99–010 

Calendar No. 714 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–375 

MIGRATORY BIRD TREATY ACT PENALTY AND 

ENFORCEMENT ACT OF 2009 

DECEMBER 17, 2010.—Ordered to be printed 

Mrs. BOXER, from the Committee on Environment and Public 

Works, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 2062] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Environment and Public Works, to which was 

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

(MBTA) to provide for penalties and enforcement for intentionally 

taking protected avian species, and for other purposes, having considered the same, reports favorably thereon and recommends that 

the bill do pass. 

BACKGROUND AND NEED FOR THE LEGISLATION

The MBTA implements treaties and conventions for the protection of migratory birds among the U.S., Canada, Japan, Mexico and 

the former Soviet Union. Among other things, the Act provides 

that, except as expressly permitted by regulation, it is unlawful to 

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

kill, any migratory bird. The Act provides that the Secretary of the 

Interior, through the U.S. Fish and Wildlife Service (FWS) shall 

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 are permitted. 


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The requirements of the Act are enforced by the FWS, including 

through assertion of criminal penalties. Such penalties include: 

• Any 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, jailed for up 

to six months, or both. 

• Any person 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 FWS pending prosecution of the violator. 

In 2006 and 2007 a FWS investigation determined that thousands of legally protected birds of prey, including peregrine falcons, 

Cooper’s hawks and red-tailed hawks, had been illegally killed 

often using intentionally cruel methods. There is concern that the 

current MBTA does not provide sufficient sanctions to act as a deterrent to this kind of illegal conduct. 

The purpose of H.R. 2062 is to provide for increased penalties for 

intentional and malicious taking of protected bird species. 

H.R. 2062 amends the MBTA to provide additional new penalties 

for killing or wounding migratory birds protected by the Act in an 

aggravated manner. For the first violation, a person would be subject to a fine of up to $100,000 under Title 18 of the U.S. Code and/ 

or imprisonment for up to one year. For the second violation, a person would be subject to a fine of up to $250,000 and/or imprisonment for up to two years. 

H.R. 2062 also allows the use of law enforcement authority under 

section 3(k) of the Fish and Wildlife Improvement Act of 1978. This 

provision authorizes payment for information, rewards, or evidence 

concerning violations, with respect to the killing or wounding of a 

migratory bird in an aggravated manner. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 provides that the bill 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 

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

manner.’’ Pursuant to 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 


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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. The Committee does not intend for 

these new sanctions to apply to activities undertaken for other purposes through which birds are incidentally killed or wounded in 

violation of the MBTA (such as bird strikes against fixed facilities), 

nor are these violations intended to apply to the legal take of migratory birds through regulated hunting or other permitted take. 

LEGISLATIVE HISTORY

On April 23, 2009, H.R. 2062 was introduced in the House by 

Representative Peter DeFazio. It was referred to the House Committee on Natural Resources, Subcommittee on Insular Affairs, 

Oceans and Wildlife where it was reported (as amended) by unanimous consent on November 18, 2009. The full House passed the bill 

by voice vote on December 7, 2009. It was referred to the EPW 

Committee on December 8, 2009. 

On November 20, 2009, Senator Merkley had introduced companion legislation, S. 2811, which was referred to the EPW Committee. 

On April 21, 2010, the EPW Committee held a business meeting 

at which H.R. 2062 was considered and approved. 

ROLLCALL VOTE

At the business meeting held on April 21, 2010, the Committee 

voted to approve H.R. 2062 and to report the bill to the full Senate 

by a voice vote, with Senators Inhofe, Crapo, and Voinovich recorded as voting ‘‘nay,’’ and Senators Merkley, Specter, and Vitter 

recorded as voting ‘‘yea.’’ 

REGULATORY IMPACT STATEMENT

In compliance with section 11(b)(2) of rule XXVI of the Standing 

Rules of the Senate, the Committee estimates that no regulatory 

impact is expected by the passage of the bill. The bill will not affect 

the personal privacy of individuals. 

