Federal law will supersede State law. Joe
On Tuesday, June 15, 2021, 08:56:28 PM EDT, Donna Lee Scott <d...@cornell.edu> wrote: 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> 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, and also this one. 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 >> >> >>> >>> >>> On Tue, Jun 15, 2021 at 6:27 PM, Kevin J. McGowan >>> >>> <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 >>> <bounce-125714362-3493...@list.cornell.edu> On Behalf Of david nicosia >>> Sent: Tuesday, June 15, 2021 5:55 PM >>> To: darlingtonbets <darlingtonb...@gmail.com>; Nancy Cusumano >>> <nancycusuman...@gmail.com>; Kenneth V. Rosenberg <k...@cornell.edu> >>> Cc: Linda Orkin <wingmagi...@gmail.com>; CAYUGABIRDS-L >>> <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 >>> >>> >>> >>> >>>> >>>> >>>> >>>> On Tue, Jun 15, 2021 at 5:33 PM, darlingtonbets >>>> >>>> >>>> >>>> <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> >>>> >>>> >>>> >>>> Date: 6/15/21 4:28 PM (GMT-05:00) >>>> >>>> >>>> >>>> To: "Kenneth V. Rosenberg" <k...@cornell.edu> >>>> >>>> >>>> >>>> Cc: Linda Orkin <wingmagi...@gmail.com>, CAYUGABIRDS-L >>>> <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> >>>> 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 >>>>> >>>>> Wk: 607-254-2412 >>>>> >>>>> Cell: 607-342-4594 >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> From: bounce-125714085-3493...@list.cornell.edu >>>>> <bounce-125714085-3493...@list.cornell.edu> on behalf of Linda Orkin >>>>> <wingmagi...@gmail.com>Date: Tuesday, June 15, 2021 at 3:02 PMTo: >>>>> CAYUGABIRDS-L <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. >>>>> >>>>> Linda Orkin >>>>> Ithaca NY >>>>> -- >>>>> >>>>> Cayugabirds-L List Info: >>>>> http://www.NortheastBirding.com/CayugabirdsWELCOME >>>>> http://www.NortheastBirding.com/CayugabirdsRULES >>>>> http://www.NortheastBirding.com/CayugabirdsSubscribeConfigurationLeave.htm >>>>> >>>>> ARCHIVES: >>>>> 1) http://www.mail-archive.com/cayugabirds-l@cornell.edu/maillist.html >>>>> 2) http://www.surfbirds.com/birdingmail/Group/Cayugabirds >>>>> 3) http://birdingonthe.net/mailinglists/CAYU.html >>>>> >>>>> Please submit your observations to eBird: >>>>> http://ebird.org/content/ebird/ >>>>> >>>>> -- >>>>> >>>>> >>>>> >>>>> >>>>> -- >>>>> >>>>> >>>>> >>>>> Cayugabirds-L List Info: >>>>> >>>>> >>>>> >>>>> Welcome and Basics >>>>> >>>>> >>>>> >>>>> Rules and Information >>>>> >>>>> >>>>> >>>>> Subscribe, Configuration and Leave >>>>> >>>>> >>>>> >>>>> Archives: >>>>> >>>>> >>>>> >>>>> The Mail Archive >>>>> >>>>> >>>>> >>>>> Surfbirds >>>>> >>>>> >>>>> >>>>> BirdingOnThe.Net >>>>> >>>>> >>>>> >>>>> Please submit your observations to eBird! >>>>> >>>>> >>>>> >>>>> -- >>>>> >>>>> >>>>> >>>> >>>> >>>> >>>> -- >>>> >>>> >>>> >>>> Cayugabirds-L List Info: >>>> >>>> >>>> >>>> Welcome and Basics >>>> >>>> >>>> >>>> Rules and Information >>>> >>>> >>>> >>>> Subscribe, Configuration and Leave >>>> >>>> >>>> >>>> Archives: >>>> >>>> >>>> >>>> The Mail Archive >>>> >>>> >>>> >>>> Surfbirds >>>> >>>> >>>> >>>> BirdingOnThe.Net >>>> >>>> >>>> >>>> Please submit your observations to eBird! >>>> >>>> >>>> >>>> -- >>>> >>>> >>>> >>>> >>>> -- >>>> >>>> >>>> >>>> Cayugabirds-L List Info: >>>> >>>> >>>> >>>> Welcome and Basics >>>> >>>> >>>> >>>> Rules and Information >>>> >>>> >>>> >>>> Subscribe, Configuration and Leave >>>> >>>> >>>> >>>> Archives: >>>> >>>> >>>> >>>> The Mail Archive >>>> >>>> >>>> >>>> Surfbirds >>>> >>>> >>>> >>>> BirdingOnThe.Net >>>> >>>> >>>> >>>> Please submit your observations to eBird! >>>> >>>> >>>> >>>> -- >>>> >>>> >>>> >>>> >>>> >>> >>> >>> >>> -- >>> >>> >>> >>> Cayugabirds-L List Info: >>> >>> >>> >>> Welcome and Basics >>> >>> >>> >>> Rules and Information >>> >>> >>> >>> Subscribe, Configuration and Leave >>> >>> >>> >>> Archives: >>> >>> >>> >>> The Mail Archive >>> >>> >>> >>> Surfbirds >>> >>> >>> >>> BirdingOnThe.Net >>> >>> >>> >>> Please submit your observations to eBird! >>> >>> >>> >>> -- >>> >>> >>> >>> -- >>> >>> Cayugabirds-L List Info: >>> >>> Welcome and Basics >>> >>> Rules and Information >>> >>> Subscribe, Configuration and Leave >>> >>> Archives: >>> >>> The Mail Archive >>> >>> Surfbirds >>> >>> BirdingOnThe.Net >>> >>> Please submit your observations to eBird! >>> >>> -- >>> >>> >>> >>> >> >> -- >> >> Cayugabirds-L List Info: >> >> Welcome and Basics >> >> Rules and Information >> >> Subscribe, Configuration and Leave >> >> Archives: >> >> The Mail Archive >> >> Surfbirds >> >> BirdingOnThe.Net >> >> Please submit your observations to eBird! >> >> -- >> > > > -- > > Cayugabirds-L List Info: > > Welcome and Basics > > Rules and Information > > Subscribe, Configuration and Leave > > Archives: > > The Mail Archive > > Surfbirds > > BirdingOnThe.Net > > Please submit your observations to eBird! > > -- > > -- Cayugabirds-L List Info: Welcome and Basics Rules and Information Subscribe, Configuration and Leave Archives: The Mail Archive Surfbirds BirdingOnThe.Net Please submit your observations to eBird! -- -- Cayugabirds-L List Info: http://www.NortheastBirding.com/CayugabirdsWELCOME http://www.NortheastBirding.com/CayugabirdsRULES http://www.NortheastBirding.com/CayugabirdsSubscribeConfigurationLeave.htm ARCHIVES: 1) http://www.mail-archive.com/cayugabirds-l@cornell.edu/maillist.html 2) http://www.surfbirds.com/birdingmail/Group/Cayugabirds 3) http://birdingonthe.net/mailinglists/CAYU.html Please submit your observations to eBird: http://ebird.org/content/ebird/ --
