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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.

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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and the plants and animals that accompany us on Earth.

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