Migratory Bird Treaty Act: What It Prohibits and the Incidental Take Question

1918

enacted

16 U.S.C. §§ 703 through 712

U.S. Code sections

U.S. Fish and Wildlife Service

lead agency

50 C.F.R. § 10.13

protected species list

2017, 2021, 2025

incidental take reversals

Where the MBTA sits in federal law

The Migratory Bird Treaty Act implements treaty obligations first, then builds the federal rule set around them. Section 703 refers to conventions with Canada, Mexico, Japan, and Russia. That treaty foundation is why the MBTA is more than a hunting statute.

This page reflects the statute as checked in October 2026. The core text is old. The live dispute is not. Incidental take has been narrowed, broadened, and narrowed again by Department of the Interior interpretation, while Congress has not rewritten the MBTA’s main prohibition.

The statute also differs from many environmental laws in one important way: it does not contain a citizen-suit section.

Statute grid: the MBTA in one table

Two points in that grid do most of the work. First, the MBTA has no citizen-suit provision. Second, the latest practical change is not a new species list. It is DOI’s current position on incidental take.

What § 703 actually forbids

Section 703 makes it unlawful, unless authorized by regulation, to pursue, hunt, take, capture, kill, attempt those acts, possess, offer for sale, sell, barter, purchase, ship, export, import, transport, carry, or receive for transportation a covered migratory bird, part, nest, egg, or covered product.

That long sentence does two things at once: it describes conduct, and it names objects.

A person does not have to shoot a bird for the statute to matter. Possession, sale, transport, and related acts can trigger the statute when they involve covered birds or covered bird parts.

The regulation at 50 C.F.R. § 10.12 defines “take” to include pursue, hunt, shoot, wound, kill, trap, capture, or collect, and attempts to do those acts. “Take” is not just a narrow hunting word.

Which birds are covered

The first stop is 50 C.F.R. § 10.13, the official protected species list. Not a field guide, not a common name, and not a guess. If you want to know whether a bird is protected under the MBTA, check the list.

The statute does not cover every bird in the United States. Congress limited the MBTA to migratory bird species that are native to the United States or its territories, meaning species present through natural biological or ecological processes.

The Fish and Wildlife Service has also published a Federal Register list of bird species to which the MBTA does not apply. Many native migratory birds are covered. Some introduced species are not. The legal question is not whether a bird has feathers. It is whether the bird falls within the protected category.

Feathers, nests, and eggs are covered too

Feathers cause confusion because § 703 covers a “part” of a migratory bird, and feathers can be treated as parts. A found feather is not automatically harmless from a legal standpoint. The question is whether it is a covered bird part and whether possession is authorized.

Nests and eggs are named in the statute too. That means the statute protects more than a living bird in flight.

Permitted uses exist, but they come from statutory or regulatory authorization, not from a casual reading of the statute.

Incidental take is where the fight sits

Incidental take means bird death or injury that results from otherwise lawful activity, not from conduct directed at birds. Energy infrastructure, utility poles, communication towers, oil pits, and similar operations have appeared in the MBTA debate for that reason. Nobody is hunting, yet birds can die.

Everyone agrees the statute reaches directed conduct when it is unauthorized. The fight is whether it also covers unintended bird deaths from lawful activity.

Congress did not rewrite the MBTA in 2025. DOI changed its interpretation by withdrawing the 2021 solicitor’s opinion that had withdrawn M-37050. If you need the current practical position, that distinction matters.

Permits and exceptions

Section 704 gives the Secretary of the Interior authority to regulate when and how covered birds may be taken, captured, killed, possessed, sold, purchased, shipped, transported, carried, or exported, subject to the treaty framework.

The permit system sits mostly in the regulations, especially 50 C.F.R. parts 13 and 21. The statute authorizes the system; the regulations fill it out.

Migratory game bird hunting is the clearest example of authorized conduct. When seasons, limits, and methods are set by regulation, the activity can be lawful inside those rules. Other permit situations are narrower and more technical.

Penalties and enforcement

The MBTA still carries criminal penalties.

Under 16 U.S.C. § 707, a misdemeanor violation can be punished by a fine of not more than $15,000, imprisonment for not more than six months, or both. The same section includes felony treatment for specified knowing commercial conduct, including sale, offer for sale, barter, or offer to barter, with imprisonment of not more than two years and a fine stated in the section.

Other federal criminal fine provisions can affect sentencing, so the U.S. Code text is the place to start.

This is where a common misreading matters. The MBTA is not merely symbolic. Its penalty section is operative law.

How the MBTA compares with the Endangered Species Act

The MBTA and the Endangered Species Act both protect wildlife, but they are built differently.

The MBTA protects migratory birds covered by treaty and regulation. It reaches birds, parts, nests, eggs, and covered products. It does not create critical habitat, and it does not give private plaintiffs a citizen-suit section inside the statute.

The Endangered Species Act does both, which changes how the law works on the ground.

Primary sources to check first

Start with the U.S. Code for the statute text. Use 50 C.F.R. § 10.13 for the protected species list. Use 50 C.F.R. § 10.12 for the regulatory definition of take. Use 50 C.F.R. parts 13 and 21 for permit rules.

For incidental take, read DOI Solicitor’s Opinions M-37050, M-37065, and M-37085, plus the 2021 Federal Register rule action and revocation. That sequence explains the reversals better than a loose summary.

Related federal environmental law guides

For the closest structural comparison, read the Endangered Species Act. It shows why critical habitat, citizen suits, and species-specific listing make the ESA different from the MBTA.