Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would, indefinitely, make unlawful the taking or possessing of any migratory bird, as designated in the federal act before January 1, 2025, any additional migratory birds that may be designated in the federal act after that date, or any part of those migratory birds, except as provided.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would, indefinitely, make unlawful the taking or possessing of any migratory bird, as designated in the federal act before January 1, 2025, any additional migratory birds that may be designated in the federal act after that date, or any part of those migratory birds, except as provided.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would, indefinitely, make unlawful the taking or possessing of any migratory bird, as designated in the federal act before January 1, 2025, any additional migratory nongame birds that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would, indefinitely, make unlawful the taking or possessing of any migratory bird, as designated in the federal act before January 1, 2025, any additional migratory nongame birds that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would instead extend the California Migratory Bird Protection Act indefinitely. would, indefinitely, make unlawful the taking or possessing of any migratory bird, as designated in the federal act before January 1, 2025, any additional migratory nongame birds that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The federal act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing law, the California Migratory Bird Protection Act, until January 20, 2025, made unlawful the taking or possession of any migratory nongame bird designated in the federal act before January 1, 2017, any additional migratory nongame bird that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided. Existing law, as of January 1, 2026, repeals this provision.

This bill would instead extend the California Migratory Bird Protection Act indefinitely.

Existing law, operative January 20, 2025, makes it unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act, or any part of a migratory nongame bird, except as provided.

This bill would repeal this provision.

Under existing law, a violation of the Fish and Game Code is a crime. By narrowing the exception to a crime defined in existing law, the bill would expand the scope of a crime, thus imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 454

Author:(Kalra)

As Amended Ver:June 16, 2025

2/3 vote. Urgency

SUMMARY

Prohibits the take or possession of any migratory bird, or any part of any migratory bird, that was designated as of January 1, 2025 under the federal Migratory Bird Treaty Act (MBTA).

Senate Amendments

Make a technical change to refer to the bird species as "migratory birds" instead of "migratory nongame birds."

COMMENTS

Birds are considered great indicators of environmental health and ecosystem integrity. In North America, research indicates a 29% net loss of birds compared to their 1970 abundance. There is an estimated net loss of 2.5 billion individuals among the 419 native migratory species analyzed. Habitat loss, climate change, unregulated harvest, and other forms of human-caused mortality contribute to these loses.

The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on July 31, 2023, the MBTA includes 1,106 species of birds. According to the National Audubon Society, the MBTA is credited with preventing the extinction of the Snowy Egret, Wood Duck, and Sandhill Crane.

Fish and Game Code (FGC) Section 3513 codifies the MBTA in state law. This section of code currently states: It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.), or any part of a migratory nongame bird described in this section, except as provided by rules and regulations adopted by the United States Secretary of the Interior under that federal act. This section became inoperative on January 20, 2025. This bill proposes to restore this section of the FGC to the language that became inoperative on January 20, 2025.

This bill allows the take or possession of migratory birds in accordance with the MBTA as implemented before January 1, 2017, or after that date as long as those rules and regulations are in accordance with the FGC. Current law (FGC Section 355) allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.

Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming. Incidental take describes the take of an animal that results from, but is not the purpose of, an activity.

The first 100 days of the current federal administration have included numerous efforts to undo actions of the previous administration. This includes a memorandum on February 28, 2025 requiring all M-opinions (opinions M-37065 through M-37084) from the previous administration to be placed under a "Suspension Review." This includes the opinion that addresses incidental take in the MBTA, as noted above. While these M-opinions are reviewed, units of the Department of the Interior are instructed to not rely on those opinions "as authoritative and binding without first consulting with the Office of the Solicitor for guidance."

Although the California Department of Fish and Wildlife (CDFW) does not cite under the federal MBTA, they do cite under regulation or from FGC Section 2000 and Section 3513. CDFW reports that the vast majority of these are for illegal take of waterfowl that may result in an estimate of $100–$1,000 per violation, depending on the case and court. Since 2021, the Law Enforcement Division of CDFW's Office of Spill Prevention and Response has filed four cases related to oil spills under FGC Section 2000 and Section 3513.

According to the Author

"California is home to a rich and critical diversity of migratory birds, many of which fulfill important ecological, cultural, and economic functions. In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. [This bill] will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come."

Arguments in Support

A coalition of environmental organizations write in support of this bill, which they claim is important due to the decline of avian populations and rollbacks of protections at the federal level. "[This bill] would ensure that existing California law will continue to protect native and migratory birds regardless of actions taken by the federal government to weaken oversight and protection for birds. Additionally, this bill would allow California to set a higher bar than protections offered by federal law."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, the version that passed the Assembly would result in the following fiscal impact:

To the extent that CDFW's law enforcement division issues more citations under FGC § 3513 as a result of the restored protections under this bill, this bill may result in increased enforcement costs and a possible increase in penalty revenue for the department. However, these costs are speculative and difficult to quantify. CDFW contends any costs associated with this bill are minor and absorbable.

