United States Department of the Interior
FISH AND WILDLIFE SERVICE
Washington, D.C. 20240

In Response Reply 10:
FWS/AMB/069528

The Honorable Chris Van Hollen
United States Senate
Washington, DC 20510

FEB 21 2019

Dear Senator Van Hollen:
Thank you for your letter dated December 3, 2018 following-up on questions before the Interior,
Environment, and Related Agencies Appropriations Subcommittee on May 10, 2018, and the
subsequent Question for the Record that you submitted after the hearing related to the Migratory
Bird Treaty Act (MBTA) and the Solicitor's M-Opinion, M-37050.
From its inception, the MBTA has been a valuable conservation tool. The initial migratory bird
treaty established by the United States with Great Britain, on behalf of Canada, and the
subsequent 1918 enactment of the MBTA were largely intended to reduce the threat to migratory
birds from plume collection and market hunting. These threats were effectively eliminated
through enforcement of the MBTA, regulation of migratory bird hunting, and sustainable
authorization of purposeful take. In the 21 st Century, the MBTA continues to be an important
tool to protect migratory birds.
In practice, the new M-Opinion means that if an oil or hazardous chemical release occurs and is
not done with the intent of taking migratory birds, the MBTA does not apply. Protections of
publicly held natural resources, including migratory birds, under other authorities (such as the
Comprehensive Environmental Response Compensation and Liability Act, Oil Pollution Act, and
Clean Water Act) will still apply in these situations. Parties responsible for these incidents will
also still be held accountable under the incidental take prohibitions in the Endangered Species
Act and Bald and Golden Eagle Protection Act, as well as any applicable state laws. The MOpinion applies to all industries equally, and the Department will continue to work with our
industry partners to minimize impacts on migratory birds, whenever proponents or operators are
willing to work with us toward this goal.

If you have additional questions, please contact me or Mr. Jerome Ford, Assistant Director Migratory Bird program, U.S. Fish and Wildlife Service, at (202) 208-1050.