Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311 [hereinafter Mexico Treaty], protects both migratory game and migratory nongame birds. Like the MBTA, the Mexico Treaty established a closed hunting season that prohibited killing migratory birds for eight months of the year. To implement the Mexico Treaty, Congress amended the MBTA by making it unlawful “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, sell” or attempt any of these things, to migratory birds, eggs, nests, or parts. 16 U.S.C. § 703(a) (emphasis added).

Recognizing the vast distances that some migratory bird species travel, during the 1970s, the United States entered into treaties with Japan and Russia to protect migratory birds. In 1972, the United States entered into the Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment, U.S.-Japan, Sept. 19, 1974, 25 U.S.T. 3329 [hereinafter Japan Treaty]. The Japan Treaty prohibited the taking of migratory birds or their eggs, called for the establishment of bird sanctuaries and the exchange of scientific data regarding migratory bird species, and set criteria for hunting seasons.

In 1978, the United States and Russia entered into a treaty for the protection of migratory birds. Convention between the United States of America and the Union of the Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-Russ., Oct. 13, 1978, 29 U.S.T. 4647 [hereinafter Russia Treaty]). The Russia Treaty prohibited the taking of migratory birds, collection of their nests and eggs, and the disturbance of nesting colonies. Additionally, the Russia Treaty limited commercial hunting and retail sale of migratory birds, parts, eggs, and habitat. Implementing legislation enacted by Congress did not amend the MBTA; the Russia Treaty had been negotiated so that no substantive changes to U.S. law were needed.

Modern Threats to Migratory Birds and the Incidental Take Issue

Today, the major threats to migratory birds have changed dramatically. No longer is commercial hunting the primary threat to bird populations. New and expanded hazards like power lines, oil waste pits, and wind farms now threaten bird populations. Each year, humans are responsible for billions of migratory bird deaths. This makes the question of whether the MBTA prohibits more than the intentional application of physical force to birds of critical importance.

In answering this question, the U.S. courts of appeals have been required to interpret the statutory language of the MBTA. Since the 1970s, the MBTA has been used to seek and obtain criminal convictions for incidental takes in cases where harm to migratory birds should have been anticipated and was avoidable. For example, in 1978, in United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), the U.S. Court of Appeals for the Second Circuit held that the MBTA prohibited “incidental takings” of protected birds. In this case, the defendant corporation manufactured pesticides and had unknowingly allowed lethal levels to accumulate in a waste water storage pond frequented by thousands of migratory birds. The court found that even though the defendant was unaware that its pesticide production and discharge into the wastewater pond would kill the migratory birds, it was strictly liable for violating the MBTA because it was engaged in what the court found to be an “extrahazardous” activity, the manufacturing and improper disposal of pesticides. Id. at 908.

During the 1990s, two U.S. courts of appeals declined to extend liability for incidental takes under the MBTA for destruction of habitat resulting from timber harvesting. In the first case, in 1991, the U.S. Court of Appeals for the Ninth Circuit held that although the MBTA prohibits activities that cause “direct, though unintended” migratory bird deaths, it does not extend liability to those activities that “indirectly” lead to migratory bird deaths. Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991). Thus, the court rejected a claim that habitat modification through timber harvesting could make a company strictly liable for the “taking” of the northern spotted owl. In the second case, in 1997, the U.S. Court of Appeals for the Eighth Circuit held that the U.S. Forest Service had not violated the MBTA by approving unpermitted timber sales that resulted in the “taking” of MBTA protected species. Newton County Wildlife Ass’n v. United States Forest Service, 113 F.3d 110, 115 (8th Cir. 1997). In that instance, the court found that applying strict liability to conduct such as timber harvesting, which indirectly results in the death of migratory birds, would “stretch” the statute “far beyond the bounds of reason.” Id. at 115.

In 2010, the Tenth Circuit upheld the criminal conviction of a corporation for violating the MBTA by incidentally taking hundreds of migratory birds caught in the exhaust pipes of oil production equipment. United States. v. Apollo Energies, 611 F.3d 679, 691 (10th Cir. 2010). The court gave significant weight to the fact that the U.S. Fish and Wildlife Service (FWS) had given the defendant, Apollo Energy, advance notice that protected species of migratory birds might enter and become trapped inside the oil production equipment. The court concluded that if migratory bird mortality is a reasonably foreseeable result of the corporation’s conduct, then that corporation may be held strictly liable.

