Pale Male Petition News

Wild Equity staff participated in a very special event on Saturday, June 7: the release of five juvenile Black-crowned Night Herons, four of which were injured in the Oakland tree trimming incident last month. The event was hosted by our partner Golden Gate Audubon Society as well as International Bird Rescue, the organization that has been caring for the birds since the incident.

Bird lovers, conservationists, and members of the press gathered to watch young members of GGAS’ education program release the birds into a habitat area at the Martin Luther King, Jr. Regional Shoreline park in Oakland.


Members of GGAS’ youth education program prepare to release the birds.
Photo: Laura Horton, Wild Equity.


Two Herons check out their new surroundings. Photo: Laura Horton, Wild Equity.

GGAS’ new Executive Director also took the opportunity to spread the word about their new brochure offering advice to both professional tree trimmers and backyard gardeners about taking care to avoid situations like the one in Oakland.

The U.S. Fish and Wildlife Service, apparently kowtowing to political pressure from an anti-environmental congressman, dropped charges against the tree trimmer hired by the U.S. Postal Service, and has not prosecuted the Postal Service at all. Although the Migratory Bird Treaty Act clearly prohibits harming or disturbing migratory birds and their nests, the Fish and Wildlife Service often uses its discretion in making enforcement decisions. However, Wild Equity requested information from the Postal Service under the Freedom of Information Act regarding the incident, which will help shed light on the agency’s involvement. In light of the clear MBTA violations, Wild Equity will be seeking full prosecution for those responsible.

In 2012, Wild Equity petitioned the Fish and Wildlife Service over its disastrous nest destruction policy. The policy allows and even encourages the destruction of inactive nests (nests without birds or eggs). The result of the policy is inconsistent enforcement between inactive and active nests and broad latitude for those with no biological background or understanding of birds to decide whether a nest should be destroyed. Wild Equity urged the Service to establish a consistent policy that clearly requires a trained biologist to assess an area and a permit to be issued before nests are destroyed, whether active or inactive. The inconsistency in policy and enforcement has led to countless incidents of bird nest destruction and bird disturbances.

Learn more about the petition here, and come see Wild Equity Staff Attorney Laura Horton give a talk on Wild Equity’s migratory bird work on Sunday July 20 at the Unitarian Universalist Church at 9 am. Event details are here.


One of the released Herons. Photo: Laura Horton, Wild Equity.

Three Herons still not quite sure what to do. Photo: Laura Horton, Wild Equity.

Staff members ran into Wild Equity supporters Tom and Diane! Photo: Laura Horton, Wild Equity.

Staff Attorney Laura Horton will give a talk on Wild Equity Institute’s migratory bird work on Sunday, July 20, 2014 as part of the Unitarian Universalist Forum series. Laura will discuss the U.S. Fish and Wildlife Service’s nest destruction policy, which has led to the destruction of countless migratory bird nests since it was enacted in 2003. This issue was recently spotlighted after an appalling encounter between the U.S. Postal Service and baby black-crowned night herons in Oakland.

The horrific scene in Oakland, where tree trimmers hired by the Postal Service fed branches full of heron nests and chicks into a wood chipper, sheds light on the Fish and Wildlife Service’s disastrous policy. Witnesses say baby birds were falling out of the trees and that there were significant injuries of the birds and disturbance of their nests. The Fish and Wildlife Service has stated that it is investigating the incident.


Baby Black-crowned Night Herons being cared for at International Bird Rescue center in Fairfield.
Photo: Isabel Luevano, International Bird Rescue

Killing and injuring migratory birds and destroying their nests is illegal under the Migratory Bird Treaty Act (“MBTA”). However, the Fish and Wildlife Service’s nest policy incorrectly interprets the statutory language of the MTBA by unlawfully distinguishing “active” from “inactive” nests. The policy allows and even encourages the destruction of inactive nests (nests without birds or eggs), even if the nest is being used as shelter or a bird returns to the nest each year. The result of the policy is inconsistent enforcement between inactive and active nests and broad latitude for those with no biological background or understanding of birds to decide whether a nest should be destroyed.


This Great Horned Owl in an empty Osprey nest shows that a seemingly unused nest
may still be used as shelter by other birds. Photo: J.D. Phillips.


