Migratory Bird Treaty Act

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TITLE 16—CONSERVATION

create any right or benefit, substantive or procedural,
separately enforceable at law or equity by a party
against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
WILLIAM J. CLINTON.

§ 702. Importation of eggs of game birds for propagation
The Secretary of the Interior shall have the
power to authorize the importation of eggs of
game birds for purposes of propagation, and he
shall prescribe all necessary rules and regulations governing the importation of eggs of said
birds for such purposes.
(June 3, 1902, ch. 983, 32 Stat. 285; 1939 Reorg.
Plan No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53
Stat. 1433.)
TRANSFER OF FUNCTIONS
Transfer of functions of Secretary of Agriculture to
Secretary of the Interior by Reorg. Plan No. II of 1939,
see Transfer of Functions note set out under section 701
of this title.

SUBCHAPTER II—MIGRATORY BIRD
TREATY
§ 703. Taking, killing, or possessing migratory
birds unlawful
(a) In general
Unless and except as permitted by regulations
made as hereinafter provided in this subchapter,
it shall be unlawful at any time, by any means
or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter,
offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped,
exported, or imported, deliver for transportation, transport or cause to be transported,
carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any
migratory bird, any part, nest, or eggs of any
such bird, or any product, whether or not manufactured, which consists, or is composed in
whole or part, of any such bird or any part, nest,
or egg thereof, included in the terms of the conventions between the United States and Great
Britain for the protection of migratory birds
concluded August 16, 1916 (39 Stat. 1702), the
United States and the United Mexican States for
the protection of migratory birds and game
mammals concluded February 7, 1936, the United
States and the Government of Japan for the protection of migratory birds and birds in danger of
extinction, and their environment concluded
March 4, 1972 1 and the convention between the
United States and the Union of Soviet Socialist
Republics for the conservation of migratory
birds and their environments concluded November 19, 1976.
(b) Limitation on application to introduced species
(1) In general
This subchapter applies only to migratory
bird species that are native to the United
States or its territories.
1 So

in original. Probably should be followed by a comma.

§ 703

(2) Native to the United States defined
(A) In general
Subject to subparagraph (B), in this subsection the term ‘‘native to the United
States or its territories’’ means occurring in
the United States or its territories as the result of natural biological or ecological processes.
(B) Treatment of introduced species
For purposes of paragraph (1), a migratory
bird species that occurs in the United States
or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to
the United States or its territories unless—
(i) it was native to the United States or
its territories and extant in 1918;
(ii) it was extirpated after 1918 throughout its range in the United States and its
territories; and
(iii) after such extirpation, it was reintroduced in the United States or its territories as a part of a program carried out
by a Federal agency.
(July 3, 1918, ch. 128, § 2, 40 Stat. 755; June 20,
1936, ch. 634, § 3, 49 Stat. 1556; Pub. L. 93–300, § 1,
June 1, 1974, 88 Stat. 190; Pub. L. 101–233, § 15,
Dec. 13, 1989, 103 Stat. 1977; Pub. L. 108–447, div.
E, title I, § 143(b), Dec. 8, 2004, 118 Stat. 3071.)
AMENDMENTS
2004—Pub. L. 108–447 designated existing provisions as
subsec. (a), inserted heading, and added subsec. (b).
1989—Pub. L. 101–233 struck out ‘‘and’’ after ‘‘1936,’’
and inserted before period at end ‘‘and the convention
between the United States and the Union of Soviet Socialist Republics for the conservation of migratory
birds and their environments concluded November 19,
1976’’.
1974—Pub. L. 93–300 substituted ‘‘any part, nest, or
eggs of any such bird, or any product, whether or not
manufactured, which consists, or is composed in whole
or part, of any such bird or any part, nest, or egg thereof’’ for ‘‘any part, nest, or egg of any such birds’’, and
included the convention between the United States and
the Government of Japan concluded March 4, 1972.
1936—Act June 20, 1936, made changes in phraseology.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 3 of Pub. L. 93–300 provided that: ‘‘The
amendments made by this Act [amending this section]
shall take effect on the date on which the President
proclaims the exchange of ratifications of the convention between the United States and the Government of
Japan for the protection of migratory birds and birds in
danger of extinction, and their environment, concluded
March 4, 1972, or on the date of the enactment of this
Act [June 1, 1974], whichever date is later.’’
EFFECTIVE DATE OF 1936 AMENDMENT
Section 1 of act June 20, 1936, in conjunction with sections 2 to 5 of that act, provided that the amendment
of this section and sections 704, 705, 707, 708 and the enactment of section 709a of this title by that act, are effective as of the day on which the President shall proclaim the exchange of ratifications of the convention
between the United States and the United Mexican
States for the protection of migratory birds and game
mammals concluded February 7, 1936, or on June 20,
1936, whichever date is later. Such proclamation was
made on June 30, 1937.
PUBLICATION OF LIST
Pub. L. 108–447, div. E, title I, § 143(c), Dec. 8, 2004, 118
Stat. 3072, provided that:

