Wildlife photographer pleads guilty to violating Endangered Species Act

[John Guastella]

A Florida news outlet has reported that a prominent bird photographer has pled guilty to violating the Endangered Species Act. On at least eight occasions, this person was observed harassing nesting snail kites in order to get them to fly so his workshop customers could get flight shots. Snail kites are on the endangered species list; harassing them is a Federal offense. More details in the link below:

http://www.wesh.com/news/central-florida/osceola-county/wildlife-photographer-pleads-guilty-to-violating-endangered-species-act/24700816#ixzz2uZKdZOui

I hope that all photographers read the news article and act accordingly.

John

[Sidharth Kodikal]

So disappointing! TFS.

[Arthur Morris]

I have known about the case against Jim Neiger pretty much since its inception. The fact is that Jim was railroaded. It is a very unfortunate case of government gone amok. The "evidence" was ridiculous, a short video of him photographing snail kites from more than 100 feet away, sitting quietly in his boat. He was put into a corner as far as defending himself as the costs involved would have been astronomical.
Have you ever heard of someone who took a plea as the best option in an effort to save themselves and their families only to be proven innocent later?

Jim Niger was protective of the birds, often cautioning fisherman to stay away from their unseen nests. And while studying and photographing the birds for many years he often shared his findings with research teams that I believe were from the state of Florida. Jim is the victim here.

[Sidharth Kodikal]

Thanks for sharing this insight, Artie. Always helps to hear the other side of the story.

[John Guastella]

The "evidence" was ridiculous, a short video of him photographing snail kites from more than 100 feet away,

The news article states the following (boldface added by me): "The Endangered Species Act requires people to stay at least 500 feet from nests of the Snail Kite, an endangered raptor."

So, if he was 100 feet away, then he violated the law. Pretty simple...

John

[Dave Mills]

This is what I looked at http://www.wesh.com/news/central-florida/osceola-county/wildlife-photographer-pleads-guilty-to-violating-endangered-species-act/24700816

[Doug Brown]

I agree 100% Artie! Jim had no choice but to enter a plea. He simply couldn't afford the enormous legal fees (six figures) to defend himself and clear his name. Had he not accepted the plea deal, he would have faced the prospect of both prison time and a much heavier fine. The term 'railroaded' is entirely appropriate here.

I have never once seen Jim harass Snail Kites or approach nests. I don't know of another photographer who cares more about the well being of these birds.

[Doug Brown]

Here's a photo of a group of researchers banding a female Snail Kite that I took from Jim's boat back in 2009. I'd wager that this is far more stressful on a Snail Kite than Jim photographing from his boat 50-100 feet from a bird on a perch.

[Doug Brown]

And for an endangered species, you'd think that researchers would place transmitters onto females in a way that doesn't make mating difficult or impossible. Also taken from Jim's boat.

[Doug Brown]

The news article states the following (boldface added by me): "The Endangered Species Act requires people to stay at least 500 feet from nests of the Snail Kite, an endangered raptor."

So, if he was 100 feet away, then he violated the law. Pretty simple...

John

They offered no evidence that he was close to a nest; only that he was close to a bird. I've seen both the videos and the still frames that they submitted as evidence.

[Doug West]

Somebody help me out here...when it says:

'in lieu of turning over his boat, motor and camera, Nieger has also agreed to pay $9000 in fines'

Does that mean he can still lose his property?

It also sounds like the prosecution could still change their minds in regards to prison time and
fines?

Doug

[arash_hazeghi]

I have been on Jim's boat several times and this is my personal experience : We always stayed pretty far from the nests and in no way the kites seem to notice or care about us. In fact activity was low at that time and we didn't get many frames (Doug was on the boat too). We gave up on the location and ventured somewhere else because we didn't want to get close to the nests.

At the same time we saw fish and wildlife people were blasting through the "protected" kite area with the air boat in a no-wake zone full-throttle all day long. Jim's boat on the other hand is equipped with a small electric motor that he uses near the kite area to cruise slowly, quietly and with no wake.

I'm sorry Jim couldn't afford a top notch lawyer to clear his name.

[Mike Tracy]

Other than jim and the respective researchers no one has spent more time on Toho with the kites then me. I've decided its best if I stay out of this discussion though. The following is simply a link to better educate those who are not familiar with the kites. Nothing more nothing less.

http://m.myfwc.com/conservation/you-conserve/wildlife/snail-kites/

[John Haig]

I haven't posted here in a long, long time. I caught the news about Mr. Neiger from my Facebook feed. I've been a fan of his work for years, and I pretty much immediately assumed there was much more to the story. Thank you Arthur, Doug, and Arash for confirming what I suspected. I've worked in the field with biologists before, here in Canada, and I can pretty much attest to a lot more stress being created at times by them than any credible photographer I've ever encountered. Of course they make the argument it's all for the eventual good of the birds, but I have a suspicion a lot of it is for the good of justifying their own jobs, or gathering data for a thesis that will be added to a heap of other largely ignored works generated on a yearly basis.
I hope Jim Neiger continues his work, and that this is not a sign of what's to come for all of us who photograph wildlife, but I suspect it is.

[David Smith]

I too, feel like Jim has gotten the smelly end of the stick.. However, this action should serve notice to a lot of photographers who "push the window" on getting images of Bald Eagles.. I have seen numerous images of Bald Eagles that had to heve been taken fairly close, or greatly cropped.. Remember that 500 feet is almost two football fields distance...

I hope that Jim continues his workshops and comes out of this O.K..

Dave

[Raybel Robles]

Very interesting.

It's always good to learn some of this stuff since some of us new photographers are not aware. I only started photographing birds about a year ago and it is a hobby for me. Never knew about some of this restrictions. I have been to Florida before but only did extensive photographing in Gatorland, Orlando. I'm going back to Florida next month and to some reserve and parks and Im very glad to have learn some of this laws/restrictions on certain species. Certainly something I will respect on my trip.

