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A reader has pointed me to the Fish and Wildlife Service (FWS) memorandum regarding destroying migratory bird nests not presently occupied by eggs or young. You can see the memo here: http://policy.fws.gov/m0208.pdf While the regulation I point to below discusses the destruction of nests, and remains relevant so far as I can tell, this memorandum is likely the one that has been referred to by Fish and Wildlife officials in news reports.

I would like to add for those new to this site that I am a law student who is primarily interested in intellectual property law. I have never taken a course on environmental law. I happen to have easy access to legal materials though, and some ability at legal research. Frustrated by Pale Male’s plight and what I saw as contradictory information regarding the law in news articles (very common), I have tried my best (given that this is my exam period and I have limited time) to provide more information on the relevant laws. I have also contacted actual environmental law experts and at least one of them is now looking into this situation.

The real point for me now is that no matter how Pale Male’s situation turns out, I do not believe the Fish and Wildlife Service is appropriately implementing the Migratory Bird Treaty. Their position on the allowability of destroying nests of protected species is too broad. It obviously does not take into account even simple facts such as that while a nest may not be presently occupied by eggs or young, it may well be so occupied within two months time. The last time Pale Male’s nest was destroyed he reared no young for two years. Both then and now we end up with fewer members of a protected species when we allow the destruction of such nests. I believe a more nuanced regulation is advisable and that the current regulation may well be contrary to the law. The latter point may have to be decided by a court, but if Fish and Wildlife was as surprised by this as the most recent New York Times article suggests, they should seriously consider revising their regulations without being forced to do so by a court.

The contents of this message may be forwarded widely and reproduced at will, especially in efforts to provide Pale Male with legal assistance.

Background facts:
A red-tailed hawk has had a nest above a 12th story cornice at 927 5th Ave since 1993. The male is known as Pale Male and has become famous through a 1999 book, Red-Tails in Love: A Wildlife Drama in Central Park by Marie Winn and then through a PBS Documentary entitled Pale Male, directed by Frederic Lilien, which has won about a dozen film festival awards. The current female is known as Lola. Pale Male has successfully sired and raised around 23 chicks in his time in this nest.

The nest’s long-term stability was due to the presence of anti-pigeon spikes above the cornice that secured the nest’s twigs from high winds. His earlier attempts to nest in the trees of Central Park were unsuccessful due to the harassment he received from resident Jays. Red-tailed hawks are particularly bonded to their nest-location, and having been successful in a given location, typically try to rebuild a destroyed nest in the same location.

On December 7, 2004 workers employed by the apartment building in question removed the nest and the anti-pigeon spikes. (See New York Times Dec. 8, 2004, NY Region section, “New York Celebrities Evicted on Fifth Ave., Feathers and All” By Thomas J. Lueck.) Witnesses report that the contractor hired to do the removal was Basonacs Construction 157 21st Street Brooklyn NY 11232 Commercial Vehicle Plate # 25510 JK.

Someone with the building co-op’s board had apparently contacted the Fish and Wildlife Service and had been told that it is not illegal to dislodge or destroy migratory bird nests that are not occupied by juveniles or eggs. (See New York Times Dec. 9, 2004, NY Region section,”Newly Homeless Above 5th Ave., Hawks Have Little to Build On” By Thomas J. Lueck and FWS website containing relevant regulations: http://policy.fws.gov/724fw2.html ) Someone from the FWS may have been present during the nest’s destruction, and may still possess the nest materials. (Report at http://palemale.com )

Background law:
Red-tailed Hawks are protected by The Migratory Bird Treaty (MBT), codified at 16 U.S.C. Sec. 701-712. Section 703 provides that “…it shall be unlawful at any time, by any means or in any manner, to…take…attempt to take…transport or cause to be transported, carry or cause to be carried…any migratory bird, any part, nest, or egg of any such bird… included in the terms of the [treaty].”

Anyone violating the act is “guilty of a misdemeanor and upon conviction thereof shall be fined not more than $ 15,000 or be imprisoned not more than six months, or both.” Id. at Sec. 707.

It was decided in United States v. Blanket, 391 F. Supp. 15 (W.D.Okl. 1975) that the red-tailed hawk was included within the terms of the Migratory Bird Treaty due to its inclusion through a supplemental agreement of March 10, 1972 between the President of the United States and the President of Mexico. Id. at 18.

