.May 1, 2012 6:21 AM PrintText Iowa case asks: Is it a crime to harass animals?
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EmailFacebookTwitterLinkedInDigg.PrintDeliciousRedditStumbleuponGoogle Bookmarks....IOWA CITY, Iowa — Prosecutors hope to use a rarely enforced federal law to punish two Iowa pilots whose low flying disturbed thousands of resting migratory birds in a case that centers on this question: Is it a crime to harass animals?

In a case drawing attention from bird lovers, two Des Moines men have been charged with violating a federal law that prohibits using aircraft to harass animals. A judge is expected to decide soon whether the Airborne Hunting Act is constitutional. Attorneys for the two men, Paul Austin and Craig Martin, say it's not.

Among the questions being debated: Are birds capable of feeling harassment? And if harassing birds is a crime, wouldn't Capt. Chesley "Sully" Sullenberger have violated the law when he accidentally struck a flock of geese before famously landing his plane safely on the Hudson River?

Both sides agree Austin and Martin were flying low on Nov. 16 as they passed over Saylorville Lake, a reservoir north of Des Moines known for birdwatching. Tens of thousands of pelicans, ducks, geese and other birds stop there every fall to rest and feed before continuing south.

A natural resources specialist for the U.S. Army Corps of Engineers, which manages the lake, saw the two planes pass about 20 feet above the water, disrupting thousands of white pelicans and other birds. Once the birds settled on another part of the lake, the planes passed by again, sending them back into flight, prosecutors said.

Natural resources specialist Jonathan Wuebker snapped photographs and eventually cited Austin and Martin for flying "in a careless, negligent or reckless manner" over protected land.

Then in February, a grand jury indicted the men on charges of violating the Airborne Hunting Act, which carries up to one year in jail. Prosecutors also aim to seize their small planes — a 1974 Magnus Bowers Fly Baby and a 1946 Aeronca.

Prosecutors say the law applies even though the pilots weren't hunting because its ban on harassment makes it a crime "to disturb, worry, molest, rally, concentrate, harry, chase, drive, herd, or torment" animals with a plane. Wuebker compared it to using a car to chase deer through a field.

"When it is intentional or blatantly obvious, I would definitely consider that harassment. But that's not my decision," he said, noting trial is scheduled for May 30.

Austin and Martin have asked a judge to dismiss the case, arguing the law is unconstitutionally vague. In a court filing, defense attorneys said it "seems doubtful" that animals experience the kind of human emotional response necessary to feel harassed. And how can pilots know?

"Flying is what birds do. Who can say if the bird is pleased or annoyed to have taken flight? Indeed, who can say whether the bird's flight was the result of any cognition and not just impulse?" they asked.

Austin's attorney, William Ortman, said Monday that the law doesn't draw a clear line between legal and illegal behavior.

In court documents, defense attorneys noted that planes routinely strike birds on accident. They cited the 2009 incident in which Sullenberger successfully ditched US Airways Flight 1549 in the Hudson River after a flock of geese hit it following takeoff. Under the government's theory, they argued, Sullenberger "likely 'harassed' the flock of birds that downed his plane, and he probably 'harassed' fish when he arrived in the Hudson."

Martin's attorney and a spokesman for the prosecution did not immediately return phone messages.

In a filing last week, assistant U.S. Attorney Cliff Wendel rejected the idea that Congress meant to punish pilots for something "so common and unavoidable" as bird strikes. But he said reasonable pilots know that flying planes at a low altitude above thousands of resting birds would be considered harassment. It's like one famous legal definition of pornography, he said: you know it when you see it.

People know when they're harassing someone, "whether it's an older brother picking on his little sister; a baseball pitcher intending to hit the batter; or two pilots, flying their airplanes 20 feet above the ground, while making two passes that both times cause 6,000 migratory birds to flee from their resting place," Wendel wrote. Robert Johns, a spokesman for the American Bird Conservancy, said Saylorville Lake was an important resting spot for migrating white pelicans and "this sort of behavior should not be tolerated."

"The pilots in this case showed a callous disregard for the birds, the natural environment, and anyone who might have been peacefully enjoying them," he said.

Good Lord. What will they think of next?

The laws governing wilderness areas along with the altitudes are mainly advisory. They can be used against you if you demonstrate actual stupidity. One pass would be forgivable and most likely legal, but two, is, well, stupid.

During my stint as a NOAA Corps officer (the fish police). We actually counted birds from a Twin Otter. A stupider project I could not conceive without spirits. We flew a fan pattern over the Yukon river delta at 150' for 12 hours a day. We would speak into a gps referenced audio tape and call out the numbers and types of birds we saw. Then, back in the lab, graduate students would have to listen to the tapes and transcribe the data. It was BORING and hazardous. We disturbed a whole lot of birds. Like Sand Hill Cranes, who would leap off the ground into the air in front of us (think turkey, with long skinny legs). So I guess NOAA is a criminal organization.

When you copypasta something into these forums, please clearly cite the source and writer's name.

Thanks. Don't make me buy a Don Knotts SS uniform.

Ooops! Sorry...I thought I picked up the CBS News header./ L

uh, eltee, when did NOAA conduct waterfowl census on the Yukon Delta?

Just curious.

MTV

Sorry...was having trouble finding the "source."
Here:
http://www.aviationpros.com/news/107077 ... ent-charge

Eltee wrote:Sorry...was having trouble finding the "source."

