Prohibiting Conduct, Not Consequences: The Limited Reach of the Migratory Bird Treaty Act

Dissatisfied with the protection afforded wildlife by more recent environmental laws, some environmentalists seek to reinterpret one of the oldest federal environmental laws, the Migratory Bird Treaty Act (MBTA). Long understood simply to regulate hunting, the MBTA makes it illegal to “take” or “kill” migratory birds without a permit. The MBTA imposes strict liability for a violation. A heady combination of strict liability, criminal penalty provisions, and vague language, the MBTA appeals to those seeking to control land use activity. Some environmentalists advocate an interpretation of the MBTA that, contrary to legislative intent and 80 years of enforcement practice, would make any activity resulting in the death of migratory birds a violation of the MBTA, regardless of whether the defendants directed their activity at wildlife. This Note argues, however, that the MBTA covers only activity that is directed at wildlife, and that absent such purposive conduct, no violation exists.