16 U.S.C. Sec. 708 allows states to enact laws not inconsistent with the MBT and to give further protection to migratory birds, their nests, and eggs. NY CLS ECL Sec. 11-0535 provides that the taking of any endangered species without a permit from the state is a violation of New York state law. If the red-tailed hawk is designated by New York state as endangered or threatened, then interfering with the habitat of a threatened species may constitute prohibited “taking” under Sec. 11-0535. In State v Sour Mt. Realty, Inc., (2000, 2d Dept) 276 AD2d 8, 714 NYS2d 78, a fence that was erected that interfered with the den of a timber rattlesnake was held to be a “taking” under the statute. The fence was ordered removed.

The Secretary of Interior, is authorized by 16 U.S.C. Sec. 704 to adopt suitable regulations regarding the taking of any protected bird or nest, subject to numerous restrictions. In particular, the Secretary must give “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” and the regulations become effective only when approved by the President.

The standards by which courts review agency interpretations of the MBT may be governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), see also Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001). While a deferential standard, agencies may not adopt interpretations of law that do not give effect to Congress’ unambiguously expressed intent, or that are contrary to clear congressional intent.

Finally, in this case, the FWS’s interpretations of its own regulations may be inaccurate. If the red-tailed hawk is an “endangered or threatened species” then the exception 2.7(E) that would allow destruction of nests not occupied by juveniles or eggs, does not apply. The Endangered Species Act (ESA), 16 U.S.C. 1531-1544, prohibits destruction of nests of threatened and endangered migratory bird species, and Sec. 1531(4)(A) specifically lists the MBT as one of the treaties under which the U.S. has pledged itself to conserve species facing extinction. If birds protected under the MBT are also protected by the ESA, then its ban on nest destruction would apply.

Open questions:
1) Is the red-tailed hawk an endangered or threatened species under New York state law and thereby covered by NY CLS ECL Sec. 11-0535?

2) Is the red-tailed hawk covered by The Endangered Species Act?

3) What standards govern the judicial review of agency-adopted regulations of the Migratory Bird Act?

4) Did the Secretary of Interior adopt an arbitrary or capricious regulation, 2.7(E), or one that is contrary to congressional intent or law, regarding the destruction of migratory bird nests, given 16 U.S.C. Sec 704′s requirement that the Secretary consider a bird’s “breeding habits” when adopting regulations and given known facts about the red-tailed hawk’s bond to its nest site?

5) Did the Fish and Wildlife Service correctly classify the red-tailed hawk in its application of regulation 2.7(E)? [The answer to #2 may answer this.]

6) Did the Fish and Wildlife Service correctly determine that the red-tailed hawk nest at 927 5th Ave. was not occupied by juveniles or eggs, especially given that the nest was under active maintenance by a previously successful pair that was expected to mate and lay eggs again by February 2005, and given known facts about the red-tailed hawk’s bond to its nest site?

7) Did the President approve the FWS regulations relied on, as required by 16 U.S.C. Sec. 704?

If the penalties of 16 U.S.C. Sec. 707 apply to the taking of the nest at 927 5th Ave., to whom do they apply?

Brian W. Carver
UC Berkeley School of Law (Boalt Hall), Class of 2006

The contents of this message may be forwarded widely and reproduced at will, especially in efforts to provide Pale Male with legal assistance.

Another article in the New York Times explains that the Fish and Wildlife Service may be complicit in the destruction of Pale Male’s nest. From the article,

Terri Edwards [(413)253-8324], a spokeswoman for the Fish and Wildlife Service, said yesterday that the agency had issued a clarification of the rules in 2003 that allows the destruction of migratory bird nests if it is done during a season when the nests are not being used to hatch or raise offspring.

This “clarification of the rules” is on their website here and in particular, item 2.7(E) says,

E. For migratory birds other than eagles and endangered or threatened species, a permit is not required to dislodge or destroy migratory bird nests that are not occupied by juveniles or eggs. However, any such destruction that results in take of any migratory bird is a violation of the MBTA (e.g., where juveniles still depend on the nest for survival). The MBTA requires a permit to collect, possess, transport, sell, purchase, barter, import, or export any non-eagle migratory bird nest, whether or not the nest is occupied by eggs or juveniles. Because additional prohibitions of the BGEPA apply to eagle nests, no one may destroy or dislodge any eagle nest without a permit. The Endangered Species Act (16 U.S.C. 1531-1544) prohibits destruction of nests of threatened and endangered migratory bird species.

