Birds and the Law
painting of a California Condor by Carel Brest van Kempen
|Most people interested in birds know that millions of Passenger Pigeons were killed for sale as food, but few realize that an enormous variety of other native birds once found their way to markets and dining tables. Reading his classic Birds of America, published in the early 1840s, one is quickly impressed with the number of species with which John James Audubon had firsthand experience. His numerous comments on hunting and eating eggs and adults applied not just to game birds such as ducks, geese, and prairie chickens, but also to others such as Dunlin (". . my party shot a great number of them, on account of the fatness and juiciness of their flesh"), Eskimo Curlew, Belted Kingfisher (". . . the eggs are fine eating"), American Robin (every gunner brings them home by bagsful, and the markets are supplied with them at a very cheap rate"), and Dark-eyed junco (". . flesh is extremely delicate and juicy"). He reported some forty-eight thousand Golden Plovers slaughtered by French gunners near New Orleans in a single day.|
|In Audubon's time attitudes
on wildlife were much like those that prevailed in the days
of the Roman Empire. Until they were shot or trapped, birds
were the property of no one; once killed, they became the
property of the shooter or trapper. The exceptions were
those birds found on private land, which could be taken only
by the owner. Early on in Europe, wildlife became the
property of royalty. Later, ownership was assigned to the
state, but the latter doctrine was slow to emerge on the
frontier continent of North America. Not until the middle of
the last century were state and provincial laws enacted in
attempts to protect birds -- and the first laws were
concerned with the preservation of game species.
It was not until the turn of this century, however, that the U.S. federal government got into the business of protecting birds. Largely in response to the fate of the Passenger Pigeon and the excesses of plume hunters, the Lacey Act was promulgated in 1900, making illegal the interstate transport of birds killed in violation of state laws. However, the turning point in bird conservation came in 1918 when legislation was enacted to implement the landmark Migratory Bird Treaty, which had been signed in 1916 between the United States and Great Britain (on behalf of Canada). The treaty designated three groups of migratory birds: game birds, insectivorous birds, and other nongame birds, and provided a season in which the birds of each group could not be taken "except for scientific or propagating purposes under permits." With minor exceptions for hunting by Native Americans, the closed season on the last two categories was year-round. For migratory game birds, hunting seasons were not to exceed three and a half months. The taking of nests and eggs of all migratory birds was prohibited, except for scientific purposes. Thus ended the hobby of oology, or egg collecting. Penalties for breaking the law were six months in prison and $500 in fines, or both.
Similar treaties were signed with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976. In the Mexican treaty additional groups of birds were specified, more or less completing the basic legal protection of North American birds. The U. S. federal government had already taken steps to safeguard one prominent nonmigratory species; in 1940 the U.S. Congress became convinced that the American national symbol was threatened with extinction, and passed the Bald Eagle Protection Act. That law has twice been strengthened by amendments, most recently in 1972 after Wyoming ranchers were caught poisoning eagles and shooting them from helicopters.
Starting in 1966, Endangered Species Acts extended the principle embodied in the Bald Eagle Act to all species that could be demonstrated to be in jeopardy. As of 1986 thirteen species and eleven subspecies of North American birds are listed as endangered -- according to the law "in danger of extinction throughout all or a significant portion of its range" -- and thus have achieved an especially high level of protection as wards of the U. S. Fish and Wildlife Service. The endangered species are the Brown Pelican, Whooping Crane, Wood Stork, Piping Plover, Eskimo Curlew, Least Tern, California Condor, Bald Eagle, Peregrine Falcon, Red-cockaded Woodpecker, Ivory-billed Woodpecker, Bachman's Warbler, and Kirtland's Warbler, and the subspecies include the Everglade Snail Kite, Attwater's Prairie-Chicken, and the Northern Aplomado Falcon. In addition, the San Clemente Sage Sparrow, Amphispiza belli clementeae, is listed as threatened, which means it is considered likely to become endangered. Some 40 other species and subspecies, such as the Long-billed Curlew, Golden-cheeked Warbler, and two Florida subspecies of the Seaside Sparrow (a third, the Dusky, is now extinct) were candidates for listing. Citizens can petition to have species and subspecies of birds listed, but clear evidence that the petition is warranted is required to get the government to take action.
Under special permits, protected nongame species (but not endangered species) may be killed if they become serious local pests. This provision has been used primarily with regard to species of blackbirds and cowbirds when their gigantic fall and winter roosting flocks become nuisances, although control programs have not been without controversy. House Sparrows and starlings, both normative species, are not protected. No other birds, except those for which there are designated hunting seasons, can be legally killed, trapped, harassed, or possessed (including birds found dead). Even "adoption" of young birds that appear to have been deserted by their parents is illegal without a permit. If found, these apparently unattended young should be left alone, as, more often than not, the adults are not far away. In the United States or Canada, anyone molesting protected birds in any way should be reported to the state or provincial Department of Fish and Game or the U.S. Fish and Wildlife Service.
Conservation of the California Condor;
Conservation of Raptors;
Conservation of Kirtland's;
The Blue List;
Helping to Conserve Birds -- National Level;
Wintering and Conservation.
Copyright ® 1988 by Paul R. Ehrlich, David S. Dobkin, and Darryl Wheye.