In July 2012, Wild Equity asked the Service to establish a consistent policy that clearly requires a trained biologist to assess an area and a permit to be issued before nests are destroyed, whether active or inactive. Wild Equity filed a formal administrative petition with the Service urging it to change its policy. In December 2013, the Fish and Wildlife Service sent Wild Equity a letter rejecting the petition, citing limited resources and policy disagreements as the reasoning. However, the Service did say it was “reviewing options for enhancing protection for nests of cavity-nesting species, such as the burrowing owl (Athene cunicularia),” and that Wild Equity’s regulatory suggestions were “helpful in this regard, and [the Service plans] to give them further consideration.”

Wild Equity is currently reviewing the Service’s response to the petition, as well as the investigation into the Oakland incident, and will be taking further steps to avoid this kind of situation in the future; stay tuned for future updates and opportunities to get involved.

Laura’s talk will take place on Sunday, July 20 at the First Unitarian Universalist Church, 1187 Franklin Street at Geary, Martin Luther King Room at 9:30 AM. Check the Wild Equity calendar or contact lhorton@wildequity.org for more details.

Wild Equity staff members Laura Horton and Amy Zehring recently attended the 32nd Annual Public Interest Environmental Law Conference at the University of Oregon Law School in Eugene. The conference is a premier gathering for environmental lawyers and activists worldwide, and is distinguished as the oldest and largest of its kind. Laura organized and led a panel discussion on Wild Equity’s work protecting migratory bird nests and shared information on the Fish and Wildlife Service’s harmful nest destruction policy. The panel was titled The Government’s Empty Nest Syndrome: Towards a Rational and Valid MBTA Nest Policy and included animal law attorney Danny Lutz and ornithologist Dan Gleason. In addition, Laura and Amy connected with other advocates throughout the weekend and attended panels on important topics such as endangered species protection and environmental justice.


Laura, Danny, and Dan

The Wild Equity Institute is pleased to announce the publication of Problems for Pale Male: An Analysis of the U.S. Fish and Wildlife Service’s Nest Destruction Policy in the Summer 2013 issue of the Pace Environmental Law Review. The article, authored by Wild Equity’s Executive Director Brent Plater, Staff Attorney Laura Horton, and previous Equity Intern Nicole Lopez-Hagan, provides a legal analysis of the U.S. Fish and Wildlife Service’s nest destruction policy. It discusses how a lack of proper permitting and government oversight has led to the destruction of countless bird nests, causing devastating impacts on birds across the country in violation of federal law. At the conclusion of the article, the authors urge the Service to comply with federal law by establishing a permitting framework whereby individuals must be issued a permit to destroy any bird nest before the destruction occurs.

The final published article is a product of collaborative research, writing, and editing over the last two years among the Wild Equity team. In addition, the Editorial Staff of the Pace Environmental Law Review provided excellent technical support, producing a high quality piece. We hope this article will help guide our society towards securing more protections for migratory birds in the future. You can read the article by clicking here.

In July of 2012, the Wild Equity Institute filed a formal administrative petition with the Obama Administration requesting that it repeal a Bush Administration interpretation of the Migratory Bird Treaty Act (“MBTA”), and provide full protection to migratory bird nests under law.


Pale Male in Central Park, New York, NY, awaiting protection for his nest. Photo courtesy of Lincoln Karim.

To date the Administration has not responded to our petition. But recent news stories suggest we can’t wait much longer for the Administration to take action.

For example, In Petaluma CalTrans recently erected exclusion netting on a construction site to prevent Cliff Swallows from nesting under a highway the agency wishes to expand. But the Cliff Swallows continue to attempt nesting there, and more than 60 swallows have been reported killed as they attempt to nest and get caught in the nets.

In early April the . Osprey first nested at Pier 80 one year ago, and at the time the birds were celebrated as the first Ospreys ever known to nest within San Francisco’s city limits. But this year Larry Elison’s America’s Cup yacht was being assembled at the Pier, and the Port wasted little time destroying the nest.

And in the rest of the City reports are coming in that the Department of Public Works and the Recreation and Parks Department are cutting down numerous trees right now without first conducting nesting bird surveys. A simple survey could help the Departments know which trees they can remove immediately, and which they should leave standing through the conclusion of the breeding bird season.

