Hybrids are exempt from the MBTA whether there is exotic blood involved or not. AFC's position in this case must be to respect the law as Congress wrote it in 2004. Of course this would be a battle to pursue with FWS, which we are not in a position to take on at the moment, but it is the law nonetheless. The Kerster case explains it. I am including a summary of this case in my book on wildlife law because it explains things so well. Here it is if you are interested in the details:
Hybrid Raptors Excluded from MBTA
Though not precedent setting, the FWS withdrew charges in the California case U.S. v Kerster, Mar. 25, 2008, after having read the brief written by Counsel Horn. The court provided:
The statute at issue in this case is 16 U.S.C. § 703, which prohibits the killing of native, migratory birds. … 16 U.S.C. § 703(b) limits the application of this statute, and states:
(1) In general. This Act applies only to migratory bird species that are native to the United States or its territories.
(2) Native to the United States defined.
(A) In general. Subject to subparagraph (B), in this subsection the term "native to the United States or its territories" means occurring in the United States or its territories as the result of natural biological or ecological processes.
(B) Treatment of introduced species. For purposes of paragraph (1), a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human assisted introduction shall not be considered native to the United States or its territories … (emphasis added)
Also relevant to this case are sections 10.12 and 10.13 of Title 50 of the Code of Federal Regulations. Section 10.12 purports to define “migratory bird” as any bird, “which is a mutation or a hybrid” of two native species. 50 C.F.R. 10.12. …
Prior to 2004, the Migratory Bird Treaty Act ("MBTA") contained no provision exempting non native birds from the terms of the Act. In 2001, the circuit court for the District of Columbia interpreted the MBTA as it existed at the time. Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001), concerned a plan by the state of Maryland to reduce the population of the mute swan. … A Maryland property owner … brought suit to oppose the plan. The Court held that the terms of the MBTA as it existed at the time were clear, and that the Act did protect mute swans. Although the Secretary of the Interior argued that mute swans were a non native species and therefore not protected by the Act, the Court found this argument unconvincing, stating that there was, “nothing in the statute, applicable treaties, or administrative record” supporting an exclusion for non native species.
In 2004, in response to Hill, Congress amended the MBTA, adding section (b) and explicitly excluding non native species from the protections of the Act. The amendment further defined the term "native" to mean, “occurring in the United States or its territories as the result of natural biological or ecological processes.” 16 U.S.C. § 703(b)(2)(A). Finally, the amended Act stated that, "a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human assisted introduction shall not be considered native...." Id. at 703(b)(2)(B) (emphasis supplied).
As a result of Congress' action, the D.C. Circuit found itself revisiting the plight of the mute swan. In Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006), the Court again analyzed a challenge to Maryland's swan reduction plan. However, because of the intervening Congressional action, the outcome was very different from that in Hill. The Secretary of the Interior argued that scientific and historical evidence indicated that the mute swan was not native to the United States. The Court agreed, and stated that the plain text of the amended Act, "clearly and unambiguously provide[s] that the Migratory Bird Treaty Act does not protect non native species such as the mute swan."
In this case, the bird at issue – a Gyrfalcon/Prairie falcon hybrid – is non native because it does not occur “as the result of natural biological or ecological processes,” but rather “solely as the result of intentional or unintentional human assisted introduction.” 16 U.S.C. § 703(b). … The hybrid is entirely the product of human controlled processes, specifically artificial insemination. ... Because the Gyrfalcon/Prairie falcon hybrid occurs solely as the result of intentional human acts, this hybrid falcon clearly falls within the 16 U.S.C. § 703(b) limitation to the MBTA.
To the extent that the definition of "migratory bird" in 50 CFR 10.12, 10.13 includes hybrids which do not occur “as the result of natural biological or ecological processes,” but rather “solely as the result of intentional or unintentional human assisted introduction,” this regulation is in conflict with the subsequently enacted amended MBTA, which overrides the CFR. …
In the present case there is no ambiguity and the intent of Congress is clear. “Title I of S.2547 clarifies that the Migratory Bird Treaty Act’s prohibition on taking, killing, or possessing migratory birds applies only to native migratory bird species whose occurrence in the United States results from natural biological or ecological conditions.” S. REP. 101-313, 2004 WL 1909561 (Leg.Hist.) Indeed, the plain text of the MBTA explicitly excludes species which occur “solely as a result of intentional or unintentional human assisted introduction.” 16 U.S.C. § 703(b). Because the Gyrfalcon/Prairie falcon hybrid does not occur with out human intervention, it is a non native species as defined by the amended MBTA. The agency’s inclusion of this bird on the list of birds protected by the MBTA is in conflict with the statute, and is therefore impermissible.
CONCLUSION: Because the Gyrfalcon/Prairie falcon hybrid does not occur as the result of natural biological or ecological processes, but rather solely as the result of intentional or unintentional human assisted introduction, it is non-native as defined by 16 U.S.C. § 702, and therefore not protected by the MBTA. To the extent that 50 C.F.R. 10.12 defines this non-native Gyrfalcon/Prairie falcon hybrid as a bird protected by the MBTA, it impermissibly conflicts with 16 U.S.C. § 702. For these reasons, the euthanization of this bird by Mr. Kerster was lawful. The government has, therefore, failed to allege a violation of federal law by Mr. Kerster, and the court must dismiss the charge against him.
Dated: February 22, 2008