89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 111–355 

MIGRATORY BIRD TREATY ACT PENALTY AND 

ENFORCEMENT ACT OF 2009 

DECEMBER 7, 2009.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. RAHALL, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

[To accompany H.R. 2062] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 2062) to amend the Migratory Bird Treaty Act to provide 

for penalties and enforcement for intentionally taking protected 

avian species, and for other purposes, having considered the same, 

report favorably thereon with an amendment and recommend that 

the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Migratory Bird Treaty Act Penalty and Enforcement 

Act of 2009’’. 

SEC. 2. AMENDMENT OF MIGRATORY BIRD TREATY ACT. 

Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is amended by redesignating subsection (d) as subsection (e), and by inserting after subsection (c) the following new subsection: 

‘‘(d)(1) Except in the case of hunting and other activity allowed under section 3, 

whoever in violation of this Act kills or wounds a migratory bird in an aggravated 

manner shall, in lieu of any penalty for such violation— 

‘‘(A) for the first violation, be fined under title 18, United States Code, imprisoned for not more than one year, or both; and 

‘‘(B) for the second and any subsequent violation, be fined under title 18 of 

the United States Code, imprisoned for not more than 2 years, or both. 

‘‘(2) The authority under section 3(k) of the Fish and Wildlife Improvement Act 

of 1978 (16 U.S.C. 742l(k)) applies with respect to a violation described in paragraph 

(1). 

‘‘(3) For the purposes of this subsection the term ‘aggravated manner’ means deliberately and in a manner that— 


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‘‘(A) demonstrates indifference to the pain and suffering of the bird; or 

‘‘(B) involves actions that would shock a reasonable person.’’. 

PURPOSE OF THE BILL

The purpose of H.R. 2062 is to amend the Migratory Bird Treaty 

Act to provide for increased penalties and fines for the intentional 

and malicious taking of protected bird species. 

BACKGROUND AND NEED FOR LEGISLATION

The Migratory Bird Treaty Act (MBTA), which was enacted in 

1918, implements four treaties and conventions between the U.S. 

and Canada, Japan, Mexico and the former Soviet Union for the 

protection of migratory birds. Unless permitted by regulations, the 

strict liability standards of the Act provide that it is unlawful to 

pursue, hunt, take, capture or kill; attempt to take, capture or kill; 

possess, offer to or sell, barter, purchase, deliver or cause to be 

shipped, exported, imported, transported, carried or received any 

migratory bird, part, nest, egg or product, manufactured or not. 

The MBTA also makes it unlawful to ship, transport or carry from 

one state, territory or district to another, or through a foreign country, any bird, part, nest or egg that was captured, killed, taken, 

shipped, transported or carried contrary to the laws from where it 

was obtained. Subject to limitations in the Act, the Secretary of the 

Interior, through the U.S. Fish and Wildlife Service (hereafter, the 

Service) may adopt regulations determining the extent to which, if 

at all, hunting, taking, capturing, killing, possessing, selling, purchasing, shipping, transporting or exporting of any migratory bird, 

part, nest or egg will be allowed, having regard for temperature 

zones, distribution, abundance, economic value, breeding habits 

and migratory flight patterns. 

To enforce the MBTA, the Service may arrest a person for violating the Act and may execute warrants or other processes issued 

by an officer or court to enforce the Act and search any place to 

pursue a violation. All birds, parts, nests or eggs that are illegally 

taken may be seized and, upon conviction or court judgment, be 

forfeited to the United States and disposed of by the Service. The 

last time Congress amended the Act was in 1998 to increase penalties (Public Law 105–312, at Title I). At present, a person, association, partnership or corporation which violates the MBTA or its 

regulations may be found guilty of a Class B misdemeanor and 

subject to a fine of up to $15,000, jail up to six months, or both. 

Anyone who knowingly takes a migratory bird with commercial intent may be found guilty of a felony with a maximum fine of 

$2,000, no more than two years’ imprisonment, or both. All guns, 

traps, nets, vessels, vehicles and other equipment used in pursuing, 

hunting, taking, trapping, ensnaring, capturing, killing, or any attempt on a migratory bird in violation of the Act with the intent 

to sell or barter, must be forfeited to the U.S. and may be seized 

and held by the Service pending prosecution of the violator. 