The Wild Equity Institute believes that all of these actions are illegal absent Migratory Bird Treaty Act permits. The MBTA makes it illegal to kill migratory birds or destroy their nests—whether the nests seem active at the time or not—unless a permit is obtained from the U.S. Fish and Wildlife Service first. The Osprey and Cliff Swallows have clearly been harmed by one or both of these illegal activities, and the Fish and Wildlife Service should initiate enforcement activities because of it.

But instead the Service is hamstrung, because the Bush Administration interpretation of the MBTA requires the agency to determine if the nests were active or not at the moment of destruction—a completely irrelevant consideration under the original interpretation of the Migratory Bird Treaty Act. If the Obama Administration were to repeal the Bush Administration interpretation and revert back to the original interpretation of the statute—which protected all nests regardless of whether there was a bird sitting in the nest at the time of destruction—more birds would obtain the protection they deserve and the Service saves resources by simplifying and streamlining its enforcement activities.

The Wild Equity Institute will be following up with these matters, and with the Obama Administration, in the coming months. To add your voice to our work, contact us today and we’ll help you help our Nation’s birds.

July 24, 2012

FOR IMMEDIATE RELEASE

Contact: Brent Plater, Wild Equity Institute, (415) 572-6989

Pale Male Petition to Obama: Stop Nest Destruction Now

Petition Demands President Obama Bring an End to
Bush Administration’s Destroy-first Policy

San Francisco — The Wild Equity Institute filed a formal administrative petition with the Obama Administration today, asking the U.S. Fish and Wildlife Service (“Service”) to protect migratory bird nests from destruction unless and until prior written authorization from the Service is obtained.

Dubbed the “Pale Male Petition,” the requested rule change was inspired by the infamous destruction of Pale Male’s nest on 5th Avenue in New York City in 2004—which the Bush Administration deemed lawful under a peculiar interpretation of the Migratory Bird Treaty Act. After Pale Male’s nest was destroyed he did not produce offspring again until 2011.

“It’s been eight years since Pale Male’s nest was illegally destroyed, and the Obama Administration still has not restored full protections to migratory birds,” said Brent Plater, Executive Director of the Wild Equity Institute. “The Pale Male Petition will close a loophole that continues to threaten migratory birds and their young.”

The proposed regulations would reverse a nearly decade-old, convoluted Bush Administration policy that allows any person to destroy a bird nest if the nest is deemed “unoccupied” at the time of destruction: so long as the person avoids “possessing” the nest in the process of destroying it. Although the Bush Administration policy seems difficult to reconcile with the laws of physics, it provided the legal underpinning for the destruction of Pale Male’s nest in 2004.


Pale Male and his mate Lola in 2003. Photo by Lincoln Karim.

Pale Male, arguably the world’s most well-known Red-tailed Hawk, had a global following after he successfully nested on a storied building near Central Park’s Toy Boat Pond. But the building’s celebrity occupants—including former CNN news anchor Paula Zahn—grew tired of the concomitant commotion. The building’s management responded by applying for a depredation permit for Pale Male’s nest in December of 2003, claiming that the nest was “inactive.” The Service responded by citing a new interpretation of the Migratory Bird Treaty Act which, for the first time in the MBTA’s history, treats “active” and so-called “inactive” nests differently. It then denied the permit application stating “[w]e do not issue permits for the take of inactive nests . . . . An inactive nest is a nest without birds or eggs.”

Armed with this new legal interpretation, the building managers waited for Pale Male, his mate Lola, and their young chicks to leave the nest, and then tore the nest and all support structures down while the birds were away. No violations of the Migratory Bird Treaty Act were ever prosecuted by the Service.

The Service’s new policy thus encourages destruction of bird nests without permits. Under the policy, anyone may destroy a nest so long as no egg or fledgling is within it at the moment of destruction, regardless of whether an adult bird is using the nest for shelter, for roosting, or if the bird returns to the same nest every spring. As demonstrated in the Pale Male Petition, this policy violates the Migratory Bird Treaty Act (“MTBA”) and its implementing regulations, which expressly prohibits the destruction of migratory birds and their nests—whether they are active or inactive—unless a permit is first obtained from the Service.

Yet the Service continues to follow the Bush Administration policy today, and consequently countless functioning bird nests have been destroyed without oversight from expert biologists and without legal consequence. The Service must change this policy in order to adequately protect migratory birds, as the MBTA requires.