Also in 2010, an explosion at British Petroleum’s (BP’s) Macondo well—below the Deepwater Horizon oil platform—created the largest environmental disaster in U.S. history. The massive quantity of oil spilled into the Gulf of Mexico killed more than one million birds. Because some of these birds, including brown pelicans, laughing gulls, northern gannets, and others, were protected under the MBTA, BP was charged with an incidental take in violation of the MBTA. As part of the settlement it reached with the U.S. government in 2012, BP agreed to pay $4 billion in criminal fines. Included in BP’s plea agreement was a guilty plea to a criminal misdemeanor violation of the MBTA. For this violation, BP agreed to pay a fine of $100 million to be contributed to the North American Wetlands Conservation Fund for wetlands restoration, conservation, and other projects to benefit migratory bird species.

Three years later in United States v. CITGO Petroleum Corp., 801 F.3d 477, 479 (5th Cir. 2015), the Fifth Circuit reversed a corporation’s criminal conviction for indirectly taking migratory birds that collided with its oil production tanks. The court held that under the MBTA, a prohibited “taking is limited to deliberate acts done directly at and intentionally to migratory birds.” Id. at 488–89. The court based its conclusion on the MBTA’s “text, common law origin, a comparison with other relevant statutes, and rejection of the argument that strict liability can change the nature of the necessary illegal act.” Id. at 489. The court concluded that a corporation’s liability for migratory bird deaths is limited to activities that are directed at migratory birds, and that the lawful operation of an oil production tank does not fit within Congress’s intent for the MBTA.

The Department of the Interior’s Position on Incidental Take

On May 26, 2015, the FWS issued a notice of intent to prepare a programmatic environmental impact statement to consider different approaches to clarify the scope of the MBTA. These approaches included the possibility of an incidental take permitting process for industries whose activities frequently kill birds. Before this process could be completed, the Trump administration took office and announced that it would abandon this initiative. On January 10, 2017, 10 days before the change in administration, the outgoing solicitor of the U.S. Department of the Interior issued an opinion stating that the MBTA prohibits incidental takes of migratory birds. Incidental Take Prohibited Under the Migratory Bird Treaty Act (Dep’t of Interior, Solicitor’s Opinion M-37041, Jan. 10, 2017) [hereinafter Obama solicitor’s opinion]. The opinion found that the “courts have generally agreed with the FWS’ interpretation of the MBTA: the Act prohibits incidental take.” Id. at 1. The Obama solicitor’s opinion went on to note that “recently a few courts have erroneously construed the prohibition of ‘take’ in the MBTA as limited to hunting and other forms of intentional taking of migratory birds.” Id. at 1–2 (emphasis added). The opinion concluded that the United States, in enforcement proceedings against those charged with violating the Act, does not need to make a showing of willful or intentional taking of migratory birds to prove strict liability and demonstrate criminal violations of the Act.

Less than a year later, the Trump administration reversed this policy. On December 22, 2017, the Trump administration’s solicitor of the Department of the Interior withdrew the Obama solicitor’s opinion and issued a new opinion concluding that the MBTA does not prohibit incidental takes. The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (Dep’t of Interior, Solicitor’s Opinion M-37050 Dec. 22, 2017) [hereinafter Trump solicitor’s opinion]. The new Trump solicitor’s opinion bases this conclusion on the “text, history, and purpose of the MBTA, as well as relevant case law.” Id. at 1. The Trump solicitor’s opinion finds that “interpreting the MBTA to apply to incidental or accidental actions” by the oil, gas, and timber industries “hangs the sword of Damocles over a host of otherwise lawful and productive actions” and will deter investment and operation of the energy and timber industries. Id. Thus, the current legal opinion of the federal government is that the MBTA’s prohibition on taking migratory birds applies only to those affirmative actions that have as their stated purpose the killing of protected migratory bird species.

In 2008, Canada sent a diplomatic cable to the United States affirming that it was the mutually held interpretation of the two countries that the regulation of incidental take is consistent with the migratory bird protection treaty between Canada and the United States. The United States did not respond to this cable. Both recent U.S. solicitor’s opinions mention the cable, but they frame the consequences of the nonresponse from the United States differently. The Obama solicitor’s opinion finds that the spirit of the migratory bird treaties seeks to support regulation of the taking and killing of migratory birds by any means, including industrial and commercial activities unrelated to hunting. However, the Trump solicitor’s opinion concludes that the lack of prior response from the United States was a tacit rejection of the Canadian Embassy’s interpretation of the Canada Treaty. The Trump solicitor’s opinion finds that “[t]he fact that Canada may view regulation of incidental take as consistent with the Canada Convention says nothing about the legal definition of the terms of the MBTA under United States law.” Id. at 30 n.165. Thus, while the diplomatic note—and the spirit of the migratory bird treaties—may have held some weight under prior administrations, it does not under the current administration.

