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)