Moving Birds Nests-Derail

[Seth]

Seth, do you have a link to these draconian laws you keep referring to? I'd like to read them with my own Mark One eyeballs.

Bald and Golden Eagle Protection Act

[Gawdzilla Sama]

Seth, do you have a link to these draconian laws you keep referring to? I'd like to read them with my own Mark One eyeballs.

Bald and Golden Eagle Protection Act

Bald Eagle Management Guidelines and Conservation Measures
The Bald and Golden Eagle Protection Act

The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c), enacted in 1940, and amended several times since then, prohibits anyone, without a permit issued by the Secretary of the Interior, from "taking" bald eagles, including their parts, nests, or eggs. The Act provides criminal penalties for persons who "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle ... [or any golden eagle], alive or dead, or any part, nest, or egg thereof." The Act defines "take" as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb."



For purposes of these guidelines, "disturb" means: “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."



In addition to immediate impacts, this definition also covers impacts that result from human-induced alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagle's return, such alterations agitate or bother an eagle to a degree that interferes with or interrupts normal breeding, feeding, or sheltering habits, and causes injury, death or nest abandonment.



A violation of the Act can result in a fine of $100,000 ($200,000 for organizations), imprisonment for one year, or both, for a first offense. Penalties increase substantially for additional offenses, and a second violation of this Act is a felony.



A copy of the Bald and Golden Eagle Protection Act is available at: http://permits.fws.gov/ltr/ltr.shtml.

[Gawdzilla Sama]

Gee, I'm not seeing your territory there, Seth.

[Hermit]

A copy of the Bald and Golden Eagle Protection Act is available at: http://permits.fws.gov/ltr/ltr.shtml.

That link is dead.

I have found a PDF titled National Bald Eagle Management Guidelines (2007), however. Notice, they are guidelines, at least they were in 2007. They may have been enacted into law since then, and the article also says: "In addition to Federal laws, many states and some smaller jurisdictions and tribes have additional laws and regulations protecting bald eagles. In some cases those laws and regulations may be more protective (restrictive) than these Federal guidelines." There is no mention what the consequences, if there are any, of not keeping to the guidelines are.

Turning to page 10, you'll find that those guidelines are activity specific.

It is recommended to keep between 330 and 660 feet away from Bald Eagle nests during breeding season when you engage in one of the following activities:

Category A:
Building construction, 1 or 2 story, with project footprint of ½ acre or less.
Construction of roads, trails, canals, power lines, and other linear utilities.
Agriculture and aquaculture – new or expanded operations.
Alteration of shorelines or wetlands.
Installation of docks or moorings.
Water impoundment.

Category B:
Building construction, 3 or more stories.
Building construction, 1 or 2 story, with project footprint of more than ½ acre.
Installation or expansion of marinas with a capacity of 6 or more boats.
Mining and associated activities.
Oil and natural gas drilling and refining and associated activities.

Category C. Timber Operations and Forestry Practices (330)

Category D. Off-road vehicle use

Category E. Motorized Watercraft use

Category F. Non-motorized recreation and human entry (330 feet)

Category G. Helicopters and fixed-wing aircraft (1000 feet)

Category H. Blasting and other loud, intermittent noises (1/2 mile)

[pErvinalia]

Lie down everyone. Is everyone lying down?

I more or less agree with Seth here. If it was just a proclamation over his 3 or so trees, I would say suck it up buddy. But 99 acres (or whatever it was) is a big imposition on someones private propery. I don't know how much land Seth owns - if it was say 5000 acres, then I might be less inclined to care. But if this is a significant chunk of his land, then that in my mind should warrant compensation.

Thanks for that. However, how does the principle of just compensation for the taking of private property for public use change just because it's a "insignificant chunk" of someone's property.

It doesn't really. It's more my care-factor that would. I'm not as absolutist about government as you are, so I would accept "small" intrusions by the government if I could see the reasoning behind it. But in legal terms I agree it shouldn't matter what the level of restriction is. They probably should pay compensation.

The only qualifier i would put on my opinion is whether this law/regulation/restriction was in place when you came into possession of the land. If it was, then you don't have a leg to stand on to be claiming now how wronged you are by all this. As others have said, you purposely rehabilitated the habitat to favour eagles, so this situation was of your own making.

But having said that, that doesn't mean you shouldn't have the right to argue for the regulation to be changed. And I agree with you that landholders should be encouraged (not penalised as they are now) to rehabilitate their land. It doesn't make a lot of sense, if the government cared about these animals, for them to effectively punish people who have done the right thing. As you say, this will only lead to people cutting down any potential habitat.