[John Guastella]

Never knew about some of this restrictions. Certainly something I will respect on my trip.

Well, if everyone now is more aware of the appropriate behavior around wildlife, then at least something positive will have come from this unfortunate event.

John

[Don Lacy]

You can not be within 500 feet of a nest there is no restriction for perched or flying birds and the bird has to be listed as endangered. Bald Eagles are no longer listed as endangered but they still are protected under a different statue for Bald and Golden Eagles

[Don Lacy]

Well, if everyone now is more aware of the appropriate behavior around wildlife, then at least something positive will have come from this unfortunate event.

John

What is appropriate behavior and who gets to define it outside of federal and state regulation. The only reason Jim was charged was do to the special status of the Kites if he was next to an Osprey nest there would have been no issues. The Ospreys on Blue Cypress are routinely approached on their nest and they are thriving with last years nesting population being the largest ever counted on the lake. Now when I was on lake Toho my guide being a Florida wildlife biologist was well aware of the 500 yard rule for the nest so we set up within 25 yards of a feeding platform and had Kites fly right by the boat all legal. So were we to close according to you or some birder without a clue.

[David Stephens]

You can not be within 500 feet of a nest there is no restriction for perched or flying birds and the bird has to be listed as endangered. Bald Eagles are no longer listed as endangered but they still are protected under a different statue for Bald and Golden Eagles

There are restrictions for bald eagle, nests and hunting perches. BEs are not Endangered by they're considered of Special Concern, despite their huge, growing numbers. I shoot at a Hunting Perch which literally has a picnic table under it. The law allows for historical bird/people usage, so that I don't believe that I'm violating any law when I'm much, much closer than 500-feet, while casual strollers literally walk underneath the birds.

Still, this should be of great concern to all here. I'm on very good terms with the rangers at this particular park and they're very realistic about what's reasonable. This is a Colorado State park. Still, I've been standing in the same place and have some know-it-all from a local raptor rescue read me the riot act. In my limited experience, Federal agents can be a lot less understanding than our Colorado State rangers. If some do-gooder reports you for harassing a raptor, it might be expensive to defend yourself.

We should all know the exact status of the birds that we photograph and be aware of others in the area that might be anti-photography. Most "birders" are understanding, but some are downright hostile. You never know when they might be good friends with a Federal agent and cause you a lot of trouble.

Can you tell the difference between a Sage Grouse and a Gunnison Sage Grouse by just looking? If you're going to shoot either in Colorado, then you **** well better know, since the Gunnison is Endangered and SG is merely of Special Concern. There's a road where you can park in your car blind on the shoulder and the SG will literally surround you. That's okay under the SC rules, but not Endangered. It turns out that their territories overlap, so be careful. That's just an example.

[David Stephens]

What is appropriate behavior and who gets to define it outside of federal and state regulation. The only reason Jim was charged was do to the special status of the Kites if he was next to an Osprey nest there would have been no issues. The Ospreys on Blue Cypress are routinely approached on their nest and they are thriving with last years nesting population being the largest ever counted on the lake. Now when I was on lake Toho my guide being a Florida wildlife biologist was well aware of the 500 yard rule for the nest so we set up within 25 yards of a feeding platform and had Kites fly right by the boat all legal. So were we to close according to you or some birder without a clue.

Despite Osprey being routinely approached and insensitive to such approaches, that is not allowed under the letter of the law for birds of Special Concern. Jim's experience has me rethinking a past practice of visiting some nests and simply staying outside the Osprey's "comfort range" (well under 500-ft.). Instead, I'll probably visit some hunting perches that routinely have human traffic. Also, I know an Osprey nesting platform right on the side of a golf course, that'll be my preferred site. Same goes for burrowing owls. I follow the ones near public walking paths instead of those in more isolated areas.

Just something to consider.

[Marina Scarr]

I have never met or photographed with Jim Neiger, and I am not going to sit here in judgment when I don't know the facts of the case. However, I would like to address a few things that really tick me off.

Most of these researchers are doing far more harm to birds than any nature photographer ALL IN THE NAME OF SCIENCE. Sometimes when I am photographing bandings, I am actually wincing. I don't like the way the birds are struggling when trapped in mist nets or removed from nest cavities when they are only days old to be poked, prodded and banded...not to mention the GPS devices now being placed on a # of species. Remind me why we as nature photographers are being vilified?

Everyone knows that the media likes to put a slant on almost all stories in an attempt to sensationalize them and make more money. The real facts of the case one way or the other are never going to be known b/c the case is being plea bargained and speculating, just like ***uming, will only make you look like one.

Don't folks on FB have anything better to do that kick people while they are down and rush to judgment when they don't know the man or the facts and probably never will??? I suspect that many of them are living in glass houses, and the hypocrisy is baffling!!! It seems some photographers are posting stories simply to bring attention to themselves rather than to bring about a healthy debate on an important topic. Doesn't anybody have better things to do than trash people they don't even know on social networks?

Nature photographers are not the root cause of issues with endangered species...loss of habitat is. Maybe folks need to be more focused on how they can leave less of a foot print in their own lives rather than talking trash about others. I am just so sick and tired of all of the negativity and hypocrisy out there.

Stepping down off of my soapbox now!

[Don Lacy]

David I was using the Ospreys as an example that being close to a animal will not automatically cause then to die of shock as some will have us believe.

[John Guastella]

What is appropriate behavior and who gets to define it outside of federal and state regulation. The only reason Jim was charged was do to the special status of the Kites if he was next to an Osprey nest there would have been no issues. The Ospreys on Blue Cypress are routinely approached on their nest and they are thriving with last years nesting population being the largest ever counted on the lake. Now when I was on lake Toho my guide being a Florida wildlife biologist was well aware of the 500 yard rule for the nest so we set up within 25 yards of a feeding platform and had Kites fly right by the boat all legal. So were we to close according to you or some birder without a clue.

