Sunday, August 16, 2009

Legal Troubles are for the Birds

My friends often laugh at my passion for birding; but those of us who are birders understand and accept the occasional ribbing with good-natured humor (most of the time). For a more serious homily on offensive birder stereotypes, check out Susan's post here.

After regaling my friends about my upcoming move to a new home (only two weeks away!), my friend Janet asked "Beth, what will happen to all the birds that currently mooch off your numerous feeders? How will they know where to find you? Can you leave a trail of crumbs to the new place? This could be very traumatic for your flock…."

I got this email from Janet's husband, Andy, also a friend (I think) and a newly-minted law school graduate studying for the bar exam. Now I have to worry about being legally pursued by my backyard birds who seem to have quite a good case against me for removing the largesse they have enjoyed these past three years!

(I have edited the letter for space reasons)

Dear Ms. Russell,

It is an unconstitutional violation of the fourteenth amendment to deprive a person of life, liberty or property without due process of law. XIV amend., U.S. Const. Here, your wards (the birds) have come to rely upon your charitable contributions and that reliance is a property interest - which cannot be terminated without due process. There is also a liberty concern in whether you are requiring them to move to obtain their property.

For a violation that deprives a person of a property or liberty interest, both arguably at issue here, there must be a pre-termination hearing unless the situation can be resolved via a post-termination hearing without prejudice to the injured party. It is likely that a post-termination hearing, after you've moved their food supply to a new location, will negatively prejudice them as it will immediately deprive them of food, and will require a pre-termination hearing. Any such hearing must balance the private interests and the possibility of wrongful termination against the needs of the government.

There is a high likelihood of wrongful termination since you arbitrarily decided to move. These private interests likely outweigh the government's interest (that is, your interest) to move. Although I do not specifically address the issue, it is likely that an Eldridge hearing will hold that, at a minimum, you must continue to provide food at the present location until they agree to move or their needs are provided by other sources. You may defend by arguing that they are not citizens but you are unlikely to prevail. Termination of property rights based upon alienage classification is subject to strict scrutiny.

Though they are birds (Avian-Americans) they were likely born in the U.S. thus giving them jus soli as U.S. citizens. You may also argue that the XIV amendment only forbids state action and you are not a government entity. However, where an activity is a traditional government action by a private entity, the courts have found state action and applied the XIV amendment.

You are providing welfare, a traditional government activity, and the courts will likely find that the XIV amendment applies to you. Although I am not your attorney (in fact, I'm not an attorney at all), I'd strongly recommend settlement discussions with the birds to resolve their claims prior to a hearing or, more costly still, an action in federal court. Given the strength of the birds' position and the weakness of your defenses, the court could order you to continue feeding these birds and their progeny, forever. To ensure this result, the court could create a constructive trust after your death to ensure that your estate continues to provide support for these birds.Please let me know if you have any questions or concerns. My strong advice is to seek competent legal counsel immediately.

So it seems that since the birds are legally considered Avian-Americans (hee, hee) with all the rights and privileges afforded US citizens, it would be in my best interest to enter into mediated negotiations with them to reach a settlement!


I think Andy has too much time on his hands!

Thursday, August 13, 2009

Uncle Jim Bands Terns

My Uncle Jim, bird mentor extraordinaire, often takes part in bird banding projects throughout the year. This summer, he traveled to Pamlico Sound, the largest lagoon on the Eastern seaboard and in the Outer Banks of North Carolina, to band young terns. A 45 minute boat ride from Cedar Island brought the group to a small island with breeding tern colonies.

Click on the picture below for a larger look at the amazing column of terns waiting to be banded

Accompanied by his son, JP, seen here on the left, they and their group banded 5,564 (!!!!) terns in 5 hours! Pretty intense work. It helped that the terns were too young to fly, so they were easily corralled and the group culled off 500 at a time. Don't they look cute all penned up and waiting for their turn/ tern (hee, hee) to get a little bling clipped onto their leg? It was a colony of mostly young royal terns with about 600 sandwich terns mixed in.

