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

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

C. judicial Challenges to the Applicability of the Migratory Bird Treaty Act to Captive-Raised Birds

The MBTA leaves a curious regulatory vacuum with regard to captive-bred migratory birds.81 Migratory birds are captive-bred,82 by individuals or wildlife institutions, for diverse reasons: to be kept, used as a food source, or commercially sold. Additionally, migratory birds are captive-reared so that they may be re-introduced to the wild for the purpose of conservation.83 Many recovery programs by wildlife institutions have been successful in the captive-breeding field.84 The National Birds of Prey Centre, for example, has captively bred sixty species of birds of prey since it opened in 1967.85 Captive-bred birds contribute to scientific and technological advances, and help preserve endangered birds by recolonizing areas where wild populations have disaoDeared.86

There has been much debate over whether the MBTA encompasses captive-raised birds at all.87 According to the FWS, "migratory bird" means "any bird, whatever its origin and whether or not raised in captivity, which belongs to [a protected] species or which is a mutation or a hybrid of any such species . . . ."88 On the other hand, FWS regulations state that "captive-reared and properly marked mallard ducks, alive or dead, or their eggs may be acquired, possessed, sold, traded, donated, transported, and disposed of by any person without a permit."89 A similar exception is granted for other captive-reared migratory waterfowl.90

The issue of whether captive-bred migratory birds are protected under the MBTA first arose in Koop v. United States.91 Koop raised mallard ducks at his ranch and invited guests to hunt them on his premises.92 he was charged with violating sections 703 through 711 of the MBTA, which prohibit hunting and attempting to kill migratory birds.93 Koop claimed that the mallards that were shot were not wild ducks within the meaning of the treaties and the MBTA; rather, they were his personal property, since he had raised them.94 Koop, however, had not confined the ducks so as to prevent them from migrating and commingling with wild birds.95 Therefore, the court stated that Koop lacked possession and control of the mallards because they were "free to go and come as they would. "96

In United States v. Richards, defendant, a breeder of sparrow hawks, was charged with violating section 703 of the MBTA, and he challenged the applicability of the Act to birds raised in captivity.97 The court upheld the conviction, emphasizing that the purpose of the conventions and the MBTA was to protect migratory birds, making no exception for captive migratory birds.98 Thus, the court ruled that the MBTA applied to captive-bred falconidae.99

Just a year later, the court revisited the issue of the applicability of the MBTA to captive-related birds.100 In United States v. Conners, the court held that the MBTA applied only to wild mallard ducks and not to those which were captively-bred.101 In reaching this conclusion, the court examined the MBTA and the Mexican and Japanese Conventions to determine whether the MBTA contemplated captive-reared, in addition to wild, mallards.102 The court noted that two of the three treaties referred specifically to "wild ducks," including the operative Canadian Convention giving rise to the MBTA.103 Therefore, since criminal statutes had to be strictly construed, the MBTA did not apply to the killing of captive-reared ducks.104 Thus, should it be found that the ducks killed were 'ViId," the defendant's conviction under the MBTA would be sustained, whereas if they were captive-bred, the charges would have to be dismissed.105