Migrating Towards an Incidental Take Permit Program: Overhauling the Migratory Bird Treaty Act to Comport with Modern Industrial Operations

In 1918, Congress passed the Migratory Bird Treaty Act (MBTA) to curb mass avian extermination caused by hunting and poaching. Despite Congress’s initial concern with these activities, the U.S. Fish and Wildlife Service (FWS) expanded the scope of MBTA enforcement to include bird deaths caused by industrial activities. This created a glaring split of authority among U.S. Circuit Courts of Appeals, with one side applying strict liability under the MBTA for all deaths of protected birds caused by industrial activities and the other side refusing to apply the MBTA to indirect and unintentional bird deaths. This article argues that the best solution would be for Congress or the FWS to establish an incidental take permit program that would exempt industrial operators from prosecution for certain indirect, unintentional bird deaths caused by industrial activities. Such a program would provide the best balance between the MBTA’s conservation principles and the reality of vital and growing industrial operations. A permit program would provide industrial operators with certainty concerning liability and project planning, and provide the FWS with a tool to fund and ensure conservation of migratory birds, while still allowing the FWS to prosecute those failing to obtain a permit or violating the Act in another way.