Under the Migratory Bird Treaty Act (MBTA), it is unlawful to kill a migratory bird “by any means, or in any manner” without a permit. The United States has interpreted the language “by any means, or in any manner” to include the incidental killing of birds. In conflict with this interpretation, however, is the fact that permits for the incidental killing of migratory birds are not issued under the MBTA. This current system hurts both migratory birds and the entities whose commercial activities might result in migratory bird deaths. Birds continue to die in large numbers while entities cannot acquire permits to assure compliance with the MBTA. This Note explores the current state of the law regarding the incidental killing of migratory birds and concludes that a meaningful incidental take permit program would reduce migratory bird deaths and provide commercial entities with a means to assure their compliance with the MBTA.