Seventeen former officials of the U.S. Department of the Interior representing every administration from President Nixon to President Obama wrote a memo protesting the new Trump solicitor’s opinion. Letter from 17 Former Interior officials to Secretary Ryan Zinke on New Migratory Bird Treaty Act Policy, Wash. Post, Jan. 10, 2017, https://apps.washingtonpost.com/g/documents/national/letter-from-17-former-interior-officials-to-secretary-ryan-zinke-on-new-migratory-bird-treaty-act-policy/2708/. The former officials observe that the Trump solicitor’s opinion turns “the 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)—into a conclusion that the killing of migratory birds violates the Act only when ‘the actor [is] engaged in an activity the object of which was to render an animal subject to human control’” (emphasis added). Id. at 1. The former officials denounce this conclusion as “a new, contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would ‘render an animal subject to human control.’” Id. The former officials maintain that the prohibition of incidental takes has created a strong and effective incentive for companies to work with government officials to avoid foreseeable harm to bird populations. For example, it is estimated that the installation of nets over oil pits that birds often mistake for sources of water has prevented more than one million bird deaths each year (the equivalent number of birds taken because of the BP oil spill).

The arguments in the Trump solicitor’s opinion are strikingly like those rejected by the U.S. Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 695 (1995) [hereinafter Sweet Home]. In Sweet Home, the Court explicitly rejected an effort to read incidental take out of the Endangered Species Act (ESA) when considering the endangered spotted owl’s habitat in old growth forests. Petitioners in Sweet Home brought a facial challenge to the Department of the Interior’s definition of the word “take.” The Court found that the Department of the Interior’s interpretation of take includes incidental takes, matches the ordinary understanding of the word, and is consistent with the broad purpose of the ESA, namely, to protect endangered species by prohibiting activities that cause the death of protected species. Unlike the ESA’s “take” prohibition, the MBTA’s “take” prohibition has not been interpreted previously by the government or the courts to cover habitat modification. But in Sweet Home, the Supreme Court’s rejection of the argument on which the Trump solicitor’s opinion is founded—i.e., the claim that “take” requires intentional application of physical force—supports the notion that the MBTA bars incidental take.

During a Senate hearing on May 10, 2018, Interior Secretary Ryan Zinke defended the new interpretation by arguing that it would prevent prosecution of an oil company employee who “hits a bird in the windshield” while driving. See Michael Doyle, Here’s Why Words Matter in Migratory Bird Debate, E&E News (May 11, 2018), www.eenews.net/stories/1060081521. But Senator Chris Van Hollen (D–MD) quickly pointed out that such accidents have never been prosecuted as violations of the MBTA. Indeed, the same argument failed to persuade the Supreme Court in the Sweet Home case, when it was claimed that “hitting a listed insect on your windshield” could violate the ESA if it prohibited incidental takes. Transcript of Oral Argument at 44, Sweet Home, available at www.supremecourt. gov/pdfs/transcripts/1994/94-859_04-17-1995.pdf.

On May 24, 2018, the National Audubon Society, the American Bird Conservancy, Defenders of Wildlife, and the Center for Biological Diversity filed a lawsuit in federal district court in New York to challenge the legality of the Trump solicitor’s opinion. National Audubon Society v. U.S. Department of Interior, Case 1:18-cv-04601 (S.D.N.Y. May 24, 2018). The lawsuit argues that the opinion is reviewable, final agency action that is arbitrary and capricious and contrary to the MBTA. It also alleges violations of the Administrative Procedure Act and the National Environmental Policy Act.

Global Trends in Protection of Migratory Birds

While the Trump administration’s Interior Department is relaxing protection of migratory birds, other nations remain committed to protective policies.

Canada. In addition to protecting against incidental takes, Canadian law has established sanctuaries for migratory birds. Canada has issued Migratory Bird Sanctuary (MBS) regulations to implement its own Migratory Bird Convention Act (MBCA). Migratory Bird Convention Act, S.C. 1994, c. 22 (Can.). Although human access to a majority of MBSs is not restricted, human activities—including the extraction of natural resources important to the energy and timber industries—are controlled under the Canadian regulations.

