Chopping Down the Birds: Logging and the Migratory Bird Treaty Act
Kim, Helen M., Environmental Law
[A] national interest of very nearly the first magnitude is involved. It can be protected only by national action.... But for the Treaty and the statute, there soon might be no birds....(1)
The Migratory Bird Treaty Act (MBTA or Act)(2) is one of the oldest conservation statutes in the United States.(3) To execute the international treaty established between the United States and Great Britain (on behalf of Canada), Congress passed the MBTA in 1918 with the goal of protecting all migratory birds in the jurisdiction of the United States.(4) In very broad language section 703 prohibits the taking and killing of any migratory bird: "it shall be unlawful at any time, by any means or in any manner ... to kill ... any migratory bird...."(5)
Recently, environmental groups and activists have begun to utilize the broad language(6) of the MBTA in more expansive ways in order to broaden the application of the Act.(7) Similarly, the government expanded MBTA enforcement by employing new methods.(8) Courts in various circuits have heard cases concerning logging projects that threatened to directly destroy migratory bird habitat, as well as nests, eggs,(9) and juvenile migratory birds in violation of the MBTA. Generally, these lawsuits have failed,(10) but scholars and courts alike question whether the actions of loggers indeed violate the Act.(11)
Despite the relatively clear language of the statute,(12) these questions arise because courts often utilize different and contradictory methods to interpret the Act.(13) Disparate application from each court leads to non-uniform enforcement of the MBTA and also causes unfair and unpredictable results. For example, loggers with the apparent approval of the United States Forest Service (USFS or Forest Service) have killed thousands of migratory birds each year and have escaped prosecution.(14) By contrast, both a person who received a product with a single feather from a migratory bird(15) and an electric company that inadvertently electrocuted a dozen migratory birds(16) were prosecuted.
Courts use three different approaches to limit the expanding scope of the MBTA, and these contradictory methods have resulted in a split among the circuits. The first approach is based on whether specific intent (mens rea) is required to hold the violator guilty.(17) While most courts find mens rea is not required under the MBTA, some courts continue to hold it is conclusive of MBTA guilt.(18) A second group of courts distinguish between direct and indirect activities that have taken or killed migratory birds.(19) Most of the MBTA actions against logging operations adopt this analysis and require a "direct" taking of migratory birds to establish guilt.(20) Finally, the third approach limits the scope of the MBTA through a proximate cause analysis.(21) This proximate cause analysis is the only method that uniformly and fairly applies the law.
The proximate cause analysis is the most just method of analyzing MBTA actions because one case often contains conflicting arguments when each of the first two approaches are applied concurrently. For example, a violator may directly take a migratory bird, but she may do so without mens rea. Analyzing MBTA guilt under either of the first two methods could result in a not guilty verdict in a circuit that employs the mens rea analysis and a guilty verdict in a different circuit that applies the direct and indirect taking analysis.
This Comment will demonstrate that the courts are improperly interpreting the MBTA to continue to allow USFS and loggers contracting through USFS to expressly violate the MBTA. Currently, USFS and loggers enjoy a unique and unlawful exemption from prosecution(22) that should not be continued. Part II of this Comment will outline the three approaches that courts have developed in interpreting the MBTA and explain why the proximate cause analysis must be used. …