MBTA Depredation Orders: Eligible Birds, Methods, and Reporting

Federal depredation orders under the Migratory Bird Treaty Act let you control a short list of problem bird species without applying for an individual permit, provided your situation fits a specific triggering condition and you follow the rules attached. The MBTA depredation orders sit at 50 CFR Part 21 and function as pre-authorized, conditional exceptions to 16 U.S.C. 703, which otherwise makes it illegal to take or possess any migratory bird.¹ Getting the species, the trigger, the method, and the paperwork right is what keeps you on the lawful side of that statute.

Which Birds and Which Situations Qualify

The order most private citizens rely on is 50 CFR 21.150. It covers five groups of birds and no others:

Blackbirds: Brewer’s, red-winged, and yellow-headed
Cowbirds: bronzed, brown-headed, and shiny
Crows: American, fish, and northwestern
Grackles: boat-tailed, common, great-tailed, and Greater Antillean
Magpies: black-billed

A bird that looks similar or causes the same damage but isn’t on that list stays fully protected, and killing it without an individual depredation permit is a federal violation. Positive species identification before you act is the single most common point of legal exposure under this order.²

Separate standing and control orders cover resident Canada geese, double-crested cormorants, purple swamphens, Muscovy ducks, and a few other species. Each has its own triggering conditions, geographic limits, and reporting deadlines. The rules that apply to crows do not automatically apply to geese or cormorants.³

Presence alone doesn’t authorize control under 21.150. One of five conditions must be met first:

The birds are causing serious injury to agricultural or horticultural crops or livestock feed.
The birds are creating a health hazard or damaging property, such as concentrated droppings contaminating water supplies, creating slip hazards, or corroding structures.
Control occurs in a county where a federally listed endangered, threatened, or candidate species occurs, and is done to protect it.
Control occurs within designated critical habitat for a federally listed species.
Control is done to protect a species that a state or tribe recognizes as endangered, threatened, candidate, or of special concern, and occurs within that state or on tribal lands.

The difference between “serious injury” and ordinary nuisance matters. A few crows eating fallen fruit in a backyard probably doesn’t meet the threshold; a flock stripping a commercial blueberry field almost certainly does. If your situation doesn’t fit one of the five, you need an individual depredation permit from the U.S. Fish and Wildlife Service.²

You Have to Try Nonlethal Methods First

Each calendar year, you must attempt nonlethal control before resorting to lethal methods. The regulation names netting, flagging, trained raptors, propane cannons, and distress-call recordings as examples. Those aren’t exhaustive, but they set the bar: a genuine, documented effort, not a token gesture.²

The requirement resets every January 1. Even if you used lethal methods last November, you need to try nonlethal approaches again at the start of the new year before escalating. One narrow exception: federal, state, or tribal employees trapping brown-headed cowbirds to protect a recognized endangered or threatened species can skip the nonlethal step.⁴

Purely scaring or hazing migratory birds away, without capturing or harming them, generally requires no federal permit at all, as long as you’re not targeting eagles or federally listed threatened or endangered species.⁵

What You Can Use to Take the Birds

Once nonlethal efforts have failed, 21.150 permits shooting and trapping the listed species. Firearms must use nontoxic shot or nontoxic bullets of the types approved at 50 CFR 20.21(j). Lead ammunition is prohibited. Air rifles and air pistols are exempt from the nontoxic requirement, which makes them a common choice where conventional firearms would be a problem.²

Traps must be checked frequently enough that non-target species can be released unharmed. Chemicals and poisons are not authorized under this order unless they are registered pesticides or repellents used according to federal environmental safety standards.³

A federal standing order doesn’t override state or local law. If a municipal ordinance prohibits discharging a firearm, you can’t shoot depredating birds there regardless of federal authorization. You must also hold any state hunting license, trapping permit, or nuisance wildlife control certification your state requires. The order itself says you must comply with all state, tribal, and territorial laws.²

Nests and Eggs Are a Separate Question

The blackbird, crow, grackle, and magpie order does not authorize destruction of nests or eggs. It covers only the birds themselves. If nesting activity is the core problem, you need a separate individual depredation permit or a different applicable order.³

Resident Canada geese are handled under their own order at 50 CFR 21.162, which specifically authorizes destruction of nests and eggs in the lower 48 states and the District of Columbia. Two methods are approved: oiling eggs with 100 percent corn oil, which prevents development without removing the egg, and physically destroying nests and eggs, including removal and disposal.⁶

Before touching a goose nest, landowners, homeowners’ associations, and local governments must register online with the Fish and Wildlife Service through the agency’s eRCGR portal. Each employee or agent working on your behalf must also be individually registered. Skipping registration makes the whole activity illegal even though no traditional permit is involved. Registration is the mechanism that converts a broadly prohibited act into a lawful one.⁶

What Happens to the Carcasses

You cannot keep, eat, sell, or mount a bird taken under a depredation order. The Migratory Bird Treaty Act broadly prohibits selling, bartering, or purchasing migratory birds and their parts.¹ Legally killing a bird doesn’t mean you can do what you want with it afterward.

