Executive Order for the Conservation of Migratory
Questions and Answers
Why is an Executive Order for Migratory Birds needed?
Executive Order is a crucial first step in creating a more comprehensive
strategy for the conservation of migratory birds by the Federal
government, thereby fulfilling the governments duty to lead in the
protection of this international resource. The Executive Order will also
provide a specific framework for the Federal governments compliance
with its treaty obligations to Canada, Mexico, Russia and Japan. An
Executive Order will serve to enhance coordination and communication among
Federal agencies regarding their responsibilities under the four bilateral
treaties on the conservation of migratory birds (Canada - 1916, Mexico -
1936, Japan - 1972, Russia - 1978). The Executive Order provides broad
guidelines on conservation responsibilities and requires the development
of more detailed guidance in Memoranda of Understanding within two years.
It will also build upon the progress that has been made in recent years on
conservation of migratory birds. For example, the Executive Order will aid
in incorporating national planning for bird conservation into agency
programs and provide the formal Presidential guidance necessary for
agencies to incorporate migratory bird conservation more fully into their
Does the MBTA apply to Federal agencies, and if so how do those
prohibitions relate to this Executive Order?
Federal courts have
recently affirmed that Federal agencies are subject to prohibitions in the
MBTA, including restrictions on take of migratory birds.
Nothing in the Executive Order would constitute legal authorization to
take migratory birds. In other words, the requirements of the Executive
Order are in addition to, not in lieu of, the prohibitions of the MBTA.
Federal agencies are required to possess permits before taking migratory
Who will be affected by the Executive Order?
Order will influence Federal agencies by requiring them to incorporate
migratory bird conservation measures into their agency activities. Impacts
on the States and private landowners are not expected to be significant.
How much will this cost?
Agencies of the Executive Branch
will be directed to implement this order within existing budgets and the
overall agency mission will not be changed. The order will require
agencies to examine their activities to determine if there are ways to
accomplish their mission while increasing efforts in the conservation of
migratory birds. The Fish and Wildlife Service may require additional
funding to fulfill training and implementation responsibilities.
What part of the government is affected by the Executive Order?
Executive Order will apply to departments and agencies of the Federal
government including the Departments of Interior, Commerce, Agriculture,
Transportation, Energy, Defense and the Environmental Protection Agency.
Implementation of the Executive Order will be voluntary for independent
Who will implement the Executive Order?
All Federal agencies
as described in the previous question will be required to implement the
Executive Order. The Fish and Wildlife Service will lead coordination and
implementation of the order and provide training opportunities to other
Executive Branch agencies and departments. An interagency Council for the
Conservation of Migratory Birds will monitor and oversee progress in the
implementation of the Executive Order.
What will agencies be required to do as a result of the Executive
Each Federal agency will be required to enter into a
Memorandum Of Understanding (MOU) with the Service outlining how the
agency will promote conservation of migratory birds. These MOUs will be
developed through a public process. Other activities called for in the
Executive Order include support of various conservation planning efforts
already underway, such as the Partners in Flight initiative and North
American Waterfowl Management Plan; incorporating bird conservation
considerations into agency planning, including National Environmental
Policy Act analyses; reporting annually on the level of take of migratory
birds; and generally promoting the conservation of migratory birds without
compromising the agency mission.
When will the Executive Order be in effect?
of the President the order becomes effective. Memoranda of Understanding
are scheduled for development within two years, and the development of
training programs for other agencies will begin following signature of the
order. The order will remain in effect until rescinded by the President.
Why should the public and non-Federal entities care about this
Executive Order, if it only affects Federal Agencies?
Executive Order does not apply to non-Federal entities, we feel it
important to involve the public in the process in order to prevent
misunderstandings that might arise from this action. The development of
each MOU will provide opportunities for public participation, and also
serve as an opportunity to clarify the non-Federal responsibilities and
prohibitions that exist under the Migratory Bird Treaty Act. We hope this
process will spawn new partnerships in our collective efforts to conserve
this valuable resource.
What is a migratory bird?
In the biological
sense, a migratory bird is a bird that has a seasonal and somewhat
predictable pattern of movement. For the sake of the Executive Order and
the Migratory Bird Treaty Act, migratory birds are defined as all species
covered by the four bilateral treaties. Generally, this includes all
native birds in the U.S., except those non-migratory species such as quail
and turkey that are managed by states.
What are the prohibitions under the Migratory Bird Treaty Act?
the provisions of the Migratory Bird Treaty Act, it is unlawful by
any means or manner to pursue, hunt, take, capture [or] kill any
migratory birds except as permitted by regulations issued by the Service.
The term take is not defined in the MBTA, but the Service has
defined it by regulation to mean to pursue, hunt, shoot, wound,
kill, trap, capture or collect any migratory bird or any part, nest
or egg of any migratory bird covered by the conventions, or to attempt
Restricted activities are not confined to those that may injure or kill
birds. The Service has developed a system of permits for activities that
involve the take of migratory birds, including those governing scientific
collection and bird banding, and lethal and non-lethal measures taken to
prevent depredation of agricultural crops and to protect public health and
safety. For more information about those permits, or to clarify whether an
activity is allowed, contact the Service.
Youve stated that Federal agencies must obtain permits from
the Service for activities covered by existing MBTA permits. How should
Federal agencies proceed when an activity for which there is no existing
permit may result in take of migratory birds?
bird permit regulations authorize take for specific types of activities,
such as collecting birds for scientific or educational purposes, or lethal
control of birds damaging agricultural crops or other personal property.
They do not authorize take resulting from activities such as forestry or
agricultural operations, construction or operation of powerlines, and
other activities where an otherwise legal action might reasonably be
expected to take migratory birds, but is not the intended purpose of the
Under the provisions of the MBTA, the unauthorized take of migratory
birds is a strict liability criminal offense that does not require
knowledge or specific intent on the part of the offender. As such, even
when engaged in an otherwise legal activity where the intent is not to
kill or injure migratory birds, violations can occur if bird death or
The Service has enforced the MBTA with discretion, focusing on
individuals or organizations that take birds with disregard for the law,
particularly where no valid conservation measures have been employed. In
doing so, the Service has been able to focus its limited resources on
working cooperatively with various industries, agencies and individuals to
reduce impacts on migratory birds. When necessary, the Service has taken
enforcement actions to stop activities that threaten migratory bird
Agency compliance with the Executive Order and the MOUs developed in
consultation with the Service, while not eliminating the possibility of
violations of the MBTA, should ensure that migratory bird populations are
safeguarded. By avoiding or minimizing the impact of activities on
migratory bird populations and otherwise implementing the terms of the
MOUs, agencies can reduce or eliminate the biological significance of any
potential violation, as well as the possibility of enforcement action.