I wish I had been there - what an awesome way to spend a day - on a beautiful island in the Outer Banks with over 5,000 baby shorebirds and doing a needed bit for bird research.

Saturday, August 8, 2009

Almost Fledging

Here are two of the four baby bluebirds giving my camera the stink-eye as I check their box. How about those white spots on their feathers? Like a fawn is spotted when it is young.

It has been a long and crazy summer. Too much going on in my life to spend quality time birding and hence, the paucity of posts.

But the backyard bluebird couple are successfully raising their brood of four in the little house my father built for my backyard. I will be moving on September first, ten miles north of where I currently live, and am anxious to see the bluebirds fledge so I can take down the house, clean it out and pack it up for the move. I have already cleaned and packed the birdfeeders, so even my backyard birding has quieted down. But I did get my first yard Baltimore Oriole last week. That brings my yard list up to 53. And this morning, drinking coffee on the deck while trying to figure out how to pack up Beverly the Stone Chicken, I saw a flash of white in the trees. Tree swallows? Went inside for the binoculars and was able to id a pair of Eastern Kingbirds playing tag at the edge of the yard. Cool - first kingbirds of the year.

I remember the first time I saw and identified a kingbird. It was perched on the post that holds up my clothesline. Do you remember the first time you see each of your species? Most of them stick with me. Like the Painted Bunting I first saw with my Uncle Jim while the deer flies ate me alive. Or the Prothonotary Warbler on the tree over the creek that I saw from the bridge overpass. Or the Veery I just got in the parking lot of the state park a few weeks ago. How about the Bobolink in the hay field in West Virginia with my peeps, The Flock. Or the red-winged blackbird that swooped in front of my car onto the shoulder of the road while I waited at the top of an exit ramp. Or the Blue-Winged Warbler that I identified by voice and watched for 1/2 an hour while it sang in Peace Valley Park - my usual bird haunt. Or the Gadwall that Pete Dunne showed me in his scope on a Cape May Autumn Weekend. Or the Chestnut-sided Warbler that Paco got me on at the New River Festival (one of my nemesis birds at the time). Or the Gray Catbird that was so close I could touch it, flashing his rufous rump patch in PennyPack Park. I even remember my first starling - I was on my first bird trip with Uncle Jim and asked him what it was. He called it a "trash bird" and I remember thinking "How can such a pretty bird be trash?". Now I know.

So as I prepare for my move and lots of other stuff at work and at home, I push birding to the back burner. But I have Cape May in October and Space Coast in January (staying with my wonderful Aunt Maggie! - Thanks, Mag!).

Sunday, August 2, 2009

Fairy Bluebirds and Bali Mynahs - McNeil Avian Center Part Three

More amazing birds from my trip last week to the Philadelphia Zoo's McNeil Avian Center:

A Fairy Bluebird from the forests of the Himalayas, northern India, Burma and Indochina.

Check out the feather detail on this mystery bird. I did not write down it's name while I was at the exhibit and I can not find information about it on the Philadelphia Zoo website. If anyone knows what it is, please let me know. It reminds of what the feathers on a Gadwall look like-kind of plain brown from a distance, but the up-close looks will take your breath away.

This Violaceous Turaco from West Africa had amazing maroon underwings only visible when it flew. Unfortunately, I only got pictures of it perched.

Another look at the mystery bird. A funny shape that reminded me of a ballerina in her tutu.

My absolute favorite bird of the entire exhibit was this Bali Mynah from Indonesia. Snow white with teal blue face mask. Gorgeous. The Bali Mynah is critically endangered because of habitat destruction by timber harvest, illegal cage-bird trade, poaching, and nest site competition with the Black-winged Starling. Right now there are only about 13-14 Bali Mynahs left in the wild.

A Victoria-Crowned pigeon (about the size of a large chicken) from New Guinea sunning itself in one of the walk-through exhibits. The feathery crown on it's head would be the envy of lots of church-going ladies. On the 2008 IUCN (International Union for the Conservation of Nature)List of Threatened Species, the Victoria crowned pigeon is listed as Vulnerable.

More Bali Mynahs....