A few things about this:

1. This “clarification” is a direct contradiction of the Federal statute and of the treaties to which we have agreed. The Department of the Interior is empowered to enforce the statute, but they cannot adopt an interpretation of the statute so diametrically opposed to its plain meaning.
2. More importantly, my novice’s reading of The Endangered Species Act (ESA) suggests that all the migratory birds covered by the Migratory Bird Treaty (MBT) fall within the protection of the ESA. (16 USC § 1531(4)(A) specifically lists the MBT as one of the treaties under which the U.S. has pledged itself to conserve species facing extinction.) If that’s right, then the supposed exemption above does not apply! Not even the FWS can permit this sort of destruction of an endangered or threatened migratory bird nest.
3. On that same FWS web page, the FWS explains in item 2.17(D) that “Migratory bird permits are not valid unless accompanied by appropriate State permits where required.” NY CLS ECL § 11-0535 provides that the taking of any endangered species without a permit from the state is a violation of New York state law. I do not know if the red-tailed hawk is designated by New York state as endangered, but if so, there is also caselaw to suggest that interfering with the habitat of a threatened species may constitute prohibited “taking” under Sec. 11-0535. In State v Sour Mt. Realty, Inc., (2000, 2d Dept) 276 AD2d 8, 714 NYS2d 78, a fence that was erected that interfered with the den of a timber rattlesnake was held to be a “taking” under the statute. The fence was ordered removed. So, assuming the red-tailed hawk counts as threatened in New York state, then in my view, both the FWS and the State of New York will have to have authorized the destruction of Pale Male’s nest or the Apartment Co-Op is in violation of both Federal and State Law. (That is, failure to get state approval would make them guilty of violating both Federal and State law; State law directly, and Federal law because it requires compliance with State laws.)
4. No matter what, it is becoming apparent that the Fish and Wildlife Service are, in part, responsible for this, and it may be that a New York State agency also shares culpability. This suggests that both groups should be urged to change their policies and if they will not do that, then they should be forced to do so in a court of law. This would not be the first time that a court held that the Department of the Interior was neglecting its duty to protect endangered and threatened species.

The following is a letter I just wrote to the Fish and Wildlife service at contact@fws.gov regarding this article in the New York Times. Since that article will probably be archived and unavailable soon, read this Yahoo! news coverage.

Hello,

I am writing to ask if someone within the Department of Interior is investigating what appears to be a clear violation of Federal Law, 16 U.S.C. Sec. 703, the Migratory Bird Treaty, which occurred at 927 Fifth Avenue New York, New York on or about Tuesday, December 7, 2004.

As the New York Times reported today, the nest of a pair of red-tailed hawks was removed yesterday by workers employed by the apartment building at the above address. See, NY Times Dec. 8, 2004, NY Region section, “New York Celebrities Evicted on Fifth Ave., Feathers and All” By Thomas J. Lueck.

The Migratory Bird Treaty provides, in relevant part, “it shall be unlawful at any time, by any means or in any manner, to…take…attempt to take…transport or cause to be transported, carry or cause to be carried…any migratory bird, any part, nest, or egg of any such bird… included in the terms of the [treaty].”

It was also decided in United States v. Blanket, 391 F. Supp. 15 (W.D.Okl. 1975) that the red-tailed hawk was included within the terms of the Migratory Bird Treaty due to its inclusion through a supplemental agreement of March 10, 1972 between the President of the United States and the President of Mexico. Id. at 18.

Finally, 16 U.S.C. Sec. 706 provides that any employeee of the Department of the Interior, authorized by the Secretary of the Interior, shall have the power to execute a warrant issued for the enforcement of the treaty, and that a Federal judge may issue a search warrant, upon a showing of probable cause, which Interior employees may execute.

I would recommend that the Department seek such warrants immediately, as evidence of the nest’s destruction may no longer be present if not discovered quickly. Witnesses were apparently interviewed for the New York Times article cited above, and their testimony and cooperation should also be promptly sought.

I hope that the Department of Interior agrees with me that those responsible for this crime should be punished to the full extent allowed by law. It would be my hope that the Department would begin coordinating with the United States Attorney’s Office on this matter immediately.

Thank you for any information you may be able to provide about this.

Brian W. Carver
UC Berkeley School of Law (Boalt Hall), Class of 2006

I’ll let you know if I hear anything. Learn more about Pale Male, the hawk whose nest was destroyed, at his website.