CDFW reports that the vast majority of citations to date have been for illegal take of waterfowl that may result in a fine of $100 to $1,000 per violation, depending on the case and court. Since 2021, the law enforcement division of CDFW's Office of Spill Prevention and Response (OSPR) has filed four cases related to oil spills under FGC Section 2000 and Section 3513. In a criminal case related to the 2021 Pipeline P00547 oil spill in Southern California, the Attorney General's Office recovered a $10,000 penalty under FGC Section 3513. The money was split between OSPR's Fish and Wildlife Pollution Account and Orange County's fish and wildlife propagation fund.

The Senate Appropriations Committee did not hear this bill and, instead, reported it to the Senate Floor pursuant to Senate Rule 28.8; indicating this bill does not appropriate money, does not result in significant state costs or require the appropriation of funds, and will cause no significant reduction in revenues.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 10-3-0

YES: Papan, Alvarez, Ávila Farías, Bains, Bennett, Boerner, Caloza, Hart, Celeste Rodriguez, Rogers

NO: Jeff Gonzalez, Macedo, Tangipa

ASM APPROPRIATIONS: 10-4-1

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Solache

NO: Sanchez, Dixon, Hadwick, Ta

ABS, ABST OR NV: Pellerin

ASSEMBLY FLOOR: 59-12-8

YES: Addis, Aguiar-Curry, Ahrens, Alanis, Alvarez, Arambula, Ávila Farías, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Caloza, Carrillo, Connolly, Elhawary, Fong, Gabriel, Garcia, Gipson, Mark González, Haney, Harabedian, Hart, Irwin, Jackson, Kalra, Krell, Lee, Lowenthal, McKinnor, Muratsuchi, Nguyen, Ortega, Pacheco, Patel, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Ransom, Celeste Rodriguez, Michelle Rodriguez, Rogers, Schiavo, Schultz, Sharp-Collins, Solache, Stefani, Valencia, Wallis, Ward, Wicks, Wilson, Zbur, Rivas

NO: Castillo, Chen, Davies, DeMaio, Ellis, Gallagher, Hadwick, Lackey, Macedo, Sanchez, Ta, Tangipa

ABS, ABST OR NV: Dixon, Flora, Jeff Gonzalez, Hoover, Papan, Patterson, Blanca Rubio, Soria

SENATE FLOOR: 30-10-0

YES: Allen, Archuleta, Arreguín, Ashby, Becker, Blakespear, Cabaldon, Caballero, Cervantes, Cortese, Durazo, Gonzalez, Grayson, Hurtado, Laird, Limón, McGuire, McNerney, Menjivar, Padilla, Pérez, Reyes, Richardson, Rubio, Smallwood-Cuevas, Stern, Umberg, Wahab, Weber Pierson, Wiener

NO: Alvarado-Gil, Choi, Dahle, Grove, Jones, Niello, Ochoa Bogh, Seyarto, Strickland, Valladares

UPDATED

VERSION: June 16, 2025

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0001564

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Monique Limón, Chair

2025 - 2026 Regular

Bill No: AB Hearing Date: June 10, 2025

Subject: Migratory birds: California Migratory Bird Protection Act

SUMMARY

This bill would make unlawful the taking or possessing of any migratory bird, as designated in the federal Migratory Bird Treaty Act (MBTA) before January 1, 2025, any additional migratory nongame birds that may be designated in the federal act after that date, or any part of those migratory nongame birds, except as provided.

BACKGROUND AND EXISTING LAW

Existing federal law, under the MBTA, provides for the protection of migratory birds. The MBTA authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs [Title 16, United States Code (U.S.C.) §§ 703–712].

Existing state law:

1. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the MBTA, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act (Fish and Game Code (FGC) § 3513).
2. Allows the Fish and Game Commission (Commission) to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA (FGC § 355).
3. Defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds (FGC § 3800).
4. States that it is unlawful to take any nongame bird except as provided in the FGC or in accordance with regulations of the Commission or, when relating to mining operations, a mitigation plan approved by the California Department of Fish and Wildlife (CDFW) (FGC § 3800).
5. Makes it unlawful to take a bird, mammal, fish, reptile, or amphibian, expect as provided in the FGC and its regulations (FGC § 2000).
6. Defines “take” as hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill (FGC § 86).

Making America Great Again: With Fewer Birds. On December 22, 2017, Department of the Interior’s opinion M-37050 concluded that the prohibition on take under the MBTA applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing. Thus, incidental take was no longer prohibited under the MBTA. The U.S. Fish and Wildlife Service (USFWS) told industry and conservation groups that the agency no longer engaged to enforce on incidences of incidental take.

In May 2018, several conservation groups filed a lawsuit against the Department of the Interior to challenge the Trump Administration’s interpretation of the MBTA [see National Audubon Society, et al. vs. U.S. Dept. of the Interior, et al., U.S. Dist. Court (SDNY), Case No. 1:18-cv-04601].

