Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) — enacted in 1918 and codified at 16 U.S.C. §§ 703–712 — implements U.S. treaty obligations with Canada, Mexico, Japan, and Russia to protect migratory birds, making it a federal crime to "take" (kill, capture, sell, trade, transport, or possess) any of the approximately 1,100 protected species without a federal permit. The MBTA covers virtually all native bird species in the United States except non-native invasives like European starlings and house sparrows. For a century, the MBTA was interpreted to prohibit "incidental take" — unintentional bird deaths caused by industrial activities like oil pits, power lines, wind turbines, and communications towers — creating liability for corporations whose operations killed protected birds even without intent. A Trump-era regulatory reinterpretation in 2017 limited MBTA liability to intentional take only, removing incidental take liability; the Biden administration reversed course in 2021, reinstating incidental take liability; and ongoing litigation continues to determine which interpretation governs. The MBTA provides the statutory framework for hunting regulation — the Fish and Wildlife Service sets annual waterfowl seasons, bag limits, and the Federal Duck Stamp program that has conserved over 6 million acres of wetland habitat since 1934 through hunting license fees. An estimated 1 billion birds die annually from window strikes, cats, and other human-caused mortality in the U.S., making MBTA enforcement priorities for industrial take a recurring political and conservation debate.

Current Law (2026)

Legal Authority

• 16 U.S.C. § 703 — Taking, killing, or possessing migratory birds unlawful (unless permitted by regulations; it is unlawful to pursue, hunt, take, capture, kill, attempt to take/capture/kill, possess, offer for sale, sell, offer for barter, barter, offer for transport, transport, or cause to be transported any migratory bird, part, nest, or egg)
• 16 U.S.C. § 704 — Determination as to when combating combatable game species and other means of protection inadequate (Secretary may determine when and to what extent hunting may be permitted and prescribe regulations for hunting seasons, bag limits, and methods)
• 16 U.S.C. § 707 — Violations and penalties (violations are misdemeanors punishable by up to $15,000 and 6 months; violations involving sale or barter, or committed with intent to sell or barter, are felonies punishable by up to $2,000 and 2 years)
• 16 U.S.C. § 708 — State or Territorial laws or regulations (states and territories may enact additional protective bird laws not in conflict with the international treaties or the MBTA; states may protect species not covered by federal treaties — the MBTA sets a federal floor, not a ceiling, for migratory bird protection)
• 16 U.S.C. § 709a — Authorization of appropriations (authorizes Treasury funds as necessary to carry out the treaties and the Act; authorizes the Interior Secretary to hire enforcement staff and operate the North American Bird Banding Program — which tracks migration routes and population trends across the continent)

How It Works

The Migratory Bird Treaty Act — enforced by the U.S. Fish and Wildlife Service — is one of America's oldest and most successful conservation laws, protecting over 1,100 species of birds that migrate across international borders. Enacted in 1918 to implement a treaty with Great Britain (on behalf of Canada) and complementing the Endangered Species Act, the MBTA has been credited with saving numerous species from the commercial hunting and feather trade that devastated bird populations in the late 19th and early 20th centuries.

The MBTA makes it unlawful to "take" (pursue, hunt, capture, or kill) any migratory bird — or possess, sell, or transport migratory birds, their parts, nests, or eggs — without authorization. The law is strict liability for hunting violations: intent is irrelevant. If you shoot a protected bird accidentally while hunting a legal species, you can be prosecuted. The protected species list covers virtually every native bird in North America — eagles, hawks, songbirds, and hummingbirds alike. Primary exceptions are licensed hunting of game birds during designated seasons, scientific research permits, and depredation permits for birds causing agricultural damage. Regulated hunting under the MBTA follows an annual data-driven process: FWS establishes frameworks — maximum season lengths, bag limits, and shooting hours — for migratory game bird seasons based on population surveys and harvest data, with states then setting their own seasons within those federal ceilings. The system operates through four administrative flyways (Atlantic, Mississippi, Central, Pacific), each with a Flyway Council of state wildlife agencies advising FWS on harvest regulations.

