Most Law Talkin’ Guy posts concern significant areas of Constitutional law, its history and application to our lives. This is important stuff information worth discussing.  Last week we focused on one of the “Law and Order” rights, so-called due to its familiarity from the popular TV show. However, we cannot spend all of our time with sober and serious topics. Self care is important and the mind needs some silliness. Thus, I now honor the request of a LTG reader, and address another area of law sometimes discussed on television: bird law.

Today we will be channeling our inner Charlie Kelly and discussing bird law. Bird law, like Constitutional law, is a term of art (at best) that encompasses several different legal applications. Broad categories of bird law include a host of regulatory issues that apply to birds specifically, such as ownership of birds; hunting of birds; protection of endangered birds; acceptable methods for storing and preparing birds intended for human consumption; and many more. Bird law is part of the larger category of animal law, which also includes topics like liability for animal attacks.

Birds have long occupied a special place in American culture, the bald eagle serving as a national symbol, known for its distinctive look and opportunistic predation (fitting!). Per our good friends at the Aududon Society, I can report that several Founders kept birds on their properties. Martha Washington kept a parrot, while Thomas Jefferson owned several mockingbirds. Andrew Jackson owned a parrot whom he reportedly taught to swear, and one can assume that parrot was quite racist. A further tale involves Abraham Lincoln sparing a turkey with whom his son Tad had bonded, beginning the presidential turkey pardoning tradition.

Perhaps it was presidential avian love that contributed to the Migratory Bird Treaty Act of 1918, a federal law enacted between the United States and Great Britain (for Canada) to protect many species of migratory birds. This law lead ultimately lead to a landmark Supreme Court (Missouri v. Holland) case regarding the right and responsibility of the federal government to protect and conserve the environment. In Missouri, the state sued to prevent enforcement of the Migratory Bird Treaty Act on Tenth Amendment grounds, as well as arguing an ownership interest in the wild birds within its borders. The treaty was entered into because:

[M]any species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified close seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary measures for carrying the treaty out. Missouri, 252 U.S. 416, 431 (citing 39 Stat. 1702).

The Constitution clearly allows treaties with foreign nations, provided the treaty does not offend the Constitution. Turing to the Tenth Amendment question:

The State, as we have intimated, founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that, as between a State and its inhabitants, the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership. Missouri, 252 U.S. 416, 434.

The Court concluded with a relatively bold and early statement on environmental protection:

Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. Id. at 435.

In conclusion, I hope you have enjoyed this small peck at the colorful world of bird law. Please consult a qualified bird law expert with any specific questions.

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