[Seth]

A copy of the Bald and Golden Eagle Protection Act is available at: http://permits.fws.gov/ltr/ltr.shtml.

That link is dead.

I have found a PDF titled National Bald Eagle Management Guidelines (2007), however. Notice, they are guidelines, at least they were in 2007. They may have been enacted into law since then, and the article also says: "In addition to Federal laws, many states and some smaller jurisdictions and tribes have additional laws and regulations protecting bald eagles. In some cases those laws and regulations may be more protective (restrictive) than these Federal guidelines." There is no mention what the consequences, if there are any, of not keeping to the guidelines are.

Turning to page 10, you'll find that those guidelines are activity specific.

It is recommended to keep between 330 and 660 feet away from Bald Eagle nests during breeding season when you engage in one of the following activities:

Category A:
Building construction, 1 or 2 story, with project footprint of ½ acre or less.
Construction of roads, trails, canals, power lines, and other linear utilities.
Agriculture and aquaculture – new or expanded operations.
Alteration of shorelines or wetlands.
Installation of docks or moorings.
Water impoundment.

Category B:
Building construction, 3 or more stories.
Building construction, 1 or 2 story, with project footprint of more than ½ acre.
Installation or expansion of marinas with a capacity of 6 or more boats.
Mining and associated activities.
Oil and natural gas drilling and refining and associated activities.

Category C. Timber Operations and Forestry Practices (330)

Category D. Off-road vehicle use

Category E. Motorized Watercraft use

Category F. Non-motorized recreation and human entry (330 feet)

Category G. Helicopters and fixed-wing aircraft (1000 feet)

Category H. Blasting and other loud, intermittent noises (1/2 mile)

It's important to note that these are "guidelines," and are specifically suggestions, and that the F&WS denies that these guidelines provide any protection against a charge of violating the underlying Act even if a person acts within the guidelines. The metric is stated in the statute, as correctly cited by Gawzilla:

"Take" includes "disturb," which is defined as: “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."

That metric is so broad that almost any human activity anywhere near an eagle's breeding, feeding or nesting areas can violate the statute, which is exactly my point.

[Hermit]

It's important to note that these are "guidelines," and are specifically suggestions, and that the F&WS denies that these guidelines provide any protection against a charge of violating the underlying Act even if a person acts within the guidelines. The metric is stated in the statute, as correctly cited by Gawzilla:

"Take" includes "disturb," which is defined as: “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."

That metric is so broad that almost any human activity anywhere near an eagle's breeding, feeding or nesting areas can violate the statute, which is exactly my point.

Good point, but wouldn't that also mean you can't be prosecuted for ignoring the guidelines unless it is also proven that you thereby agitated or bothered a bald or golden eagle to a degree that caused, or was likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior?

[Seth]

Lie down everyone. Is everyone lying down?

I more or less agree with Seth here. If it was just a proclamation over his 3 or so trees, I would say suck it up buddy. But 99 acres (or whatever it was) is a big imposition on someones private propery. I don't know how much land Seth owns - if it was say 5000 acres, then I might be less inclined to care. But if this is a significant chunk of his land, then that in my mind should warrant compensation.

Thanks for that. However, how does the principle of just compensation for the taking of private property for public use change just because it's a "insignificant chunk" of someone's property.

It doesn't really. It's more my care-factor that would. I'm not as absolutist about government as you are, so I would accept "small" intrusions by the government if I could see the reasoning behind it. But in legal terms I agree it shouldn't matter what the level of restriction is. They probably should pay compensation.

The only qualifier i would put on my opinion is whether this law/regulation/restriction was in place when you came into possession of the land. If it was, then you don't have a leg to stand on to be claiming now how wronged you are by all this. As others have said, you purposely rehabilitated the habitat to favour eagles, so this situation was of your own making.

Yes, the regulation was in place, but it didn't apply until a pair of eagles decided to nest. But the issue remains as to whether the government has the authority to "take" private property without just compensation, even when it's a taking that occurs as the result of the behavior of a protected species. How does the fact that my property became subject to this taking as the result of the decision of an animal to use my property vitiate the idea that the government cannot justly take private property for public use without just compensation?

It is not the action of the eagles that causes the taking, it is the action of the government in PROTECTING the eagles that causes the taking. It is the value placed on eagle habitat, as defined by eagles themselves, by the public that determines whether a particular piece of private property is "taken" by the government through regulation (called a "regulatory taking" by the SCOTUS). A "regulatory taking" occurs when the government either removes all reasonable economic use of private property by regulation, or when the government itself either occupies or prohibits the owner from occupying and using his property. Thus, a zoning law that prevents someone from all reasonable economic uses (like building a house or entering the property) in order to preserve the property as "open space" that's being preserved for the visual and aesthetic pleasure of the public is burdening private property and creating a defacto taking while trying to evade the compensation requirements. The SCOTUS often holds that such laws are a "taking" that requires compensation.

The classic case is Lucas v. North Carolina Coastal Commission (1992) where the court found that a zoning regulation intended to preserve the beach character which forbade Lucas from building a house on his property violated the 4th Amendment proscription on uncompensated takings.

The court ruled that regulations may go "too far" in constraining the right to use and enjoy one's property, and that when they do, it's a regulatory taking subject to compensation notwithstanding that the government has not physically dispossessed the owner of his land.

One way to discern when a regulatory taking has occurred is to apply what a law-professor friend of mine calls the test of the Involuntary Good Samaritan:

"A government regulation constitutes a "taking" under the Fifth Amendment when the evident purpose of the regulation is to require an owner of property to make his or her private property available for the tangible or intangible use and enjoyment of other persons, in order to permit those other persons to avail themselves of the owner's property to satisfy their values (of safety, pleasure or economic gain), and the owner has (a) neither consented to such use nor (b), has the owner by a voluntary use of other resources available to the owner created a past, present, or future need for those other persons to use some of the owner's private property in order to prevent the owner's use of his or her other resources from interfering with the use of resources belonging to those other persons, the public, or to no one at all.

Under this test what the takings clause ends up doing is assuring a property owner that the values others will be legally entitled to satisfy from the tangible or intangible uses they may wish to make of the owner's property are ultimately for the owner to determine, not the government, unless the owner has, by using other resources, created a health, safety or welfare need for them to do so. And owner cannot, at least not without being provided just compensation, be required against his or her will to be a good Samaritan.

The rationale of the involuntary good Samaritan test of takings is that one's freedom to decide for oneself with what other persons one will or will nto share, for the purposes of satisfying human values, the resources that belong to that person -- that is, one's body and private property -- is central to one's sense of self-worth and, consequently, is one's most fundamental freedom. Underlying this idea is the belief that an affirmative order of government, whether phrased as a mandate or a prohibition, directing us to share our resources with others, including the sharing of our minds and bodies, will result, in most instances, in a more intrusive invasion of our freedom to act or not to act than does an order of restraint telling us not to use our available resources in ways tat may injure or annoy other persons in the exercise of their reciprocal rights to use their available resources.

While an obligation of restraint imposed by a preventive regulation may be "burdensome," it does usually leave an owner more choices as to what values he or she may still be able to satisfy from that owner's available resources than does a government order directing an owner to make particular resources available to others for their use and enjoyment. One need only reflect on one's own life experiences to appreciate the difference.

This same rationale underlies the pervasive common law principle that, absent consent or an affirmative act that creates a need in another, the law will not impose an affirmative obligation on one person to be a good Samaritan to another. Not only pervasive in Anglo-
American law, the principle is very old. As a constitutional principle, it is readily perceptible in the Magna Carta. As an operational premise of our common law, it is reflected throughout the law of torts, contracts, and property. The enforcement of a give in property law requires, for example, a clear manifestation of a donative (i.e., consensual) intent, as did the old law governing releases of existing claims. The transfer of funds in a private contract action depends on a finding of consent, that is, a prior indication of a willingness to have another person share in the use of one's resources. Finally, a mandatory transfer of property in the form of a judgment in a tort action requires proof of an interference with the resources of another caused by the conduct of the defendant.

Without these "consent" and "but for causal" underpinnings of contract and tort law, common law judgments would be "takings" under the Fifth Amendment and, lacking "just compensation," would be unconstitutional."

Source: Professor Emeritus of Law, Howard Klemme, personal correspondence.

As we see in the eagle regulation, it is the public's desire to "avail themselves of the owner's property to satisfy their values (of safety, pleasure or economic gain)" that is at the root of the regulation. And I, the owner, have neither consented to the regulation nor have I done anything that creates the need to regulate, such as destroying habitat to prevent eagles from nesting or killing eagles. All I did was allow trees to grow and habitat for prey species to come into existence through conservation efforts. This did not create a "need" to regulate, indeed it did exactly the opposite, it reduced the need to regulate by creating an environment attractive to the birds. Therefore, the government's regulation requiring me to preserve the habitat and which excludes me from the use and enjoyment of my property on threat of criminal prosecution constitutes a clear taking for which compensation is owed.

Those who SHOULD be regulated are those who did do something to create the need to regulate, which is to say every single person who subdivided, developed or now lives on what could be eagle nesting habitat OTHER THAN me. It is they who should be prosecuted for "disturbing" eagles by eliminating their breeding, feeding and nesting habitat. It is they who should be required to bulldoze their homes and businesses and restore the pre-existing habitat in compensation for their crimes.

