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

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

When the utility of migratory birds does not outweigh other human interests, the conventions permit further exemptions for taking the otherwise protected birds.155 For instance, migratory birds may be killed when they "become seriously injurious to the agricultural or other interests in any particular community."156 The Canadian Convention granted freedom to kill migratory birds that "under extraordinary conditions, may become seriously injurious to agriculture or other interests in any particular community."157 The Mexican Convention likewise provided this exemption "when [migratory birds] become injurious to agriculture and constitute plagues."158 The Russian Convention grants an exemption in one broad stroke, allowing the killing of migratory birds "[f]or the purpose of protecting against in jury to persons or property."159 These exemptions demonstrate that migratory birds seen as reasonable threats to valuable property enjoy substantially less protection and deference than migratory birds considered valuable property themselves.160

C. Language of the Migratory Bird Treaty Act

The regulatory economy of apportioning protection according to utility is also at work in the MBTA itself.161 section 704 of Title 16 grants the secretary of the Interior deferential power to allow "hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof after "having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds."162 Thus, the MBTA does not contemplate the wholesale protection of migratory birds.163 Despite the strong and stark language of protectionism, it allows large exceptions when buds can either afford not to be protected, or when humans cannot afford them to be protected.164 Indeed, it is the original premise of birds as property that permits this delegation of power to the secretary of the Interior in the first place: "[mjigratory birds are subject to ownership of the people of the states in their collective sovereign capacity," and thus regulations made by the secretary qualify as a "valid regulation of'commerce.'"165

Additionally, the legacy of viewing wildlife as property to be owned and controlled is apparent in the MBTA's exemption for migratory birds raised in captivity.166 The Act provides that, "[njothing in this subchapter shall be construed to prevent the . . . sale of birds so bred [on farms and preserves] . . . for the purpose of increasing the food supply."167 This language suggests that captive-bred migratory birds are property subject to the control and disposal of breeders, not to be tampered with by the Act.168 Similarly, if the MBTA does not desire to tamper with the property rights of farmers, it also does not purport to tamper with the indigenous use of migratory birds. It states that "the secretary of the Interior is authorized to issue such regulations as may be necessary to assure that the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs."169 The MBTA not only creates or refines property interests in migratory birds, it protects those rights already clearly in existence.170