I'm not sure what points you're trying to make. There are federal and state regulations restricting human access to various categories of wildlife, and these restrictions can change depending on location and season. As an example, in one of the wildlife sanctuaries I photograph in, a trail with an osprey nesting platform is open to people most of the year, but that trail is closed off every spring as the ospreys begin their nesting activity. This is completely appropriate - no one could sensibly argue with it.

As far as our general behavior as bird photographers is concerned, we should at the very least follow the ethical guidelines established by the American Birding Association: http://www.aba.org/about/ethics.html


Most of these researchers are doing far more harm to birds than any nature photographer ALL IN THE NAME OF SCIENCE.
Marina, I agree with you that some of the activities wildlife biologists engage in (particularly banding) seem excessive and potentially harmful to the animals. I'm a biologist myself, but I still question some of the things being done for scientific purposes. However, the fact of the matter is that those scientists have permits to engage in those activities, so they are well within the law, regardless of how we feel about it.

John

[Clyde Hopper]

I have never met or photographed with Jim Neiger, and I am not going to sit here in judgment when I don't know the facts of the case. However, I would like to address a few things that really tick me off.

Most of these researchers are doing far more harm to birds than any nature photographer ALL IN THE NAME OF SCIENCE. Sometimes when I am photographing bandings, I am actually wincing. I don't like the way the birds are struggling when trapped in mist nets or removed from nest cavities when they are only days old to be poked, prodded and banded...not to mention the GPS devices now being placed on a # of species. Remind me why we as nature photographers are being vilified?

Everyone knows that the media likes to put a slant on almost all stories in an attempt to sensationalize them and make more money. The real facts of the case one way or the other are never going to be known b/c the case is being plea bargained and speculating, just like ***uming, will only make you look like one.

Don't folks on FB have anything better to do that kick people while they are down and rush to judgment when they don't know the man or the facts and probably never will??? I suspect that many of them are living in glass houses, and the hypocrisy is baffling!!! It seems some photographers are posting stories simply to bring attention to themselves rather than to bring about a healthy debate on an important topic. Doesn't anybody have better things to do than trash people they don't even know on social networks?

Nature photographers are not the root cause of issues with endangered species...loss of habitat is. Maybe folks need to be more focused on how they can leave less of a foot print in their own lives rather than talking trash about others. I am just so sick and tired of all of the negativity and hypocrisy out there.

Stepping down off of my soapbox now!
There is No way anyone could have worded my thoughts any better than this ! Thank You Marina !

[Bryan Munn]

I have never met or photographed with Jim Neiger, and I am not going to sit here in judgment when I don't know the facts of the case. However, I would like to address a few things that really tick me off.

Most of these researchers are doing far more harm to birds than any nature photographer ALL IN THE NAME OF SCIENCE. Sometimes when I am photographing bandings, I am actually wincing. I don't like the way the birds are struggling when trapped in mist nets or removed from nest cavities when they are only days old to be poked, prodded and banded...not to mention the GPS devices now being placed on a # of species. Remind me why we as nature photographers are being vilified?

Everyone knows that the media likes to put a slant on almost all stories in an attempt to sensationalize them and make more money. The real facts of the case one way or the other are never going to be known b/c the case is being plea bargained and speculating, just like ***uming, will only make you look like one.

Don't folks on FB have anything better to do that kick people while they are down and rush to judgment when they don't know the man or the facts and probably never will??? I suspect that many of them are living in glass houses, and the hypocrisy is baffling!!! It seems some photographers are posting stories simply to bring attention to themselves rather than to bring about a healthy debate on an important topic. Doesn't anybody have better things to do than trash people they don't even know on social networks?

Nature photographers are not the root cause of issues with endangered species...loss of habitat is. Maybe folks need to be more focused on how they can leave less of a foot print in their own lives rather than talking trash about others. I am just so sick and tired of all of the negativity and hypocrisy out there.

Stepping down off of my soapbox now!

Very well said.

IMHO there is so much hypocrisy and irrationality in federal law, it is hard not to look at incidents like this with a very jaundiced eye. In the USA at least, it has come to the point that if you know what Federal, State, City or County regulatory code to look in, by the letter of the law almost everything is illegal. I am not just talking about wildlife photography, but life in general. It is how the law is enforced, which is in no way consistent or predictable, that the politics of the moment rears its ugly head.

I have no opinion on what this photographer did or didn't do, since I have no firsthand knowledge of the incident. I do know the federal authorities will eagerly hang him out to dry and do all they can to ruin him and "make an example". But a local developer with the right political connections who sends money to the right people will be given gleeful federal, state, and local blessing to bulldoze and develop the very same sort of nesting habitat of the birds that this photographer may or may not have in some way "disturbed".

I have always thought that Point Reyes National Seashore in California illustrates this hypocrisy quite well. The area is managed by the National Park System, so I am sure all you know what that means. It is patrolled by National Park Service rangers, who typically enforce the "letter" of the law without any interpretation, discretion, or injection of common sense. If the ranger interprets that you have "disturbed" any creatures, or damaged any feature of the park in any way, you can usually count on formal enforcement action being taken against you. I guess that would be "OK", as long as we all know and are all bound by the same rules, right? But here is the hypocrisy...cattle ranching is allowed within most of the open terrain in the seashore. So nearly everywhere you go, you are confronted with herds of cattle grazing and trampling the "protected" terrain into a morass of mud and cow manure, ranchers driving their pick-up trucks through the meadows, etc.

This is why I take incidents like this with a grain of salt. Federal law is "political" law, and its long arm is generally only wielded against those without the money or political connections to be "above" it. Photographers typically make easy targets, despite the fact that whatever environmental "damage" they do is usually minimal or non-existent.

End of rant.