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TITLE 16—CONSERVATION

‘‘(1) IN GENERAL.—Not later than 90 days after the
date of enactment of this section [Dec. 8, 2004], the Secretary of the Interior shall publish in the Federal Register a list of all nonnative, human-introduced bird species to which the Migratory Bird Treaty Act (16 U.S.C.
703 et seq.) does not apply. As necessary, the Secretary
may update and publish the list of species exempted
from protection of the Migratory Bird Treaty Act.
‘‘(2) PUBLIC COMMENT.—Before publishing the list
under paragraph (1), the Secretary shall provide adequate time for public comment.
‘‘(3) EFFECT OF SECTION.—Nothing in this subsection
shall delay implementation of other provisions of this
section [amending this section and enacting provisions
set out as notes under this section and section 710 of
this title] or amendments made by this section that exclude nonnative, human-introduced bird species from
the application of the Migratory Bird Treaty Act (16
U.S.C. 703 et seq.).’’
RELATIONSHIP OF PUB. L. 108–447 TO TREATIES
Pub. L. 108–447, div. E, title I, § 143(d), Dec. 8, 2004, 118
Stat. 3072, provided that: ‘‘It is the sense of Congress
that the language of this section [amending this section and enacting provisions set out as notes under this
section and section 710 of this title] is consistent with
the intent and language of the 4 bilateral treaties implemented by this section.’’
INCIDENTAL TAKING OF MIGRATORY BIRDS DURING
MILITARY READINESS ACTIVITIES
Pub. L. 107–314, div. A, title III, § 315, Dec. 2, 2002, 116
Stat. 2509, provided that:
‘‘(a) INTERIM AUTHORITY FOR INCIDENTAL TAKINGS.—
During the period described in subsection (c), section 2
of the Migratory Bird Treaty Act (16 U.S.C. 703) shall
not apply to the incidental taking of a migratory bird
by a member of the Armed Forces during a military
readiness activity authorized by the Secretary of Defense or the Secretary of the military department concerned.
‘‘(b) IDENTIFICATION OF MEASURES TO MINIMIZE IMPACT
OF ACTIVITIES.—During the periods described in subsections (c) and (d), the Secretary of Defense shall, in
consultation with the Secretary of the Interior, identify measures—
‘‘(1) to minimize and mitigate, to the extent practicable, any adverse impacts of authorized military
readiness activities on affected species of migratory
birds; and
‘‘(2) to monitor the impacts of such military readiness activities on affected species of migratory birds.
‘‘(c) PERIOD OF APPLICATION FOR INTERIM AUTHORITY.—The period described in this subsection is the period beginning on the date of the enactment of this Act
[Dec. 2, 2002] and ending on the date on which the Secretary of the Interior publishes in the Federal Register
a notice that—
‘‘(1) regulations authorizing the incidental taking
of migratory birds by members of the Armed Forces
have been prescribed in accordance with the requirements of subsection (d);
‘‘(2) all legal challenges to the regulations and to
the manner of their promulgation (if any) have been
exhausted as provided in subsection (e); and
‘‘(3) the regulations have taken effect.
‘‘(d) INCIDENTAL TAKINGS AFTER INTERIM PERIOD.—(1)
Not later than the expiration of the one-year period beginning on the date of the enactment of this Act, the
Secretary of the Interior shall exercise the authority of
that Secretary under section 3(a) of the Migratory Bird
Treaty Act (16 U.S.C. 704(a)) to prescribe regulations to
exempt the Armed Forces for the incidental taking of
migratory birds during military readiness activities
authorized by the Secretary of Defense or the Secretary of the military department concerned.
‘‘(2) The Secretary of the Interior shall exercise authority under paragraph (1) with the concurrence of the
Secretary of Defense.

