Under federal law, the legal definition of a migratory bird is taxonomic, not behavioral: a migratory bird is any bird belonging to a species listed at 50 CFR 10.13, whether or not that individual bird ever migrates.1eCFR. 50 CFR 10.12 – Definitions The definition comes from the Migratory Bird Treaty Act of 1918 and covers more than 1,000 native species. Once a species is on the list, every individual of that species is federally protected at every life stage, and it is illegal to kill, capture, sell, or possess the bird, its feathers, its nest, or its eggs without authorization.
How Federal Law Defines a Migratory Bird
The formal definition sits at 50 CFR 10.12. A migratory bird is any bird belonging to a species on the protected list at 50 CFR 10.13, including mutations and hybrids of listed species.1eCFR. 50 CFR 10.12 – Definitions The definition reaches beyond the living animal. It covers any part, nest, egg, or manufactured product made from a protected bird. A taxidermied songbird, a jar of feathers, and a decorative egg all fall inside the legal meaning.
What confuses people is the word “migratory.” A bird qualifies because its species belongs to a taxonomic family named in the treaties behind the law. Whether the specific bird in your yard ever flies south is irrelevant. A robin that has never left your block carries the same federal protection as a goose crossing into Canada.
Which Species Are on the Federal List
The registry at 50 CFR 10.13 lists over 1,000 species, arranged both alphabetically and taxonomically, with common and scientific names for each entry.2eCFR. 50 CFR 10.13 – List of Birds Protected by the Migratory Bird Treaty Act The scope is wider than most people expect.
Large raptors like the Bald Eagle and Golden Eagle are on the list. So are common backyard birds: the American Robin, the Northern Cardinal, woodpeckers, warblers, and sparrows. Birds often viewed as nuisances are protected too, including the American Crow, various gulls, and Canada Geese.
Protection attaches at every life stage. An unhatched egg, a juvenile, and a fully grown adult all carry identical legal status. That breadth is deliberate. It closes off any loophole that would let someone collect eggs or take young birds before they can fly.
Which Species Are Excluded
The Migratory Bird Treaty Reform Act of 2004 drew a sharp line. Only species native to the United States or its territories qualify, and a native species must be one present through natural biological or ecological processes.3U.S. Fish & Wildlife Service. Migratory Bird Treaty Act of 1918 Any bird introduced by human activity, deliberately or accidentally, is out.
The most familiar excluded birds are ones many people see daily. The House Sparrow, European Starling, and Rock Pigeon all appear on the exclusion registry the Fish and Wildlife Service published in 2020.4Federal Register. List of Bird Species To Which the Migratory Bird Treaty Act Does Not Apply The House Sparrow and European Starling go further still: their entire biological families (Passeridae and Sturnidae) are not referenced in the treaties, so no member of those families qualifies regardless of origin.
The distinction has real consequences. Removing a House Sparrow nest from your porch needs no federal permit. Removing a House Finch nest from the same spot can be a federal violation, because House Finches are native and listed under 50 CFR 10.13.
What the Classification Prohibits
Once a bird qualifies as migratory, 16 U.S.C. § 703 makes it illegal to pursue, hunt, take, capture, or kill it without authorization.5Office of the Law Revision Counsel. United States Code Title 16 – 703 Taking, Killing, or Possessing Migratory Birds Unlawful The prohibition reaches well past killing. Possessing, selling, bartering, purchasing, shipping, importing, or exporting a protected bird is equally illegal. So is doing any of those things with a part, nest, egg, or manufactured product.
Picking up a hawk feather on a trail and putting it in your pocket is technically a federal violation. Keeping an abandoned nest you found on the ground can be one too. The statute does not require intent for misdemeanor liability, so “I didn’t know” is not a defense.
Inactive Nests and When Removal Is Legal
One important exception covers inactive nests. Under the Fish and Wildlife Service’s permit memorandum, you can destroy an inactive nest without a permit, provided you do not keep the nest or anything in it.6U.S. Fish and Wildlife Service. Migratory Bird Permit Memorandum MBPM-2-02 An inactive nest is one that contains no viable eggs or dependent nestlings. Nests still being built before any egg is laid count as inactive. So do nests where the young have already fledged.