[Bryan Munn]

Somebody help me out here...when it says:

'in lieu of turning over his boat, motor and camera, Nieger has also agreed to pay $9000 in fines'

Does that mean he can still lose his property?

It also sounds like the prosecution could still change their minds in regards to prison time and
fines?

Doug



In plea deals with federal cases, typically the US Attorney makes a "recommendation" to the judge that they would be satisfied with the penalties agreed upon in the deal. But it is not binding...the judge can still disregard the recommendation and impose a stiffer penalty, as judges often do when they are "grandstanding" in cases they know will receive media attention.

Regarding the penalties in this case....are most of you aware that those penalties/potential penalties are significantly more severe than first offenders in most jurisdictions would receive for residential burglary or felonius (unarmed) assault? Does that seems "imbalanced" to anyone besides me?

[Shawn Zierman]

Please get back on your soap box Marina...that was awesome!!!! I appreciate the members of this forum and the participants in this thread who are not waiting in line...or trying to be first(!), to cast the first stones. Thank you also to Arthur Morris and others who have brought some clarity to the situation, with preponderant real life experiences with Mr. Neiger, and not suspicions, innuendos, and judgements....

[ericbowles]

I'm not sure I agree with the tone of this thread. What I hear is an understandable defense of Jim - which sounds warranted to a point. Clearly he is an excellent photographer and individual who respects wildlife and unintentionally got tied up in a prosecution for violating the Endangered Species Act.

But this kind of case is an opportunity to talk about ethics. Dave's comment about pushing the window is on the money. Many of us have pushed the window with bird photography. I'm not sure any top bird photographer can state that they don't push the window. And when is pushing the window going too far? Could we push the window a little less and teach others to avoid these situations. Are techniques to push the window okay for professionals but not for amateurs? One photographer pushing a nesting bird off the nest is a minor problem - but the same action by twenty photographers a day is a problem. High traffic areas put the spotlight on photographers to do the right thing.

It's also not fair to completely blame researchers and enforcement officers for this. I understand they are over zealous. "Barney with a badge" has been a problem for all of us.

Perhaps sharing the lessons we have learned and how we have modified behavior to push the envelop less often or more lightly would add value and demonstrate photographers are not the problem. There are a lot of people who believe the issue is with photographers - not researchers. And none of us need that fire to be fed with more flaming here.

[Arthur Morris]

There is lots more to consider here. First off, the ABA code of ethics is all common sense. Next, as Steve Holt mentioned on the Facebook lynching, why were no warnings given? It surely sounds as if Jim were set up as an example. If every fisherman and hunter who approached a kite nest were jailed the prisons in Osceola County would be over-crowded. I have personally seen Jim caution fisherman as to the presence of various kite nests. In fact,it is pretty clear that t the local fisherman who incorrectly assumed that it was Jim who turned them in to the authorities (it was not Jim) vandalized his motor to the tune of about $10K by cutting all the wires while the boat was parked in his driveway overnight.

Ethics are personal. The law is the law. In my 30 years plus of doing this I have found that those who scream the loudest about ethics are the ones raping the birds and wildlife when nobody is looking.... If I do not consider it a danger to do so I always open my mouth when I see photographers doing the wrong thing. And/or take photos of a license plate and take appropriate action. There is no one to police us but us.

[Arthur Morris]

Regarding the penalties in this case....are most of you aware that those penalties/potential penalties are significantly more severe than first offenders in most jurisdictions would receive for residential burglary or felonius (unarmed) assault? Does that seems "imbalanced" to anyone besides me?

Me too. Contrast that with an old case in NYC. They caught some guy shooting Snowy Owls and Peregrines to stuff them. He has some ridiculously high number of skins in his possession. He was fined $5 per bird. Maybe Jim will get that judge.....

[Marina Scarr]

I would like to share here what Michael Pancier, an attorney practicing in Miami (and I believe still a BPN member), wrote in response to someone's Facebook post on this issue. It's nice to have a legal opinion.

You can't go simply by what is in a plea agreement. Folks dealing with the feds usually have no choice but to take a plea. The cost of taking even a misdemeanor case to trial in federal court can cost someone in excess of $50K. Secondly, the common practice with the feds is to overcharge defendants in a way to strongarm them into a plea. The penalties of being found guilty in a multi count misdemeanor case in federal court could cost someone hundreds of thousands of dollars. Remember, this is a misdemeanor; not a felony. Furthermore, the regulations in the ESA are not clear cut; are not approved by congress; and are enforced haphazard especially under the harassment provision of the act. This is a strict liability statute where the issue of intent need not be proven. Likewise, more distress is caused to these birds by the capture and tagging and placement of radio transmitters on these birds. Yet, because this is done by someone with a license, it's ok. So think about it.

Let's say one day you're out with your group taking pictures of endangered birds. Some pissed off birder thinks you're harassing the birds and claims you're within an arbitrary number of feet of a nest which is buried somewhere in the code of federal regulations. You are notified by the Department of Justice that you're going to be charged. You take the position that you were not within this area and are innocent. Given the choices of taking this case to trial to vindicate you, which is going to cost you at least %50K and the risk of being found guilty of a non felony which entails fines of up to $100K; I posit that unless you have a bank account with Trump money; you will try to negotiate a plea and pay some fine similar to what is being paid here. It's not a felony. And this is what happens on this level.

It gets worse when the feds start strong arming folks with Lacey Act violations (See Gibson guitars); or with felony charges. In the federal system there is no discovery and you get penalized by harsher sentences if you fight the charges and go to trial and lose. Most folks who are not involved in the system have these naive notions that the federal justice system seeks justice and always does what's right; and that folks get fair trials. That's far from the truth. It's very political.

So something to think about every time you see these plea agreements .... there are far too many innocent people who plea guilty cause they have no choice; they either don't have the funds to get the best lawyer to fight the case all the way through; or the risks of taking it to trial substantially outweigh the benefits.

