BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1924
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          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