In September 2018, the state of California joined seven other states in filing a separate lawsuit in the Southern District of New York to challenge the Trump Administration’s MBTA interpretation and actions. The suit asserts that the Administration’s revised opinion and planned pullback of the MBTA is arbitrary, capricious, an abuse of discretion, and in violation of the law [see State of New York, et al. vs. U.S. Dept. of the Interior, et al., U.S. Dist. Court (SDNY), Case No. 1:18-cv-08084]. The Southern District ruled that the Administration’s 2017 Solicitor’s Opinion did not align with the intent and language of the 100-year-old law, and overturned the policy.

However, in the final days of the first Trump Administration, the Department of the Interior finalized regulations that codified the policy into law. In October 2021, the Biden Administration repealed the regulations and restored incidental take protections for migratory birds.

Protecting California’s Birds. FGC §3513 codifies the MBTA in state law. In 2018, this section of code stated: It is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act.

AB 454 (Kalra, Chapter 340, Statutes of 2019) recast the codification of the MBTA in state law to the list of migratory nongame birds designated in the MBTA as of January 1, 2017, and any additions thereafter. That bill changed the implementation of exemptions to the take or possession prohibition by requiring take or possession exemptions in California to be consistent with, or more protective than, rules and regulations adopted by the United States Secretary of the Interior under the federal MBTA. AB 454 (2019) contained a sunset provision to this requirement of January 20, 2025 and would repeal the language on January 1, 2026.

PROPOSED LAW

This bill would:

1. Specify that it is unlawful to take or possess:
   1. Any migratory nongame bird designated in the federal MBTA before January 1, 2025; and
   2. Any additional migratory nongame bird designated in that federal act after that date, or any part of a migratory nongrame bird.
2. Provide exceptions to this prohibition where:
   1. Rules and regulations are otherwise adopted by the United States Secretary of the Interior under the MBTA before January 1, 2025, or
   2. Subsequent rules or regulations are adopted pursuant to that federal act, unless those rules or regulations are inconsistent with the Fish and Game Code.
3. Repeal section 3513 of the Fish and Game Code, as added by Section 3 of Chapter 349 of the Statutes of 2019 which 1) and 2) replace.
   1. This section of code specifies that the state shall enforce the MBTA as the MBTA protected migratory birds on January 1, 2017, or any birds added to the MBTA after that date.
   2. This section of code became non-operative on January 20, 2025, and will be repealed as of January 1, 2026.
4. Establish this bill as an urgency statute, as provided.

ARGUMENTS IN SUPPORT

According to the author: “California is home to a rich and critical diversity of migratory birds, many of which fulfill important ecological, cultural, and economic functions. In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. AB 454 will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

Around and around we go. On April 11, 2025, the Acting Solicitor of the Department of the Interior issued a memorandum, M-37085, revoking and withdrawing M-37065, which was the Biden Administration’s memo revoking and withdrawing M-37050, the original 2017 memo from the Trump Administration authorizing take under the MBTA. Despite being struck down by the SDNY, M-37050 is official federal policy again.

Providing certainty for California’s birds. This bill establishes certainty for California’s migratory birds: under the state’s Fish and Game Code, they remain protected from incidental take.

What is “take?” Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming. Incidental take describes the take of an animal that results from, but is not the purpose of, an activity.

CDFW Enforcement. Although CDFW does not issue citations under the federal MBTA, they do issue citations pursuant to regulation or FGC § 2000 and § 3513. CDFW reports that the vast majority of these citations are for illegal take of waterfowl, which may result in an estimated fine of $100–$1,000 per violation, depending on the case and court.

Related legislation.

1. AB 454 (Kalra), Chapter 349, Statutes 2019, was substantially similar to this bill and makes it unlawful to take or possess any migratory nongame bird as designated in the MBTA before January 1, 2017, any additional migratory nongame bird designated after that data, or any part of those birds; except as provided by rules and regulations adopted by the U.S. Secretary of the Interior under the federal act before January 1, 2017, or subsequent rules or regulations adopted pursuant to the federal act, unless those rules or regulations are inconsistent with the Fish and Game Code.
2. AB 2627 (Kalra) of 2018 would have permitted an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity self-certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. AB 2627 was held in Senate Appropriations.
3. Chapter 1972, Statutes of 1957, codified the MBTA in state law.

SUPPORT

Audubon California (Sponsor)

Alianza Coachella Valley

Alta Peak Chapter, California Native Plant Society

American River Conservancy

California Institute for Biodiversity

Center for Biological Diversity

Defenders of Wildlife

Endangered Habitats League

Environmental Protection Information Center

Friends of the Inyo

Karmic Action Redistribution Management Agency (KARMA)

Natural Resources Defense Council

Planning and Conservation League

Sequoia Riverlands Trust

Sierra Club California

Sierra State Parks Foundation

OPPOSITION

None Received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 454

Author:(Kalra)

As Amended Ver:May 12, 2025

2/3 vote. Urgency

SUMMARY

Prohibits the take or possession of any migratory nongame bird, or any part of any migratory nongame bird, that was designated as of January 1, 2025 under the federal Migratory Bird Treaty Act (MBTA).