[Randy Stephens]

I read this horror story and are coming down to Fort Desoto and a maybe other places in a couple of weeks, for the first time, and was wondering if other than obeying the signs posted within an area if I should be afraid of violating any laws. I sure don't need any fine or my equipment taken away. I was hoping for a very great vacation time photographing birds.

[David Stephens]

David I was using the Ospreys as an example that being close to a animal will not automatically cause then to die of shock as some will have us believe.

Exactly, but because of their Special Concern status, you can be well within the 500' radius (or is it 1/4-mile), not stressing the birds, and be in violation of the letter of the law. Most of us consider whether we're stressing the birds, and I'd be willing to bet that Jim was within that kind of logical guideline, but the letter of the law does not allow for using logic.

I was within 200-ft of a bald eagle hunting perch and roosting site last evening. I was the only one there last night, but a few days earlier, people were literally standing under the perch and taking pictures with their P&S cameras. Historically, people have used the picnic tables under the roost, but I wouldn't be surprised if one of my raptor rescue friends didn't approach me and give me a ration of crap for putting myself in position to get a good fishing shot (didn't happen, alas). BTW, when I walked up, eagles were on the perch and I went away, eagles were still on the perch and an additional one or two had joined. I'm very clear that I wasn't stressing the birds, but that might not be good enough, if charges were brought.

[John Guastella]

I have found that those who scream the loudest about ethics are the ones raping the birds and wildlife when nobody is looking.
That has not been my experience at all. In fact, I rarely hear anyone talking about ethical behavior in the context of birding or bird photography. Very few people seem to care about the issue.

John

[Bryan Munn]

I read this horror story and are coming down to Fort Desoto and a maybe other places in a couple of weeks, for the first time, and was wondering if other than obeying the signs posted within an area if I should be afraid of violating any laws. I sure don't need any fine or my equipment taken away. I was hoping for a very great vacation time photographing birds.

I decided many years ago to simply avoid national parks, national monuments, or any other areas under the control of the national park service when doing wildlife photography. Under the letter of the law, almost anything done while taking wildlife photos can be construed as a "violation" by an overzealous park ranger....and a large percentage of them enforce the letter of the law, completely indifferent or ignorant of the "intent".

Many years ago I was contacted by a national park service ranger driving through a desert park in the southwest. He saw that I had a flashlight in my car, and started browbeating me, stating it was illegal to possess an "artificial illumination device" in a national park. He said this was because poachers illegally hunt by spotlight at night. Well, I had no firearms in the car, no bow, no weapons of any kind. But the flashlight was enough for this guy to sternly lecture me for 20 minutes and threaten to cite me for having an "artificial illumination device". Again, I wasn't even using the light....I just had it in the car. Who would drive through a remote desert at night without one?

That experience was an eye opener for me....I wonder what the penalty would have been had he cited me....for having a flashlight in my car at night.

And I agree with Art. From what I have seen "talking the talk" about ethics and actually behaving ethically are two completely different things. And I have never really seen much of a connection between the two.

[Don Thompson]

I don't know Jim, but by all accounts here, he is an honorable man, with nothing but regards for the wildlife he loves to photograph. Without turning this into a political debate, I do know that it wouldn't take much of a search to find many examples of what to me seems to be an out of control government, particularly at the federal level. It wouldn't take much to convince me that this another example.

[John Guastella]

Without turning this into a political debate...
The phraseology used by several people in this thread has already turned the discussion into a political debate. Examples: "an out of control government"; "government gone amok"; "the feds start strong arming folks". These are overtly political phrases, and they reflect belief in a very specific ideology.

John

[dankearl]

Thanks John,
The issue is Jim Neiger, and I am all for the defense of his actions for those who know the facts.
Turning this into an anti -government rant is pretty disheartening for someone who enjoys this website.
Sorry all you anti-government regulation "conservationists", Bald Eagles and the like don't recognize state lines and
without bills like the Endangered Species act and federal enforcement through the years, we would not be photographing them…...

I hope Jim gets his reputation back and gets back into the business he is good at.
I also will continue to support laws that have worked to keep what species we have left in the world protected
as well as possible.

Unlike some I guess, my experience with federal wildlife officers has been positive and especially the National Park service employees.
If yours differ, feel free to stay away, they are crowded enough.

[Arthur Morris]

That has not been my experience at all. In fact, I rarely hear anyone talking about ethical behavior in the context of birding or bird photography. Very few people seem to care about the issue.

John


Hey John,

Perhaps I have a bit more experience than you. I have seen it happen very often in the past 30+ years.

As for nobody caring about the issue of field ethics in bird and nature photography, you need to subscribe to my blog and to the Bulletins. Most recently see this post: Jumping Monkeys; There's More to It Than Meets the Eye (http://http://www.birdsasart-blog.com/2014/02/26/jumping-monkeys-theres-more-to-it-than-meets-the-eye/). See "Common Sense Photographic Ethics" in BAA Bulletin #305 here (http://www.birdsasart.com/2009/11/13/birds-as-art-bulletin-305/). See also Digital Manipulation and Nature Photography Competitions (http://www.birdsasart-blog.com/2011/12/22/digital-manipulation-and-nature-photography-competitions/). And most importantly, you need to check out If You Photograph Nature, You Gotta Read This! (Field Etiquette for Nature Photographers) (http://www.birdsasart-blog.com/2012/09/11/if-you-photograph-nature-you-gotta-read-this/). The latter article was published in Nature Photography Magazine a few years back.

As I said above, we need to police ourselves and those who we see doing bad things in the field.

[Arthur Morris]

Thanks John,

The issue is Jim Neiger, and I am all for the defense of his actions for those who know the facts. Turning this into an anti -government rant is pretty disheartening for someone who enjoys this website. Sorry all you anti-government regulation "conservationists", Bald Eagles and the like don't recognize state lines and without bills like the Endangered Species act and federal enforcement through the years, we would not be photographing them…...

