Somewhat earlier than usual because of the warm weather, thousands of snow geese and trumpeter swans have returned to Oregon oases, including Summer Lake and the Malheur National Wildlife Refuge — an annual reminder that winter is nearing its end.
The geese and swans, migrating up from California’s Central Valley, are among the first arrivals along the Pacific Flyway, a massive West Coast migration corridor for birds that extends from Alaska to Mexico. Jeff Mackay, deputy project leader for the Malheur National Wildlife Refuge, said migrating birds flock to these natural rest stops for water and food, often staying for up to a month before continuing on their journey.
“Migration is a pretty energy-intensive activity for birds,” Mackay said. “These are critical components to bird migration.”
However, possible changes to a century-old federal law could make it easier to accidentally kill migratory birds with impunity. The Migratory Bird Treaty Act of 1918, originally introduced as a way of protecting native birds from human development, was the subject of a new legal interpretation, and conservationists are concerned about more changes to the federal law.
“It’s something that a lot of industries have wanted for a long time,” said Bob Sallinger, conservation director for the Audubon Society of Portland. “This is a foundational law for birds in this country.”
Despite the name, the treaty does not merely cover migratory birds, but rather most native birds in the United States. Still, Oregon stands to be affected by any potential change, due to its location along one of the major flyways in North America and the presence of bird species, including golden eagles, that stand to be affected.
Sallinger said the Migratory Bird Treaty Act was inspired by the extinction of the passenger pigeon, once the most prevalent birds in the world, at the beginning of the 20th century. The treaty act formalized an existing agreement between the United States and Canada, making it illegal to capture, kill or sell any migratory bird without a permit, according to the U.S. Fish and Wildlife Service. Subsequent amendments rolled in similar treaties with Mexico, Great Britain and the Soviet Union.
“This law has been in effect for literally a century, and it’s very, very powerful,” Sallinger said.
Sallinger said the treaty covers all but around 30 species of birds in North America, including game birds and invasive species like the European starling.
The law allows the Fish and Wildlife Service to levy fines and even prison time against individuals or employees from companies found to have accidentally or intentionally killed birds without a permit. Sallinger said it has historically been used to go after utilities that have been found killing birds en masse, designed to prompt changes before the Endangered Species Act needs to be invoked.
“This is a way of keeping common birds common,” Sallinger said.
In December, a memo from the U.S. Department of the Interior’s office examined whether the language of the act prohibits the accidental killing of migratory birds, and ultimately concluded that the law targets “direct and affirmative purposeful actions that reduce migratory birds.” The interpretation, a break with how the law has been implemented recently, was applauded by the Western Energy Alliance, a Colorado-based organization that represents the interests of the oil and natural gas industry in the Western United States.
“The (act) was enacted by Congress in 1918 as a criminal statute to stop the hunting and poaching of migratory birds,” said Kathleen Sgamma, president of Western Energy Alliance, in a prepared statement. “It was not meant to address activities that do not directly kill birds but just carry unintended effects, such as noise or habitat impacts.”
In the statement, Sgamma noted that the law was disproportionately used against oil and gas companies under former President Barack Obama. Attempts to reach Sgamma for further comment were unsuccessful.
Additionally, an amendment designed to limit several provisions in the act was added to an existing energy bill, House Resolution 4239, in November. Moreover, Sallinger said he was concerned about the possibility of President Donald Trump doing away with the law through executive action.
“Either way, the impact is going to be the same,” he said.
Without the threat of the law, Sallinger said he was concerned about developers and utilities having free rein to build facilities that harm birds. Additionally, he said other environmental changes under the Trump administration, including the possibility of offshore drilling in Oregon, could have a greater impact on shorebirds without protections in place.
Craig Miller, GIS specialist for the Bend-based Oregon Natural Desert Association, said the biggest impact to birds in Central and Eastern Oregon would likely be from wind turbines, thanks to the presence of several large wind energy projects in Eastern Oregon. Miller, a member of the East Cascade Audubon Society, said wind turbines disproportionately harm raptors, including falcons and golden eagles, relative to other human-made threats such as cars and power lines.
“They seem to be pretty good at avoiding other things that other birds find problematic,” Miller said of raptors.
The estimated number of birds killed annually by wind turbines varies widely depending on the source. A 2013 study estimated the annual total at between 140,000 and 328,000, though the Western Energy Alliance contends that those and similar estimates are inflated.
Miller added that the Migratory Bird Treaty Act is often used as a way for conservationists to block wind power developments in Eastern Oregon, which has around a dozen native raptor species.