Major Provisions

1. Makes it unlawful to take or possess:
   1. Any migratory nongame bird, or any part of a migratory nongame bird, as designated before January 1, 2025 under the federal MBTA; or
   2. Any additional migratory nongame bird, or any part of a migratory nongame bird, which may be designated after January 1, 2025 under the federal MBTA.
2. Allows take or possession as provided by the rules and regulations adopted by the U.S. Secretary of the Interior before January 1, 2025 under the MBTA or subsequent rules and regulations, unless those subsequent rules and regulations are inconsistent with the Fish and Game Code.
3. States that no reimbursement is required under this law.
4. Declares this bill is an urgency measure.

COMMENTS

Birds are considered great indicators of environmental health and ecosystem integrity. In North America, research indicates a 29% net loss of birds compared to their 1970 abundance. There is an estimated net loss of 2.5 billion individuals among the 419 native migratory species analyzed. Habitat loss, climate change, unregulated harvest, and other forms of human-caused mortality contribute to these loses.

The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on July 31, 2023, the MBTA includes 1,106 species of birds. According to the National Audubon Society, the MBTA is credited with preventing the extinction of the Snowy Egret, Wood Duck, and Sandhill Crane.

Fish and Game Code Section (FGC) 3513 codifies the MBTA in state law. This section of code currently states: It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.), or any part of a migratory nongame bird described in this section, except as provided by rules and regulations adopted by the United States Secretary of the Interior under that federal act. This section became inoperative on January 20, 2025. This bill proposes to restore this section of the FGC to the language that became inoperative on January 20, 2025.

This bill allows the take or possession of migratory birds in accordance with the MBTA as implemented before January 1, 2017, or after that date as long as those rules and regulations are in accordance with the FGC. Current law (FGC 355) allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.

Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming. Incidental take describes the take of an animal that results from, but is not the purpose of, an activity.

The first 100 days of this federal administration have included numerous efforts to undo actions of the previous administration. This includes a memorandum on February 28, 2025 requiring all M-opinions (opinions M-37065 through M-37084) from the previous administration to be placed under a "Suspension Review." This includes the opinion that addresses incidental take in the MBTA, as noted above. While these M-opinions are reviewed, units of the DOI are instructed to not rely on those opinions "as authoritative and binding without first consulting with the Office of the Solicitor for guidance."

Although CDFW does not cite under the federal MBTA, they do cite under regulation or from FGC 2000 and 3513. CDFW reports that the vast majority of these are for illegal take of waterfowl that may result in an estimate of $100–$1,000 per violation, depending on the case and court. Since 2021, the Law Enforcement Division of CDFW's Office of Spill Prevention and Response has filed four cases related to oil spills under FGC 2000 and 3513.

According to the Author

"California is home to a rich and critical diversity of migratory birds, many of which fulfill important ecological, cultural, and economic functions. In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. [This bill] will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come."

Arguments in Support

A coalition of environmental organizations write in support of this bill, which they claim is important due to the decline of avian populations and rollbacks of protections at the federal level. "[This bill] would ensure that existing California law will continue to protect native and migratory birds regardless of actions taken by the federal government to weaken oversight and protection for birds. Additionally, this bill would allow California to set a higher bar than protections offered by federal law."

Arguments in Opposition

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill will have the following fiscal impact:

To the extent that CDFW's law enforcement division issues more citations under FGC 3513 as a result of the restored protections under this bill, this bill may result in increased enforcement costs and a possible increase in penalty revenue for the department. However, these costs are speculative and difficult to quantify. CDFW contends any costs associated with this bill are minor and absorbable.

CDFW reports that the vast majority of citations to date have been for illegal take of waterfowl that may result in a fine of $100 to $1,000 per violation, depending on the case and court. Since 2021, the law enforcement division of CDFW's Office of Spill Prevention and Response (OSPR) has filed four cases related to oil spills under FGC 2000 and 3513. In a criminal case related to the 2021 Pipeline P00547 oil spill in Southern California, the Attorney General's Office recovered a $10,000 penalty under FGC 3513. The money was split between OSPR's Fish and Wildlife Pollution Account and Orange County's fish and wildlife propagation fund.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 10-3-0

YES: Papan, Alvarez, Ávila Farías, Bains, Bennett, Boerner, Caloza, Hart, Celeste Rodriguez, Rogers

NO: Jeff Gonzalez, Macedo, Tangipa

ASM APPROPRIATIONS: 10-4-1

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Solache

NO: Sanchez, Dixon, Hadwick, Ta

ABS, ABST OR NV: Pellerin

UPDATED

VERSION: May 12, 2025

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0000391

ASSEMBLY THIRD READING

ATR Bill Id:AB 454

Author:(Kalra)

As Amended Ver:March 26, 2025

Majority vote

SUMMARY

Prohibits the take or possession of any migratory nongame bird, or any part of any migratory nongame bird, that was designated as of January 1, 2025 under the federal Migratory Bird Treaty Act (MBTA).