I hope Jim gets his reputation back and gets back into the business he is good at. I also will continue to support laws that have worked to keep what species we have left in the world protected
as well as possible.

Unlike some I guess, my experience with federal wildlife officers has been positive and especially the National Park service employees. If yours differ, feel free to stay away, they are crowded enough.

Dan (and John in Pane 38). I disagree with you both but only 100% on the anti-government issues being brought up here. Please read or re-read Michael Pancier's comments in Pane 32. Don't get me wrong, I love living in the US and consider myself a proud American, but wrong is wrong.

[John Haig]

I'm a big believer in free speech, and in civility. The expression of opinions should never be viewed as threatening to one's own views. And criticism of government is essential in a free society. "Wrong is wrong" as Arthur just said.

When I made my comment above in pane 14, yesterday, I immediately received a private message from a member who lambasted me for being critical of field biologists: "you are totally ignorant of how field biologists work, what the process of science is all about, the role of research and science in conservation, the research permitting process, etc etc. I could go on."

He then went on,to inquire as to my qualifications....to express publicly my opinion:

"Do you have a B.Sc., M.Sc. or Ph.D. in wildlife science? Have you ever actually done any field research? "Seeing field biologists at work" does not qualify you to comment like you have."

His concluding comments were most telling... " As far as Neiger is concerned, there is no smoke without fire IMO. I suppose OJ Simpson was innocent too?"

The fact is, OJ was innocent...in the eyes of the court....and was thus acquitted. Doesn't mean they made the right decision.

Politics comes into play in all levels of life..."political debate" is the essence of most human discussions...I don't see party politics entering into this discussion anywhere.

As far as it becoming "anti-government" ...I'm not seeing any comments about building bunkers or not paying taxes or impeachment proceedings, so I think it's safe to assume the system isn't being threatened by radical bird photographers.

Disagreeing with what happened to Jim and being suspicious of what motivated it is not the same thing AT ALL as calling for an end to the ESA or saying ethics aren't important.

I would have much rather the person who sent me the private message had countered my comment in the public discussion, because I do believe that researchers and rules are important.

Going to church does not make one an immediate candidate for sainthood, however....and that applies equally to biologists, government employees, and even photographers. From all accounts Jim is one of the good guys, as are a lot of photographers....and so are a lot of researchers and government employees...it would be nice if we all could work together with a little leeway and benefit of the doubt.

[Sandy Witvoet]

This situation is not about photography, nor about photographers... not about scientists banding birds (which, I too, am NOT a fan of!) nor about politics .... but as the story states, it is about violating a specific law within the ESA....repeatedly. Was harm done to the nesting birds? Possibly, but also, maybe not....We don't know. It doesn't matter what gear was on-board....not even if it was a pair of $10 binocs.... But because Jim is a respected photographer, the "photographer" part seems to have taken front row, unfortunately. (I am sure there are lots of details we don't know too.)

As a former employee of a federal enforcement agency (not FWS), I can only say that our officers always acted with the utmost respect to potential violators and, frankly, knew that unless there was a rock solid case, it was SO much better to inform, educate and/or warn as opposed to resorting to legal action. (Can you tell I am a bit offended by the "Fed stereotyping" above?)
Photographing threatened/endangered birds is certainly legal.

Interfering with wildlife here in Michigan (there is a 100 yard "guideline", which is quite subjective unless you are photographed trying to run over waterfowl with a jet ski, or letting your dog eat the eggs of a nesting shorebird) is Poaching... period... and up to the State to enforce.
Guess I'm saying, be aware of where you are, what you are doing and what the law is. It is our responsibility.

[John Haig]

This situation is not about photography, nor about photographers... not about scientists banding birds (which, I too, am NOT a fan of!) nor about politics .... but as the story states, it is about violating a specific law within the ESA....repeatedly.

That's true, but because it seems Mr. Neiger was more or less forced to accept a plea deal, how do we know if he actually committed the offenses? In my personal experience, I've found USFW, Park Rangers, and our Canadian equivalents to be mostly dedicated, helpful, and fair. Mostly because I've personally not had an incident where I had a figurative gun at my head because doing today what I did yesterday is now a cause for losing my livelihood and freedom.

What I really don't get is if he did in fact "repeatedly" violate the ESA, over a two year period...why no warnings? There is no mention of any in the accounts I've read. How concerned are they about the kites well-being that they let it continue for TWO YEARS?

[Arthur Morris]

Sandy, With all due respect, please read or re-read Attorney Michael Pancier's statement in Pane 32. Furthermore, if you witnessed a violation 7 or 8 times over the course of two years would you not have warned the person after the first alleged transgression? Furthermore, why choose to prosecute Jim Neiger when dozens of fisherman violate the 500 foot rule every day during the nesting season?

There is a lot more going on here than meets the eye. Perhaps you can answer my questions. Respectfully.

[Bryan Munn]

Thanks John,
The issue is Jim Neiger, and I am all for the defense of his actions for those who know the facts.
Turning this into an anti -government rant is pretty disheartening for someone who enjoys this website.
Sorry all you anti-government regulation "conservationists", Bald Eagles and the like don't recognize state lines and
without bills like the Endangered Species act and federal enforcement through the years, we would not be photographing them…...

I hope Jim gets his reputation back and gets back into the business he is good at.
I also will continue to support laws that have worked to keep what species we have left in the world protected
as well as possible.

Unlike some I guess, my experience with federal wildlife officers has been positive and especially the National Park service employees.
If yours differ, feel free to stay away, they are crowded enough.

Since I believe this was partly directed at me, allow me to comment.

