Wildbirds as Incidental Take and the Migratory Bird Treaty Act

© 2007 James Ed. Ducey

With wild bird migration underway, this breeding season's young of North America are winging southward in family flocks. Each bird's journey has an infinite plethora of deadly threats.

Buildings are an especially known hazard. The places are different, but the results are the same.

"Estimates that collisions with glass kill up to 1 billion birds a year in the United States alone," have been made by Dr. Daniel Klem, a Muhlenberg College ornithologist. The professor's studies during three decades indicate the population impacts of birds striking windows. He has estimated that the "annual mortality from collisions with glass for the U.S. alone and for the entire North American continent range from approximately 100 million to 1 billion birds, representing from 0.5 to 5% of the fall bird population," according to details of published scientific papers. "Extensive observations and experiments suggest that collisions with plate glass result in more avian mortalities than any other human-associated factor."

This biology gets mixed with the Migratory Bird Treaty Act. Each case of mortality is considered as incidental take, under the international legislation passed nearly ninety years ago. A violation of the act can lead to a hefty fine.

Incidental take, however, is not subject to any legal action under the MBTA.

Any instances of wildbirds striking windows will not be subject to any legal enforcement, not as incidental take, according to representatives of the U.S. Fish and Wildlife Service, the federal agency responsible for enforcement.

"There are no incidental take permits issued under the MBTA; the law has no provision for such permits," said Albert M. Manville, II, wildlife biologist with the FWS Division of Migratory Bird Management.

There have not been any incidental permits issued under the MBTA, according to local and national FWS officials.

"Although it is not possible under the MBTA to absolve individuals, companies, or agencies from liability (even if they implement avian mortality avoidance or similar conservation measures), the Office of Law enforcement focuses on those individuals, companies, or agencies that take migratory birds without regard for their actions and the law, especially when conservation measures have been developed but are not properly implemented by these entities," according to an official with the Director's office of the FWS.

FWS "law enforcement is not going to enforce MBTA if they lack a 'conservation measure' or suggested practice that would avoid or minimize take. However, if lighting and/or bird-safe glass can be shown scientifically (e.g., published in refereed, peer-reviewed journals) to eliminate or reduce bird collisions, then that creates a new option for a partnership and collaborative approach with industry. Where law enforcement wishes to work with the building glass and building lighting folks to avoid and minimize impacts and the industry refuses to work with us, that creates a completely different scenario. One needs only look to the U.S. vs. Moon lake Electric utility case for legal precedent," said Manville.

"Look objectively at this situation ... you can see where prosecution for window strikes is never going to happen," said one FWS official. "The U.S. Fish and Wildlife Service is not going to pursue it, the Department of Justice is not going to prosecute it and Congress is not going to allow it."

Another view supports a change so there is a legally binding provision regarding incidental take within the MBTA.

"U.S. courts have established strict liability for unintentional avian mortality associated with pesticides and power lines pursuant to the Migratory Bird Treaty Act of 1918, as amended, or the Endangered Species Act of 1973" (in Daniel Klem et al. 2004, Wilson Bulletin 116(1): 69-73.); "however, the courts have not established strict liability for fatalities associated with vehicle, tower, or glass collisions. Our results suggest that bird kills at glass are substantial, foreseeable, and avoidable and we suggest that birds merit consideration for protection from glass collision under the purview of the MBTA and ESA."

Any change would require federal legislation.

"Education is the direction to move on this issue" said Mark Webb, a special agent with the Service, in Nebraska.. "Law Enforcement is not the answer, as public and corporate support is not there."

The Fish and Wildlife Service has a program on birds striking structures, towers, and especially glass surfaces.

Dr. Klem continues his research and education. ??Strathmore College has a professor aware of the concerns.

The University of Nebraska-Lincoln as a locale for bird mortality from window strikes, has 774 known instances since 1969 when remains of a male and female Common Nighthawk were found at Sheldon Art Gallery. The most recent carcasses were found Labor Day weekend. About 85 species are represented in the tally.

There is an awareness of bird strikes by biologists in the Life Sciences Department, where students occasionally may collect bird carcasses for Ornithology class, being allowed to do so by a provision of the MBTA. Each year the official collector that has the permit of authorization, must file a report providing a list of each record.

Facilities Management had been aware of occasional bird strikes, but had not previously seen any documentation until presented a summary list. UNL would like to "know what needs to be done to prevent window strikes," said Ted Weidner, director of the campus Facilities Management department.

Any methods to obscure window surfaces would undergo a thorough review process. Items of particular consideration are "how it would affect architectural features of the building" and it would get a look from the aesthetic review committee of the University, Weidner said. The 309 Task Force of the State of Nebraska is also involved with funding building maintenance on Campus and would have their considerations.

Top priorities for the campus, Weidner said, are meeting the overall University goals with building features and aesthetics, and more recently, to ensure they are LIED Program compliant.

Weidner said Facilities Management was interested in options and costs for three example locales on city campus that are known places for repeated window strikes. The sites are Oldfather Hall, Cather-Pound-Neihardt and Nebraska Hall connection. An educational facet may be included to get students involved with an option for the C-P-N residence.

The FWS does not currently have staff available to assist developers and builders.

"None yet since we have not as yet even begun the field studies, so we're not yet close to implementing what we anticipate may result from the field research - based on some preliminary field testing performed by Dr. Klem in Pennsylvania," Manville said.

Manville, as the specialist in window strikes for the FWS, has given public presentations at a Chicago birds-building forum in 2005, and in spring 2006 at a "No Birds Left Behind" conference in Wisconsin. In February 2007 he will present a paper on "Birds-Buildings-Communication Towers-Wind Turbines-and Power Lines."

"Regarding daytime bird strikes, the Bird-Safe Glass Initiative was begun in New York City in December, 2005. A FWS biologist served as a technical advisor on this committee. Funding is being sought to field test a relatively new UV filter (birds are highly sensitive to the UV spectrum). The UV filter will be pasted on the outside of glass and impregnated within the actual window during construction. This is a promising -- but yet field-tested -- technology that may serve as a major breakthrough allowing birds to finally see glass and avoid windows." said an anonymous FWS official in response to an email to the Director's office.

The FWS is currently seeking funding to study viable methods to use with the window strike problem, through the California Energy Commission, and another proposal through the National Science Foundation, according to Manville.

Common products that can be considered now to reduce the extent of wildbirds hitting windows, include CollidEscape, WindowAlert, Whispering Windows, Feather Guard, decals and other things found using an online search. There are sites with additional tips to reduce bird strikes against windows.

Bird-friendly building designs can also be helpful in evaluating new construction or building modifications. The New York Audubon Society has prepared a fine report on this subject, and present it in full color on their web site.