Financing wildlife conservation through the MBTA's machinery is the Federal Duck Stamp — required for every waterfowl hunter 16 and older at $25 annually. Since 1934, Duck Stamp revenue has raised over $1.1 billion, purchasing and protecting more than 6 million acres of wetland habitat within the National Wildlife Refuge System. The MBTA's most contested modern question is whether it reaches incidental take — birds killed unintentionally from otherwise lawful activities like wind turbines, power lines, oil pits, and building collisions. The Obama administration interpreted the MBTA to cover incidental take; the Trump administration reversed this, limiting liability to intentional acts; the Biden administration proposed to restore incidental take liability with a permitting system. The issue remains legally unsettled, with enormous implications for energy companies and industries whose operations kill birds at scale — estimates suggest 1–4 billion birds die annually from cats, buildings, vehicles, and industrial activities combined.

How It Affects You

MBTA violations involving commercial trafficking may also trigger prosecution under the Lacey Act, which carries stiffer felony penalties for wildlife trafficking.

State Variations

Implementing Regulations

• 50 CFR Part 10 — General provisions (definitions of migratory birds, import/export)

• 50 CFR Part 20 — Migratory bird hunting regulations (seasons, bag limits, methods). The FWS regulations implementing the MBTA's hunting framework at 50 CFR Part 20 (61 sections) are the operational rulebook for all migratory game bird hunting in the U.S. Key provisions:

  • § 20.21 — Prohibited hunting methods: no traps, snares, nets, rifles, or pistols; shotguns must be plugged to hold no more than three shells; no use of electronic calls for waterfowl; no baiting (shooting over grain, salt, or other feed placed to attract birds) — the baiting prohibition has generated significant litigation over distances and timing between feed placement and hunting
  • § 20.23 — Shooting hours: hunting is restricted to prescribed shooting hours established in Subpart K (typically one-half hour before sunrise to sunset, varying by species and state); shooting hours for waterfowl are published annually in the species-specific schedules (§§ 20.101–20.110)
  • § 20.24 — Daily bag limit: no person may take more than the daily bag limit (or aggregate limit where multiple species share a limit) in any one calendar day; possession limits are generally twice the daily bag limit and govern what a hunter may have in transport or at home
  • § 20.25 — Wanton waste prohibited: every hunter must make a reasonable effort to retrieve any bird killed or crippled and retain it in actual custody — killing birds and leaving them in the field is a federal violation regardless of how many remain in the bag limit
  • § 20.100 — Annual seasons framework: annual shooting schedules (Subpart K, §§ 20.101–20.110) are revised every year through a process that begins with FWS population surveys in spring and summer; population indices, breeding pair counts (the May Pond Count and Breeding Bird Survey), and hunter harvest data feed into models that determine safe harvest levels; FWS announces proposed frameworks in late summer and publishes final rules in September–October for the upcoming fall season
  • §§ 20.105, 20.108 — Nontoxic shot zones: waterfowl hunting in the 48 contiguous states (§ 20.105), Alaska (§ 20.102), and Puerto Rico/Virgin Islands (§ 20.101) must use nontoxic shot — lead shot has been prohibited for all waterfowl hunting nationwide since the 1991–92 season; approved nontoxic alternatives include steel, bismuth, tungsten-iron, and similar approved loads; FWS publishes the list of approved nontoxic shot at § 20.108; the ban followed evidence that waterfowl ingesting spent lead pellets from pond bottoms were suffering lethal lead poisoning, with loons, swans, and eagles dying secondarily from eating poisoned birds
  • § 20.20 — Harvest Information Program (HIP): before hunting any migratory game bird, hunters must register with their state's HIP program (available when purchasing a hunting license); HIP provides FWS with the sampling frame for the annual Migratory Bird Harvest Survey, the data source for harvest estimates used in the population models
  • Subpart N (§§ 20.150–20.152) — Special procedures for annual hunting regulations: describes the administrative rulemaking process FWS uses to issue annual season schedules under the MBTA; the annual process operates as a special abbreviated rulemaking — FWS publishes proposed frameworks and takes public comment, then issues final frameworks within which states set their specific seasons; this "split-season" regulatory process is unique to migratory bird management and allows FWS to adjust rules annually based on population data without a full multi-year rulemaking cycle

  Part 20 interacts directly with Part 21 (permits) and Part 10 (definitions). The four Flyway Councils — Atlantic, Mississippi, Central, and Pacific — are advisory bodies that represent state wildlife agencies and provide biological and management input to FWS annually; they have no independent regulatory authority but their recommendations shape the frameworks FWS ultimately adopts.

