Type: Law Bulletins
Date: 07/14/2010

The Migratory Bird Treaty Act: What Can Businesses Do About Federally Protected Canada Geese?

In light of the recent emphasis on environmental enforcement matters, individuals and businesses alike should be aware of potential liability under the Migratory Bird Treaty Act (MBTA) for “takes” of birds protected under the treaty—including Canada geese.

The MBTA implements treaties entered into by the United States with Canada, Mexico, Japan, and the Soviet Union. The MBTA makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess…transport or cause to be transported, carry or cause to be carried…” migratory birds, nests, or eggs. Regulations promulgated by U.S. Fish and Wildlife define “take” as to actually or attempt to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” States may promulgate additional and stricter laws or regulations, as long as they are consistent with the MBTA.

Any person who violates the MBTA is guilty of a misdemeanor (although certain knowing violations constitute felonies). MBTA misdemeanors are strict liability offenses—a violation can occur even where there was no knowledge or intent that the law was being violated. A person convicted of a misdemeanor under the MBTA can be fined and/or sentenced to up to six months in jail. A person convicted of a felony can be fined and/or sentenced to up to two years in jail. In addition, a felony conviction may result in the forfeiture of any equipment used in violation of the MBTA to the United States as an additional penalty.

The MBTA’s application to Canada geese provides a helpful illustration of the law’s impact. Any activities to control Canada geese populations on property, other than those to scare off the geese or prevent them from using property or parts of property, generally require a permit from U.S. Fish and Wildlife. However, while some states consider a person/entity as having state permission if a person or entity has federal permission to take or remove and relocate Canada geese, other states have stricter requirements and mandate state permission as well. Some states—including Indiana—participate in a federal program that allows private landowners (including businesses) and local governments, among others, to register their lands and take eggs and nests of “resident” Canada geese (those that “nest and/or reside predominantly within” the “conterminous United States”) without a permit in accordance with certain regulations. As a result, the Wildlife Services Division of the Department of Agriculture should be consulted regarding whether a contemplated activity requires a permit, and if so, what kind. Consultation with the state wildlife agency in which the person or entity is located is also advisable, in order to receive guidance on any potential state regulatory issues.

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