Blog By: Camille Camp
Unsurprisingly, the Migratory Bird Treaty Act of 1918 (“MBTA”) protects the American Bald Eagle, the country’s national bird and a symbol of freedom.[1] The MBTA’s mission is to guarantee the long-term viability of all protected migratory bird species.[2] Accompanying the esteemed American bald eagle under the MBTA’s guardianship is a bird synonymous with death and misfortune, the black vulture.[3]
To merit protection under the MBTA, a migratory bird species must be native to the U.S. or a U.S. territory.[4] Additionally, the species must be present in the U.S. or its territories because of ecological or biological processes.[5] Once listed, the MBTA mandates that individuals obtain prior authorization from the Department of Interior U.S. Fish and Wildlife Services before engaging in any “taking” activities involving protected migratory birds.[6] Under the treaty, to “take” includes the killing, transportation, selling, and capturing of a protected migratory bird.[7] Additionally, individuals may seek authorization through state entities to take a black vultures.[8] The U.S. Fish and Wildlife Services also maintains a program that allows state entities to hold master permits and enables them to allocate sub-permits to individuals.[9] If an individual receives a sub-permit through this manner, they are limited to taking three to five black vultures in the calendar year the permit was received.[10] The black vulture enjoys protection under the MBTA, at least for now.[11]
Despite its unsuspecting size, averaging from three-and-a-half pounds to five pounds, the black vulture has managed to wreak havoc on the livestock industry.[12] Unlike the other class of vulture protected under the MBTA, the turkey vultures and black vultures pose an enhanced threat to livestock producers due to its unique predatory behavior.[13]
Vultures are scavengers that feed on carrion, the carcasses of deceased animals.[14] However, unlike the turkey vulture which feeds exclusively on deceased animals, the black vulture tends to feed on live prey.[15] The black vulture is most likely to target newborn or injured animals, making livestock operations the perfect feeding ground for this migratory species.[16] The black vulture will attack its prey by targeting vulnerable soft tissue areas such as the eyes, hindquarters, and tongue.[17]
Today, farmers find themselves entrenched in a persistent battle against black vultures to protect their livestock and comply with federal law.[18] A 2021 study conducted by Purdue University found that 4 in 10 farmers in Indiana and Kentucky reported that a black vulture was responsible for the death of at least one of their animals.[19]
This persistent conflict prompted S.3358, the Black Vulture Relief Act of 2023.[20] If enacted, this bill would allow livestock producers to take black vultures if the individual reasonably believes death, destruction, or injury to livestock will occur because of a black vulture if action is not taken.[21] One of the bill’s sponsors, Oklahoma senator Markwayne Mullin, believes that “[r]emoving the requirement for a depredation permit will allow Oklahomans, including small and family-run ranches, the ability to do what is necessary to protect their livestock and reduce economic hardship.”[22]
Although S.3358 has the potential to help farmers protect their livestock from black vultures more efficiently, the bill is brief, raising more questions about the logistic viability of this proposed plan. Vultures serve a vital environmental function.[23] What sets vultures apart from other scavengers is their highly corrosive stomach acid that allows them to digest and withstand diseases typically present in the flesh of a deceased animal (i.e., rabies and botulinum toxins).[24] Therefore, vultures are necessary as they “do the dirty work of cleaning up after death, helping to keep ecosystems healthy and prevent the spread of disease.” [25]
With the lack of details spelled out in S.3358, there is a risk that reducing red tape with the taking of black vultures could potentially result in more harm than good. Before this bill moves forward, several questions need to be answered. First, will the bill set a maximum number of black vultures that a livestock operation can take within a calendar year? Next, with the bill’s requirement for reporting the taking of black vultures, the current language seems to imply that all takings within a calendar year can be reported. However, could a quarterly reporting system be implemented to better track the takings of black vultures in a geographic area? Finally, is there further research being funded by the bill that will allow for a better understanding of black vultures and different methods to deter them from a livestock area?
While S.3358 offers potential benefits to the livestock industry, careful deliberations are necessary to ensure that its implementation will not inadvertently jeopardize the welfare of black vultures and potentially cause an ecological disturbance.
[1] See 50 C.F.R. §10.13 (2023).
[2] Migratory Bird treaty Act of 1918, U.S. Fish & Wildlife Serv., https://www.fws.gov/law/migratory-bird-treaty-act-1918#:~:text=The%20Migratory%20Bird%20Treaty%20Act%20(MBTA)%20prohibits%20the%20take%20(,U.S.%20Fish%20and%20Wildlife%20Service. [https://perma.cc/842F-3LXY] (last viewed Feb. 27, 2024).
[3] See supra note 1.
[4] Migratory Bird Treaty Act of 1918, supra note 2.
[5] Id.
[6] Id.
[7] Id.
[8] See Press Release, Mullin Leads Black Vulture Relief Act to Protect Farmers and Ranchers from Burdensome Federal Overreach (Nov. 29, 2023), https://www.mullin.senate.gov/newsroom/press-releases/mullin-leads-black-vulture-relief-act-to-protect-farmers-and-ranchers-from-burdensome-federal-overreach/ [https://perma.cc/7D6D-GNRU].
[9] Id.
[10] Id.
[11] See supra note 1.
[12] Black Vulture Damage, Martin-Gatton Coll. of Agric., Food and Env't Dep't of Forestry & Nat. Res., https://forestry.ca.uky.edu/black_vulture_damage [https://perma.cc/8ZHX-9MMZ] (last viewed Feb. 27, 2024).
[13] Id.
[14] Black Vulture Life History, All About Birds, https://www.allaboutbirds.org/guide/Black_Vulture/lifehistory#conservation [https://perma.cc/ZEW8-FKNT] (last viewed Feb. 27, 2024).
[15] Problems with Vultures, KY. Dep't of Fish & Wildlife Res., https://fw.ky.gov/Wildlife/Pages/Problems-with-Vultures.aspx [https://perma.cc/62YK-NVH3] (last viewed Feb. 27, 2024).
[16] Id.
[17] Black Vulture Damage, supra note 12.
[18] See Brandon Roberts, Black Vultures Wreak Havoc on Kentucky Livestock, Spectrum 1 News (June 8, 2021), https://spectrumnews1.com/ky/louisville/news/2021/06/08/black-vultures-harming-livestock [https://perma.cc/7YRF-Z47H].
[19] Andy McGlashen, Black Vultures’ Northward Expansion Created New Conflicts with Farmers, Audubon, https://www.audubon.org/news/black-vultures-northward-expansion-creates-new-conflicts-farmers#:~:text=Black%20Vulture%20attacks%2C%20infrequent%20but,maim%20the%20mother%20beyond%20saving. [https://perma.cc/K4P7-GFCF] (last viewed Feb. 27, 2024).
[20] S.3358, 118th Cong. (2023).
[21] Id.; Press Release, Blacksupra note 8.
[22] Press Release, supra note 8.Black
[23] How do Vultures Contribute to our Environment?, Vulture Conservation Found. (June 5, 2019), https://4vultures.org/blog/how-do-vultures-contribute-to-our-environment/#:~:text=Vultures%20are%20often%20overlooked%20and,prevent%20the%20spread%20of%20disease. [https://perma.cc/YEH8-69VW].
[24] Id.
[25] Id.