The winter of 2020/2021 will be remembered for its substantial February polar weather event and as an eruptive year for Red-breasted Nuthatches, Mountain Bluebirds, Purple Finches, and Pine Siskins. The continuing COVID-19 pandemic is affecting many human lives in different ways, although I don’t think the birds have been adversely affected by it. For some people, the pandemic has led them to reconnect with their environment and I’ve heard many anecdotal stories of new or rekindled interests in bird. Certainly, we’ve seen large number of people participate in the Global Big Day (May 9, 2020), the Global Bird Weekend (Oct 17-18, 2020), the Christmas Bird Counts (we had record attendance on the Norman CBC), and most recently the Great Backyard Bird Count (February 12-15, 2021). But our birds faced a rare polar air mass last month like we haven’t seen in nearly 40 years. I’m happy to see so many survivors, but I’ve heard stories from almost every person I know about birds they found starved to death during the second half of that event. Species such as Eastern Phoebe, Greater Roadrunner, Carolina Wren, Eastern Bluebird, Northern Mockingbird, American Robin, Eastern Meadowlark, and Pied-billed Grebe seemed to be hit especially hard. We may never know the true impact of the polar event but our resident birds will give us the best indication – please be mindful of the numbers of wrens, roadrunners, mockingbirds, and bluebirds that you see this spring and summer. In central Oklahoma, American Robins were greatly affected, but the robins that are in Oklahoma during February are primarily northern birds here for the winter and they’ll be returning north any day. We may not notice any change in our breeding robin population next month. For a week, I was placing out 7 to 9 pounds of raisins and 8 to 10 bananas each day to feed a flock of 100 to 120 American Robins – and I was not the only one doing that in Norman. Stories like mine were repeated all over Oklahoma and I’m grateful to the people who opened their hearts and wallets to create that temporary lifeline for our birds.
Since mid-November 2020, birders have been reporting die-offs of birds at their feeders which are consistent with the pattern seen during Salmonella outbreaks. Salmonella is a genus of bacteria commonly living in the digestive tracts of many mammals, birds, and reptiles. Salmonella occurs as many strains and species, which may be host-specific or region-specific, and is spread through the feces and can pose a risk to birds wherever they occur in high densities – such as at bird feeders and at communal roosts. As in people, birds with Salmonella infections show signs of lethargy, diarrhea and swelling of the mouth and crop. In most cases, the bird’s body can fight off the infection and the bird recovers; however, in some cases the infection can lead to septicemia and spread through the blood stream to vulnerable organs including the brain. Finches, particularly Pine Siskins, are unusually sensitive to Salmonella infections and have been essentially the “canary in the coal mine” warning us of these Salmonella outbreaks. Healthy birds may pick up Salmonella on bird feeders that have been visited by sick birds, but most birds pick up the bacterium from contaminated seeds on the ground BELOW our feeders. The best thing we can do is implement preventative measures in our yards. Clean bird baths daily; empty and clean bird feeders once a month by soaking them in a weak solution of bleach (one part bleach to ten parts water) for about half an hour and letting them dry overnight; and move bird feeders over fresh ground every two or three months. The persistence of Salmonella in the soil under our feeders is variable and is affected by the diversity of soil microbes, temperature, and moisture; however, a persistence of five to ten weeks is common.
Localized outbreaks of Salmonella happen in Oklahoma every year – primarily during the winter, but I believe that they have been more widely reported this year because of the increased relative abundance of Pine Siskins. The siskins are unlikely to be carriers of the bacterium, rather, they are the most sensitive species and most likely to develop septicemia and die. Salmonella outbreaks appear to be most common during the late winter and early spring and coincide with the large, northward-bound flocks of migrating Common Grackles and Brown-headed Cowbirds, suggesting (but with few empirical data) that these species may be common spreaders. It’s important for us to educate ourselves and to remain vigilant to potential disease problems that we may be unintentionally facilitating at our bird feeders.
Incidental Take under the MBTA
The saga of regulating incidental take under the Migratory Bird Treaty Act (MBTA) continues to play out in the political world. This issue has been brewing for nearly 50 years but has become especially prominent during the past four and a half years. Early in 2020, the U.S. Fish and Wildlife Service introduced our country’s first incidental take regulations under the MBTA along with a draft Environmental Impact Statement. Both were subjected to a heated debate during the public comment period and a Final Rule was published in the Federal Register on January 7, 2021 that will go into effect on March 8, 2021. The Final Rule excludes incidental take as a prohibited activity under the MBTA and has generated a lot of criticism by organizations in the environmental and conservation communities. Several of these organizations have lobbied on the new Biden Administration to revoke the rule; however, doing so would be a violation of the Administrative Procedures Act and the rule currently stands.
I feel certain that the incidental take controversy and discussion will continue to play out over the next few years. Perhaps Congress will take legislative action and amend the MBTA, or perhaps the U.S. Fish and Wildlife Service under its new administration will propose a new rule to modify the initial one. Incidental take is difficult to delimit and even more difficult to apply legally. It has been fought in the courts since the mid-1970s and has not been uniformly recognized or prosecuted because of unclear language in the MBTA and an absence of regulations to define its scope. The MBTA was passed by Congress in 1918, two years after the signing of the 1916 Migratory Bird Treaty between the U.S. and Canada, to conserve bird populations by prohibiting the killing and possession of migratory birds and their eggs, and the selling of birds, eggs, nests, and feathers. Some attorneys have argued that the MBTA is a strict liability law, meaning that the government does not need to demonstrate intent when prosecuting misdemeanor offenses; however, this interpretation has not been universally accepted by the courts. From 1918 through the mid-1970s (about 1974), all prosecutions under the MBTA were for intentional activities involving the killing, possession, and sale of migratory birds. Prosecutions of incidental take began shortly after the passage of the Endangered Species, which unlike the MBTA includes language explicitly prohibiting incidental take.
During the 42 years between 1974 through 2016, the federal government pursued a course of prosecutorial discretion to establish case law to restrict incidental take rather than promulgate prohibitive regulations. While this has resulted in successful prosecution of incidental take in some federal circuit and district courts, it has resulted in uneven enforcement of the MBTA and increasing legal uncertainty. I believe that the fact that no incidental take regulations were introduced during this period should not be seen as a failure to act by the U.S. Fish and Wildlife Service, but instead as a testament to how difficult the task is when you consider the abundance of birds and their widespread presence. Unlike endangered species, migratory birds exist on every acre of this country and number in the billions of individuals. On January 10, 2017, ten days before the close of the Obama administration, the Department of the Interior’s Solicitor’s office issued Opinion M-37041 that concluded that the MBTA does prohibit incidental take. Less than a month later, on February 6, 2017, the DOI’s Office of the Solicitor suspended this Opinion M-37041 pending judicial review. On December 22, 2017, the DOI Office of the Solicitor withdrew Opinion M-37041 and replaced it with Opinion M-37050 that concluded that the MBTA did not prohibit the incidental take. Approximately a year later, the Trump administration directed the U.S. Fish and Wildlife Service to begin work on an Environmental Impact Statement and regulations to codify Opinion M-37050, which lead to the regulations that went into effect on March 8 of this year. Stay tuned, I’m sure that this is not over.
-Mark Howery, Conservation