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 

(Public Law 104–4), the Committee notes that the Congressional 

Budget Office has concluded that ‘‘H.R. 2062 contains no intergovernmental or private-sector mandates as defined in the Unfunded 


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Mandates Reform Act and would not affect the budgets of state, 

local, or tribal governments.’’ 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office. 

As ordered reported by the Senate Committee on Environment 

and Public Works on April 21, 2010: 

APRIL 28, 2010. 

Hon. BARBARA BOXER, 

Chairman, Committee on Environment and Public Works, 

U.S. Senate, Washington, DC. 

DEAR MADAM CHAIRMAN: The Congressional Budget Office has 

prepared the enclosed cost estimate for H.R. 2062, the Migratory 

Bird Treaty Act Penalty and Enforcement Act of 2009. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure 

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 legislation 

could affect direct spending and revenues; therefore, pay-as-you go 

procedures would apply, but CBO estimates that 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. 

On November 20, 2009, CBO transmitted a cost estimate for H.R. 

2062 as ordered reported by the House Committee on Natural Resources on November 18, 2009. The two versions of the legislation 

are the same, as are the CBO cost estimates. 


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

estimate was approved by Peter H. Fontaine, Assistant Director for 

Budget Analysis. 


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MINORITY VIEWS OF SENATOR INHOFE 

There is no disagreement that protection of migratory birds is desirable, in fact, it is already against the law to kill a migratory 

bird. What is problematic is the use of the overly harsh penalties 

and vague language contained in this bill. These points need to be 

addressed before the bill moves forward. 

Under the proposed bill, the penalties imposed upon those who 

violate the law regarding the killing of migratory birds do not fit 

the crime. The proposed fines and sentences placed on those convicted are unprecedented in their severity. The bill references a 

FWS investigation of illegally killed protected birds, some of which 

were killed using ‘‘intentionally cruel methods’’. This investigation 

culminated in a Federal Court case in 2008. Federal Judge J. Kelly 

Arnold ruled against imposing the maximum sentence for a man 

who pleaded guilty to killing a Peregrine Falcon. This was classified as a Class B misdemeanor, which carried a fine of up to 

$15,000, jail for six months, or both. Judge Arnold sentenced the 

man 120 hours of community service, stating that a stricter sentence would just be ‘‘overkill’’ and would cause irreparable financial 

damage to him and his family. As currently drafted, this bill ignores the Judge’s decision in the 2008 case, and in fact moves in 

the opposite direction and imposes an even harsher penalty. In 

order to achieve the desired result, it is crucial to insure the proportionality of the punishment to the offense, as demonstrated by 

the Judge’s decision in this case. Therefore, the unreasonably high 

penalties need to be further reviewed before continuing with this 

bill. 

A second cause for concern is the vague language used to describe the nature of the offense. Language such as ‘‘intentionally 

cruel’’, ‘‘malicious’’, and ‘‘aggravated’’ fail to effectively define the 

offense itself and leave much up to personal interpretation. Furthermore, the bill defines the term ‘‘aggravated manner’’ as ‘‘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’’. Again, 

this description is completely subjective and biased. If we are to 

achieve the desired result, which is to appropriately penalize those 

who kill migratory birds, then we must be specific on what is the 

threshold of behavior that triggers the penalty. Aggravated activity 

should be more specifically defined demonstrating severe recklessness or severely depraved actions. Convictions under that charge 

should be reserved for particularly heinous behavior. As currently 

drafted, the bill fails to do that. 

JAMES M. INHOFE. 


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CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules 

of the Senate, changes in existing law made by the bill as reported 

are shown as follows: Existing law proposed to be omitted is enclosed in øblack brackets¿, new matter is printed in italic, existing 

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

* * * * * * * 

MIGRATORY BIRD TREATY ACT 

* * * * * * * 

SEC. 2. (a) IN GENERAL.—* * * 

* * * * * * * 

SEC. 6. 

(c) Whoever violates section 3(b)(2) shall be fined under title 18, 

United States Code, imprisoned not more than 1 year, or both. 

(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 Mar 15 2010 15:22 Dec 21, 2010 Jkt 099010 PO 00000 Frm 00007 Fmt 6604 Sfmt 6602 E:\HR\OC\SR375.XXX SR375

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

Æ 


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