1. www.dodpif.org Richard Fischer, PhD https://www.denix.osd.mil/dodpif
IOC Brazil - Aug 2010
Richard Fischer, PhD
U.S. Army Engineer R&D Center
DoD PIF National Coordinator

2. DoD Partners in Flight Mission Statement
IOC Brazil - Aug 2010
To sustain and enhance the military testing, training, and safety mission through proactive, habitat-based avian management strategies that maintain healthy landscapes and training lands.
This mission support is conducted while working simultaneously to develop cooperative programs and projects with PIF partner organizations ensuring a focused and coordinated approach for the conservation of resident and migratory birds and their habitats.

3. DoD Partners in Flight – Leadership
IOC Brazil - Aug 2010
DoD Partners in Flight – Leadership
National Coordinator
Rich Fischer
DoD Conservation/Natural Resources Program
Ryan Orndorff, Program Director, Natural Resource Program, ASD(EI&E)/ESOH
Alison Dalsimer, Program Manager, DoD Natural Resources Program, OUSD
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

4. DoD Bird Conservation Priorities
IOC Brazil - Aug 2010
DoD Bird Conservation Priorities
Mission Support
Partnerships/Cooperation
Communication of Guidance and Policies
Habitat and Species Management
Bird/Animal Aircraft Strike Hazard (BASH)
Monitoring
Research
Information and Education
Stewardship
DoD PIF Strategic Plan – 2009 revision
Mission Support
Partnerships/Cooperation
Communication of Guidance and Policies
Habitat and Species Management
Bird/animal Aircraft Strike Hazard (BASH)
Monitoring
Research
Information and Education
Stewardship

5. DoD PIF – Steering Committee
IOC Brazil - Aug 2010
DoD PIF – Steering Committee
As part of DoD’s Natural Resources Program, DoD has established an ad hoc network of subject matter experts who provide technical information in support of migratory bird management on DoD lands
The use of Air-to-Ground ordnance, tracked vehicles, ship-to-shore ordnance, and amphibious assault maneuvers tend to take a toll on the environment.

6. DoD PIF – Steering Committee
IOC Brazil - Aug 2010
DoD PIF – Steering Committee
Northeast Region
Jeff Bolsinger (NY, VT)
John Joyce (NJ, DE, MA, CT, RI, ME, NH)
Southeast Region
Kyle Rambo (MD, WV, KY)
Michael Wright (VA)
Alan Schultz (NC, SC, TN)
Greg Fleming (FL)
Emily Gaydos (GA, AL, MS)
Jacky Ferrer-Perez (e. TX, AR, LA)
Midwest Region
Mike Ravesi (MN, IA, MI, IL, MO)
Jeff Keating (KS, NE, OK, SD, ND)
Dave McNaughton (PA, OH, IN)
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

7. DoD PIF – Steering Committee
IOC Brazil - Aug 2010
DoD PIF – Steering Committee
Western Region
Cindi Kunz (WA, OR)
Elin Pierce (WY, MT)
Tiffany Shepherd (CA)
Kevin Warner (NV, ID)
Bob Schallmann (AZ)
Robbie Knight (UT)
Frans Juola (HI)
Liz Neipert (AK)
Trish Cutler (NM, w. TX, CO)
Diane Walsh (CA USMC)
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

8. DoD PIF – Steering Committee
IOC Brazil - Aug 2010
DoD PIF – Steering Committee
DoD Emeritus Reps
Joe Hautzenroder (Navy)
Tim Burr (Navy)
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

9. DoD PIF – Steering Committee
IOC Brazil - Aug 2010
DoD PIF – Steering Committee
HQ U.S. Marine Corps
Jacque Rice
HQ U.S. Navy
Tammy Conkle
HQ U.S. Army
Steve Sekscienski
HQ U.S. Air Force
Jason Gibbons
Army National Guard
Jay Rubinoff
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

10. DoD PIF – Working Groups
IOC Brazil - Aug 2010
DoD PIF – Working Groups
Research and Monitoring
Rich Fischer
BASH
Paul Block
Education and Outreach
Bob Schallmann
Energy (Wind, Solar)
Trish Cutler, Diane Walsh
NEPA
Greg Fleming
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

11. DoD PIF – Working Groups
IOC Brazil - Aug 2010
DoD PIF – Working Groups
DoD Mission-sensitive Species
Greg Fleming
Seabirds/West Coast
Bob Schallmann
INRMP Updates
Rich Fischer
Structurally, the DoD Partners in Flight program follows the national PIF initiative.
We have four regional working groups, with representatives from various installations making sure we have contact with each installation in every region.
We have a number of technical working groups to address national and DoD-specific bird conservation priorities.
The DoD PIF Representatives meeting annually for a planning workshop to map DoD’s bird conservation strategy for the coming year.
We are a very close bunch of fellows at times, although I have to admit I don’t always understand this behavior.

12. DoD PIF – 2017 Activities Annual meeting at Malmstrom AFB, Montana
Met with the installation BASH team to provide suggestions for decreasing risks on the airfield.
Conducted a base-wide avian inventory to supplement information and data for the installation INRMP
Finalizing the update to DoD Mission-sensitive Species List
Helps installations prioritize monitoring programs
Assists incorporating birds in NEPA environmental reviews
Guides the development of conservation actions to support EO and the Migratory Bird (“Readiness”) Rule. 12

13. DoD Mission-Sensitive Species
Those species (and their habitats) having the highest potential to impact the military mission should they become Federally listed. 13

15. DoD Mission-Sensitive Species
Golden-winged Warbler
Greater Sage-grouse
Greater Prairie Chicken
Mountain Plover
Burrowing Owl
Southeastern American Kestrel
Bendire’s Thrasher
Northern Bobwhite
Cerulean Warbler
Bachman’s Sparrow
Henslow’s Sparrow
Least Tern (Atlantic Coast)
Tricolored Blackbird 15

16. What is the Utility of this List?
Helps to prioritize monitoring programs
Link Priority Species status to potential future mission impacts
Provide support for National Environmental Policy Act (NEPA) documents
Guide the development of BMPs to support actions associated with:
the MOU developed under Executive Order (Responsibilities of Federal Agencies To Protect Migratory Birds )
Final Migratory Bird (“Readiness”) Rule 16

17. Migratory Bird Conservation Training For Federal Partners
Training Addresses
Migratory Bird Treaty Act
Incidental Take
DoD Migratory Bird “Readiness Rule”
Improving INRMP’s for Bird Conservation and Mission Support
Jacksonville, FL (April 2015)
San Diego, CA (August 2015)
Honolulu, HI (December 2015)
Norfolk, VA (April 2016)
Seattle, WA (August 2016)

18. DoD PIF Resources Web Site – https://www.denix.osd.mil/dodpif
IOC Brazil - Aug 2010
DoD PIF Resources
Web Site –
Webinar Series - facilitate presentations
Listserve (DODPIF-L)
Photo Library
Shutterfly account coordinated by:
Paul Block, NAVFAC LANT, Tim Burr
Birds of North America Online (BNA)
Education/Outreach Materials

19. Overview of MBTA Protects migratory birds
Basis is multi-national treaties
Many birds protected
The MBTA was initially passed in 1918 and was designed for the protection of game birds, but includes all other migratory birds.
MBTA regulations are in…
50 CFR &
16 USC 703

20. Migratory Bird Treaties
4 Bilateral Conventions
Canada (Great Britain) – 1916
Mexico – 1936
Japan – 1972
USSR (Russia)

