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

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

In 1916, motivated by fears of extinction and population decline of several migratory bird species, the United States of America entered into a treaty with the United Kingdom, which was acting on behalf of Canada, "for the protection of migratory birds in the United States and Canada."18 Two years later, Congress enacted the MBTA19 to give effect to this convention, prohibiting the taking, killing, or possessing of migratory birds covered by the treaty, except as otherwise permitted by regulations to be promulgated by the secretary of the Interior.20

The MBTA served diverse purposes.21 First, Congress wished to regulate commercial and recreational hunting, especially targeting the villain of the act, the notorious "pothunter."22 As one Senator declared, "[t]his law is aimed at the professional pothunter."23 The MBTA was to "keep pothunters from killing game out of season, ruining the eggs of nesting birds, and ruining the country by it."24 While the Act singled out the hunter who refused to play by the rules of the game, it did purport to regulate recreational hunters as well.25 In a cynical stab at recreational hunters, one representative warned, "people who are against this bill are . . . some so-called city sportsmen, who want spring shooting jiist to gratify a lust for slaughter."26

The MBTA also contemplated agricultural benefits.27 Not only was there value in saving birds from the reckless slaughter of unrestrained hunting, but there was also value in keeping birds alive to do what they did so well: eat crop-damaging insects.28 Congress took notice of annual food losses caused by insects and proclaimed the need to protect the birds.29 Finally, Congress recognized the aesthetic value of migratory birds.30 The MBTA guaranteed that migratory birds would continue to be part of America's aesthetic recreation by "[providing] some place where [migratory birds] can come and remain safely and be a pleasure and companions."31 In the words of one representative, the MBTA ought to protect migratory birds because "admiration for our little friends of the air ma[de him] unfriendly to the habit of killing off these winged visitors, whether game birds, migratory birds, or other species . . . ."32 The MBTA gave the United States a variety of reasons for finding some value in protecting its disappearing winged visitors.

As such, the MBTA was the first significant legislative pronouncement of environmental conservation as an important national policy goal for the United States,33 and it was declared the "most important early federal legislation concerning the preservation of wildlife."34 In defending its constitutionality against a state's Tenth Amendment challenge in Missouri v. Holland, Justice Holmes declared the protection of migratory birds to be a "national interest" warranting "national action."35 he found no constitutional obstacle to such a laudable action: "[b]ut for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed."36