Mexico. More than 350 species of migratory birds travel from the United States and Canada to Mexico each year. Unfortunately, Mexico’s migratory bird laws are not as developed as the laws in the other two countries. Commercial and industrial development in Mexico has narrowed the range of suitable migratory bird habitats. This has led to increased migratory bird mortality, with large numbers of birds having to breed and nest in subpar locations. To combat the taking of migratory birds, newly formed Mexican nongovernmental organizations (NGOs) have focused their efforts on the monitoring of migratory birds. Ensuring that community-based programs spread not only in southern Mexico, but also through central and northern Mexico, remains an important and worthwhile task because these species often jouney throughout Mexico, as well as other countries.

Japan. Japan has begun to develop wind energy as a major source of power. One of the largest wind energy development projects in Japan, located in the Aomori Prefecture, was halted after developers carried out environmental impact assessments that found that rare bird species would be taken because of the project. See Rebecca L. Gibson, Cast Your Fate to the Wind (Turbines): Strengthening Japanese Wind Energy Law and Policy, 9 Tex. J. of Oil, Gas & Energy L. 123, 146–47 n.178 (2014). The Japanese public has, in several cases, opposed construction of wind turbines in nature preserve areas precisely because their construction threatened migratory bird species. Japan also has sought to reduce incidental bycatch of migratory birds in longline fishing operations by using tori lines, typically composed of plastic tubes or polymer streamers hanging from fishing lines. Tori lines frighten seabirds away from baited hooks, chummed waters, and other potentially dangerous situations.

Japan’s wildlife and game code, part of the country’s national laws for the protection of migratory birds, defines “take” as capturing, killing, or injuring wildlife. Chōjō no hogo oyobi shuryō no tekiseika ni kansuru hōritsu (Wildlife Protection and Proper Hunting Act) [hereinafter Wildlife Act], Act No. 88 of 2002, art. 2 (Japan). To expand Japan’s definition of take to include incidental take, Japan’s Ministry of the Environment has issued a formal memorandum stating that knowingly cutting down a tree that has migratory birds, nests, or eggs in it may constitute a taking of that species. Mitsuhiko A. Takahashi, Migratory Bird Treaties’ Issues and Potentials: Are They Valuable Tools or Just Curios in the Box, 42 Envtl. L. Rev. 609, 621 (2012). However, to date, there are no reported incidents where a violation of the Ministry of the Environment’s memorandum has resulted in prosecution.

Russia. The migratory bird treaty signed in 1978 between the United States and Russia was the direct result of President Nixon’s trip to Moscow in 1972. Today, this international agreement remains in force and is renewed automatically every 15 years, unless one of the parties objects. Although Russian enforcement of the treaty continues to be lax, the treaty currently provides some level of protection for migratory birds that travel between the United States and Russia or that have a common flyway and breeding area. See Joshua P. Newell & Laura A. Henry, The State of Environmental Protection in the Russian Federation: A Review of the Post-Soviet Era, 57 Eurasian Geography & Econ. 779–801 (Feb. 10, 2017).

Less than half of Russia’s rare and endangered birds are protected under the nation’s current laws. Id. The Russian Ministry of Natural Resources and Environment does not acknowledge the significant gaps in environmental protection, which experts believe stem not only from the poaching and taking of migratory bird species, but also from relaxed enforcement against those industries and individuals who knowingly do so. Id. at 783. Pro-hunting Russian NGOs have sponsored legislation to empower rank-and-file hunters by lifting the current moratorium on spring hunting of migratory birds and increasing the total number of hunting licenses granted by the Russian government. Kathleen Braden, Illegal Recreational Hunting in Russia: The Role of Social Norms and Elite Violators, 55 Eurasian Geography & Econ. 465 (Apr. 8, 2015). To combat such pro-hunting NGOs, the World Wildlife Foundation is leading conservation efforts in the Altai-Sayan Ecoregion, a vast and ecologically diverse swath of land encompassing over 600,000 square miles of protected virgin ecosystems.

