Americans allowed to destroy protected bird nests, thanks to previous president

By John Upton

Homes are not merely places where we rear and raise children. Houses and apartments provide shelter from the elements; seclusion for amorousness; and kitchens where we can store and prepare food.

So it goes with bird nests. The most obvious uses of these homes, be they bundles of twigs, hollowed out trees or even gaps between boulders, are to provide places where birds can rear and raise chicks. But nests can also provide avian tenants with shelter from the elements; places to groom and romance their feathery mates; and camouflage and protection from predators.

Pale Male / Courtesy:

The resonating effects of the loss of a bird’s home have been on clear display during the past decade in New York City. In late 2004, as New Yorkers hurried between heated stores, offices and homes in the weeks before the holiday season, residents of 927 Fifth Avenue had grown decidedly fed up with a pair of red-tailed hawks that nested on their building’s façade — and with the flocks of human fans that they attracted. So while Pale Male and his mate, Lola, were out and about one day, the residents destroyed the birds’ 400-pound window-ledge nest. Vigils and protests ensued, and within a month the exclusive apartment building’s co-op had capitulated and agreed to allow the birds to return.

But it was not the same. Pale Male and various mates had produced two to three chicks at 927 Fifth every year since 1995. After Pale Male and his mate rebuilt the nest, however, he lived for years as an empty nester. Despite successfully wooing a mate, not a single egg hatched in the nest until 2011, taking a bite out of the city’s burgeoning urban raptor population. Conservationists blame Pale Male’s fatherhood failures during the breeding seasons from 2005 to 2010 on the stress of losing his home during that cold wintery month.

It wasn’t just the city’s red-tailed hawk population that took a hit from the co-op’s wildly unpopular actions. In granting the wealthy and well-connected residents permission to destroy Pale Male’s home, President George W. Bush’s administration rewrote the nation’s rules around how the nests of protected birds can be treated. The Migratory Bird Treaty Act of 1918 protects “migratory birds,” including red-tailed hawks and approximately 1,000 other species, “or any part, nest, or egg of any such bird.” But Bush’s U.S. Fish & Wildlife Service told the co-op that it didn’t need a permit to destroy the nest, so long as no eggs or birds were present when the nest was cleared out. Under the ruling, a nest in that scenario was defined as “inactive,” and therefore unprotected.

That means an American can now destroy the nest of a species of bird that’s protected under the Migratory Bird Treaty Act. If you want to do it, you need only wait for the non-breeding season and then strike while the residents are off foraging or hunting. No biological expertise is necessary.

But if you’re into inflicting such misery on birds, you might want to do it soon.

Conservationists filed a petition last month with President Barack Obama’s Fish & Wildlife Service, seeking a new interpretation of the law. San Francisco-based nonprofit Wild Equity Institute wants the federal government to tweak some definitions of words in the Migratory Bird Treaty Act and to make it clear that permits are required before a nest of a protected species can be destroyed, regardless of who might or might not happen to be at home at the time.

“It’s a modest petition,” Wild Equity Institute executive director Brent Plater told me. “We’re just asking the Obama administration to put the law back to where it was for decades.”

It took nearly a decade, but Pale Male and a new mate are raising chicks again in a nest on a window ledge at 927 Fifth: