Why didn't the Migratory Bird Treaty Act Protect the nest in 2004?

A reader just wrote with a question many of you may have been wondering about:

I have a query: Why didn't the Migratory Bird Act protect Pale Male's and Lola's nest last year? Maybe I misunderstood, but wasn't it taken down last year?

I sent her back this answer:

In answer to your question:

Though the Migratory Bird Treaty Act of 1918 [MBTA] is still the law of the land, in April 2003 the US Fish & Wildlife Service, [supposedly the protectors of our native wildlife,] issued a memorandum -- MBPM-2 -- that was sent out as a clarification of the MBTA. This memorandum states that the clause in the Act that had long kept people from removing any nests from any location actually only applied to nests with eggs or young in them. Nests without eggs and young, they assume, are inactive nests. Therefore if people come upon such a nest they can legally remove it.

So that's how the management of 927 Fifth Avenue came to legally remove Pale Male and Lola's nest on December 7, 2004. Even though everybody knew perfectly well it was an active nest, there were no eggs or young in it. So it was legal. [And, by the way, that's why they took the nest down in December and not, for instance, in February.]

The memorandum is completely out of line and should be rescinded. Perhaps people should write to the US Fish and Wildlife Service and express their opinion about this, as I have.