The catch is real. If destroying a nest kills or injures a bird, egg, or nestling you didn’t notice, you are fully liable. The burden of confirming a nest is truly inactive falls on you. Nests of bald eagles, golden eagles, or Endangered Species Act–listed species carry additional protections that may require a permit even when inactive.
Relocating an inactive nest is a separate matter. Moving one puts it in your possession during transport, which triggers the MBTA’s possession prohibition and requires authorization.
Penalties for a Violation
The penalty structure at 16 U.S.C. § 707 has two tiers. A standard violation is a misdemeanor punishable by a fine of up to $15,000, up to six months in jail, or both.7Office of the Law Revision Counsel. United States Code Title 16 – 707 Violations and Penalties This is the charge that reaches most individuals, whether they shot a protected bird or simply kept a feather collection.
Knowingly taking a migratory bird with intent to sell, or actually selling one, is a felony. The MBTA itself sets that penalty at up to $2,000 and up to two years in prison. The general federal sentencing statute at 18 U.S.C. § 3571 allows courts to impose fines up to $250,000 on an individual felony conviction and up to $500,000 on an organization, unless the underlying statute exempts itself.8Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine The MBTA contains no such exemption, so a court could impose those higher fines in a commercial trafficking case. Courts may also order forfeiture of equipment or vehicles used in the offense.
Permits and Legal Exceptions
The MBTA is not an absolute ban. The statute opens with the phrase “unless and except as permitted by regulations,” and the Fish and Wildlife Service administers more than 20 permit types.9U.S. Fish & Wildlife Service. Permit Types and Forms The main categories cover:
- Scientific collecting for research specimens.
- Educational possession by schools, museums, and nature centers.
- Rehabilitation of injured migratory birds by licensed rehabilitators.
- Taxidermy work on protected specimens.
- Depredation take by landowners dealing with birds causing damage to property or crops.
- Falconry, with tiered possession limits under 50 CFR 21.82: one raptor for an Apprentice, up to three for a General, and up to five wild-caught raptors for a Master falconer.10eCFR. 50 CFR 21.82 – Falconry Standards and Falconry Permitting
Regulated hunting sits alongside these permits. Protected status does not mean a species can never be hunted. Under 16 U.S.C. § 704, the Secretary of the Interior sets annual seasons and bag limits for migratory game birds like ducks, geese, doves, and coots, and states then select specific dates within the federal framework.
Some depredation situations are handled by standing orders that require no individual permit. Blackbirds, cowbirds, crows, grackles, and magpies can be lethally controlled without a federal permit when they are causing serious damage to crops, livestock feed, or structures, or posing a health hazard, provided nonlethal methods are attempted first each year.11eCFR. 50 CFR Part 21 Subpart D – Provisions for Depredating, Overabundant, or Otherwise Injurious Birds Resident Canada Goose nest and egg destruction is allowed for registered landowners and local governments. Every other species requires a formal depredation permit from the Regional Director.
Tribal Member Access to Eagle Feathers and Parts
Enrolled members of federally recognized tribes hold distinct rights. Under the 2012 interpretation of the Morton Policy, tribal members do not need a permit to possess, wear, carry, or travel domestically with eagle feathers and other protected bird parts.12U.S. Fish & Wildlife Service. 3-200-15a Eagle Parts for Native American Religious Purposes They may pick up naturally molted or fallen feathers in the wild, provided they do not disturb living birds or active nests, and they may share feathers with other enrolled tribal members without any exchange of money.
For whole eagles or larger parts such as a pair of wings, a tail, or talons, tribal members can order from the National Eagle Repository at no cost by submitting a permit application. The repository distributes recovered eagle carcasses and parts for tribal religious and cultural ceremonies. Eligibility is limited to enrolled members of federally recognized tribes; Native Hawaiians and members of state-recognized-only tribes are not eligible under this program.