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

Boston College Environmental Affairs Law Review, 2004 by Lee, Hye-Jong Linda

The legislative history of the MBTA boldly suggests the role property rights and interests played in shaping the vision of MBTA's protectionism and rationale.171 Congress clearly saw in migratory birds food, sport, and aesthetic enjoyment.172 For instance, one senator was concerned that unregulated hunting of migratory birds would hinder the protection of American agriculture and forestry: "[e]nough birds will keep every insect off of every tree hi America, and if you will quit shooting them they will do it,"173 Pothunters were seen as villains whose behavior the MBTA must address and regulate, lest "proper" hunters run out of targets.174 Hence, while "[t]his law is aimed at the professional pothunter,"175 hunting according to the rules of sport was embraced by one representative: "God made woodpeckers, meadow larks, wild ducks, and bobolinks for boys to shoot. ... [I] t makes better soldiers of them, if they learn to shoot."176 Indeed, many congressmen either suggested or wanted confirmation that the true purpose of the MBTA was to preserve the sport of hunting for generations to come. Interestingly, the underlying concern for the prosperity of hunting was also used to criticize the Act, with some congressmen going so far as to suggest that not only was the Act not aimed at protecting the birds, it was also not aimed at protecting hunting in general, but only the elite practice of it. Many congressmen dismissed the MBTA as expressing the "desire to maintain a steady supply of game animals for the upper classes."177 In the words of one representative,

[t]he real purpose of this bill, so far as it applies to the game birds, is not to protect the birds, is not to give them life, but to fix it so that the ragged boys, the people far away in the country who have not bird dogs-to fix it so that the common people of the country can not get their fair share of the game and so that only those who are able to afford game preserves and fancy equipment for hunting and all the paraphernalia that goes with it.178

What was common to this discourse and debate about the MBTA was that it was not extending help to birds for their sake, but for people's sake.179 Hunters were among those people "protected" by the Act, and so were weekend admirers of wildlife.180 The issue of aesthetic appreciation of migratory birds appears frequently in debates about the Act.181 One representative admitted, for instance, that "[m]y admiration for our little friends of the air makes me unfriendly to the habit of killing off these winged visitors . . . ."182 Similarly, another representative added, "[i]f we are going to have a treaty about migratory birds, let us have some place where they can come and remain safely and be a pleasure and companions."183

The regulations set forth by the FWS under the MBTA reproduce this utilitarian protectionist scheme at the ground level of micromanagement.184 True to congressional intent, the FWS permits the hunting of migratory birds by those who identify themselves as hunters.185 The FWS regulates the methods of hunting,186 outlines the hours during which hunting can take place,187 the limits on the number of birds a person may take per day,188 and requires that any birds so taken be tagged to claim their possession.189 Likewise, a taxidermist may "[rjeceive, transport, hold in custody or possession, mount or otherwise prepare, migratory birds, and their parts, nests, or eggs, and return them to another," as well as "[s]ell properly marked, captive-reared migratory waterfowl which he has lawfully acquired and mounted," as long as he keeps accurate records of such operations.190