Page 1168

‘‘(e) LIMITATION ON JUDICIAL REVIEW.—An action
seeking judicial review of regulations prescribed pursuant to this section or of the manner of their promulgation must be filed in the appropriate Federal court by
not later than the expiration of the 120-day period beginning on the date on which such regulations are published in the Federal Register. Upon the expiration of
such period and the exhaustion of any legal challenges
to the regulations pursuant to any action filed in such
period, there shall be no further judicial review of such
regulations or of the manner of their promulgation.
‘‘(f) MILITARY READINESS ACTIVITY.—(1) In this section the term ‘military readiness activity’ includes—
‘‘(A) all training and operations of the Armed
Forces that relate to combat; and
‘‘(B) the adequate and realistic testing of military
equipment, vehicles, weapons, and sensors for proper
operation and suitability for combat use.
‘‘(2) The term does not include—
‘‘(A) the routine operation of installation operating
support functions, such as administrative offices,
military exchanges, commissaries, water treatment
facilities, storage facilities, schools, housing, motor
pools, laundries, morale, welfare, and recreation activities, shops, and mess halls;
‘‘(B) the operation of industrial activities; or
‘‘(C) the construction or demolition of facilities
used for a purpose described in subparagraph (A) or
(B).’’
ARCTIC TUNDRA HABITAT EMERGENCY CONSERVATION
Pub. L. 106–108, Nov. 24, 1999, 113 Stat. 1491, provided
that:
‘‘SECTION 1. SHORT TITLE.
‘‘This Act may be cited as the ‘Arctic Tundra Habitat
Emergency Conservation Act’.
‘‘SEC. 2. FINDINGS AND PURPOSES.
‘‘(a) FINDINGS.—The Congress finds the following:
‘‘(1) The winter index population of mid-continent
light geese was 800,000 birds in 1969, while the total
population of such geese is more than 5,200,000 birds
today.
‘‘(2) The population of mid-continent light geese is
expanding by over 5 percent each year, and in the absence of new wildlife management actions it could
grow to more than 6,800,000 breeding light geese in 3
years.
‘‘(3) The primary reasons for this unprecedented
population growth are—
‘‘(A) the expansion of agricultural areas and the
resulting abundance of cereal grain crops in the
United States;
‘‘(B) the establishment of sanctuaries along the
United States flyways of migrating light geese; and
‘‘(C) a decline in light geese harvest rates.
‘‘(4) As a direct result of this population explosion,
the Hudson Bay Lowlands Salt-Marsh ecosystem in
Canada is being systematically destroyed. This ecosystem contains approximately 135,000 acres of essential habitat for migrating light geese and many other
avian species. Biologists have testified that one-third
of this habitat has been destroyed, one-third is on the
brink of devastation, and the remaining one-third is
overgrazed.
‘‘(5) The destruction of the Arctic tundra is having
a severe negative impact on many avian species that
breed or migrate through this habitat, including the
following:
‘‘(A) Canada Goose.
‘‘(B) American Wigeon.
‘‘(C) Dowitcher.
‘‘(D) Hudsonian Godwit.
‘‘(E) Stilt Sandpiper.
‘‘(F) Northern Shoveler.
‘‘(G) Red-Breasted Merganser.
‘‘(H) Oldsquaw.
‘‘(I) Parasitic Jaeger.
‘‘(J) Whimbrel.

