Summary of the matter addressed in the submission:

The Submitters allege that the United States Government is failing to effectively enforce Section 703 of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. par. 703-712, which prohibits the killing of migratory birds without a permit. The Submission alleges that MBTA implements four international treaties, including agreements with Canada and Mexico, aimed at protecting migratory birds, and in Section 703 prohibits any person from killing or “taking” migratory birds “by any means or in any manner,” unless the U.S. Fish& Wildlife Service (FWS) issues a valid permit. The Submission alleges that ” the United States deliberately refuses, however, to enforce this clear statutory prohibition as it relates to loggers, logging companies, and logging contractors. As a matter of internal policy, the United States has exempted logging operations from the MBTA’s prohibitions without any legislation or regulation that authorizes such an exception.” The Submitters assert that “[t]his enforcement failure undermines the cooperative efforts of Canada, Mexico and the United States to maintain biodiversity, a goal which the CEC has explicitly recognized and recently adopted through its North American Biodiversity Conservation Project.”

Summary of the response provided by the Party:

The United States believes that the Article 14 process is a crucial component of the cooperative efforts for environmental protection among the Parties to the NAAEC.

In its Response of 29 February 2000 to SEM-99-002, the Party asserts that the Secretariat should determine that the submission does not warrant the development of a factual record for the following reasons. First, the Submitters’ assertions rely on an unapproved draft memorandum that states that the United States’ Fish& Wildlife Service (FWS) has a policy to exempt logging activities from enforcement actions under the Migratory Bird Treaty Act MBTA. The Party asserts that the FWS has no policy that exempts logging activities from MBTA enforcement. Second, the Party asserts that the current enforcement policies of the FWS reflect a reasonable exercise of the agency’s discretion regarding investigatory, prosecutorial, regulatory, and compliance matters. Third, the Party claims that the current enforcement policies of the FWS result from bona fide decisions regarding enforcement actions to best ensure the broadest and most effective protection possible for migratory birds. The Party also states that the United States not only has used its authority under the Endangered Species Act to protect certain migratory birds, it has also used a number of non-enforcement mechanisms which are summarized in its Response.

Finally, the Party asserts that “migratory bird fatalities results from a multitude of causes and logging activities are just one of these many causes. Submitters have opted not to recognize that other activities represent even greater threats to migratory birds, and other activities, if prosecuted, could have a much greater beneficial impact to the protection of migratory birds.”

Names and citations of the environmental laws in question:

Migratory Bird Treaty Act (MBTA), implementing the Convention between the United States (US) and Great Britain for the Protection of Migratory Birds in the US and Canada; Convention between the US and Mexico for the Protection of Migratory Birds and Game Mammals; Convention between the US and Japan for the Protection of Migratory Birds in Danger of Extinction, and their Environment; Convention between the US and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment.

Submitter(s):

Alliance for the Wild Rockies
Center for International Environmental Law
Centro de Derecho Ambiental del Noreste de Mexico
Centro Mexicano de Derecho Ambiental
Friends of the Earth
Instituto de Derecho Ambiental
Pacific Environment and Resources Center
Sierra Club of Canada
West Coast Environmental Law Association
Represented by the Center for International Environmental Law (CIEL)

Submission Timeline

November 19, 1999

The Secretariat received a submission and began a preliminary analysis of it under the guidelines.

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 22/11/1999

Submission - Submission authored by Submitter(s) on 17/11/1999

November 19, 1999

The Secretariat began reviewing the submission under Article 14(1)

December 23, 1999

The Secretariat determined that the submission met the criteria of Article 14(1) and requested a response from the concerned government Party in accordance with Article 14(2).

Determination - Secretariat Determination under Article 14 (1) and 14 (2) authored by Secretariat on 23/12/1999

February 29, 2000

The Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record.

Acknowledgement - Other document authored by Secretariat on 06/03/2000

Party Response - Response from the Party under Article 14 (3) authored by United States on 29/02/2000

December 15, 2000

The Secretariat informed Council that the Secretariat considers that the submission warrants development of a factual record.

Recommendation - Secretariat Notification to Council under Article 15(1) authored by Secretariat on 15/12/2000

November 16, 2001

The Council voted to instruct the Secretariat to develop a Factual Record.

Resolution - Council decision concerning the development of a Factual Record authored by Council on 16/11/2001

December 14, 2001

The Secretariat placed a work plan on its web site or otherwise made it available to the public and stakeholders.

Workplan - Overall workplan for Factual Record authored by Secretariat on 14/12/2001

February 1, 2002

The Secretariat posted a request for information relevant to the factual record on its web site.

Secretariat Information Request - Document related to the preparation of a Factual Record authored by Secretariat on 01/02/2002

November 28, 2002

The Secretariat submitted a draft factual record to Council, for a 45-day comment period on the accuracy of the draft.

January 13, 2003

The Secretariat received comments from the United States.

February 21, 2003

The Secretariat submitted a final factual record to Council for Council's vote on whether to make the final factual record publicly available.

April 22, 2003

Council voted to instruct the Secretariat to make the final factual record publicly available.

Resolution - Council decision on whether the factual record will be made publicly available authored by Council on 22/04/2003

April 24, 2003

The final factual record was publicly released.

Final Factual Record - Final Factual Record authored by Secretariat on 22/04/2003