On July 24, 2012, the Wild Equity Institute filed a formal administrative petition with the U.S. Fish and Wildlife Service (“Service”) urging it to change its migratory bird nest policy. The policy encourages destruction of migratory bird nests, which is prohibited by the Migratory Bird Treaty Act (MTBA). The Service’s policy has led to the destruction of countless bird nests since it was enacted, including one of a famous New York red-tailed hawk.
Pale Male is a red-tailed hawk who has nested near Central Park in New York City since 1991. He has many fans throughout the world. During the 2004 holiday season, Pale Male’s nest, built on the side of a residential Fifth Avenue building, was deliberately destroyed. The nest was approximately 400-pounds and was built over several years. Almost immediately, this act of destruction was met with popular uproar among his fans. Newspapers ran stories as far away as Saudi Arabia and India, and over ten articles appeared in the New York Times. Protests and vigils were held outside the apartment building while Pale Male and his mate, Lola, fruitlessly attempted to rebuild their nest. The pairs’ efforts failed because the structure that had previously supported the nest had been deliberately removed to prevent the birds from nesting again. After 21 days of public pressure, the building co-op board relented and reinstalled a supporting structure for Pale Male and Lola. The red-tailed hawks immediately began to rebuild their nest.
Unfortunately, although the pair mated in the spring of 2005 and Lola laid a clutch of eggs, the eggs failed to hatch—likely because of the stress inflicted by their eviction or because the nest was too thin, causing the eggs to be damaged by its supporting structure. Over the next seven years, Pale Male and Lola continued to produce eggs that would not hatch. Although Pale Male finally was able to produce offspring with a new mate in 2011, during those years when his eggs failed to hatch Pale Male did not recruit new members into the local population, and his birdwatching fans did not have a new set of nestlings to celebrate.
This tragic story could easily have been avoided if the Service had correctly carried out its duties under the MTBA. The MBTA expressly prohibits the destruction of migratory birds and their nests unless the Service issues a permit to do so. Although the Fifth Avenue building co-op board applied for a permit to remove Pale Male’s nest, it was told by the Service that no permit was necessary because the nest was “unoccupied,” which is defined as “without birds or eggs.” The Service made this determination even though Pale Male and Lola were residing in the nest year-round.
This odd result is the product of a Service policy that encourages destruction of nests even if a property owner is willing to move a nest rather than destroy it. Under this 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, roosting, or returns to the same nest every spring.
The Service continues to follow this 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 birds as the MBTA requires. The changes suggested in WEI’s petition to the Service would address the policy’s illogical approach to dealing with migratory bird nests.