I am 100% in favor of the ESA. What I am against, is the arbitrary, hypocritical, and unreasonable ways in which it is often enforced, the bullying tactics often used in federal prosecutions against largely powerless defendants, and the completely ridiculous penalties that frequently result for arbitrary "grey area" violations. While I do not know Jim Neiger, nor am I familiar with what he did or didn't do, I suspect his case falls into most of these categories.

Since you brought up the example, perhaps you could tell me what role photographers, "ethical" or otherwise, had in the endangered status of the bald eagle? Or perhaps you could name another species wherein photographers demonstrably impacted their status in any negative way? If you cannot, then how can the role of the federal government in what apparently happened to Jim Neiger not be brought into question? The case had to have been brought through multiple levels...the initial enforcement officers, the US Attorney, the judge/federal court system all apparently "rubber stamped" and precipitated the outcome in his case. And, this is not an isolated instance. So unless you believe that justice has been served here, questions about the actions of the federal justice system are inevitable.

I am not "anti-government", but I believe there is nothing more unpatriotic than blindly supporting every action of our government, however ridiculous, just to avoid that label.

I sincerely apologize if my take on this offended your sensibilities, or left you disheartened. I suppose it is debatable whether this sort of discussion belongs on a nature photography forum. It is however an issue that effects us all, at least potentially.

[John Guastella]

Turning this into an anti -government rant is pretty disheartening for someone who enjoys this website.

I agree - hence my post in panel #38.


Can you tell I am a bit offended by the "Fed stereotyping" above?

As am I.

John

[Arthur Morris]

The phraseology used by several people in this thread has already turned the discussion into a political debate. Examples: "an out of control government"; "government gone amok"; "the feds start strong arming folks". These are overtly political phrases, and they reflect belief in a very specific ideology.

John

John, The Neiger issue has very much to do with politics, government gone amok, and the Feds strong arming folks. So I do not at all understand what point you are trying to make.

[Arthur Morris]

Since I believe this was partly directed at me, allow me to comment.

I am 100% in favor of the ESA. What I am against, is the arbitrary, hypocritical, and unreasonable ways in which it is often enforced, the bullying tactics often used in federal prosecutions against largely powerless defendants, and the completely ridiculous penalties that frequently result for arbitrary "grey area" violations. While I do not know Jim Neiger, nor am I familiar with what he did or didn't do, I suspect his case falls into most of these categories.

Since you brought up the example, perhaps you could tell me what role photographers, "ethical" or otherwise, had in the endangered status of the bald eagle? Or perhaps you could name another species wherein photographers demonstrably impacted their status in any negative way? If you cannot, then how can the role of the federal government in what apparently happened to Jim Neiger not be brought into question? The case had to have been brought through multiple levels...the initial enforcement officers, the US Attorney, the judge/federal court system all apparently "rubber stamped" and precipitated the outcome in his case. And, this is not an isolated instance. So unless you believe that justice has been served here, questions about the actions of the federal justice system are inevitable.

I am not "anti-government", but I believe there is nothing more unpatriotic than blindly supporting every action of our government, however ridiculous, just to avoid that label.

I sincerely apologize if my take on this offended your sensibilities, or left you disheartened. I suppose it is debatable whether this sort of discussion belongs on a nature photography forum. It is however an issue that effects us all, at least potentially.

Thanks Bryan. I obviously agree with you 100%. Thanks for posting.

[John Guastella]

Perhaps I have a bit more experience than you.

My experience is with the photographers I see at the wildlife sanctuaries I regularly shoot in here in Orange County, California, where I live. The behavior of many of those photographers is highly disrespectful of the rules and regulations, and of the wildlife in general. In fact, it's gotten so bad that, if I see a group of photographers at a particular shooting site, I will simply leave rather than allow myself to be associated with them.

John

[Sidharth Kodikal]

I would like to share here what Michael Pancier, an attorney practicing in Miami (and I believe still a BPN member), wrote in response to someone's Facebook post on this issue. It's nice to have a legal opinion.

You can't go simply by what is in a plea agreement. Folks dealing with the feds usually have no choice but to take a plea. The cost of taking even a misdemeanor case to trial in federal court can cost someone in excess of $50K. Secondly, the common practice with the feds is to overcharge defendants in a way to strongarm them into a plea. The penalties of being found guilty in a multi count misdemeanor case in federal court could cost someone hundreds of thousands of dollars. Remember, this is a misdemeanor; not a felony. Furthermore, the regulations in the ESA are not clear cut; are not approved by congress; and are enforced haphazard especially under the harassment provision of the act. This is a strict liability statute where the issue of intent need not be proven. Likewise, more distress is caused to these birds by the capture and tagging and placement of radio transmitters on these birds. Yet, because this is done by someone with a license, it's ok. So think about it.

Let's say one day you're out with your group taking pictures of endangered birds. Some pissed off birder thinks you're harassing the birds and claims you're within an arbitrary number of feet of a nest which is buried somewhere in the code of federal regulations. You are notified by the Department of Justice that you're going to be charged. You take the position that you were not within this area and are innocent. Given the choices of taking this case to trial to vindicate you, which is going to cost you at least %50K and the risk of being found guilty of a non felony which entails fines of up to $100K; I posit that unless you have a bank account with Trump money; you will try to negotiate a plea and pay some fine similar to what is being paid here. It's not a felony. And this is what happens on this level.

It gets worse when the feds start strong arming folks with Lacey Act violations (See Gibson guitars); or with felony charges. In the federal system there is no discovery and you get penalized by harsher sentences if you fight the charges and go to trial and lose. Most folks who are not involved in the system have these naive notions that the federal justice system seeks justice and always does what's right; and that folks get fair trials. That's far from the truth. It's very political.

So something to think about every time you see these plea agreements .... there are far too many innocent people who plea guilty cause they have no choice; they either don't have the funds to get the best lawyer to fight the case all the way through; or the risks of taking it to trial substantially outweigh the benefits.