• 50 CFR Part 21 — Migratory Bird Permits — the FWS regulations establishing the permit framework that makes lawful possession, use, and management of protected migratory birds possible. Part 21 is the operational rulebook for the MBTA's permit system — without Part 21, the MBTA's broad take prohibition would make it illegal to handle injured birds for rehabilitation, use feathers in science, manage overabundant geese at airports, or depict migratory birds in educational displays. Key provisions:

  • § 21.10 — General permit requirement: no person may take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter any migratory bird — or any part, nest, or egg of such bird — except as specifically authorized by permit or regulatory authorization; the scope is deliberately comprehensive: it covers feathers (including molted feathers), eggshells, skeletal specimens, study skins, and all other parts; a dead migratory bird found on the ground generally cannot be picked up and kept without authorization
  • § 21.12 — General exceptions: certain activities are exempt from individual permit requirements: (a) employees of DOI, state wildlife agencies, and their authorized agents acting within the scope of official duties; (b) museums and scientific institutions holding specimens acquired lawfully before the MBTA took effect; (c) persons using birds for human consumption that were legally harvested under Part 20 hunting regulations; (d) falconers with valid falconry permits; (e) activities specifically authorized by a depredation order
  • § 21.14 — Birds inside buildings: anyone may humanely remove a migratory bird from the interior of a residence, business, or similar structure where people live or work — and may retain the live bird for up to 24 hours to facilitate its release; no permit is required; this practical exception prevents criminal liability when a bird flies into a building and must be caught and released
  • § 21.16 — Salvage authorization: any person may pick up a dead migratory bird found in the wild and retain it for up to 72 hours while the bird is turned over to a state or federal wildlife agency, a federally permitted salvage holder, or a museum; picking up and keeping a dead migratory bird — even for educational display — is not allowed without a salvage holder permit
  • § 21.100 — Depredation permits: when migratory birds are causing damage to crops, property, livestock, or public health, a person may apply to FWS for a depredation permit authorizing take of the damaging birds; applications must identify the species, the damage being caused, and what non-lethal control measures have been tried; permits specify the species, number, time, and method of take; common depredation scenarios include blackbirds in sunflower fields, geese on golf courses, and cormorants at aquaculture facilities
  • § 21.120–§ 21.123 — Special permits for overabundant species: FWS issues programmatic permits for state wildlife agencies to manage resident Canada geese (§ 21.120) and double-crested cormorants (§ 21.123) — two species whose populations have expanded substantially since original MBTA protection. The Canada goose permit (formerly called the "Special Canada Goose Permit") authorizes state agencies to permit residents to take resident (non-migratory) geese in specified circumstances; double-crested cormorant permits address damage to aquaculture operations and threats to other colonial waterbird nesting colonies
  • §§ 21.150–21.177 — Depredation and control orders (no individual permit required): for certain species that are regularly overabundant or cause systematic damage, FWS has issued standing depredation orders that authorize take without an individual permit:
    • § 21.150 — Blackbirds, cowbirds, crows, grackles, and magpies: landowners and their agents may take these species without a permit when they are depredating crops, threatening livestock, or creating public health hazards (West Nile virus, histoplasmosis) — the most commonly used depredation order
    • § 21.159 — Resident Canada geese at airports: federal, state, and local agencies and airport operators may kill, trap, and relocate or destroy nests/eggs of resident Canada geese at airports and military airfields where bird strikes pose safety risks — a bird-aircraft strike from a Canada goose can down a jet (the "Miracle on the Hudson" 2009 involved Canada geese)
    • § 21.162 — Resident Canada goose nest and egg destruction: during nesting season, anyone may treat goose eggs with corn oil (to prevent hatching) or physically destroy nests and eggs of resident Canada geese under a streamlined authorization — nest-and-egg treatment is the most humane, cost-effective population management tool available and does not require an individual permit
    • § 21.171–21.177 — Invasive species control orders: purple swamphens (invasive Florida), Muscovy ducks (except in native Texas range), and certain invasive birds in Hawaii may be taken by authorized agencies without individual permits

  The depredation order framework is a practical complement to the individual permit system: for systematically damaging species where MBTA protection is inconsistent with other resource or safety goals, FWS creates standing authorizations that allow land managers to act immediately without the delay of permit processing. For anyone dealing with problem migratory birds — farmers with crop damage, property managers with goose fouling, airports with bird strike risk, or aquaculture operators with cormorant predation — understanding whether a depredation order covers the situation (no permit needed) or an individual permit is required (apply to FWS regional office) is the key practical question.

  Recent rulemakings: 87 FR 881, 882, 883 (January 2022) — comprehensive restructuring of Part 21, consolidating and clarifying the depredation and control order framework; adding new electronic permit submission procedures; updating double-crested cormorant management authorities.