Major Provisions

1. Makes it unlawful to take or possess:
   1. Any migratory nongame bird, or any part of a migratory nongame bird, as designated before January 1, 2025 under the federal MBTA; or
   2. Any additional migratory nongame bird, or any part of a migratory nongame bird, which may be designated after January 1, 2025 under the federal MBTA.
2. Allows take or possession as provided by the rules and regulations adopted by the U.S. Secretary of the Interior before January 1, 2025 under the MBTA or subsequent rules and regulations, unless those subsequent rules and regulations are inconsistent with the Fish and Game Code.
3. States that no reimbursement is required under this law.

COMMENTS

Birds are considered great indicators of environmental health and ecosystem integrity. In North America, research indicates a 29% net loss of birds compared to their 1970 abundance. There is an estimated net loss of 2.5 billion individuals among the 419 native migratory species analyzed. Habitat loss, climate change, unregulated harvest, and other forms of human-caused mortality contribute to these loses.

The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on July 31, 2023, the MBTA includes 1,106 species of birds. According to the National Audubon Society, the MBTA is credited with preventing the extinction of the Snowy Egret, Wood Duck, and Sandhill Crane.

Fish and Game Code (FGC) Section 3513 codifies the MBTA in state law. This section of code currently states: It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.), or any part of a migratory nongame bird described in this section, except as provided by rules and regulations adopted by the United States Secretary of the Interior under that federal act. This section became inoperative on January 20, 2025. This bill proposes to restore this section of the FGC to the language that became inoperative on January 20, 2025.

This bill allows the take or possession of migratory birds in accordance with the MBTA as implemented before January 1, 2017, or after that date as long as those rules and regulations are in accordance with the FGC. Current law (FGC Section 355) allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.

Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming. Incidental take describes the take of an animal that results from, but is not the purpose of, an activity.

The first 100 days of this federal administration have included numerous efforts to undo actions of the previous administration. This includes a memorandum on February 28, 2025 requiring all M-opinions (opinions M-37065 through M-37084) from the previous administration to be placed under a "Suspension Review." This includes the opinion that addresses incidental take in the MBTA, as noted above. While these M-opinions are reviewed, units of the DOI are instructed to not rely on those opinions "as authoritative and binding without first consulting with the Office of the Solicitor for guidance."

Although CDFW does not cite under the federal MBTA, they do cite under regulation or from FGC Section 2000 and Section 3513. CDFW reports that the vast majority of these are for illegal take of waterfowl that may result in an estimate of $100–$1,000 per violation, depending on the case and court. Since 2021, the Law Enforcement Division of CDFW's Office of Spill Prevention and Response has filed four cases related to oil spills under FGC Section 2000 and Section 3513.

According to the Author

"California is home to a rich and critical diversity of migratory birds, many of which fulfill important ecological, cultural, and economic functions. In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. [This bill] will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come."

Arguments in Support

A coalition of environmental organizations write in support of this bill, which they claim is important due to the decline of avian populations and rollbacks of protections at the federal level. "[This bill] would ensure that existing California law will continue to protect native and migratory birds regardless of actions taken by the federal government to weaken oversight and protection for birds. Additionally, this bill would allow California to set a higher bar than protections offered by federal law."

Arguments in Opposition

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill will have the following fiscal impact:

To the extent that CDFW's law enforcement division issues more citations under FGC Section 3513 as a result of the restored protections under this bill, this bill may result in increased enforcement costs and a possible increase in penalty revenue for the department. However, these costs are speculative and difficult to quantify. CDFW contends any costs associated with this bill are minor and absorbable.

CDFW reports that the vast majority of citations to date have been for illegal take of waterfowl that may result in a fine of $100 to $1,000 per violation, depending on the case and court. Since 2021, the law enforcement division of CDFW's Office of Spill Prevention and Response (OSPR) has filed four cases related to oil spills under FGC Section 2000 and Section 3513. In a criminal case related to the 2021 Pipeline P00547 oil spill in Southern California, the Attorney General's Office recovered a $10,000 penalty under FGC Section 3513. The money was split between OSPR's Fish and Wildlife Pollution Account and Orange County's fish and wildlife propagation fund.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 10-3-0

YES: Papan, Alvarez, Ávila Farías, Bains, Bennett, Boerner, Caloza, Hart, Celeste Rodriguez, Rogers

NO: Jeff Gonzalez, Macedo, Tangipa

ASM APPROPRIATIONS: 10-4-1

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Solache

NO: Sanchez, Dixon, Hadwick, Ta

ABS, ABST OR NV: Pellerin

UPDATED

VERSION: March 26, 2025

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0000236

Date of Hearing: April 9, 2025

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 454

Author:(Kalra) – As Amended Ver:March 26, 2025

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill reinstitutes and updates a recently expired prohibition on the taking or possession of any migratory bird as designated in the federal Migratory Bird Treaty Act (MBTA) before January 1, 2025, any additional migratory nongame birds that may be designated in the federal MBTA after that date, or any part of those migratory nongame birds, except as provided.

