Fight Back to Save The Migratory Bird Treaty Act Now | Montana Audubon

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Fight Back to Save The Migratory Bird Treaty Act Now

Action Alert July 7th, 2020

Two actions, one fight –Fight Back to Save The Migratory Bird Treaty Act Now – Comment by July 20th, 2020!

The  Migratory Bird Treaty Act (MBTA) is one law that has withstood the test of a century and helped support a magnificent diversity of avian wildlife across the United States. Somehow during this national time of upheaval, when our focus should be on community unity and human health, the current administration has found time to move forward with a plan to permanently enact it’s 2017 proposal to redefine incidental take. Despite your calls to action, and calls from across the nation, we need to continue to fight back against these changes. 

To recall, the Solicitor General’s 2017 interpretation of the law, whose language remains unchanged, reversed the intent of the MBTA to cover “incidental” take, or actions, threats or activities creating indirect sources of bird mortality (think wind farms, coal-ash ponds, utility lines, etc.). In the U.S Fish and Wildlife Services own words, “the Service published a proposed rule clarifying that the scope of the MBTA only extends to conduct intentionally injuring birds. The rule codifies the 2017 Department of the Interior Solicitor’s Office Opinion M-37050, which was a legal determination that restricted the scope of the MBTA to intentional take of migratory birds and concluded that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds.” 

Then, just in June, the Department of Interior proposed, in a new Draft Environmental Impact Statement, to codify this interpretation of incidental take under the Migratory Bird Treaty Act. This cannot stand. The MBTA is the primary legal protection birds have from incidental take, and we KNOW that this legal opinion is contrary to the long-standing, bipartisan interpretation of the Act by every Presidential Administration since at least the 1970s.

While the Department moves forward with these changes, states and conservation organizations have been given the go-ahead to bring a court case forward to challenge the proposed changes. But we cannot rely on the courts to revise this commitment to conservation. 

Fortunately, through H.R 5552 the Migratory Bird Protection Act, Congress is taking a step towards halting the rollbacks to the MBTA. This piece of legislation seeks to codify the age-old bipartisan interpretation of incidental take rather than codify the 2017 opinion. 

Now, both your Representatives and the Department of Interior need to hear from you. 

The message to our representatives is simple – Don’t allow the gutting of the Migratory Bird Treaty act. Reverse negative changes to the MBTA by supporting the Migratory Bird Protection Act.

The message DOI is even more simple – Don’t allow the reinterpretation of incidental take under the MBTA – it is one of the laws most strong provisions!


Act quickly, as public comment on the draft EIS must be received on or before July 20, 2020!

To Reach out to your State Representatives

Congressman Greg Gianforte;

1419 Longworth House Office Building Washington, DC 20515 Phone: 202-225-3211 Fax: 202-225-5687 Web: Email: [email protected]


To comment to the Department of Interior

Click HERE. There you can copy and paste your written comments directly into the government sponsored website. Take time to make your comments direct to the EIS (linked below) and direct to the incidental take provision.



We know in Montana our voice at the Federal level only goes so far. Make your impact go further by encouraging your friends and family to reach out to their leadership. Our country’s decision-makers need to hear from all of us.


Additional information and sample talking points:

  • The draft Environmental Impact Statement will be available at, Docket Number: FWS-HQ-MB-2018-009
  • All the documents related to this draft Environmental Impact Statement and proposed rulemaking and information on how to submit comments are also available online at:
  • The MBTA was one of the first U.S. environmental laws that set us apart when it comes to conserving wildlife and resources.
  • The MBTA is supported by four bilateral treaties with countries that share our migratory bird populations (Russia, Japan, Canada, and Mexico.)
  • Codifying an unsupported change in the term incidental take, under the draft EIS will allow industry and irresponsible companies to act in a way that will routinely kill migratory birds large and small, as long as that was not their initial intent.
  • The draft EIS does not contain enough enforcement provisions in the new to manage a take permit program.
  • The draft EIS does not address enforcement or penalty for negligence and harm to migratory birds.
  • After a century of use, the courts, industry, and supporters have found a balanced way to enact its side-boards, while supporting general industrial economic growth.
  • Urge this administration to continue the tradition of working to find a balance between industries like commercial utilities, communications, transportation, commercial fishing, national defense, and others to keep our migratory bird populations healthy for current and future generations.
  • Conserving birds is a commitment we have to current and future generations as well as our treaty partners.

Some examples of incidental take here in Montana;

Berkeley Pit: No protection for birds that land (and die) in the Berkeley Pit. The latest significant incident was when about 3,000 Snow Geese (and Ross’s Geese) died there in November 2016.

Pipeline Spills: there have been 2 pipeline spills with birds oiled on the Yellowstone River within the last 10 years (July 1, 2011, Silvertip Pipeline Spill, ExxonMobil pipeline, 1,500 barrels of oil, company paid $12 million in damages; January 17, 2015: Bridger Pipeline Company spilled crude oil into the Yellowstone River near Glendive, 42,000 gallons of oil spilled).

For more information contact Amy Seaman; [email protected]

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