21. MBTA Violations? Great Horned Owl Vehicle Collision
Removing Cliff Swallow nests from buildings
Carolina Wren nest in tank treads
Wintering Mountain Plovers on active runway
Bachman’s Sparrow mortality from training fires
Bachman’s Sparrow mortality from prescribed fires
Collecting Great-Blue Heron feathers
Collecting inactive songbird nests
Test Your Knowledge of MBTA:
You are driving to meet with Range Control early one morning and a Great Horned Owl flies into the grill of your truck. It’s dies on impact. Are you in violation of MBTA?
Base Commander’s Office calls to say that he is tired of all the swallow feces on the front steps of his building. A colony of Cliff Swallows is nesting in the eaves of the building. They are defecating on persons entering and exiting the building. What can you do?
A Bewick’s Wren is nesting in the treads of a Bradley Tank needed for training that day. What can you do?
A flock of Mountain Plovers have taken up residence at the end of a runway during winter. They pose a BASH risk to Airmen.
Fires caused by munitions in an impact area are leading to mortality of grassland bird eggs and young. Your biological technicians have noticed this and have asked you to take action with the trainers.
Your summer field crew finds a dead Great Blue Heron and they each collect a small bag of feathers to take home. Is this a MBTA violation? What if they have a collection of songbird nests from the non-breeding season?

22. MBTA Prohibitions
“. . . it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, or any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States (and Great Britain, Mexico, Japan and the Soviet Union.)”

23. MBTA currently protects 1,027 species
MBTA Protects Birds
50 CFR § 10.13
MBTA currently protects 1,027 species
Native Species that belong to families, groups, or species covered by one of the four Treaties
Native = occur or arrived by natural causes (no human assisted establishment)
Coverage is regardless of whether they are migratory or resident

24. The 10.13 List is Dynamic Current list protects 1,027 Species
Updated ~ Every 5 Years
Current list protects 1,027 Species
Includes Hawaii and US Territories
Birds are added or deleted due to changes in taxonomy or distribution
Next update is underway: 2018?

25. MBTA Allowable Actions
Habitat and Nests
MBTA does NOT protect habitat Only protects active nests, prohibits possession of nests

26. MBTA Allowable Actions
Habitat Modification to discourage bird nesting
Nest removal during non-breeding season
Devices to scare birds

27. Take Definition Intentional vs Incidental Intentional Take
Take that results from the purpose of the action
Generally, permits are available for these actions
Incidental Take
Take that directly and foreseeably results from, but is not the purpose of an activity

28. MBTA Issues – EO13186
E.O , Responsibilities of Federal Agencies to Protect Migratory Birds, 10 January 2001
Develop MOU with USFWS for bird conservation
Establish protocols for implementation of MOU
Dispute resolution procedures for each agency
Subject to availability of appropriations, establish bird conservation programs
MOU with USFWS is completed with both the DoD and U.S. Coast Guard

30. Migratory Bird Treaty Act
DoD Readiness Rule
…authorizes such take, with limitations, that result from military readiness activities of the Armed Forces 30

31. Migratory Bird “Readiness” Rule
Authorizes incidental take of migratory birds for military readiness activities provided the DoD action proponent confers with USFWS to develop and implement appropriate conservation measures to minimize or mitigate negative effects of the proposed action if the action will have a significant negative effect on the sustainability of a population of a migratory bird species. 31

32. Migratory Bird “Readiness” Rule
The Rule relies on the Armed Forces utilizing the NEPA process to determine whether any ongoing or proposed military readiness activity is likely to result in a significant adverse effect on the population of a migratory bird species.
If the Armed Forces identify a significant adverse effect on migratory birds during the preparation of a NEPA analysis, this Rule requires the Armed Forces to confer and cooperate with the Service to develop and implement appropriate “conservation measures” to minimize or mitigate any such significant adverse effects.
Significant adverse effect on a
population, as used in § 21.15, means an
effect that could, within a reasonable
period of time, diminish the capacity of
a population of migratory bird species to
sustain itself at a biologically viable
level. A population is ‘‘biologically
viable’’ when its ability to maintain its
genetic diversity, to reproduce, and to
function effectively in its native
ecosystem is not significantly harmed.
This effect may be characterized by
increased risk to the population from
actions that cause direct mortality or a
reduction in fecundity. Assessment of
impacts should take into account yearly
variations and migratory movements of
the impacted species. Due to the
significant variability in potential
military readiness activities and the
species that may be impacted,
determinations of significant
measurable decline will be made on a
case-by-case basis.

