The Trouble With Treaties

Photo from fOTOGLIF

Editor’s Note: Published by Permission of the author.

By Jim Beers

Jim Beers is a retired US Fish & Wildlife Service Wildlife Biologist, Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC. He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands. He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC. He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority. He resides in Eagan, Minnesota with his wife of many decades.

Yesterday, I wrote a piece titled Confessions of a Treatyphobe. In it I discussed the abuse of the Treaty Power in our Constitution and in so doing I mentioned how I would be glad to debate why the Migratory Bird Treaties with Canada, Mexico, Japan, and Russia were in need of modification and how they might be changed. The result is that, thus far, I have been removed from at least four Christmas card lists and have made formerly sound communications with two other readers, tenuous at best in the future.

The following is a hastily drawn explanation of why and how US federal authority over migratory birds is in need of change. I say “hastily” because I was on an Oregon radio show last night and I just completed a Missouri radio show this morning and I feel I must respond to any questions in a timely manner or be thought unable to defend what I write.

The US federal authority over named species of migratory birds is based entirely on the Treaties named above. This federal authority and jurisdiction has many flaws at this time. This is not to say that it does not still fulfill many of the original purposes for the original Treaty (i.e. managing and fairly dividing the annual harvest of game birds by hunters between states and the subsistence food source harvest by Native people). It has likewise accounted for the preservation and management of wetlands necessary for water birds of all stripes and for wide-ranging habitat and survival improvements for songbirds and other birds highly valued by birdwatchers and those living near significant insect concentrations.

But consider the following:

- Airplane/migratory bird strikes are far more extensive and frequent than generally known. This includes but is not limited to geese, gulls, blackbirds, starlings, sparrows, etc.

- Cormorants are seriously decimating sport fish, fish hatcheries, fish farms, and private property.

- “Resident” Canada geese (introduced and spread by federal programs just like wolves) spreading disease on golf courses, schoolyards, and parks while causing auto accidents, and chasing lunch-breaking employees and walkers near ponds.

- Hawk and owl predation creating unpublicized negative impacts on songbirds and other birds and animals.

- The federal migratory bird authority justified and was the Congressionally-stated purpose (production, migration, and wintering needs of waterfowl – i.e. geese and ducks that are hunted) for the majority, number and acres of National Wildlife Refuges acquired in the lower 48 states (Alaska’s Native Claims Settlement Act refuges distorts these numbers if included). It was likewise the basic authorization for required federal Duck Stamps that financed much of these acquisitions. Yet today, Refuge water management is slowly being changed to dry land “Native Ecosystems”, waterfowl nesting habitat is being changed into “Invasive Species” (often simply post-1492 AD game birds and sport fish) eradication projects less friendly to waterfowl needs. In other words, federal lands purchased with hunter “fees” and authorized by Congress for Waterfowl are being converted into lands less hospitable to and supportive of waterfowl and hunters.

Let us further consider what could be done about these issues remembering this is being “hastily” done and there are other issues that could appear on the list above and below:

- Authority over airplane/bird safety should be given to Airport authorities.

- Authority and jurisdiction over “resident” Canada geese in the US between 15 March and 1 September should be given to State governments.

- Cormorants, hawks, and owls should be placed under State government jurisdiction and authority.

NOTE: For all of those readers now writhing in pain on the floor moaning about this would be a prelude to Armageddon – The Endangered Species Act was designed and is being implemented as a preventive to stop all those local yokels electing all those narrow state politicians from making all those critters extinct. Local managers, responsive voters, would do far better at protecting air travelers, fish farmers, urban health (human by the way), hunters, fishermen, sport fish and desirable wildlife, songbirds and other associated values of value to those living in those areas.

- Management conversion of federally-owned wetlands and associated uplands to any habitat less supportive of waterfowl management outputs should be replaced with NEW and equally waterfowl-supportive habitat of equal waterfowl productivity and benefits.

NOTE: If the federal government is to fulfill this primary and original justification for Treaties that grant the federal government power and authority that formerly resided in state governments, they should do no less with ALL lands they control.

The foregoing is a thumbnail sketch of what could be done, but that is not why I am taking the time to write this. I am writing this because it might well be a “teachable moment” regarding Treaties.

Let’s pretend I am lauded and cheered about the foregoing proposals and “everyone” wants to implement them: how might this be done?

1. We could just write agreements with these entities to do these things. Sure, just like “delisting” wolves. The state or airport must do A, B, and C or the feds intervene: PLUS, the lawsuits about how this is illegal and not based on “science” and a plot by those wanting to kill everything, etc., etc. would be thicker than a spring blizzard. Just like “state management of wolves”, state authorities under such agreements are little more than paid “Charlie McCarthies” for federal bureaucrats in service of anti-management and use organizations.
2. We could just write “new” federal regulations doing the above. Such regulations would be found to be not possible (illegal) under The Migratory Bird Treaty Act that implements the Treaties with Canada et al. A lawsuit now or in the future would make any such regulations illegal in short order.
3. Why not change (amend) The Migratory Bird Treaty Act? Even if we had a President Sarah Palin, a Senate under Jim Inhofe, and a Secretary of the Interior Michelle Bachmann and could do this, it would likewise be found to conflict with the (interlocking on purpose) Treaties and therefore illegal. Furthermore, what my “dream team” could accomplish, the next President Barbara Boxer, Senate Leader Barney Frank, and Secretary of the Interior Charles “Charlie” Rangel could simply undo. This leaves us with the Treaties…
4. The Treaties need to be “reopened” and Amendment proposed but how is this possible? Set aside for now how environmental/animal rights organizations fight this tooth, lawyer, and nail as a threat to their federal control of an exclusively powerful federal government and as a precedent for further dispersal of the power they worked so hard to consolidate across the board. While the Canadian Treaty doesn’t mention cormorants (that’s a whole other story) and there is no provision in any of the Treaties to give authority to something like an airport authority or even a state, why would any of the 4 nations REMOVE species? Why would any of the 4 Treaty nations encumber their government-owned lands with such a requirement about maintaining waterfowl capacities? Where is the “carrot”? Thus do we hear so often that such and such is “required” by the Treaty or that it is “prohibited” by the Treaty, and then in a generally laughing tone “man you’d have to change ‘the’ or ‘all’ those Treaties, are you ‘nuts’?”

Thus is big government solidified and imposition of ephemeral national values and agendas solidified. Thus are local controls and community cultural identities once lost, seldom regained. Thus are incremental steps toward tyranny and helplessness dressed in good intentions as they help attain bad agendas and create precedents. Thus is my Christmas card response list reduced incrementally.

Jim Beers

19 March 2010