More than Birds: Developing a New Environmental Jurisprudence Through the Migratory Bird Treaty Act

Patrick G. Maroun*

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental statutes are also aging and may soon face similar interpretive issues. This Note argues that, to address inherent problems with aging environmental statutes, courts should adopt a jurisprudential preference for fidelity to each statute’s purpose.

*J.D. Candidate, May 2019, University of Michigan Law School. First, thank you to my parents, Martha and Gary, and to my sisters, Laura and Kathleen, for all your support over the last twenty-five years. Thank you to Megan Brown, Arianna Demas, Patrick Kennedy, Stephen Rees, Michael Smith, and Jonathan Tietz for many fun meetings in Hutchins 242, and to my Notes Editors Charlie Stewart and Ryan Marosy. And finally, thanks to Kyle Smith for listening to me talk about bird law more than any single person should.

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