Protecting Migratory Birds: the UP connection

What do a Nature Conservancy (TNC) Preserve in Michigan’s Upper Peninsula (the UP), a Pennsylvania Congressman, flash bulbs, and the Migratory Bird Treaty Act (MBTA) all have in common? The story may surprise you, but it really shouldn’t. Fortunately, I hiked right into it a few years ago, and a recent New York Times story about a federal wildlife policy failure brought it all back to mind.

Telling stories may be our best conservation tool these days, and I believe in the power of the written word. Now, however, our digital lifestyle and the popularity of Instagram make photographs a primary source of narrative. This story links us back to one of the pioneers of photography whose life story contributed to conservation.

George Shiras III was a child of wealth from Pittsburgh, a private school and Ivy League product, and the son of a Supreme Court Justice. He also summered at a “camp” on Laughing Whitefish Lake, south of Marquette, in Michigan’s UP. There, with time, resources, and an inquisitive mind, George tinkered with the early photography technology of the 19th Century, discovered how to make a flash for his camera, and took the first-ever night time photographs of wildlife. His work was exhibited in Paris in 1900.

He easily became friends with Gilbert Grosevnor of National Geographic fame and Teddy Roosevelt. His life’s path was profound and I am excited to learn that there is a new biography out about him and his influence, Camera Hunter: George Shiras III and the Birth of Wildlife Photography. I plan to read it soon.

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I first encountered the George Shiras story in 2006 while on a 460 mile hike across the UP to raise awareness (mine) and money (for The Nature Conservancy). I visited several TNC preserves, and one day I stumbled into Laughing Whitefish Lake after getting a little lost off the nearby North Country Trail. Learning more about this patch of forest and water, I discovered that this fairly inaccessible place was once a summer retreat for the wealthy, including the Shiras family. Returning to the preserve several years later with my family, I explored the George Shiras III Discovery Trail commemorating the work he accomplished here.

The Migratory Bird Treaty Act may be America’s most important conservation legacy. As with all good policy, it took some time to come to fruition, but the 1918 law passed by Congress made it illegal to “hunt, take, capture, or kill . . . at any time or in any manner, any migratory bird.” It built a foundation for other environmental laws and federal policy, including the Endangered Species Act, its direct descendant. Currently, the law, now over a hundred years old, faces a struggle to stay relevant.

At the turn of the previous century, the need for the protection of birds became paramount when the rampant harvesting and killing of waterfowl for their feathers endangered egrets, herons, and other waterfowl. The Carolina parakeet, once prevalent in the southern US, became extinct as a result of such hunting. Bird protection was the conservation cause of the day, and Teddy Roosevelt was its public champion.

George Shiras III, as a responsible member of his class, did his turn as a member of Congress, representing Pennsylvania for one term from 1903-05. The same passion that put him behind a camera, at night, in a canoe, inspired him to introduce a bill to prohibit the killing of migratory birds. The bill did not pass, but Shiras and many others would continue to work and eventually secure federal protection for birds that were suffering from the short-term pursuit of economic gain.

Audubon’s painting of the now extinct passenger pigeon.

He was perhaps most personally motivated by his experience of shooting a passenger pigeon, and then witnessing the disappearance of this once abundant bird. In this way he was like many of his time, including my hometown hero James Oliver Curwood, who had a conversion experience after killing a grizzly bear. Curwood’s story, which became the tremendous modern silent movie “The Bear,” led to the conservation movement in Michigan and early recognition of the value of the Shiawassee and Au Sable Rivers.

How to best protect birds? remains a question more than 200 years after John James Audubon, Thomas Nuttall, and Alexander Wilson (and others) explored, studied, and documented the amazing bird life of the Americas. The early threats were from hunters, collectors, and opportunists who could sell feathers. In the late 19th and early 20th century this resulted in public policy and private petitions to protect birds. It also spawned efforts to protect specific bird habitats. In 1903, President Theodore Roosevelt established the first federal wildlife refuge at Pelican Island in Florida. Roosevelt would go on to name nine more reservations in Florida and a total of 55 other sanctuaries in the US, the forerunner to the National Wildlife Refuge System. 

Arguably, the greatest threat to birds in the last 100 years has been the loss of habitat, particularly important breeding ecosystems in the tropics, tundra, and wetlands around the world. The greatest threat in the next 100 years is climate change. But at the turn of the previous century, birders and conservationists were rightly alarmed by the unchecked slaughter of waterfowl. In the 1960s, Rachel Carson‘s book “Silent Spring” alerted scientists and bird-lovers to the dangers posed by DDT and other pesticides. In both cases, the federal government took action to protect birds and the environment.

The earliest legislative efforts, of which Shiras and Curwood were a part, sought state actions to prohibit unchecked killing and promote science-based wildlife management. Their goal was to establish a hunting ethic of stewardship. However, conservationists recognized that more needed to be done because migratory birds fly across state and international boundaries. The Lacey Act, the first federal wildlife law, was passed in 1900 to create some consistent enforcement of game laws across state boundaries. And in 1916 the United States and Canada (as represented by Great Britain) negotiated a treaty to protect those birds which migrated north and south on the continent. The US Fish and Wildlife Service has compiled an informative timeline of the long history to protect migratory birds.

The Migratory Bird Treaty Act (MBTA) was passed in a less litigious era when a law with clear language and a straight-forward purpose was sufficient to stop the worst abuses and guide people toward their best behaviors. Of course, enforcement was necessary and early legislative efforts were required to allocate funds for game wardens and oversight. Sadly, many public servants lost their life in encounters with poachers before the law became truly effective. Over time, the scientists and other professionals who worked for US Fish and Wildlife developed the knowledge of migratory birds and the expertise to use the law to prevent the unnecessary loss of bird life.