I sense that your quotes indicate a mocking tone. I'm not asking you to cite source because I question the article, but rather because there are copyright lawyers who specialize in suing website owners over plagiarization of content.

MTV,

We did that particular census from 1985 through 1987. They may have done more after I left NOAA. We operated out of Nome or St. Marys (what a garden spot, lovely tilting assembly of attached trailers. It was like a halloween fun house staying there).

Zane, I though Don looked very official in his spiffy outfit, I think TSA is going to switch from the jolly blue jumpers.

Not at all and I presumed that your concern was copyright. It was a CBS news piece that I thought I'd seen on Instapundit, but I couldn't recover it. Found it later on the different source I posted. Have learned that sarcasm doesn't translate well into the written word...no mocking intended./ L

Eltee wrote:Not at all and I presumed that your concern was copyright. It was a CBS news piece that I thought I'd seen on Instapundit, but I couldn't recover it. Found it later on the different source I posted. Have learned that sarcasm doesn't translate well into the written word...no mocking intended./ L

Ok.

Zane wrote:there are copyright lawyers who specialize in suing website owners over plagiarization of content.

I dunno, but s'pect they go after the owner/mod for letting it remain there.
Could you temporarily remove "suspect stuff" until the poster could state the source? (as in this case, this time)
Just sayin'

Back to the original point of this thread:

There is a big difference between someone flying over a flock of birds once, and continuing on about their business (or recreation) and someone who flies over a flock of birds, then purposely returns to fly over that same flock again.

The Airborne Hunting Act has never been used and was never intended to assess any penalties for bird strikes by aircraft. Its intent is quite clear, and there have been numerous cases where individuals used aircraft to harass birds and haze them toward hunters.

Particularly during migration layovers, birds really can't afford the loss of much additional energy, and this kind of harassment causes them to expend that additional energy.

These are the kinds of cases the Airborne Hunting Act was aimed at preventing.

I have flown thousands of hours low level in some of the highest density waterfowl nesting habitats in the world, and never had a bird strike. That includes hundreds of seaplane landings and takeoffs amidst those same waterfowl.

The waterfowl survey protocol is approximately 100 ft agl and 80 to 90 knots airspeed. With a reciprocating engine airplane, it is rare for the birds to even react to the airplane in that configuration. Turbine powered aircraft tend to disturb some waterfowl more than recips do.

In any case, this sounds like a pretty valid violation of the Airborne Hunting Act.

MTV

Mike, I completely agree with you about the stupidity of overflying the birds the second time. They shouldn't have done it, and should be subject to some sort of proportionate penalty under a legitimately applicable regulation.

That said, I have serious concerns about the government's use of ambiguous and overbroad statutory language as a blunt-force instrument to selectively enforce violations when they feel like it. This is the Airborne Hunting Act, and there was nothing about this that resembled hunting. You correctly point out the other loose language in the statute about harassing, etc., but statutory language like that--and the Gubment's discretion to ignore it most times (because it would result in absurd outcomes) but enforce it when they want to (resulting in forfeiture actions against the plane for a low pass which, although admittedly stupid, demonstrated no intention to hunt, capture, or "take" any birds in any way, nor to haze the birds toward others who would)--scares the hell out of me.

I'm not a black helicopter guy, but I am reminded of the old saying: "When all you have is a hammer, everything looks like a nail." I don't like the idea of our government using open-ended legislative drafting as an invitation to view the law as a hammer for all occasions, when they feel like enforcing it. If prosecution of cases like this (and resulting forfeiture of the offending airplane) was truly the aim of the Airborne Hunting Act, they should have named it the "Airborne Harassment Act" or perhaps the "We Know it When We See it Act."

I'm not trying to be a smartass toward you, I'm just not a fan of governmental selective enforcement with such harsh consequences.

No offense taken. I would point out however that there are some checks and balances. Trust me when I say that any enforcement type who's going to take one of these to court is going to have to do a LOT of convincing of a US Attorney as well. Most US Attorneys are pretty skeptical of these kinds of statutes as well. It's not really selective enforcement, either....the act is very specific. The name of a particular statute often times doesn't reflect much of what the act really does.

Consider the new FAA budget bill, which includes the provision that requires the FAA to integrate drones into the national airspace system by 2015. Nothing in the name of that law would suggest that it's a drone promotion bill....

Sorry, just being a smart ass. But the point is, most statutes have a lot of functions/features that aren't necessarily reflected in the title of the statute.

MTV

I agree with you about the title not having much to do with the guts of the act in question. It is the language of the act itself which concerns me. Rather than arguing the inane question of whether a bird can be harassed, as these guys appear to be doing, I think they would have a much more legitimate statutory challenge by raising the question of whether the statute creates an objective and ascertainable standard for what constitutes actionable harassment. "We know it when we see it" may work for pornography, but I'm not exactly satisfied with that legal standard when it comes to losing your airplane for kicking up a few birds.

Again, no question these guys did something stupid by making a second pass, and no argument from me that they should be dinged proportionately. Civil forfeiture of their aircraft, on the other hand, seems like a grossly disproportionate punishment for what they did--not to mention a somewhat strained interpretation of what the statute in question was originally intended to accomplish.

Even if one thinks these guys deserve to lose their planes for the second pass (something I strongly disagree with), the precedent established by this ruling could potentially lead to an argument that future pilots should lose their planes on the first pass. Slippery slope, these enforcement actions become...