Fish and Wildlife Service Disregarding the Law
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:
- 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.
- 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.
- 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.)
- 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.
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