33. Incidental Take 10 Jan 2017 Obama Administration
“Based on the analysis above, I conclude that the MBTA's prohibitions on taking and killing migratory birds apply broadly to any activity, subject to the limits of proximate causation, and are not limited to certain factual contexts. Therefore, those prohibitions can and do apply to direct incidental take.”
Hilary C. Tompkins, DoI Solicitor

34. m Opinion 37050
Purpose: Determine whether Incidental Take is covered under MBTA

35. Incidental Take 22 Dec 2017 Trump Administration
Purpose: Determine whether Incidental Take is covered under MBTA
“we conclude that the MBTA's prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control..”
Daniel Jorjani, DoI Solicitor

36. Solicitor’s Opinion 37050
It’s the intent that is important (What is your intent?)
Direct and intentional take (prohibited without permit)
Incidental/Unintentional take (not prohibited)
Any activity that kills birds during an otherwise lawful activity is not enforceable under MBTA (e.g., window collisions, wind turbines, tree clearing)
Requirement to avoid Incidental Take is gone – no longer required to avoid or minimize

37. Solicitor’s Opinion 37050 USFWS Guidance?
USFWS is working on releasing policy information, but are awaiting clarification on certain areas from DoI
We can expect USFWS to release a series of scenarios to show what is and isn’t covered
Nesting swallows on building
Remove active nests due to nuisance (intentional)
Demo building (incidental)
Cutting tree down in active rookery
To reduce feces in parking lot (intentional)
To clear area for construction (incidental)

38. Solicitor’s Opinion 37050 USFWS Guidance?
Awaiting clarification on gray areas
Nest destruction memo
Implementing voluntary BMPs (good Samaritan provision for birds in imminent danger but not covered under MBTA)
Nest relocation permits
Osprey – likely
Songbirds – not likely

39. Solicitor’s Opinion 37050 NEPA
New Opinion does not affect NEPA
Does not change the way we consider birds in the NEPA process
We must continue to assess impacts of projects on the human environment, and birds are part of that
NEPA analysis could still be challenged if you are not avoiding and/or minimizing impacts on the environment, including birds

40. Solicitor’s Opinion 37050 Executive Order 13186
Executive Order is still in place and effective
All MOU’s under EO13186 are still valid and effective

41. Solicitor’s Opinion 37050 DoD Migratory Bird (Readiness) Rule
DoD Readiness Rule is statutory – only Congress can remove the Rule, so still in effect
One could argue the Rule places additional burdens on DoD to assess Incidental Take for readiness activities
Regardless of take during readiness and non-readiness activities, any IT is not prohibited
However, Rule still valid and we should abide until we receive further guidance from USFWS
Must continue to do NEPA for actions, and assess impacts on migratory birds

42. Incidental Take 6 Feb 2018 Deputy Asst. Secretary of Defense Memo
“…until further clarification is provided, the Military Departments should continue to follow DoD guidance designed to minimize- to the extent practicable and without diminishing the effectiveness of military readiness activities- the incidental take of migratory birds.”
Maureen Sullivan, DASD (ESOH)

43. DRAFT Incidental Take Draft 2018 Memo Director of Civil Works
“In light of the uncertainty regarding the correct interpretation of how the MBTA applies to incidental take and in light of the other authorities and policies that encourage or require the conservation of migratory birds, Corps offices should continue to work to minimize the incidental take of migratory birds to the extent practicable until further clarification is provided.”
DRAFT