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
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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
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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
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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
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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
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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
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Resource Landowners Coalition
Western Growers Association
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096