• 50 CFR Part 90 — Feeding Depredating Migratory Waterfowl: the FWS regulation implementing an often-overlooked provision of migratory waterfowl management law — the authority to provide surplus commodity grain to farmers as an alternative to lethal depredation control. Key provisions:

  • § 90.1 — Any person with an interest in crops suffering damage from depredating migratory waterfowl may file a complaint and apply for surplus grain to be used in a feeding program designed to draw the waterfowl away from the damaged crop and toward the placed grain; this is a "lure feeding" approach — providing an attractive food source to redirect birds rather than kill them
  • § 90.11 — Statutory authority: the Commodity Credit Corporation (CCC) provides USDA-acquired surplus wheat, corn, or other grain to the Secretary of the Interior for these feeding programs under the Act of July 3, 1956 (7 U.S.C. §§ 442-445); the grain must have been acquired through CCC price support operations and certified as available; the farm commodity surplus system thus serves double duty — managing agricultural price supports while providing a non-lethal crop protection tool
  • § 90.12 — Scope limitation: the grain authorization is strictly limited to preventing crop damage by migratory waterfowl (brant, wild ducks, geese, and swans) specifically; it may not be used to feed other migratory bird species even if those species are causing crop damage — if a flock of blackbirds or sandhill cranes is damaging a crop, a different legal authority applies
  • § 90.13 — Policy preference for wildlife management areas: when feeding programs are authorized, the Secretary prefers placing grain on wildlife management areas or other government-owned lands rather than private farms; diverting birds onto public lands maximizes the crop-protection benefit to the farmer while keeping the grain placement on managed land; grain placed on private land under this program must still comply with all state and federal hunting regulations
  • § 90.14–90.16 — Application and investigation process: a farmer files a written application with the FWS Regional Director; FWS investigates to confirm actual waterfowl depredation, determines the eligible quantity and type of grain, and arranges delivery; the Regional Director determines quantity, transportation means, and delivery point; grain may be provided as bagged or bulk grain
  • § 90.17 — Preservation of hunting regulations: nothing in the Part supersedes or modifies migratory waterfowl hunting regulations; lure feeding programs cannot be conducted in a manner that violates applicable state or federal hunting laws

  The Part 90 surplus grain program is a quiet but practical tool for mitigating waterfowl-agriculture conflicts without resorting to lethal control. In areas like the Central Flyway and Pacific Flyway where geese and ducks seasonally concentrate on agricultural fields — sometimes causing thousands of dollars in crop damage per farm — providing an alternative food source on nearby wetlands or refuges can effectively redirect bird pressure. The program complements the depredation permit and control order framework: farmers may qualify for either lethal control authorization (under Part 21) or the non-lethal feeding program (under Part 90), and FWS may recommend one or the other based on site conditions and species involved.

Pending Legislation

• HR 6021 — Protect authentic Alaska Native handicrafts with migratory bird parts, clear trade rules. Status: In committee.
• HR 3276 (Rep. Dingell, D-MI) — Urban Bird Treaty Program: urban habitat restoration grants, $1M/year through 2032. Status: In committee.
• S 1615 (Sen. Wyden, D-OR) — Pacific Northwest pilot grants for wetlands and migratory bird habitat restoration. Status: Introduced.
• HR 3188 (Rep. Huffman, D-CA) — Permit-and-fee system for incidental bird deaths, fund recovery/research. Status: Introduced.
• S 908 (Sen. Rounds, R-SD) — WTO-compliant poultry vaccination strategy for avian influenza. Status: Introduced.
• S 255 (Sen. Sullivan, R-AK) — Allow Alaska Native handicrafts with migratory bird parts to be sold. Status: Introduced.

Recent Developments

• The incidental take issue remains the MBTA's most contested legal question, with regulatory approaches shifting between administrations
• Wind energy bird mortality mitigation has advanced through technology (radar-activated curtailment, deterrent devices) and siting best practices
• Bird populations have declined significantly — a 2019 study documented a loss of approximately 3 billion birds in North America since 1970
• Climate change is altering migration patterns, nesting timing, and habitat availability for many species
• The Duck Stamp price was increased to $25 in 2015 (from $15), generating additional habitat acquisition revenue
• In March 2026, the U.S. Fish and Wildlife Service proposed changes to the migratory bird subsistence harvest regulations in Alaska, allowing continuation of customary and traditional subsistence uses of migratory birds by indigenous inhabitants.