In May and July of 2007, the Service arrested several individuals 

as part of a 14–month long nationwide undercover investigation 

known as ‘‘Operation High Roller.’’ This investigation revealed that 

thousands of federally-protected birds of prey, specifically raptor 

species, including peregrine falcons, Cooper’s hawks and red-tailed 

hawks, were being illegally killed in Texas, New Mexico, Oregon, 


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Washington and California by members of Roller Pigeon Clubs. The 

Service arrested a total of 12 individuals. Affidavits revealed that 

these perpetrators repeatedly and deliberately killed protected 

raptors using methods that included shooting, trapping, poisoning, 

suffocating, clubbing, baiting birds into glass panels, and baiting 

birds with pigeons rigged with fishing hooks. Affidavits also revealed that certain perpetrators utilized particularly cruel methods, 

such as spraying a mixture of bleach and ammonia directly into the 

eyes and mouths of trapped birds. Despite the horrific nature of 

these crimes, defendants who pleaded guilty to the Class B misdemeanor escaped with fines far smaller than the maximum allowed and were granted probation, directed to complete community 

service, or restricted from participating in their sport. This case 

has been used by bird conservation organizations and other interested stakeholders to argue that current federal law does not take 

these crimes seriously, and that existing MBTA penalties and fines 

are insufficient to function as a deterrent to prevent or dissuade illegal activity from happening. 

COMMITTEE ACTION

H.R. 2062 was introduced on April 23, 2009 by Representative 

Peter DeFazio (D-OR). The bill was referred to the Committee on 

Natural Resources, and within the Committee to the Subcommittee 

on Insular Affairs, Oceans and Wildlife. On May 13, 2009, the Subcommittee held a hearing on the bill. Witnesses representing state 

fish and wildlife agencies and bird conservation organizations testified in support of the bill. The Administration also testified in support of the purpose of the bill but expressed interest in working 

with the Committee to clarify the scope and intent of the new penalties and fines to improve their use in prosecution and to enhance 

their effectiveness as a deterrent to illegal actions. 

On November 18, 2009, the Subcommittee was discharged from 

the further consideration of H.R. 2062 and the full Natural Resources Committee met to consider the bill. Representative DeFazio 

offered an amendment in the nature of a substitute to narrow and 

clarify the scope and intent of the bill in response to the suggestions made by the Administration and other stakeholders. The 

amendment struck the existing bill language and adopted new language authorizing a two-step penalty approach adapted from existing penalties authorized under the Bald and Golden Eagle Protection Act (16 U.S.C. 668–668c). The amendment in the nature of a 

substitute was adopted by unanimous consent. The bill, as amended, was then ordered favorably reported to the House of Representatives by unanimous consent. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 provides that this Act may be cited as the Migratory 

Bird Treaty Act Penalty and Enforcement Act of 2009. 

Section 2. Amendment of Migratory Bird Treaty Act 

Section 2 of the bill would amend section 707 of the Migratory 

Bird Treaty Act to insert a new subsection (d) to establish additional misdemeanor and felony penalties and fines for actions that 


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either kill or wound a protected bird species in an ‘‘aggravated 

manner.’’ In accordance with federal sentencing guidelines (see 18 

U.S.C. 3559 and 18 U.S.C. 3571), for such a violation a person 

could be charged: (1) with a Class A misdemeanor for a first offense 

and subject to a fine of up to $100,000, or in cases resulting in a 

death, $250,000, and/or imprisonment of no less than six months 

and no more than one year; or (2), with a Class E felony for a second or subsequent offense and subject to a fine of up to $250,000 

and/or imprisonment for no less than one year and no more than 

two years. Federal guidelines also provide that fines for organizations are increased to no more than $200,000 for a Class A misdemeanor, or in cases resulting in a death, $500,000, and to no 

more than $500,000 for a Class E felony. 

Paragraph (2) of the new subsection (d) makes applicable existing authority under the Fish and Wildlife Improvement Act of 1978 

(16 U.S.C. 7421(k)) to allow the Secretary of the Interior to offer 

reward payments for information leading to an arrest or conviction 

for these new violations. 