For blackbirds, cowbirds, crows, grackles, and magpies taken under 21.150, you have two disposal options. You may transfer carcasses to an authorized research or educational institution. If no institution wants them, you must burn or bury the remains at least one mile from the nesting area of any migratory bird species recognized as endangered or threatened by the federal government, a state, or a tribe.³

Other orders have different rules. Resident Canada geese taken at airports or agricultural facilities may be processed for human consumption and distributed free of charge to charitable organizations, donated to museums or scientific institutions, or buried or incinerated. Selling the meat is never permitted. Purple swamphens and Muscovy ducks may be donated to scientific institutions, buried, incinerated, or left in place if retrieval would be unsafe.³

Who Is Allowed to Act

The blackbird and crow order is broader than many people realize. The regulation refers to “any person, business, organization, or government official” acting under the order, meaning any of those parties may act, provided a qualifying condition exists.² A farmer can hire a pest control company, and that company operates under the same order rather than needing its own permit. Both the farmer and the company carry reporting obligations.

The Canada goose nest and egg order works differently. Only landowners, homeowners’ associations, and local governments may register, and they must individually register each employee or agent who will carry out activities on their behalf. An unregistered contractor acting on goose nests is operating illegally even if the landowner is properly registered.⁶

Reports and Records

Every person, business, or government official acting under the blackbird and crow order must file an annual report on FWS Form 3-2436. It’s due by January 31 for activities from the previous calendar year and must include the species taken, the number of birds, the method used, the month of take, the state and county, the purpose, and the disposition of carcasses.⁷

The Canada goose nest and egg order has a different deadline. Annual reports summarizing dates, numbers, and locations of nests and eggs taken are due by October 31, and the report must be submitted before you can re-register for the following year.⁶ Airport Canada goose activities have a December 31 deadline. Missing the deadline on any of these orders can block your ability to continue operating under it the following year.

Inspections and Access

If you’re operating under a depredation order, you must allow any federal, state, tribal, or territorial wildlife law enforcement officer unrestricted access to the premises at all reasonable times, including during actual operations, and promptly provide any information the officer requests about the operation. This is a regulatory condition of acting under the order, not a courtesy.⁸

Practically, your control logs and disposal records need to be organized and accessible on-site. An officer arriving mid-operation can ask to see records, inspect how carcasses were handled, verify nonlethal attempts, and confirm the species being targeted. Inability to produce those records during an inspection creates immediate legal risk.

Penalties if You Get It Wrong

Violating any provision of the MBTA, including the conditions attached to depredation orders, is a federal misdemeanor carrying a fine of up to $15,000, imprisonment of up to six months, or both.⁹ Knowingly taking a migratory bird with intent to sell it, or actually selling one, escalates to a felony punishable by up to $2,000 in fines and up to two years in prison.

The violations that arise under depredation orders are usually the misdemeanor kind: killing a non-target species, skipping the nonlethal-first step, failing to file an annual report, using lead shot, or keeping carcasses instead of disposing of them properly. The $15,000 maximum is per violation, and an enforcement officer who finds multiple infractions at once can treat each as separate. Three non-target kills over a season with no nonlethal documentation and no annual report on file is not one violation; it is several.⁹

1
Office of the Law Revision Counsel. 16 USC 703 – Taking, Killing, or Possessing Migratory Birds Unlawful
2
eCFR. 50 CFR 21.150 – Depredation Order for Blackbirds, Cowbirds, Crows, Grackles, and Magpies
3
eCFR. 50 CFR Part 21 Subpart D – Provisions for Depredating, Overabundant, or Otherwise Injurious Birds
4
GovInfo. 50 CFR 21.150 – Depredation Order for Blackbirds, Cowbirds, Crows, Grackles, and Magpies
5
U.S. Fish and Wildlife Service. Migratory Bird Depredation
6
eCFR. 50 CFR 21.162 – Depredation Order for Resident Canada Geese Nests and Eggs
7
U.S. Fish and Wildlife Service. FWS Form 3-2436 – Depredation and Control Orders
8
Federal Register. Agency Information Collection Activities – Depredation and Control Orders
9
Office of the Law Revision Counsel. 16 USC 707 – Violations and Penalties