Related to discussion on migratory bird act & lack if protections: New York has a “Right to Farm” law. I have not read it, but it probably would muddy the waters further.
Donna Scott Lansing Sent from my iPhone On Jun 15, 2021, at 8:47 PM, Alicia <t...@ottcmail.com<mailto:t...@ottcmail.com>> wrote: I have zero expertise in this area, but it looks like the courts have at best a mixed record in interpreting unintentional negative effects as violations of the MBTA. Take a look at this summary<https://www.animallaw.info/article/detailed-discussion-migratory-bird-treaty-act>, and also this one<https://www.crowell.com/files/The-Migratory-Bird-Treaty-Act-An-Overview-Crowell-Moring.pdf>. Based on these summaries, it looks like courts are divided on the question of whether criminal behavior under the MBTA is limited "to deliberate acts done directly and intentionally to migratory birds" or if actions that incidentally hurt birds/nests/etc also are covered. A 43 yr old case from the 2d Circuit, which includes NY, "affirmed the conviction of a manufacturer of pesticides for migratory bird deaths. United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978). Still the FMC court stated misgivings (a “construction that would bring every killing within the statute, such as deaths caused by automobiles, airplanes, plate glass modern office buildings or picture windows into which birds fly, would offend reason and common sense”) and suggested possibly limiting incidental takes to “extrahazardous” activities ... ." (Entire quote from second summary linked above.) FWIW, I doubt that a farmer cutting hay would be considered engaged in an extra-hazardous activity in a legal sense, even though farming itself is a hazardous occupations. Later cases in other circuits aren't as willing to assign criminal blame when the intent was not specifically to harm birds. The 5th Circuit ruled in 2015 that we agree with the Eighth and Ninth circuits that a “taking” is limited to deliberate acts done directly and intentionally to migratory birds. Our conclusion is based on the statute’s text, its common law origin, a comparison with other relevant statutes, and rejection of the argument that strict liability can change the nature of the necessary illegal act. Looking at a somewhat similar fact pattern, federal district courts have held that timber operations are not criminally liable under the MBTA for felling trees when that activity takes out nests, for example in Curry v. U.S. Forest Service, 988 F.Supp. 541, 549 (W.D. Pa. 1997); and Mahler v. U.S. Forest Service, 927 F. Supp. 1559, 1573-83 (S.D. Ind. 1996). (Again, I am relying on the summaries above and haven't read the cases but the summaries seem evenhanded and well done.) Conclusion? This is not a clear area of the law. At some point perhaps the US Supreme Court will agree to hear a case and clarify it, but I'm not holding my breath that this particular Supreme Court would rule the way we would wish if it came before them, particularly if it involves farmers cutting hay rather than, say, an oil spill caused by the negligence of a large corporation. Alicia On 6/15/2021 6:43 PM, david nicosia wrote: The MBTA is completely ignored in this case and has been for decades. Why is that? Anyone know? Sent from Yahoo Mail on Android<https://go.onelink.me/107872968?pid=InProduct&c=Global_Internal_YGrowth_AndroidEmailSig__AndroidUsers&af_wl=ym&af_sub1=Internal&af_sub2=Global_YGrowth&af_sub3=EmailSignature> On Tue, Jun 15, 2021 at 6:27 PM, Kevin J. McGowan <k...@cornell.edu><mailto:k...@cornell.edu> wrote: I don’t think that’s true. Birds, nests, eggs, and their parts all come under protection from the MBTA. If feathers are covered, nestlings are covered. Kevin From: bounce-125714362-3493...@list.cornell.edu<mailto:bounce-125714362-3493...@list.cornell.edu> <bounce-125714362-3493...@list.cornell.edu><mailto:bounce-125714362-3493...@list.cornell.edu> On Behalf Of david nicosia Sent: Tuesday, June 15, 2021 5:55 PM To: darlingtonbets <darlingtonb...@gmail.com><mailto:darlingtonb...@gmail.com>; Nancy Cusumano <nancycusuman...@gmail.com><mailto:nancycusuman...@gmail.com>; Kenneth V. Rosenberg <k...@cornell.edu><mailto:k...@cornell.edu> Cc: Linda Orkin <wingmagi...@gmail.com><mailto:wingmagi...@gmail.com>; CAYUGABIRDS-L <cayugabird...@list.cornell.edu><mailto:cayugabird...@list.cornell.edu> Subject: Re: [cayugabirds-l] Fields being mowed. Young nestling birds aren't protected by the migratory bird act. I guess that is true since this has been going on for decades. Wish they were. Sent from Yahoo Mail on Android<https://go.onelink.me/107872968?pid=InProduct&c=Global_Internal_YGrowth_AndroidEmailSig__AndroidUsers&af_wl=ym&af_sub1=Internal&af_sub2=Global_YGrowth&af_sub3=EmailSignature> On Tue, Jun 15, 2021 at 5:33 PM, darlingtonbets <darlingtonb...