Date: 5/19/20 5:09 pm
From: Gretchen Nareff <marshbirder...>
Subject: Re: [VTBIRD] Advice or thoughts on a bulldozing project with nesting BVs
Hi folks. As of right now, migratory birds and their nests are protected by
federal law, not state, so you need to contact USFWS in NH. However, under
the latest interpretation of the Migratory Bird Treaty Act (M-opinion
published 12/2017), bird nests do not get as much protection as they once
did. I previously worked for the USFWS and one of my jobs was teaching the
newest interpretation of the MBTA. I'd be happy to explain what is and
isn't legal. Many states, including Vermont, are now trying to pass their
own legislation in light of this new interpretation, which allows
incidental take of migratory birds.

Best case scenario here is that the birds don't have eggs/young yet and the
barn is torn down immediately. If they already have eggs or nestlings,
there are a couple options, but legally (at least federally), the barn can
be torn down even if there is a nest in there, and especially if the City
deems it a hazard. I know it's absurd and unfortunate, but that's what the
USFWS solicitor decided. If the barn is torn down just for the sake of
tearing the barn down and the nest is incidentally destroyed, nothing
illegal took place. If the nest is intentionally destroyed for the sake of
destroying the nest, that is illegal. "Good Samaritans" may legally take
eggs or nestlings to licensed rehabilitators in an attempt to prevent total
loss of a nest. The other organizations and agencies mentioned can help
with that part, as can I if you'd like.

The M-opinion did not change the MBTA itself, just the current
interpretation. It is possible that a future administration will reverse
the M-opinion or that new legislation will pass. However, the way it is now
makes it easier for big industries to do their jobs. You can't sell
electricity if you're always in court over killing birds with power lines...

Please note, I'm not offering legal advice and I'm not saying it's okay to
go out and tear bird-occupied buildings down all around town!

Responding with the knowledge of a federal biologist and the opinion of a
private citizen,
Gretchen E. Nareff
Bennington, VT
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