And yet it is I, one of the only people in the area who has NOT done what the law forbids, who is most severely impacted by the regulation.

This is the sort of inequity that these sorts of regulations produce when the government, which means the people, decide that someone else's property is theirs for the taking and use without compensation.

But having said that, that doesn't mean you shouldn't have the right to argue for the regulation to be changed. And I agree with you that landholders should be encouraged (not penalised as they are now) to rehabilitate their land. It doesn't make a lot of sense, if the government cared about these animals, for them to effectively punish people who have done the right thing. As you say, this will only lead to people cutting down any potential habitat.

Precisely. This, in fact, is the primary defect of the entire Endangered Species Act.

[Seth]

It's important to note that these are "guidelines," and are specifically suggestions, and that the F&WS denies that these guidelines provide any protection against a charge of violating the underlying Act even if a person acts within the guidelines. The metric is stated in the statute, as correctly cited by Gawzilla:

"Take" includes "disturb," which is defined as: “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."

That metric is so broad that almost any human activity anywhere near an eagle's breeding, feeding or nesting areas can violate the statute, which is exactly my point.

Good point, but wouldn't that also mean you can't be prosecuted for ignoring the guidelines unless it is also proven that you thereby agitated or bothered a bald or golden eagle to a degree that caused, or was likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior?

Yes, that is the case. But let's suppose that I go about my ordinary ranch routines, like I've been doing for decades, both before and after the eagles appeared, and yet one day a dead chick is found in the nest. I'm now a suspect in a federal crime, and the government need only come up with probable cause to believe that something I did caused the "take" of the eaglet and I get to spend 50 to 100 thousand dollars trying to defend myself, and all the government has to do is find some zealous biologist to opine that my activities caused the disturbance that resulted in the eaglet dying that convinces a judge and I'm history, even though I've done nothing different than I've done a thousand times before. You have no idea what it's like to live in fear of the government destroying your life and taking everything you own and putting you in prison because you chose to be a good steward of the land and do what most people refuse to do. It's truly a burden that nobody ought to be subjected to. And it's a realistic fear because my every move is watched by those who monitor the nests who are happy to report any intrusion. It's like living in a fishbowl, and it has the effect of denying me the use and enjoyment of just less than half of my property for eight months of the year or so.

Don't say it can't happen, because it happens all the time under the ESA. Farmers who simply plow a low-lying wet area in their field that they've been plowing for generations are suddenly brought up on charges for damaging "habitat" for some endangered rat. Farmers who use water from an irrigation canal they've been using for decades are denied the use of the water they own because it endangers the Delta Smelt, and they go bankrupt and hungry because their farms are decimated and destroyed. Ranchers who clear willow brush from irrigation ditches so they can water their pastures are prosecuted for destroying Preble's Jumping Mouse habitat. You don't hear about these outrages because the mainstream press doesn't cover them, so you remain blissfully ignorant of the true costs of the good intentions of the ESA and like regulations.

[Gallstones]

Ignorance is bliss.

[Seth]

Ignorance is bliss.

Won't save you from the feds if they catch you, even if you do it by mistake.

[Gallstones]

Ignorance is bliss.

Won't save you from the feds if they catch you, even if you do it by mistake.

Surely you know that I was not serious?

It is the first thing that came to mind. Sort of a spontaneous, and not adequately original, phrase association kind of thing.

[Robert_S]

The law needs to be amended to reflect the current situation and make it more equitable and supportive of landowners who cooperate in providing such habitat.

Agreed, but I wouldn't be inclined to optimism. After all; How many politicians, Merkin or otherwise, wake up in the morning and think to themselves "I think I'll lay myself open to insinuations that I don't care about the national bird! What could possibly go wrong???"

[NineOneFour]

There is a loop of the Clark Fork that comes very close to Hwy 91. Within that loop there is a stand of cottonwoods. As long as I have been driving that hwy there has been an eagle nest in the cottonwoods. I have seen the birds and seen their babies. They are sitting in it right now. They don't seem to be bothered by the activity on the Hwy. As a matter of fact I see all kinds of wildlife all along that area, none of which seems to be bothered by the Hwy. It is all private ranch land. Cattle, sandhill cranes, foxes, beaver, porcupines, bears, deer, antelope, and eagles all tolerating each other and living in harmony.

But if you walk into that loop, even with the landowner's permission, you're subject to fine and imprisonment.

You know, they do make pills to help out with the paranoia.

Just saying.

[Gawdzilla Sama]

Gee, I'm not seeing your territory there, Seth.