A robin nests on a fence post. The fence belongs to the landowner. The nest with eggs inside falls under a 1918 federal statute — and removing it at that moment can be prosecuted as an unpermitted federal wildlife violation.
The Migratory Bird Treaty Act (MBTA), enacted in 1918, makes it illegal to remove or destroy an active nest of a native migratory bird — on private property, without a federal permit. Nearly 1,100 native migratory species fall under this protection. That number covers the overwhelming majority of birds that nest on private land in the United States.
The law’s trigger is specific. It is not the nest itself, but what is living inside it. An empty nest carries different legal weight than a nest holding viable eggs or dependent chicks.
What Makes a Nest “In-Use” Under the MBTA
U.S. Fish and Wildlife Service (USFWS) policy draws a clear line between inactive and in-use nests. An in-use nest contains viable eggs or nestlings, or remains essential to the survival of juvenile birds not yet independent. Destroying that nest constitutes “take” — a federal violation — because it directly kills eggs or exposes dependent young to predation, exposure, or starvation.
Destruction of an in-use nest kills dependent young directly. That is why USFWS treats it as take of the birds themselves, not merely damage to a structure.
Removal of an in-use nest requires MBTA authorization, typically a permit under 50 CFR parts 13 and 21. USFWS issues those permits under very limited circumstances — primarily when the nest poses a human health or safety risk.
What Landowners Can Legally Do With an Inactive Nest
An inactive nest — one that no longer contains eggs or dependent young — can be destroyed without an MBTA permit, provided no one collects or possesses the nest in the process. That last detail surprises people. Even picking up an empty nest from the ground and keeping it is illegal without a USFWS permit.
Relocating any nest, active or inactive, requires federal authorization because moving it involves collection and possession during the transfer.
Timing disruptive outdoor work for the non-breeding season is the practical way most people stay on the right side of this law. Local guidance from Portland, Oregon, for example, recommends scheduling disruptive activities between August 1 and January 31, a roughly six-month window when most nests in that region are inactive.
Closing
The 1918 statute drew a line that property boundaries cannot erase. A house finch in a porch wreath or a mourning dove on a fence rail brings a federal protection event with it — one that lasts precisely as long as something living depends on that nest.
The nest is temporary. The law is not.
Frequently Asked Questions
Does the MBTA apply to bird nests on private land?
Yes. The MBTA applies nationwide regardless of land ownership; removal of an in-use native migratory bird nest on private property without a permit is a federal violation.
Can an empty bird nest be removed without a permit?
It can be destroyed without a permit, but it cannot be collected, possessed, or relocated without USFWS authorization, even if inactive.
Which birds are not covered by the MBTA?
Non-native species introduced by humans — including house sparrows and European starlings — are excluded. Only species native to the U.S. through natural biological processes are protected.
Are eagle nests treated differently?
Yes. Bald and golden eagle nests are protected at all times under a separate statute, the Bald and Golden Eagle Protection Act, regardless of whether the nest is occupied.