PRAGMATIC MIGRATORY BIRD TREATY ACT: PROTECTING "PROPERTY", THE

Abstract:

In 1916, the United States of America entered into a treaty with the United Kingdom, acting on behalf of Canada, to protect migratory birds from unrestrained killing. Two years later, Congress enacted the Migratory Bird Treaty Act (MBTA) to give effect to this convention. The United States subsequently entered into similar agreements with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976, which were thereafter incorporated into the provisions of the MBTA. The MBTA's prohibition against pursuing, hunting, taking, capturing, or killing any migratory bird, or any part, nest, or egg of such birds, however, is not motivated by the desire to protect human property interests. This Note explores America's attachment to wildlife as property under the terms of the conventions, the statutory language, the history, and the caselaw pertaining to the MBTA, with specific focus on the curious distinction between wild and captive-bred mallard ducks.

Wild beasts and birds are by right not the property merely of the people today, but the property of the unborn generations, whose belongings we have no right to squander:1

-Theodore Roosevelt

INTRODUCTION

The Migratory Bird Treaty Act (MBTA) was enacted in 1916 to protect migratory birds from unrestrained killing. The MBTA, however, treats migratory birds as human property that is deserving of protection only to the extent that they continue to serve human interests. When the protection of migratory birds interferes with human property interests, the MBTA offers little protection.

This Note explores the utilitarian ethics that underlie the MBTA. Part I examines the Migratory Bird Treaty Act, including how the MBTA came to be, its structure, and its applicability to captive-raised birds. Part II analyzes the intrinsic notion of property motivating the MBTA's protection of migratory birds by examining the statutory language of the conventions that preceded the passage of the MBTA, the language of the MBTA itself, and courts' distinct treatment of captive-bred migratory birds in contrast to wild migratory birds. Part II also considers the inevitable concessions and dangers that thinking of migratory birds and wildlife as human property prompts in wildlife law, and concludes that as long as wildlife statutes keep human interests predominant, environmental protection of species will remain thin.

I. THE MIGRATORY BIRD TREATY ACT

A. The Development of the Migratory Bird Treaty Act

The famous case of Piei'son v. Post owes its celebrity to something more than its status as a staple of first year property courses.2 Its celebrity derives, in large part, from its uncritical announcement of early America's attitudes towards wildlife-attitudes rooted in the notion that wildlife was something to be owned and possessed.3 After all, it is a case about wildlife written in the language of property.4 More specifically, it is written in the language of possession:

actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but . . . mortal wounding of such beasts ... be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control . . . [and] may justly be deemed to give possession of them to those persons who, by their industry and labour, have used such means of apprehending them.5

In this way, the resolution of a hunting dispute over beasts of ferae naturae6 becomes emblematic of the dominant conception of wildlife adopted early in America's history: wildlife as property, as an available resource to be owned, possessed, and used.7 Early Americans typically understood wildlife in terms limited to its utilitarian and human value: as a source of food and clothing, as a force of agricultural labor and service, as a method of pest control, and as the lively object of sport.8 In other words, early American society "viewed wildlife as a 'bottomless pit' from which it could take indiscriminately."9 Markets and cottage industries encircled this bottomless pit.10 In the nineteenth century, market hunting became popular, and wildlife merchandise became readily available to public markets for consumption and fashion.11 For instance, urban restaurant menus were eager to feature a wide range of fowl, and consumption was not limited to game birds: "many songbirds also were viewed as appropriate food for humans. Robins, for example, were served in soups, while cedar wax-wings and goldfinches made 'hearty' pies. Also available for purchase were batches of bobolinks, bundled and tied together like carrots."12 The tastes and customs of fashionable women created much demand for the killing of non-game birds, and "[s]o extensive was the use of feathers as well as whole birds on women's hats that . . . 'church gatherings and other social events often resembled aviaries.'"13

Hence, until the twentieth century, market hunters "killed migratory birds on a vast scale for profit; some massacred birds for the sheer hell of it."14 Due to the unrestrained hunting and killing of game birds, several migratory bird species valued as a food source and as insect control were in danger of extinction.15 Concerned sportsmen, farmers, and the general public advocated the need to protect migratory birds for both economic and aesthetic reasons.16 In fact, much of wildlife protection was advocated by sportsmen, who announced the need for conservation through a variety of hunting journals like American Sportsman, Forest and Stream, Field and Stream, and American Angler.17