A snowy egret, one of many migratory birds that could be accidentally killed with impunity by industries if an amendment to longstanding bird law proposed by U.S. Rep. Liz Cheney passes into law. (Chris Madson)

GUEST COLUMN — Last Tuesday, Congresswoman Liz Cheney proposed an amendment to a bill being considered by the House Committee on Natural Resources. The bill, H.R. 4239, would, among other things, open the continental shelf along the southern Atlantic coast to oil and gas leasing. That area was declared off-limits to leasing during the Obama administration.

During markup of the bill, Cheney offered an amendment, which was adopted by a vote of 20 to 14 along party lines. With one sentence, her amendment casually inflicts severe damage on one of America’s most important, and underappreciated, wildlife conservation laws. It proposes this change to the Migratory Bird Treaty Act of 1918: “This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.”

What did Representative Cheney intend to accomplish with this amendment? In a press release on Nov. 8, Cheney wrote that she wanted to limit overzealous BLM guidance and regulations on energy operators in my state. It’s not just oil and gas, this is also hindering our wind turbine operators as well as home builders and coal mines.” She argues that the act was originally intended only to “protect migratory bird populations from over-hunting, poaching, and illegal sales,” not to restrict industries from killing migratory birds as part of their operations.

It’s nice to have someone with Cheney’s extensive legal and historical background to interpret the intent of the Migratory Bird Treaty Act. A shame that, in this instance, she has no grasp of either.

The men who drafted the treaty and its predecessors were justifiably concerned about the decline of the continent’s ducks and geese, without doubt, but they saw much further than these game birds. Beginning in the years following the Civil War, the leaders of the conservation movement had been writing and speaking in defense of the continent’s nongame birds. In 1885, their efforts began to bear fruit, when they managed to convince the federal government to establish a Division of Economic Ornithology.  The division’s pioneering studies of songbirds and their food habits soon showed that most nongame birds were a benefit to farmers, preying on the insects and rodents that attacked many crops.  

At the same time, the conservation community was pressing for protection of wading birds and songbirds with particularly brilliant plumage. The women’s fashion industry had decreed that ladies’ hats should be decorated with feathers, and the resulting demand was decimating populations of many nongame birds, particularly the egrets and herons whose breeding plumes were in high demand, and at the time more valuable per ounce than gold.

And so it was no accident that the wording of the Migratory Bird Treaty Act included “any migratory bird or any part, nest, or egg thereof,” not just ducks and geese. It was also no accident that the act specified that it would be unlawful “to pursue, take, capture, or kill” any of these birds, whether these efforts were part of recreational hunting or not. The people who drafted the act knew that market demand for meat and feathers was the most dangerous threat to the future of migratory birds. In their view, industry’s demand for birds was an even greater problem than recreational or subsistence hunting.  

In 1886, the editor of Forest and Stream magazine, George Bird Grinnell, spoke for many in the scientific and sporting community when he wrote: “Our beautiful birds give to many people a great deal of pleasure and add to the delights of the country. These birds are slaughtered in vast numbers for gain. If the demand for their skins can be caused to fall off, it will no longer repay the bird butchers to ply their trade and the birds will be saved.”

Organizations of hunter-conservationists like the Boone and Crockett Club and the American Game Protective and Propagation Association championed the effort to protect migratory birds. So did scientific societies like the American Ornithologists’ Union and the New York Zoological Society. So did groups of outdoor enthusiasts like the Camp Fire Club. So did America’s largest group of bird enthusiasts, the National Association of Audubon Societies. In fact, the director of the Audubon Society, T. Gilbert Pearson, served on the advisory board that was appointed to help enforce the act.

Cheney is wrong when she implies that the Migratory Bird Treaty Act was adopted primarily to protect waterfowl. She is wrong when she implies that the act was adopted primarily to control sport hunting. She is wrong when she suggests that the act was never intended to protect birds from the machinations of the market and industry.

Her amendment attacks the very foundations of the Migratory Bird Treaty Act. If adopted, it would expose millions of birds to heightened risk of death from waste pits, electrical transmission lines, contaminated water, wind turbines, and a myriad of other threats that are “incidental to the presence or operation” of industrial facilities on federal lands in Wyoming and elsewhere across the nation.

It is not too much to expect industry to take precautions to avoid killing our songbirds, waterfowl, raptors, and other migratory birds. If those precautions require corporations to stop and think about the broader effects of their activities, if they require an additional outlay to head off significant impacts to the rest of us, then those things are a part of doing business.  