FISCAL EFFECT:

To the extent that California Department of Fish and Wildlife’s (CDFW) law enforcement division issues more citations under Fish and Game Code section (FGC §) 3513 as a result of the restored protections under this bill, this bill may result in increased enforcement costs and a possible increase in penalty revenue for the department. However, these costs are speculative and difficult to quantify. CDFW contends any costs associated with this bill are minor and absorbable.

CDFW reports that the vast majority of citations to date have been for illegal take of waterfowl that may result in a fine of $100 to $1,000 per violation, depending on the case and court. Since 2021, the law enforcement division of CDFW’s Office of Spill Prevention and Response (OSPR) has filed four cases related to oil spills under FGC § 2000 and § 3513. In a criminal case related to the 2021 Pipeline P00547 oil spill in Southern California, the Attorney General’s Office recovered a $10,000 penalty under FGC § 3513. The money was split between OSPR’s Fish and Wildlife Pollution Account and Orange County’s fish and wildlife propagation fund.

COMMENTS:

1) Purpose. According to the author:

In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. [This bill] will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come.

2) Background. The federal MBTA was enacted in 1916 for the protection of migratory birds. The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale any migratory bird, or the parts, nests, or eggs of such a bird, except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on July 31, 2023, the MBTA includes 1,106 species of birds.

Section 3513 of the Fish and Game Code was originally enacted in 1957 to protect migratory birds in California. The original text of Section 3513 prohibited take of any nongame birds that appear on the list of protected birds adopted as part of the federal MBTA, subject to exceptions set forth in federal rules and regulations. According to information provided by CDFW, prior to 2019, the United States Fish and Wildlife Service (USFWS) consistently interpreted the MBTA to prohibit both intentional and incidental take of birds listed under that federal act. In 2017, the federal Solicitor’s Office, which serves as legal counsel to USFWS, issued an opinion confirming that longstanding position (Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017)). In December 2017, the Solicitor’s Office under President Trump issued a new opinion reversing course and asserting that the MBTA prohibits only intentional take (Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (Dec. 22, 2017) (Jorjani M-Opinion).

By removing the MBTA’s prohibition on incidental take, the Jorjani M-Opinion significantly narrowed the protections afforded to migratory birds by the MBTA and, by extension, by Section 3513. Incidental take of MBTA-listed birds by otherwise lawful projects (such as wind turbines, oil production, and electrical transmission lines) is estimated to result in the deaths of tens of millions of birds annually nationwide. While some of these birds are protected by other California statutes, hundreds of other birds are not and receive their primary protection from Section 3513. The Jorjani M-Opinion significantly increased the lethal take of birds allowed under the MBTA.

In response to the actions of the first Trump administration, California passed the California Migratory Bird Protection Act via AB 454 (Kalra), Chapter 349, Statutes of 2019. The revised version of Section 3513 adopted in 2019 reinforced the prohibition on incidental take of birds under that section by excluding the Jorjani M-Opinion and any other rules or regulations adopted by the first Trump administration from the exceptions to take in Section 3513. This has allowed CDFW to use Section 3513 as a charging statute in civil and criminal actions and has allowed CDFW to continue to use Section 3513 proactively to prevent unlawful take by discussing this important prohibition on take when issuing California Environmental Quality Act (CEQA) comment letters on pending projects and in discussions with local governments and permittees.

This bill updates and indefinitely extends the provisions of the 2019 legislation – which have since sunset – and permanently enshrines protections for migratory birds in state law. The author and supporters of the bill argue this bill is necessary because the Trump administration is likely to once again roll back protections under the MBTA and severely weaken California’s ability to protect and manage migratory birds within its borders.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: March 25, 2025

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Diane Papan, Chair

ABPCA Bill Id:AB 454 (

Author:Kalra) – As Introduced Ver:February 6, 2025

SUBJECT: Migratory birds: California Migratory Bird Protection Act

SUMMARY: Reinstitutes the prohibition of take or possession of any migratory nongame bird, or any part of any migratory nongame bird, as designated in January 1, 2017 in the federal Migratory Bird Treaty Act (MBTA). Specifically, this bill:

1. Makes it unlawful to take or possess:
   1. Any migratory nongame bird, or any part of a migratory nongame bird, as designated before January 1, 2017 in the federal MBTA; or
   2. Any additional migratory nongame bird, or any part of a migratory nongame bird, which may be designated after January 1, 2017 in the federal MBTA.
2. Allows take or possession as provided by the rules and regulations adopted by the U.S. Secretary of the Interior before January 1, 2017 under the MBTA or subsequent rules and regulations, unless those subsequent rules and regulations are inconsistent with the Fish and Game Code (FGC).
3. States that no reimbursement is required under this law.