“The Pale Male Petition requests common-sense regulations that will protect thousands of birds,” said Plater. “We owe it to future generations to make sure expert biologists determine which nests can be destroyed, rather than supers and TV anchors.”

Background

On April 15, 2003, during the Bush Administration, the Service issued the Migratory Bird Permit Memorandum, which introduced a new policy position on the destruction of migratory bird nests. In this memorandum, the Service argues that when an “inactive” bird nest—one without birds or eggs—is destroyed, there is no violation of law and no permit to destroy the nest is required so long as the nest is destroyed without “possession”. The memorandum justified this assessment by suggesting that only “possession” of nests is prohibited under the MBTA, and that “destruction” does not entail “possession.”

The Pale Male Petition shows concretely how this logic is flawed:

    • Under the law, an act of destruction inherently includes within it the act of possession. It is therefore not possible to destroy a nest without possessing the nest if only for an instant.
    • The policy ignores basic bird biology by assuming that a nest without eggs serves no biological function. In fact, birds use nests outside of the breeding season, and even abandoned bird nests are often reused by other birds.
    • The policy is simply irreconcilable with the Service’s mandate to protect migratory birds from wanton nest destruction.

 

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On April 15, 2003, the Service issued the Migratory Bird Permit Memorandum, which introduced a new policy position on the destruction of migratory bird nests. In this memorandum, the Service argues that when an “inactive” bird nest—one without birds or eggs—is destroyed, there is no violation of law and no permit to destroy the nest is required so long as the nest is destroyed without “possession”. The Memo justified this assessment by suggesting that only “possession” of nests is prohibited under the MBTA, and that “destruction” does not entail “possession.” But the Memo’s arguments break down under scrutiny, and its conclusions are ultimately unsupported by logic or law.

The Service’s nest policy incorrectly interprets the statutory language of the MTBA by unlawfully distinguishing “nest” from “bird”; fails to recognize that destruction of a nest necessarily includes possessing it; and bases the distinction between active and inactive nests on faulty logic in light of common bird behaviors. In addition, the Service’s nest policy is inconsistent with the broader policy advocated in the MTBA itself: the protection of migratory birds with the resources the Service has at its disposal.

The Migratory Bird Permit Memorandum can be found on the Service’s website here.

The distinction made in the Service’s nest policy between active and inactive nests is inconsistent with scientific research on migratory birds. Basic biological characteristics are shared by many species of birds. Under the policy established by the Policy Memo, only a nest that is “occupied by eggs or nestlings, or is otherwise still essential to the survival of a juvenile bird,” is protected. However, for many bird species, a nest does not only shelter one brood of young and eggs for one breeding season. And even apparently unoccupied nests can serve vital functions beyond breeding, which can be disrupted by nest destruction.

For example, some birds, including the Great Horned Owl, do not build their own nests. Instead, they depend upon the use of old nests built by other birds.


Great Horned Owl taking over an Osprey nest. Note the Osprey feathers.
Courtesy of J.D. Phillips.

Other birds build multiple nests in a single season even though they only need one. For example, Sedge Wrens may build up to 20 nests in a season. The extra nests are not used for breeding, but given the extra time and effort it takes to build them, it is likely that they serve a purpose beyond just being an extra, unused nest. Researchers have found that breeding nests were more successful when they were near larger clusters of dummy nests.

Researchers also believe that these extra nests could serve as decoys to distract and deter predators, decreasing the likelihood that predators such as rats or chipmunks may discover the actual nest to which a mating pair has entrusted its young, before leaving the area. Additionally, a nest could be used as a second or third nest later in the season.

Moreover, a nest that is unoccupied by eggs, nestlings or juveniles may still be used, i.e., “occupied,” by birds. For example, nests can be used as shelter by adults outside the breeding season. Additionally, some waterbirds spend all day at sea feeding, after which they need a safe place to roost at night.

Some birds return to the same nest each breeding season. Flamingos, Ospreys, Goshawks, Storm Petrels, Kingfishers, Phoebes, and Mountain Bluebirds may reuse the same exact nest year after year.

Even though the Service is well aware of the need for flexibility in addressing the differing nest usage among birds, the sweeping Policy Memo issued in 2003 is still in use, allowing bird nests to be destroyed even if adult birds still occupied them—so long as the bird is not in the nest at the time of destruction. If there are no eggs, there is no need for a permit to destroy a nest, without exception