Migratory Bird Treaty Act of 1918 - Controversy

Controversy

Unlike the Endangered Species Act the MBTA is relatively unknown to the general public and causes little controversy. To date, there have been no serious attempts to have species stripped from the treaty.

One issue involves a small uninhabited island in the Pacific Ocean known as Farallon de Medinilla located 150 miles (240 km) north of Guam. The target range there is the United States Pacific Fleet’s only U.S.-controlled range available, and conveniently accessible from bases in Guam, for live-fire training. In addition, the air and sea space in the Farallon de Medinilla area provides sufficient room for the many different attack profiles which need to be rehearsed. During the peak of Vietnam War operations, ordnance delivered on the island was estimated at 22 tons per month, but is considerably less now.

The Navy has far more mitigation procedures to prevent environmental damage in the present day than they did in the 1960s. In compliance with the National Environmental Policy Act of 1969 they prepared an Environmental Impact Statement. However, the Navy could not guarantee that no bird protected by the MBTA would be killed, despite the precautions. The Fish and Wildlife Service could not grant a permit without such a guarantee, and no permit has been issued. The Navy argued that it had done its best to comply with environmental laws, and should be permitted to operate under the Impact Statement prepared for NEPA. Vice Speaker Joseph P. DeLeon Guerrero, R-Saipan, noted that the U.S. military “is thorough and meticulous in monitoring the impact of the bombing ” on Farallon de Medinilla.

Earthjustice sued for a temporary restraining order of tests because the navy did not comply with the MBTA, although they did comply with the other environmental laws. As a result a law was introduced by congress (H.R. 4546) to amend the Migratory Bird Treaty Act of 1918 to make it lawful for the Department of Defense to "take" (kill) migratory birds during a "military readiness activity". (Readiness activities are defined as all training activities and military operations related to combat and the testing of equipment for combat use.) The record in congress noted that "A recent federal court ruling indicated that the Navy had violated the Migratory Bird Treaty Act by incidentally taking migratory birds without a permit during training exercises near Guam. The House report indicates that the exemption provision is intended to address the lack of permit authorization for incidental takings, so that essential training exercises may proceed. It appears that the language used in the bill would not authorize the issuance of permits, but more broadly would state that the part of the Migratory Bird Treaty Act that articulates unlawful behavior does not apply to a military readiness activity.