The Migratory Bird Treaty Act (“Act”) can be found in Chapter 7, Title 16 of U.S. Code Service.  The Act makes it unlawful to pursue, hunt, take, capture, kill or sell migratory birds[i].

A migratory bird is any species or family of birds that live, reproduce, or migrate within or across international borders at some point during their annual life cycle.

This Act applies only to migratory bird species that are native to the U.S. or its territories.  Also, the statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs and nests.

The Act is broken down into ten sections, 16 USCS 703 through 712.  Pursuant to 16 USCS § 704, it is unlawful for any person to:

• take any migratory game bird by the aid of baiting, or on or over any baited area, if the person knows or reasonably should know that the area is a baited area; or
• place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited area.

It is unlawful to ship, transport, or carry from one State to or through another State or to or through a foreign country, any bird, or any part, nest, or egg contrary to the laws of the State[ii].

Pursuant to 16 USCS § 706, any employee of the Department of Agriculture [Department of Interior] authorized by the Secretary of Agriculture [Secretary of the Interior] has power, without warrant, to arrest any person committing a violation of this Act.

The Migratory Bird Treaty Act applies a strict liability standard to the taking or killing of migratory birds[iii].  The Act specifies a maximum penalty of $ 15,000 and six months in prison for a misdemeanor violation, but does not require any particular mental state or mens rea to violate the statute[iv].

16 USCS § 707 (b) provides that any who knowingly:

• take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or
• sell, offer for sale, barter or offer to barter, any migratory bird will be guilty of a felony and will be fined not more than $ 2,000 or imprisoned not more than two years, or both.

However, the provisions of this Act should not be construed to prevent the breeding of migratory game birds on farms and preserves and the sale of birds so bred under proper regulations for the purpose of increasing the food supply[v].

The Act authorizes the Secretary of the Interior to issue such regulations as may be necessary to implement the provisions of[vi]:

• the convention between the U.S. and Great Britain for the protection of migratory birds concluded August 16, 1916,
• the convention between the U.S. and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936,
• the convention between the U.S. and the Government of Japan for the protection of migratory birds in danger of extinction, and their environment concluded March 4, 1972, and
• the convention between the U.S. and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environment concluded November 19, 1976.

[i] 16 USCS § 703.

[ii] 16 USCS § 705.

[iii] United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. Kan. 2010).

[iv] 16 USCS § 707(a).

[v] 16 USCS § 711.

[vi] 16 USCS § 712.