At the beginning of August there was a thread on the Migratory Bird
Treaty Act and federal protection of birds. This is a belated response
to some of the questions raised:

The Migratory Bird Treaty Act (MBTA), Act of July 3, 1918, ch.
128, 40 Stat. 755 (currently codified as amended at 16 U.S.C. 703-711
(1988)), implements the Convention with Great Britain for the Protection
of Migratory Birds, 39 Stat. 1702, T.S. No. 628 (1916). Great Britain
acted on behalf of Canada.

The Convention was quickly negotiated with Great Britain after two
federal district courts held an earlier federal statute -- the
Weeks-McLean Migratory Bird Act -- to be an unconstitutional usurpation
of powers reserved to the states. When Congress enacted the MBTA to
implement the Convention, it was also challenged as unconstitutional. The
United States Supreme Court upheld the constitutionality of the Act in a
landmark decision by Justice Oliver Wendell Holmes, Missouri v. Holland,
252 U.S. 416 (1920).

The 1916 Convention with Canada established three categories of
migratory birds: migratory game birds, migratory insectivorous birds, and
all other migratory birds. The Convention established closed seasons on
birds in each category. For the final two categories, the closed season
is year round -- with exceptions for subsistence hunting by native
peoples and for scientific research "under permits." For migratory game
birds, "the High Contracting Powers" agreed that the open season will be
for no more than three and one-half months as each party "may severally
deem appropriate and define by law or regulation." Additional treaties
protecting migratory birds have been negotiated with Mexico (1936), Japan
(1972), and the Soviet Union (1976). These subsequent treaties are
patterned on the 1916 Convention, though each has its variations and
idiosyncracies.

The MBTA implements not only the 1916 Convention with Great
Britain, but also the treaties with Mexico, Japan, and the Soviet Union.
Despite the negotiation of the additional treaties, however, the MBTA has
remained largely unchanged since 1918 -- in part, perhaps, because the
1918 Act was broadly drafted. The Act delegates The Secretary of the
Interior the power to promulgate regulations "to determine when, to what
extent, if at all, and by what means ... to allow hunting, taking, ...
possession, sale, purchase, shipment, ... or export" of any bird covered
by the conventions.

The MBTA does NOT cover all species of birds found in the United
States:

1. First, it applies only to "migratory" species. Thus such
non-migratory species as quail, grouse, ptarmigan, and pheasants are not
on the protected list.

2. Second, the European Starling (Sturnus vulgaris) and the House
Sparrow (Passer domesticus) are not covered. This exclusion prompted
some speculation by earlier participants in the thread. While I cannot
definitively resolve the question, it seems most likely that the two
species were specifically excluded because they were viewed agricultural
pests. The two species were specifically named in an earlier statute that
prohibited the importation of wildlife "injurious to the interests of
agriculture or horticulture." Lacey Act, ch. 553, 2, 31 Stat. 187,
188. It is not the fact that a species has been introduced that is
determinative of its status since the Eurasian Skylark (Alauda arvensis)
is included on the protected list.

3. While I have not exhaustively compared the list with the AOU list
-- or even my NGS Field Guide -- I have noticed that some other species
are not listed. For example, the Lacey Act's exclusion of the "English
sparrow" -- or its non-migratory character -- may account for the
absence of the Eurasian Tree Sparrow (Passer montanus) from the
protected list.

The entire list of protected species can be found at volume 50 of
the Code of Federal Regulations, section 10.13.

Until my own book comes out, the best sources for additional
information on the MBTA are Michael J. Bean, The Evolution of National
Wildlife Law 68-89 (rev. & expanded ed. 1983) and Richard Littell,
Endangered and Other Protected Species 155-70 (1992).


Dale Goble
University of Idaho
College of Law
Moscow, ID 83843