BILL ANALYSIS AB 1924 Page 1 Date of Hearing: April 25, 2006 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Lois Wolk, Chair AB 1924 (Koretz) - As Amended: April 17, 2006 SUBJECT : Bird Nests SUMMARY : Makes it unlawful to take, possess or destroy the nest or eggs of any protected bird. Specifically, this bill : 1)Makes it unlawful to take, possess or destroy the nest, aeires or eggs of any philopatric bird protected by the Migratory Bird Treaty Act (MBTA), any bird listed as fully protected under state law, or any bird listed as endangered or threatened. Defines "philopatric" to mean any bird that returns to its natal nest site or colony in the course of its migration or breeding and feeding cycles. 2)Expands existing law, which currently makes it unlawful to take, possess, or needlessly destroy the nest or eggs of any bird, by deleting the reference to "needlessly," thereby making it unlawful to destroy for any reason the nest or eggs of any bird, except as otherwise provided by code or regulation. 3)Provides for exceptions to the prohibition on the taking, possession or destruction of a nest or eggs, including where the Department of Fish and Game (DFG) has previously designated the nest as permanently abandoned, and for electric utility companies acting in the course of providing or restoring utility service. Further provides that nothing in this section shall be construed to prevent any organization from engaging in conservation and preservation of wild game if the activity is permitted by the US Fish and Wildlife Service or DFG. 4)Requires DFG to make available on its website a centralized database of convictions for violations of the prohibition on the taking or destruction of bird nests, and to make violation information, including the name of the violator, available to the public on the Web site, taking into account the public's right to know and the violator's privacy rights. 5)Makes a violation of the law prohibiting the taking or AB 1924 Page 2 destruction of a bird nest subject to a fine of $15,000 for a first violation, and $35,000 for a second or subsequent violation, and/or imprisonment in the county jail for up to one year. Also authorizes DFG to revoke the fishing license of a person convicted of a violation for a period of 10 years. EXISTING LAW : 1)Makes it unlawful to take, possess, or needlessly destroy the nest or eggs of any bird, except as otherwise provided by the Fish and Game Code or regulations. Also makes it unlawful to take, possess or destroy any nest or eggs of any bird of prey, except as otherwise provided by the code or regulations. A violation of either of these sections is subject to a $5,000 fine and/or six months in jail. 2)Makes it unlawful to take or possess any fully protected bird or parts thereof. Fully protected birds include peregrine falcons, California brown pelicans, California condors, Golden Eagles, California least terns, Greater Sandhill Cranes, Southern Bald Eagles, Trumpeter Swans, White-tailed kites, and several species of rails. A violation of this provision is subject to a fine of up to $5,000 and/or one year in jail. 3)Makes it unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such bird, except as provided for by rules and regulations adopted by the Secretary of the Interior. Violations of this section under state law are subject to a $5,000 fine and/or six months in jail. The Migratory Bird Treaty Act prohibits the take or possession of migratory birds or the parts, nests or eggs of such birds except under the terms of a valid federal permit. The Act does not specifically prohibit the destruction of nests, as long as no possession occurs. However, the destruction of an unoccupied nest during or near the nesting season could result in an unlawful taking under some circumstances. California Fish and Game Commission regulations incorporate the Federal Migratory Bird Treaty Act regulations by reference. A violation of the Migratory Bird Treaty Act is a misdemeanor, subject to a $15,000 fine. 4)Prohibits the taking of any threatened or endangered species, and the destruction of the nest of any such bird listed under the Endangered Species Act, subject to a fine of up to $5,000 AB 1924 Page 3 and/or one year in jail. FISCAL EFFECT : Unknown costs to DFG for maintenance of a centralized database on violations of the prohibition on destruction of bird nests. Unknown costs to DFG to certify abandoned nests, and for enforcement, potentially offset by increased fines. COMMENTS : 1)Author's Statement : The author notes that California law protects bird nests from destruction generally only during the active nesting cycle. This limited scope of protection does not adequately protect philopatric birds which return to the same nest or nesting area each year. The author notes that loss of breeding habitat is the number one cause for decline of avian species. Populations of many of the state's philopatric birds, such as the Great Blue Heron, White-tailed Kite, American Bald Eagle and Snowy Egret were seriously diminished in the past through hunting, egg collection, and use of pesticides such as DDT. Hunting of these species, egg collection and DDT have either been banned or regulated such that several of these bird species' have made significant comebacks. Today the greatest threat to their survival is habitat destruction. The author notes in particular that destruction of large nests such as those built by Great Blue Herons can seriously disrupt courtship and nesting cycles of these birds. The author cites several examples of instances where philopatric bird nests have been destroyed in the Los Angeles area. These include a Great Blue Heron rookery in the Ballona Wetlands which was impacted by alleged illegal bulldozing of Monterey Cypress trees. Other examples include the destruction of red-tail hawk nests in eucalyptus trees in the Ballona Wetlands, and removal of white-tailed hawk nests in Hastings Canyon for a development on the Westchester Bluffs. In Marina del Ray, citizens attempted to get protection for a Great Blue Heron rookery by petitioning the Coastal Commission for designation of environmentally sensitive habitat. The Coastal Commission concluded the nests were not protected after the chicks fledged under current law. 2)Background on Current federal law: According to the U.S. Fish and Wildlife Service, for migratory birds other than eagles AB 1924 Page 4 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 destruction of a nest that results in the take of any migratory bird is a violation of the MBTA, such as could occur where a juvenile still depends on the nest for survival, or the destruction of the nest disturbs other birds in a colony. 