China. Although China does not have a treaty with the United States for the protection of migratory birds, China is party to several international agreements for the protection of migratory birds. These international agreements include: The Agreement between the Government of the PRC [People’s Republic of China] and Japan on the Protection of Migratory Birds and Their Habitats, 1981, China-Japan, Chinese Government’s Ministry of Ecology and Environment (MEE); The Agreement between the PRC and the Australian Government on the Protection of Migratory Birds and Their Habitats, 1986, China-Austl., Australian Government’s Department of the Environment and Energy; The Agreement Between the PRC and the Republic of Korea on the Protection of Migratory Birds and Their Habitats, 2014, China-Korea, Chinese Government’s MEE; and The Agreement between the PRC and the Russian Federation on the Protection of Migratory Birds and Their Habitats, 2013, China-Russia, Chinese Government’s MEE. China also is a party to the Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, and the Ramsar Convention on Wetlands, Convention on Wetlands of International Importance especially Waterfowl Habitat, Ramsar (Iran), Feb. 2, 1971, U.N.T.S. 14583, which play an important role in the protection of migratory birds as a joint work plan. One of the Ramsar-protected wetlands in China is the Dongtan Nature Reserve, located on Chongming Island near Shanghai. Dongtan is in the middle of the flight path of birds who fly from Australia and New Zealand to Siberia and Alaska.

To implement these treaties, China has adopted several national laws and regulations for the protection of migratory birds. These include: The Wildlife Protection Law of the People’s Republic of China [Law of the People’s Republic of China on the Protection of Wildlife] (promulgated by the Standing Comm. People’s Cong., Beijing Municipality, Nov. 8, 1988, effective Mar. 1, 1989); and Regulation on the Administration of Natural Reserves [Administrative Measures on Nature Reserves of Forest and Wildlife Types, Regulations of the People’s Republic of China on Nature Reserves] (promulgated by the State Council on the People’s Republic of China, Decree No. 167, Sept. 2, 1994, effective Oct. 9, 1994). Lower levels of government in China have also adopted several measures to protect migratory birds. However, these laws and regulations have not been strictly enforced.

The Chinese government has recognized the importance of protecting migratory birds from incidental takes. In 2015, the government published a draft National Master Plan for Migratory Bird Route Protection, available at https://wenku.baidu.com/view/88096eea84868762caaed5d6.html. The plan, as translated, noted that “the adverse effects of climate change, oil spills, and high-voltage cables, wind power generation, and other industrial facilities on migratory bird populations and habitats are constantly emerging.” Id. It concluded that “investigation and research are urgently needed to explore strategies for coping” with these problems. Id. However, the plan has not yet been implemented.

More broadly, as revised in 2016, Article 13 of China’s Wild Animal Conservation Law requires that “site and line selection for airport, railway, highway, water conservancy and hydropower, cofferdams, sea reclamation, and other construction projects shall avoid relevant nature reserves and wild animals’ migration routes; and if the avoidance thereof is impossible, measures such as the construction of migration channels for wild animals and fish passage facilities shall be taken to eliminate or reduce the adverse impacts on wild animals.” The Wildlife Protection Law [Wildlife Protection Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., July 2, 2016, effective Jan. 1, 2017, unofficial translation available at www.loc.gov/law/foreign-news/article/china-new-wildlife-protection-law). This positive trend within the PRC indicates an improved understanding of migratory birds’ importance in the global ecosystem, as well as their flyways, which crisscross much of Asia and the Pacific Ocean.

Importance of Global Enforcement of Protective Laws

In conclusion, because birds are migratory by nature, cooperative, global enforcement of laws that protect migratory bird species remains of crucial importance. For more than a century, the United States has been a global leader in the protection of migratory bird species. The treaties it has signed with other nations have furthered conservation of these birds for generations to come. While each country has areas in which it could improve its protections of migratory birds, generally, these treaties have been a success.

The decision by the Trump administration’s solicitor of the Department of the Interior effectively to legalize incidental takes of migratory birds represents a sharp reversal of policy. Because it represents guidance for the agency’s exercise of enforcement discretion, it will be difficult to obtain judicial review of it, despite the sharp criticism it has engendered. This action inevitably will reduce the incentive for companies whose actions pose severe dangers to birds to take the necessary precautions to keep them away from equipment that jeopardizes their survival. This will not be helpful to global efforts to protect migratory birds, but it is unlikely to persuade other nations to relax their protections.

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Robert V. Percival and Garrett S. Kral

Mr. Percival is the Robert F. Stanton Professor of Law and director of the environmental law program at the University of Maryland Francis King Carey School of Law, and Mr. Kral is a third-year law student at the University of Maryland Francis King Carey School of Law. They may be reached at rpercival@law.umaryland.edu and garrett.kral@umaryland.edu.