EXISTING LAW:

1. Provides for protection of migratory birds, under the federal MBTA, as specified. The MBTA authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs [United States Code (U.S.C.) Title 16 § 703–712].
2. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the MBTA, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act (FGC § 3513).
3. Allows the Fish and Game Commission (the Commission) to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA (FGC § 355).
4. Defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds (FGC § 3800).
5. States that it is unlawful to take any nongame bird except as provided in the FGC or in accordance with regulations of the Commission or, when relating to mining operations, a mitigation plan approved by the Department of Fish and Wildlife (DFW) (FGC § 3800).
6. Makes it unlawful to take a bird, mammal, fish, reptile, or amphibian, expect as provided in the FGC and its regulation (FGC § 2000).
7. Defines “take” as hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill (FGC § 86).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. This bill makes permanent the California Migratory Bird Protection Act. According to the author, “California is home to a rich and critical diversity of migratory birds, many of which fulfill important ecological, cultural, and economic functions. In 2019, the California Migratory Bird Protection Act was enacted to continue enforcing effective migratory bird protections in the face of potential federal rollbacks. Unfortunately, the bill has since been sunset. Without it, the people of California could lose access to the hundreds of species of migratory birds that bring biodiversity to residential areas and urban centers and generate millions of dollars for the bird-watching industry. [This bill] will make the California Migratory Bird Protection Act permanent, ensuring that California will continue to preserve important migratory bird populations for generations to come.”
2. Background. Birds are considered great indicators of environmental health and ecosystem integrity. In North America, research indicates a 29% net loss of birds compared to their 1970 abundance.^[1] There is an estimated net loss of 2.5 billion individuals among the 419 native migratory species analyzed. Habitat loss, climate change, unregulated harvest, and other forms of human-caused mortality contribute to these loses.

According to 2017 U.S. Fish and Wildlife Service (USFWS) data, the top human-related threats to birds in the United States are (an estimate of birds per year):

• Cats: 2.4 billion;

• Collisions with building glass: 599 million birds;

• Collisions with vehicles: 214.5 million birds;

• Poisons: 72 million birds;

• Collisions with electrical lines: 25.5 million birds;

• Collisions with communications towers: 6.6 million birds;

• Electrocutions: 5.6 million birds;

• Oil pits: 750,000 birds; and

• Collisions with land-based wind turbines: 234,000 birds.

Other forms of alternative energy, such as solar farms and offshore wind, also kill migratory birds, but reliable numbers are not available.

Examples of best practices currently used by industry to prevent the take of migratory nongame birds include considerations for site location, construction outside of known breeding seasons, burial of power lines, use of high visibility marking devices, and minimizing the amount of lighting at the site.

Migratory Bird Treaty Act. The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on July 31, 2023, the MBTA includes 1,106 species of birds. According to the National Audubon Society, the MBTA is credited with preventing the extinction of the Snowy Egret, Wood Duck, and Sandhill Crane.

Some exceptions to the act, including the eagle feather law, are enacted in federal regulations. USFWS issues permits for activities otherwise prohibited under the act, including permits for taxidermy, falconry, propagation, scientific and educational use, and depredation (e.g., the killing of geese near an airport when they pose a danger to aircraft).

FGC § 3513 codifies the MBTA in state law. This section of code currently states: It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.), or any part of a migratory nongame bird described in this section, except as provided by rules and regulations adopted by the United States Secretary of the Interior under that federal act. This section became operative on January 20, 2025. This bill proposes to restore this section of the FGC to the language that became inoperative on January 20, 2025.

This bill allows the take or possession of migratory birds in accordance with the MBTA as implemented before January 1, 2017, or after that date as long as those rules and regulations are in accordance with the FGC. Current law (FGC § 355) allows the Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.

What is “Take”? Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming. Incidental take describes the take of an animal that results from, but is not the purpose of, an activity.

Why January 1, 2017? The U.S. Department of the Interior (DOI) Office of the Solicitor has issued two legal opinions involving the interpretation of the MBTA. On January 10, 2017, opinion M-37041 stated that the prohibition on taking and killing migratory birds under the MBTA applies broadly to any activity, by any means, and in any manner. Therefore, those prohibitions can and do apply to direct incidental take. This opinion was suspended and withdrawn on February 6, 2017.

On December 22, 2017, opinion M-37050 concluded that based on the text, history, and purpose of the MBTA, the prohibition on take under the MBTA applies “only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing.” According to the opinion, while the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. No permit scheme is generally available to permit incidental take, so most potential violators have no mechanism to ensure that their actions comply with the law. Because of opinion M-37050, incidental take was no longer prohibited under the MBTA.

Because of this opinion, the USFWS told industry and conservation groups that they were no longer able to enforce on incidences of incidental take. Specifically, this meant that DOI would be unable to pursue penalties for harm caused by oil spills or activities that caused accidental harm under the MBTA (note: some federal agencies collaborate through the Natural Resource Damage Assessment to hold entities accountable for environmental harms; however, this program is not specific to birds). Incidental take has rarely been prosecuted under the MBTA, but notable exceptions include charges against three oil companies with the taking of migratory birds that were found in and around their oil reserve pits [United States v Brigham Oil & Gas L.P. U.S. District Court of North Dakota, Case 4:11-po-00005-DLH (2012)]. The 2010 Deepwater Horizon oil spill resulted in BP being fined $100 million under the MBTA for the deaths of an estimated one million birds.