@gmail.com<mailto:darlingtonb...@gmail.com>> wrote: Good! And let's try to get some publicity into the Ithaca Journal. Betsy Sent from my Verizon, Samsung Galaxy smartphone -------- Original message -------- From: Nancy Cusumano <nancycusuman...@gmail.com<mailto:nancycusuman...@gmail.com>> Date: 6/15/21 4:28 PM (GMT-05:00) To: "Kenneth V. Rosenberg" <k...@cornell.edu<mailto:k...@cornell.edu>> Cc: Linda Orkin <wingmagi...@gmail.com<mailto:wingmagi...@gmail.com>>, CAYUGABIRDS-L <cayugabird...@list.cornell.edu<mailto:cayugabird...@list.cornell.edu>> Subject: Re: [cayugabirds-l] Fields being mowed. Ken, May I use your words in my letters? I think I will go straight to the top with this issue. I will paraphrase... Nancy On Tue, Jun 15, 2021 at 4:07 PM Kenneth V. Rosenberg <k...@cornell.edu<mailto:k...@cornell.edu>> wrote: Linda, thanks for bringing this mowing to everyone’s attention. In a nutshell, what is happening today in those fields, repeated over the entire U.S., is the primary cause of continued steep declines in Bobolink and other grassland bird populations. Last year, because of the delays in mowing due to Covid, the fields along Freeze and Hanshaw Roads were full of nesting birds, including many nesting Bobolinks that were actively feeding young in the nests at the end of June. In the first week of July, Cornell decided to mow all the fields. Jody Enck and I wrote letters and met with several folks at Cornell in the various departments in charge of managing those fields (Veterinary College, University Farm Services) – although they listened politely to our concerns for the birds, they went ahead and mowed that week as dozens of female bobolinks and other birds hovered helplessly over the tractors with bills filled food for their almost-fledged young. The same just happened over the past couple of days this year, only at an earlier stage in the nesting cycle – most birds probably have (had) recently hatched young in the nest. While mowing is occurring across the entire region as part of “normal” agricultural practices (with continued devastating consequences for field-nesting birds), the question is whether Cornell University needs to be contributing to this demise, while ostensibly supporting biodiversity conservation through other unrelated programs. Jody and I presented an alternative vision, where the considerable acres of fields owned by the university across Tompkins County could serve as a model for conserving populations of grassland birds, pollinators, and other biodiversity, but the people in charge of this management were not very interested in these options. And there we have it, a microcosm of the continental demise of grassland birds playing out in our own backyard, illustrating the extreme challenges of modern Ag practices that are totally incompatible with healthy bird populations. I urge CayugaBirders to make as much noise as possible, and maybe someone will listen. KEN Ken Rosenberg (he/him/his) Applied Conservation Scientist Cornell Lab of Ornithology American Bird Conservancy Fellow, Atkinson Center for a Sustainable Future k...@cornell.edu<mailto:k...@cornell.edu> Wk: 607-254-2412 Cell: 607-342-4594 From: bounce-125714085-3493...@list.cornell.edu<mailto:bounce-125714085-3493...@list.cornell.edu> <bounce-125714085-3493...@list.cornell.edu<mailto:bounce-125714085-3493...@list.cornell.edu>> on behalf of Linda Orkin <wingmagi...@gmail.com<mailto:wingmagi...@gmail.com>> Date: Tuesday, June 15, 2021 at 3:02 PM To: CAYUGABIRDS-L <cayugabird...@list.cornell.edu<mailto:cayugabird...@list.cornell.edu>> Subject: [cayugabirds-l] Fields being mowed. After a couple year hiatus in which the Freese Road fields across from the gardens have been mowed late in the season allowing at least Bobolinks to be done with their nesting and for grassland birds to be lured into a false feeling of security so they have returned and I’ve counted three singing meadowlarks for the first time in years, Cornell has returned to early mowing there as of today. And so the mayhem ensues. How many more multitudes of birds will die before we believe our own eyes and ears. Mow the grass while it’s still nutritious but are we paying attention to who is being fed. Grass taken from the land to pass through animals and in that inefficient process turning to food for humans. 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