Buffalo Environmental Law Journal

First Page


Document Type



Migratory birds are at odds with commercial industries in the United States. Industries are occasionally and accidentally killing migratory birds through their legal activity. Such actions against migratory birds are known as incidental takes. While the century-old Migratory Bird Treaty Act (MBTA) prohibits the taking of migratory birds, it is unclear as to whether it prohibits these modern-day incidental takes. The MBTA imposes criminal strict liability on those who violate its prohibitions, regardless of one's mental state at the time of the incident. Should the federal government hold commercial industries criminally liable for incidentally taking migratory birds through otherwise legal activity? This is the question Circuit Courts have faced and ardently tried to answer, creating a circuit split over the reach of the MBTA as applied to incidental takes.

This Article first argues that criminal strict liability must be rejected as it applies to incidental takes under the MBTA. Congress enacted the MBTA to protect migratory birds against takes by hunters and poachers, not unintentional takes by commercial industries. And no other federal regulation protecting migratory birds still utilizes criminal strict liability for incidental takes. Though the Fish and Wildlife Service (FWS) has suggested an incidental take program that would permit industries to take birds, industries without a permit would still be subject to prosecution under the MBTA. Presently, implementing such a program would be problematic and premature. In essence, it would be like trying to fit a square peg into a round hole.

This Article then proposes a new civil penalty regime under the MBTA to account for the incidental takes by commercial industries. Such a provision would mirror every other federal migratory-bird regulation. Rather than prosecuting industries, a civil penalty regime willfine industries and deter them from incidental takes of migratory birds. Civil penalties will protect industries from overly harsh punishments and protect migratory birds by putting the fine monies in the Migratory Bird Conservation Fund Applying the current MBTA to incidental takes is another attempt at trying to fit a square peg into a round hole. Judges and government agencies have tried every peg in the box. Now it is time for lawmakers to craft one that fits.