Industries in Wyoming and across the country have lived with the Migratory Bird Treaty Act for a century, and in recent decades, the U.S. Fish and Wildlife Service has shown increasing flexibility in enforcing its provisions. It continues to be what it always has been: one of the nation’s most important wildlife conservation laws, and we certainly don’t need to change it for the convenience of a few corporations.      

On her Facebook page, Cheney claims to be “an unyielding advocate for sportsmen and the future generations that will inherit our way of life.”  Apparently, her vision of that future doesn’t include the song of a meadowlark, the chorus of a flock of Canada geese on its way north, or the sight of a ferruginous hawk riding the thermals over the sage. She claims to represent us, but this amendment is one more indication of where her loyalties really lie.

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Chris Madson holds a master’s degree in wildlife ecology from the University of Wisconsin-Madison and worked for state wildlife agencies in Kansas and Wyoming for 36 years before retiring in 2014 to write full-time. He is a certified wildlife biologist with The Wildlife Society.

Chris Madson holds a master’s degree in wildlife ecology from the University of Wisconsin-Madison and worked for state wildlife agencies in Kansas and Wyoming for 36 years before retiring in 2014 to...

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  1. Far to often our politicians are merely talking faces for lobby organizations that have given generous donations to their re-election campaigns. I have served as a citizen lobbyist for multiple wildlife, water and land use organizations. It became so commonplace that the intended consequences of a bill supported by a politician were not understood. Just as often, they had not even fully read the bill. It was so rare that a politician could explain a bill, and even more shocking to find one that had been involved in developing their bill.
    From our state their were two individuals in D.C. that were an exception to the norm. Unfortunately both decided not to run for office after their second term. In private one on one conversations they expressed being naive as to how the “Washington” process works and didn’t wish to continue.
    Our new generation had very little opportunity to even hear the word of Leopold, Muir or Theodore Roosevelt. I applaud any group that still pursues an agenda of important dialogue. If new charismatic leaders don’t surface very soon I fear many of our “taken for granted” gifts of wildlife and wild places will be slowly erased.

  2. As a wildlife biologist, I have assisted companies for over two decades in compliance with the Migratory Bird Treaty Act. The thought that, with one mere sentence by Cheney, that companies would no longer have to consider how their development might affect avian wildlife, especially nesting raptors, is very troubling. Thanks, Chris, for the excellent piece and perspective.

  3. Birds are one of our real and pure enjoyments in Wyoming. They also help the economy, as watching and photographing birds is an important part of quiet recreation and hunting birds is important to sportsmen.
    As tourism and recreation are the second largest economic sector in Wyoming, does Ms. Cheney think it’s okay to harm one major industry by “helping” another in a very minor way? There is absolutely no valid reason that safeguards to protect birds cannot be a part of any industrial operation. Many species of high plains birds are already declining and they don’t need to be helped by industry to further losses. Ms. Cheney needs to withdraw this amendment immediately. She represents our state as if it is an energy resource colony, not a place where people live.

  4. Wyoming sold their soul to the minerals industry when they elected Liz.
    Unfortunately they also livestock interests in the past to poison huge numbers of wildlife, eagles, badgers and so on in the past. I thought we’d learned our lesson after many species nearly went extinct. But greed trumps/TRUMP.
    Thank you Chris for your excellent piece.
    Barbara Parsons

  5. Thank you, Mr. Madson, for this excellent and crucial reporting. Aside from writing to Ms. Cheney’s office, it would be helpful to know what, in your mind, are the best ways for us citizens to head this off.
    Chris Pfister

    1. Isn’t that always the challenge? What to do when our representative in the House is on the wrong side of an issue and seems to have a majority of Congress with her? I wish I had a better answer than just “write a letter.” I’ve done that, of course, and I’m already certain of the effect it will have. None. National Audubon is soliciting funds on that issue— it sure couldn’t hurt to send them a little cash in support. I doubt there’s time to head this off in the House, so I think it’s important to get the ear of some of the folks in the Senate. John Thune, Republican senator from South Dakota is a member of the Congressional Sportsmen’s Caucus. He might be open to comment on this proposal. And Jon Tester, Democratic senator out of Montana, is also a member of CSC and should be apprised of the danger this amendment poses. Neither Wyoming senator is a member of CSC, but I guess we have no choice but to at least register our opposition to this amendment.

  6. Great and important article, thank you. I guess we can all write to the sponsor of this bill and say we don’t like it, but it’d be nice if there was some way to have a real influence.