1. Controlling law
Statutes, regulations and binding court decisions determine legal obligations. These can change and may differ by jurisdiction.
The short version
The MBTA protects listed migratory birds
The Migratory Bird Treaty Act makes certain actions involving protected migratory birds, their parts, nests and eggs unlawful unless authorized. The current federal list of covered species appears in 50 CFR 10.13.
For nest questions, the U.S. Fish & Wildlife Service states that destroying a nest containing eggs or chicks, or where dependent young rely on it, is unlawful without authorization. Its 2025 nest memorandum explains how the agency distinguishes in-use and inactive nests.
The MBTA is not the only layer. The Endangered Species Act, Eagle Act, state and tribal law, local rules, permits, environmental commitments and contracts may impose separate or more specific requirements.
PenaltiesSee potential fines, imprisonment and forfeiture
MBTA violations are criminal offenses, not ordinary administrative tickets. The penalty depends on the conduct and the charge.
- Misdemeanor: A conviction can carry a fine of up to $15,000, imprisonment for up to six months, or both.
- Knowing commercial offense: Knowingly taking a protected bird intending to sell it—or knowingly selling or bartering one—is a felony punishable by up to two years. Although the MBTA contains an older $2,000 figure, federal sentencing law may permit substantially higher fines, including up to $250,000 for an individual, $500,000 for an organization, or twice the resulting financial gain or loss.
- Forfeiture: Vehicles, equipment, vessels and other property used in certain commercial offenses may be forfeited.
Sources: 16 USC 707 and 18 USC 3571.
How violations can ariseSee examples and how an issue may reach enforcement
Potential violations include:
- Killing, capturing or possessing a protected migratory bird without authorization.
- Destroying an occupied nest when the action kills or injures eggs, chicks or dependent young.
- Collecting or keeping protected feathers, eggs, nests, carcasses or other bird parts without authorization.
- Selling, purchasing, bartering, shipping or transporting protected birds or their parts unlawfully.
Project crews may face separate consequences if they disregard permit conditions, consultation measures, environmental commitments or contracts after an active nest is documented. Reports, inspections, photographs, dead or injured birds, damaged nests, field records, GIS data and project communications can prompt an investigation by the U.S. Fish & Wildlife Service Office of Law Enforcement.
Important distinction: Federal interpretation of incidental take remains legally complex and may vary by jurisdiction. An accidental bird death is not automatically equivalent to intentional or commercial misconduct. Other wildlife laws and project requirements may still create independent obligations.
Prohibited conduct is described in 16 USC 703.
Public complaints and project riskSee documented cases and practical lessons for project teams
A suspected bird or nest incident can create immediate community, schedule and reputation consequences even when an MBTA violation is unproven. Complaints, photographs, injured birds, field records and project communications may prompt agency review or news coverage.
- Fredericksburg, Virginia (2010): A neighbor heard chainsaws and discovered a tree crew removing a red-shouldered hawk nest containing three chicks. The report led to a U.S. Fish & Wildlife Service investigation; the company owner pleaded guilty to an MBTA violation and was fined $3,000.
- Oakland, California (2014): Members of the public intervened after nestling black-crowned night-herons were injured during tree trimming at a post office. The event drew state and federal investigations, sustained news coverage and intense public criticism.
- Auburn, Alabama (2024): Residents objected after a developer removed a bald eagle nest under a federal permit. City officials requested a federal review, and the developer issued a public explanation. This eagle example involves protections beyond the MBTA and shows that legal authorization does not necessarily prevent community or reputation risk.
Practical value of a defensible record: A timely survey, mapped observations, photographs and written field notes can document the conditions known at the time, guide field decisions and help a project team respond accurately if concerns arise. A survey is not legal clearance, does not guarantee that a nest will not appear later and cannot eliminate community concern.
These examples do not mean every complaint is substantiated or that every reported incident becomes an enforcement case. They show why teams may choose biological review before vegetation clearing even when the legal question is uncertain or a permit has already been obtained.
Examples: U.S. Fish & Wildlife Service—Virginia hawk nest case; ABC7—Oakland night-heron incident; and U.S. Fish & Wildlife Service—Auburn eagle statement.
Keep four layers separate
Why a project answer is more than a single citation
2. Agency guidance
Memoranda, webpages, manuals and recommended practices explain agency interpretation and risk-reduction methods but are not all equivalent to a regulation.
3. Project commitments
Permit conditions, consultation documents, environmental plans, lender standards and contracts can require measures beyond a general legal minimum.
4. Field judgment
Survey timing, coverage, documentation and practical avoidance measures must fit the site, species, activity and decision being made.
Why the incidental-take answer has changed
This tracks federal interpretations and policy actions; it does not replace the statute, controlling court law or project-specific requirements.
M-37050 issuedInterior concluded that the MBTA does not prohibit accidental or incidental take.
Federal court vacated itThe Southern District of New York rejected that interpretation in the case before it.
Interior changed courseThe opinion was withdrawn and FWS began work on an incidental-take permitting approach.
M-37085 reversed course againInterior directed its bureaus to treat M-37050 as authoritative, with an exception for actions within the Southern District of New York; FWS also withdrew the permit rulemaking.
Common questions
What this means on a project
Q1
Does every project need a survey?
No universal federal rule requires the same survey for every project. Surveys are used when needed to identify protected resources, meet a written requirement or manage a foreseeable project risk.
Q2
Can an empty nest be removed?
The Service’s general MBTA nest policy allows destruction of an inactive nest without a permit when possession does not occur, but other species protections and laws can change that answer. Eagle nests are treated separately.
Q3
Is “nesting season” one fixed window?
No. Species and regions differ, and birds can nest outside typical planning windows. A calendar is a screening tool, not proof that no nest is present.
Primary authorities
Read the current source
- U.S. Fish & Wildlife Service: Migratory Bird Treaty Act overview
- 50 CFR 10.13: List of migratory birds
- 50 CFR Part 21: Migratory bird permits
- U.S. Fish & Wildlife Service: 2025 nest memorandum
Because legal interpretations and policies can change, verify current controlling authority and project documents before acting. This page is general information, not legal advice.