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 protections apply to eagle nests, destruction or dislodging of an eagle nest is prohibited without a permit at any time. The Endangered Species Act also prohibits destruction of nests of threatened or endangered migratory bird species. A guidance memorandum produced by the U.S. Department of Interior provides further clarification on the application of the Migratory Bird Treaty Act to migratory bird nest destruction. Although the MBTA protects migratory bird nests from possession, sale, purchase, transport, import, export, or take, it does not specifically contain any prohibition on the destruction of a bird nest alone (without birds or eggs), provided that no possession or take occurs during the destruction. However, while destruction of a nest by itself is not prohibited under the MTBA, nest destruction that results in the unpermitted take of migratory birds or their eggs, is illegal and fully prosecutable under the MTBA. For example, a take could occur with the destruction of an unoccupied nest if it results in disturbance of colonial nesting birds during or near the nesting season, or if juvenile birds are away from the nest but return later. Some unoccupied nests are legally protected by statutes other than the MBTA, including the nests of threatened and endangered migratory bird species, and bald and golden eagles. 3)Philopatric birds definition : Philopatric birds are birds that habitually return to the same natal colony or nesting area to breed year after year. Philopatric species include species such as ospreys, which often return to the exact same nest, and communal birds such as Great Blue Herons and egrets that return to the same rookery and nest in the same grove of trees. Audubon Canyon Ranch near Bolinas Lagoon is an example of a long established heron and egret rookery. Other AB 1924 Page 5 philopatric species include Bald and Golden Eagles, and other birds of prey. This bill would define philopatric as "any bird that returns to its natal nest site or colony in the course of its migration or breeding and feeding cycles." While this definition is intended to add clarity to the bill, the definition is arguably ambiguous and may make it difficult for individuals to determine whether a particular bird, species or nest is covered by the law. The definition does not clearly limit the bill to species which habitually return to the same nest year after year, and could be interpreted to apply to subspecies or even to individual birds. The Migratory Bird Treaty Act covers hundreds of species of birds, but there is no identified list of philopatric bird species, at the state or federal level, protected under the act. The lack of a reference list of birds to which this bill applies may make it difficult for individuals to comply with the law. The Committee may wish to consider whether the definition of philopatric birds covered by this bill should be narrowed to apply only to those birds that are of special concern, and to facilitate compliance with the bill. 4)Strict Liability standard : The bill creates further compliance challenges by creating what is effectively a strict liability standard, including accidental and unknowing violations. Earlier versions of the bill included an "intentional or willful" standard, but those terms have been deleted from the latest amended version. In addition, the existing law which makes it unlawful to take, possess, or "needlessly" destroy the nest or eggs of any bird has been amended to delete the word "needlessly," thereby eliminating the opportunity for landowners to obtain permission to remove a nest where there is a demonstrated need to do so, such as where a nest interferes with normal farming operations or might impose other hazards. Under the terms of the bill as drafted, the only circumstances under which a nest could be removed would be where DFG has determined that the nest has been permanently abandoned, by an electric utility company where necessary to restore service, or for conservation and preservation purposes pursuant to a permit. The Committee may wish to consider whether the bill should be amended to add an intentional or knowing standard, to reinstate the term "needlessly" to the existing law, and to allow for other exceptions to the bill based on demonstrated need. 5)Posting on Internet: The bill calls for names of violators AB 1924 Page 6 and other information to be posted on DFG's Internet Web site. Particularly in light of the strict liability standard in the bill, this may raise privacy concerns. The bill also does not address for how long this information would be publicly available, or whether violators could petition to have their names removed from the list. 6)Opposition: Opponents raise several objections to the bill, including that the bill seeks to impose excessive penalties for the taking of many common bird nests, including where a nest may be destroyed as a result of such activities as backyard tree removal, emergency activities, farming practices, road construction or maintenance, and development. Opponents also argue that the posting of information about violators on the website violates individuals' rights to privacy, and that the absence of a list of philopatric birds protected under the Migratory Bird Treaty Act will make it very difficult for the average landowner to comply. Finally, they note that in light of the fact that DFG is currently understaffed, the requirement for DFG to determine if a nest is abandoned will delay projects and routine activities. REGISTERED SUPPORT / OPPOSITION : Support Animal Switchboard California Federation for Animal Legislation Defenders of Wildlife (if amended) Sierra Club California (if amended) Sierra Nevada Alliance Petition signed by 24 individuals Opposition California Association of REALTORS California Cattlemen's Association California Chamber of Commerce California Building Industry Association California Business Properties Association California Farm Bureau Federation California Forestry Association Consulting Engineers and Land Surveyors of CA AB 1924 Page 7 Resource Landowners Coalition Western Growers Association Analysis Prepared by : Diane Colborn / W., P. & W. / (916) 319-2096