In May 2018, several conservation groups filed a lawsuit against DOI to challenge the Trump Administration’s interpretation of the MBTA [National Audubon Society, et al. vs. U.S. Dept. of the Interior, et al., U.S. Dist. Court (SDNY), Case No. 1:18-cv-04601]. In September 2018, the state of California joined seven other states in filing a separate lawsuit in the Southern District of New York to challenge the Trump Administration’s MBTA interpretation and actions. The suit asserts that the Administration’s revised opinion and planned pullback of the MBTA is “arbitrary, capricious, an abuse of discretion and in violation of the law” [see State of New York, et al. vs. U.S. Dept. of the Interior, et al., U.S. Dist. Court (SDNY), Case No. 1:18-cv-08084].

These lawsuits were joined and on August 2020 the U.S. District Judge Valerie Caproni found in favor of the plaintiffs, thus restoring the interpretation that the MBTA includes incidental take [Natural Resources Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (2020)]. In the opening line of the ruling, Judge Caproni referenced Harper Lee’s “To Kill a Mockingbird” stating, “It is not only a sin to kill a mocking bird, it is also a crime.” Judge Caproni granted a motion to vacate DOI’s Solicitor Opinion M-37050, which was permanently withdrawn on March 8, 2021 (opinion M-37065).

The first 100 days. The first 100 days of this federal administration have included numerous efforts to undo actions of the previous administration. This includes a memorandum on February 28, 2025 requiring all M-opinions (opinions M-37065 through M-37084) from the previous administration to be placed under a “Suspension Review.”^[2] This includes the opinion that addresses incidental take in the MBTA, as noted above. While these M-opinions are reviewed, units of the DOI are instructed to not rely on those opinions “as authoritative and binding without first consulting with the Office of the Solicitor for guidance.”

CDFW enforcement. Although CDFW does not cite under the federal MBTA, they do cite under regulation or from FGC § 2000 and § 3513. CDFW reports that the vast majority of these are for illegal take of waterfowl that may result in an estimate of $100–$1,000 per violation, depending on the case and court. Since 2021, the Law Enforcement Division of CDFW’s Office of Spill Prevention and Response has filed four cases related to oil spills under FGC § 2000 and § 3513.

1. Proposed committee amendments. The federal list of birds protected under the federal MBTA can be found under the Code of Federal Regulations Title 50 Part 10.13. This list was updated in 2023 to both add and remove species and the change names to conform to accepted use by the scientific community. To reflect this revision, the Committee may wish the author to accept the following amendment:

Amendment 1– Amend FGC § 3513:

It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.) before January 1, 2017, 2025, any additional migratory nongame bird that may be designated in that federal act after that date, or any part of a migratory nongame bird described in this section, except as provided by rules and regulations adopted by the United States Secretary of the Interior under that federal act before January 1, 2017, 2025, or subsequent rules or regulations adopted pursuant to that federal act, unless those rules or regulations are inconsistent with this code.

1. Arguments in support. A coalition of environmental organizations write in support of this bill, which they claim is important due to the decline of avian populations and rollbacks of protections at the federal level. “[This bill] would ensure that existing California law will continue to protect native and migratory birds regardless of actions taken by the federal government to weaken oversight and protection for birds. Additionally, this bill would allow California to set a higher bar than protections offered by federal law.”
2. Related legislation. AB 454 (Kalra), Chpater 349, Statutes 2019, was substantially similar to this bill and makes it unlawful to take or possess any migratory nongame bird as designated in the MBTA before January 1, 2017, any additional migratory nongame bird designated after that data, or any part of those birds; except as provided by rules and regulations adopted by the U.S. Secretary of the Interior under the federal act before January 1, 2017, or subsequent rules or regulations adopted pursuant to the federal act, unless those rules or regulations are inconsistent with the Fish and Game Code.

AB 2627 (Kalra) of 2018 would have permitted an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity self-certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. The bill passed this committee 12 ayes to 4 noes, with 1 not voting. AB 2627 was held in Senate Appropriations.

Chapter 1972, Statutes of 1957, codified the MBTA in state law.

REGISTERED SUPPORT / OPPOSITION:

Support

Audubon California (Sponsor)
Alianza Coachella Valley
American River Conservancy
California Institute for Biodiversity
California Native Plant Society, Alta Peak Chapter
Center for Biological Diversity
Defenders of Wildlife
Endangered Habitats League
Environmental Protection Information Center
Friends of The Inyo
Karmic Action Redistribution Management Agency
Natural Resources Defense Council
Planning and Conservation League
Sequoia Riverlands Trust
Sierra Club of California
Sierra State Parks Foundation

Opposition

None on file

Analysis Prepared by: Stephanie Mitchell / W., P., & W. / (916) 319-2096

1. Kenneth V. Rosenberg et al., Decline of the North American avifauna. Science 366, 120–124 (2019). DOI:10.1126/science.aaw1313 ↑

2. Solicitor’s Opinions. https://www.doi.gov/solicitor/opinions ↑