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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

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