Considering the Federal Migratory Bird Treaty Act

Here at TCIA, we are always thinking about our members’ businesses. But let’s face it – it is impossible for us to know all the issues impacting our members on a day-to-day basis. We rely on you for information on what is keeping you up at night. This summer, a 100-year-old law about birds was keeping some members up at night. Many arborists may be familiar with this law: the Migratory Bird Treaty Act (MBTA).

The MBTA was enacted in 1918 and is credited with protecting more than 1,000 bird species currently. The law is celebrated as one of the first laws protecting the environment in United States history. For most of the law’s existence, it protected birds from “incidental take” by industry, namely by requiring that industries implement best practices, most notably in the utility and energy sectors. The law typically has not been enforced; rather, it has allowed U.S. Fish and Wildlife to open dialogue with industry on the most effective ways to implement these best practices.

In 2017, the Trump Administration issued a controversial legal opinion that excluded “incidental take” from MBTA protection. In early 2020, the U.S. Department of the Interior proposed regulations to codify this legal opinion into law. In early 2020, the scope of the law was limited to enforcing the purposeful “taking” of birds, namely by hunting or other similar ways. By eliminating enforcement of this act in cases of “incidental take,” the Trump Administration had drastically limited the scope of the MBTA.

One of the most high-profile cases of the MBTA being used as an enforcement tool was in the 2010 Deepwater Horizon oil-rig spill in the Gulf of Mexico. Following the spill, more than $100 million in fines were put toward restoring the damaged habitat, all because of the MBTA. If that spill happened in February 2020, because of the elimination of protection by “incidental take,” the companies responsible for the spill would not have been responsible for paying those fines.

Though TCIA recognized the potential benefits for our industry because of the Trump Administration’s legal opinion on the MBTA, the Association also recognizes the unique benefits of birds to our industry. Migratory birds play an important role in their ecosystems, not limited to pollination, disease and pest control, carrion disposal and seed dispersal, according to U.S. Fish and Wildlife. In the tree care industry, birds are the major predator to insects and other pests that routinely require the use of toxic pesticides. By protecting these birds, employers can help their communities and their workers by promoting healthy trees and limiting exposure to toxic chemicals.

The next part of this saga takes us to August 2020. On August 11, in a surprise move, a U.S. district judge in New York ruled against the Department of the Interior, ruling that the Department’s interpretation “runs counter to the purpose of the MBTA to protect migratory bird populations.” Environmentalists and bird supporters have cheered the recent court ruling, though the Department of the Interior has sharply criticized the decision. It is unclear how the Department could move forward with this rule, but this matter likely has not been settled.

At this point, the MBTA does again apply to the “incidental take” of migratory birds. A full list of these birds can be found at fws.org. Arborists should be careful they do not harm these birds and should be aware of the potential of these birds appearing in their environment. Enforcement of this act has been limited, but it does carry the threat of up to six months in jail and a $15,000 penalty for each and every bird injured or killed. These are real penalties, but this interpretation of the act was in place for nearly 100 years prior to 2017, and we at TCIA do not expect any problems to arise with the reversal or the Department of the Interior’s legal opinion.

TCIA maintains the position that an assessment for wildlife should be included in all job assessments. This will not only limit your company’s liability under laws like the MBTA, but also serves an important safety purpose. No one wants to be surprised by an angry bird 50 feet in the air! This is addressed in detail in TCIA Tailgate Safety Program: Session 26, available on tcia.org.

The debate around the MBTA is a useful case study on the impact government has on our industry in the U.S. and shows how rapidly regulations can change. Decisions made in Washington, D.C., tend to ripple out across the United States, in ways good for industry or bad. It bears watching closely the results of the federal elections in November, as whatever administration is in place afterward may institute different regulations that could greatly impact the tree care industry.

This is an issue that may not have been on our radar without a member reaching out and asking TCIA about it. Please let us know what issues are keeping you up at night – we are here for you! Reach out to Aiden O’Brien, TCIA’s advocacy and standards manager, at aobrien@tcia.org for any policy-related questions or issues, or membership@tcia.org for more general inquiries.