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TITLE 16—CONSERVATION

‘‘(K) Yellow Rail.
‘‘(6) It is essential that the current population of
mid-continent light geese be reduced by 50 percent by
the year 2005 to ensure that the fragile Arctic tundra
is not irreversibly damaged.
‘‘(b) PURPOSES.—The purposes of this Act are the following:
‘‘(1) To reduce the population of mid-continent
light geese.
‘‘(2) To assure the long-term conservation of midcontinent light geese and the biological diversity of
the ecosystem upon which many North American migratory birds depend.
‘‘SEC. 3. FORCE AND EFFECT OF RULES TO CONTROL OVERABUNDANT MID-CONTINENT LIGHT
GEESE POPULATIONS.
‘‘(a) FORCE AND EFFECT.—
‘‘(1) IN GENERAL.—The rules published by the Service on February 16, 1999, relating to use of additional
hunting methods to increase the harvest of mid-continent light geese (64 Fed. Reg. 7507–7517) and the establishment of a conservation order for the reduction
of mid-continent light goose populations (64 Fed. Reg.
7517–7528), shall have the force and effect of law.
‘‘(2) PUBLIC NOTICE.—The Secretary, acting through
the Director of the Service, shall take such action as
is necessary to appropriately notify the public of the
force and effect of the rules referred to in paragraph
(1).
‘‘(b) APPLICATION.—Subsection (a) shall apply only
during the period that—
‘‘(1) begins on the date of the enactment of this Act
[Nov. 24, 1999]; and
‘‘(2) ends on the latest of—
‘‘(A) the effective date of rules issued by the Service after such date of the enactment to control
overabundant mid-continent light geese populations;
‘‘(B) the date of the publication of a final environmental impact statement for such rules under section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332(2)(C)); and
‘‘(C) May 15, 2001.
‘‘(c) RULE OF CONSTRUCTION.—This section shall not
be construed to limit the authority of the Secretary or
the Service to issue rules, under another law, to regulate the taking of mid-continent light geese.
‘‘SEC. 4. COMPREHENSIVE MANAGEMENT PLAN.
‘‘(a) IN GENERAL.—Not later than the end of the period described in section 103(b) [probably means section
3(b)], the Secretary shall prepare, and as appropriate
implement, a comprehensive, long-term plan for the
management of mid-continent light geese and the conservation of their habitat.
‘‘(b) REQUIRED ELEMENTS.—The plan shall apply principles of adaptive resource management and shall include—
‘‘(1) a description of methods for monitoring the
levels of populations and the levels of harvest of midcontinent light geese, and recommendations concerning long-term harvest levels;
‘‘(2) recommendations concerning other means for
the management of mid-continent light goose populations, taking into account the reasons for the population growth specified in section 102(a)(3) [probably
means section 2(a)(3)];
‘‘(3) an assessment of, and recommendations relating to, conservation of the breeding habitat of midcontinent light geese;
‘‘(4) an assessment of, and recommendations relating to, conservation of native species of wildlife adversely affected by the overabundance of mid-continent light geese, including the species specified in
section 102(a)(5) [probably means section 2(a)(5)]; and
‘‘(5) an identification of methods for promoting collaboration with the Government of Canada, States,
and other interested persons.
‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to carry out this section
$1,000,000 for each of fiscal years 2000 through 2002.

§ 704

‘‘SEC. 5. DEFINITIONS.
‘‘In this Act:
‘‘(1) MID-CONTINENT LIGHT GEESE.—The term ‘midcontinent light geese’ means Lesser snow geese
(Anser caerulescens caerulescens) and Ross’ geese
(Anser rossii) that primarily migrate between Canada
and the States of Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin,
and Wyoming.
‘‘(2) SECRETARY.—The term ‘Secretary’ means the
Secretary of the Interior.
‘‘(3) SERVICE.—The term ‘Service’ means the United
States Fish and Wildlife Service.’’

§ 704. Determination as to when and how migratory birds may be taken, killed, or possessed
(a) Subject to the provisions and in order to
carry out the purposes of the conventions, referred to in section 703 of this title, the Secretary of the Interior is authorized and directed,
from time to time, 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,
to determine when, to what extent, if at all, and
by what means, it is compatible with the terms
of the conventions 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, and
to adopt suitable regulations permitting and
governing the same, in accordance with such determinations, which regulations shall become
effective when approved by the President.
(b) It shall be unlawful for any person to—
(1) take any migratory game bird by the aid
of baiting, or on or over any baited area, if the
person knows or reasonably should know that
the area is a baited area; or
(2) place or direct the placement of bait on
or adjacent to an area for the purpose of causing, inducing, or allowing any person to take
or attempt to take any migratory game bird
by the aid of baiting on or over the baited
area.
(July 3, 1918, ch. 128, § 3, 40 Stat. 755; June 20,
1936, ch. 634, § 2, 49 Stat. 1556; 1939 Reorg. Plan
No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat.
1433; Pub. L. 105–312, title I, § 102, Oct. 30, 1998,
112 Stat. 2956.)
AMENDMENTS
1998—Pub. L. 105–312 designated existing provisions as
subsec. (a) and added subsec. (b).
1936—Act June 20, 1936, substituted ‘‘conventions’’ for
‘‘convention’’ wherever appearing.
EFFECTIVE DATE OF 1936 AMENDMENT
Section effective June 30, 1937, see section 1 of act of
June 20, 1936, set out as a note under section 703 of this
title.
TRANSFER OF FUNCTIONS
Transfer of functions of Secretary of Agriculture to
Secretary of the Interior by Reorg. Plan, No. II of 1939,
see Transfer of Functions note set out under section 701
of this title.
DELEGATION OF FUNCTIONS
For delegation to Secretary of the Interior of authority vested in President, see Ex. Ord. No. 10752, Feb. 12,