Paragraph (3) of the new subsection (d) defines the term ‘‘aggravated manner’’ to mean the deliberate killing or wounding of a migratory bird in a manner that demonstrates indifference to the 

pain and suffering of the bird, or that involves actions that would 

shock a reasonable person. This definition, which was developed 

during five months of discussions with the bill’s sponsor and the 

Committee Minority, the Service, the Solicitor’s Office at the Department of the Interior and other interested stakeholders, is intended to ensure that the provisions of the legislation are utilized 

to address deliberate kills and wounding of a bird or birds that are 

undertaken in a manner involving one or more of the following elements: (1) acts that are depraved in nature, including, but not limited to acts involving mutilation or prolonged suffering of migratory 

birds; (2) acts that demonstrate wanton disregard for the lives of 

migratory birds; or (3) acts that involve solicitation of other parties 

to participate in the unlawful killing or wounding of migratory 

birds. The Committee does not intend for these new sanctions to 

target activities undertaken for other purposes through which birds 

are incidentally killed or wounded in violation of the MBTA, nor 

are these violations intended to apply to the legal take of migratory 

birds through regulated hunting or other permitted take. These 

amendments have no effect on the strict liability provisions of the 

MBTA. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States 

grants Congress the authority to enact this bill. 


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COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend the Migratory Bird Treaty Act to provide 

for increased penalties and fines for the intentional and malicious 

taking of protected bird species. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 2062—Migratory Bird Treaty Act Penalty and Enforcement Act 

of 2009 

CBO estimates that implementing H.R. 2062 would have no significant cost to the federal government. Enacting the bill could affect direct spending and revenues, but any such effects would not 

be significant. 

H.R. 2062 would expand the current federal laws and penalties 

that protect migratory birds. Thus, the government might be able 

to pursue cases that it otherwise would not be able to prosecute. 

CBO expects that H.R. 2062 would apply to a relatively small number of offenders, however, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant. Any such costs would be subject to the availability of appropriated funds. 

Because those prosecuted and convicted under H.R. 2062 could 

be subject to criminal fines, the federal government might collect 

additional amounts if the legislation is enacted. Criminal fines are 

recorded as revenues, deposited in the Crime Victims Fund, and 

later spent. CBO estimates that any additional revenues and direct 

spending would not be significant because of the small number of 

cases likely to be affected. 

H.R. 2062 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Mark Grabowicz. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 


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COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

EARMARK STATEMENT

H.R. 2062 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

MIGRATORY BIRD TREATY ACT 

* * * * * * * 

SEC. 6. (a) * * * 

* * * * * * * 

(d)(1) Except in the case of hunting and other activity allowed 

under section 3, whoever in violation of this Act kills or wounds a 

migratory bird in an aggravated manner shall, in lieu of any penalty for such violation— 

(A) for the first violation, be fined under title 18, United 

States Code, imprisoned for not more than one year, or both; 

and 

(B) for the second and any subsequent violation, be fined 

under title 18 of the United States Code, imprisoned for not 

more than 2 years, or both. 

(2) The authority under section 3(k) of the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 742l(k)) applies with respect to a 

violation described in paragraph (1). 

(3) For the purposes of this subsection the term ‘‘aggravated manner’’ means deliberately and in a manner that— 

(A) demonstrates indifference to the pain and suffering of the 

bird; or 

(B) involves actions that would shock a reasonable person. 

ø(d)¿ (e) All guns, traps, nets and other equipment, vessels, vehicles, and other means of transportation used by any person when 

engaged in pursuing, hunting, taking, trapping, ensnaring, capturing, killing, or attempting to take, capture, or kill any migratory 

bird in violation of this Act with the intent to offer for sale, or sell, 

or offer for barter, or barter such bird in violation of this Act shall 

be forfeited to the United States and may be seized and held pending the prosecution of any person arrested for violating this Act 

and upon conviction for such violation, such forfeiture shall be adjudicated as a penalty in addition to any other provided for violation of this Act. Such forfeited property shall be disposed of and acVerDate Nov 24 2008 04:00 Dec 08, 2009 Jkt 089006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\HR355.XXX HR355

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counted for by, and under the authority of, the Secretary of the Interior. 

* * * * * * * 

Æ 


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