The tool of regulation repairs some of the damage we cause to the environment, but there are limits in its application. The blunt language of the Migratory Bird Treaty Act presented challenges. Those who operate businesses in areas where birds lived–notably energy, mining, utilities, and others with a footprint on the land–were cautious about the risk the law puts them under. Conservationists recognized that accommodation needed to be made to allow for industry, but lacked a definitive process.

Officials charged with enforcing this federal law sought a balance, and for decades created working partnerships that met the goal of the law, but accommodated new infrastructure projects, oil wells and mines, windmills and power lines. With the help of birders, industry developed best practices that gave them a clear path forward to meeting the requirements of the law without stopping developments that might cause an “incidental” death of an occasional migratory bird.

Oil and gas fields that fracture natural landscapes may endanger birds unless protections are put in place

Then in 2017, a new administration arrived in Washington DC and re-interpreted the Migratory Bird Treaty Act to limit its application to only the willful killing of birds. Although the law had spurred responsible behavior by both public and private parties, now enforcement exempts those activities which have a serious, but “unintended” impact on birds. This includes the destruction of nesting sites and breeding grounds, the operation of open pools of oil or toxic liquids that attract birds, and the construction of facilities that kill birds in flight.

Those who used the law for conservation, worked under it to avoid litigation, and interpreted it for the benefit of birds were aghast to see the MBTA tool taken away. In response, 17 former officials–who had worked for both Republican and Democratic administrations–wrote a letter to the Secretary of the Interior voicing their concern that decades of earnest effort and achievement were being discarded. “Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of migratory bird treaties, and diminishes US leadership”

Regulations are bad when misapplied, administered by unchecked bureaucrats, or thrown as a legal monkey-wrench to stop progress. At best, laws and their codified rules offer a tool to counter particular environmental threats or fix a specific conservation problem. At worst, they empower NIMBYs to stop needed developments and impose unnecessary costs on economic activity. In 1990, at the behest of HUD Secretary Jack Kemp, I served on the Advisory Commission on Regulatory Barries to Affordable Housing that presented a report on this topic to President George H.W. Bush.

As a geographer by education and a city planner by profession, I recognize that the most effective solution to environmental and economic conflicts is comprehensive land use planning that balances the need for conservation along with the designation of appropriate areas for the activities of living in neighborhoods, raising of food, and undertaking all of the activities of human industry and achievement. However, good planning depends on having all the players at the table; a strong law is often the catalyst that brings everyone together to undertake planning.

The red-cockaded woodpecker, native of long-leaf pine forests

One example of this type of planning that is beneficial to wildlife–and endorsed in the Kemp Report I worked on–are Habitat Conservation Plans as authorized in the Endangered Species Act. These plans have been used by The Nature Conservancy and others to protect birds like the the red-cockaded woodpecker (and other species) and have fostered the preservation of natural areas compatible with logging activities, residential development, and military bases. In San Diego County, a multi-species plan serves as a tool both for metropolitan growth and habitat protection. But this type of planning requires research, trust, and funding, three things seemingly in short supply these days in Washington DC.

Where do we go from here? In our quest to protect birds, especially those which move from place to beautiful place with the seasons, we need a full toolbox. The timing is urgent. As reported just a few months ago, research showed that the number of birds in North America has declined 29 percent since 1970. The overall population of birds has declined by three billion in the last five decades. One interesting positive trend shown by the comprehensive data is an increase in waterfowl, probably due to the protection, restoration, and re-creation of wetlands.

Preserving habitats must be our first goal in protecting migratory birds, and the ongoing efforts of federal, state and local governments to acquire and manage public lands are the noble expression of our collective will to save a little bit of nature for wildlife, and ourselves, to enjoy. Private organizations like The Nature Conservancy save land to protect the diversity of life, and for other valuable reasons, including to recognize individuals like George Shiras III.

But we can never purchase enough land to provide sufficient habitat for the many wild creatures we share the planet with, especially those which fly easily from protected to working lands, or cross political boundaries. To live compatibly with nature, we need to use other tools to minimize our impacts and maximize our mutual sustainability.

The Migratory Bird Treaty Act never was, nor will be, sufficient to ensure that we continue to enjoy the visibly-attractive, beautifully-sounding, and highly varied bird life that decorate our woods, wetlands, shorelines, open waters, farm fields, and even our backyards. Still, we need to ensure that our human constructions–our roads and parking lots, buildings and towers, and our retention ponds and disposal sites–are built in the best way to avoid killing birds.

Grackles photographed by George Shiras III

Sadly, the recent emasculation of the Migratory Bird Treaty Act does not serve the cause of conservation. Litigation is underway concerning the interpretation and enforcement of the MBTA, and more will likely follow in the years ahead. New legislation may be passed and rules promulgated, but the recent action by the Department of the Interior reduces our conservation work to one of combat and conflict, rather than cooperation.

I am inspired by George Shiras III and all those who help us understand, strengthen, or repair our relationship with nature. We are the the fortunate ones who are able to spend time in nature, and use our talents to share our experiences with others. Most importantly, like Shiras, we must use the unique opportunities presented to us to help us all build a sustainable relationship with nature.

Update, August 12, 2020: A federal court has ruled the Trump administration’s re-interpretation of the Migratory Bird Treaty Act violated the clear intent and construction of the statute. Read more here from the American Bird Conservancy on the impact of the ruling and ongoing efforts to protect birds.

You can learn more here about migratory birds in the Great Lakes, and find good preserves for birding from The Nature Conservancy.

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