Thanks for sharing this Marina. Quite an eye opener for me. I've clearly had a simplistic/naive/idealistic view of how law works.
Sounds like messy business to say the least.
I'll likely stay away from the Golden Cheeked Warblers and the Black Capped Vireos I was wanting to photograph this year.

[Arthur Morris]

My experience is with the photographers I see at the wildlife sanctuaries I regularly shoot in here in Orange County, California, where I live. The behavior of many of those photographers is highly disrespectful of the rules and regulations, and of the wildlife in general. In fact, it's gotten so bad that, if I see a group of photographers at a particular shooting site, I will simply leave rather than allow myself to be associated with them.

John

As I have been saying repeatedly, when you see folks doing the wrong thing you need to open your mouth. Otherwise you are pretty much as guilty as they are. Furthermore, your comment has nothing to do with what I wrote. I was clearly referring to folks who scream about the ethics of other folks while doing bad things when nobody is looking.

In addition, despite your frequent activity here this evening, despite my PM to you, and despite my e-mail to you, you have failed to address the simple questions that I asked of you in Pane 43. Please answer them.

[Rachel Hollander]

If the statute is a strict liability statute as Michael says (and I have no reason to believe it isn't) then anyone being within 500 feet of a nest is guilty of the offense without regard to intent, knowledge of the law or effect on the protected species. It makes no difference at all if the kites were undisturbed. With a strict liability crime the government doesn't have to prove much, in this case, all it would have to prove beyond a reasonable doubt is that the person charged was within 500 feet of a nest. It could likely satisfy such a burden with eyewitness testimony, photographs, or any number of other ways. Think of a parking violation or speeding, these are examples of strict liability violations. The flip side is that there are few if any defenses to a strict liability offense (statute of limitations, faulty equipment come to mind but not much else).

It sounds like part of the issue here may be one of selective prosecution. If in fact others are also violating the statute why is Jim the only one being prosecuted (if he is the only one)? Any discussion of that without having a ton more facts would just be speculation on everyone's part.

As has been said above, even if Jim is not guilty, the cost of mounting a defense and the added risk of a trial on multiple counts and additional fines and/or jail time if convicted on such counts all have to be considered. The only one who has full knowledge of the facts, his economic wherewithal, the toll a trial would take on himself and his family and his risk aversion is Jim. As a result we can't really read anything into his decision to accept the plea.

The real discussion that should take place is whether strict liability is the appropriate standard for these types of statutes or if there should be a requirement of some sort of culpable conduct e.g. intent, recklessness, negligence, etc. And if it should be a different standard, what can nature photographers as a group do to have it changed.

I am a lawyer but do not practice criminal defense and nothing I've said here should be considered legal advice to anyone.

Rachel

[John Guastella]

Rachel, your post is by far the most rational and informative one so far in this thread.

John

[John Guastella]

when you see folks doing the wrong thing you need to open your mouth.

Believe me, I've tried that and gotten no results at all. In some cases the responses I've received were so hostile that I've simply decided that, as important as this issue is to me, it's not worth the possible personal risk.

John

[Arthur Morris]

Believe me, I've tried that and gotten no results at all. In some cases the responses I've received were so hostile that I've simply decided that, as important as this issue is to me, it's not worth the possible personal risk.

John

Then you walk away, take photographs, especially of the offenses in question and of licence plates, and contact the authorities. I have done that on numerous occasions.

[Gavin Spooner]

I haven't been here in a while but came back after seeing a post in another forum about this issue and came back to view the reactions.

I do not know Jim. I know his photos. They are excellent. It is a bird I love to see and photograph.

BUT

There are associations here that just seem to be an issue.

When I was a visitor here Jim was a regular poster and also a regular advertiser of his services ( I planned to use his services at one time.) Was he also a moderator here?

I know people have come to his defense which is noble. I know people are often accused of wrongdoing that is incorrect. I know that sometimes people plead guilty although they may not be guilty ( http://www.wesh.com/news/central-florida/osceola-county/wildlife-photographer-pleads-guilty-to-violating-endangered-species-act/24700816?fb_action_ids=501029033341832&fb_action_types=og.recommends&fb_source=other_multiline&action_object_map=%5B743815962303355%5D&action_type_map=%5B%22og.recommends%22%5D&action_ref_map=%5B%5D0 )

But Jim has pleaded guilty according to this article.

People have defended him based on the cost of defense. He charges for his services ( http://www.flightschoolphotography.com/Custom%20Workshop%20Rates.htm
https://store.birdsasart.com/shop/item.aspx?itemid=379 ) at a nice rate. So as someone making money from this and charging a good rate, the concept of not being able to defend himself financially against the federal government doesn't necessarily fly. Surely if what he his being charged with (and has pleaded guilty to) is a business then a lack of following laws (local, state or federal) is an issue.

Art in his defense of Jim states in this thread: " I have known about the case against Jim Neiger pretty much since its inception. The fact is that Jim was railroaded. It is a very unfortunate case of government gone amok. The "evidence" was ridiculous, a short video of him photographing snail kites from more than 100 feet away, sitting quietly in his boat. He was put into a corner as far as defending himself as the costs involved would have been astronomical."
But the law states " The Endangered Species Act requires people to stay at least 500 feet from nests of the Snail Kite, an endangered raptor.

Read more: http://www.wesh.com/news/central-florida/osceola-county/wildlife-photographer-pleads-guilty-to-violating-endangered-species-act/24700816#ixzz2umVsDqtj"
Even with the evidence of support from Art, it is clear that the evidence still shows that he is guilty according to the law.

When I read the accusation and the guilty plea from the defendant in the local news media, I was interested in how the BPN community would respond based on an issue I remember from a few years back.

http://www.birdphotographers.net/forums/showthread.php/49270-Misrepresentation-in-Photo-Contest

In this thread constantly the accused was asked to defend himself to the community. As he didn't or his defense elsewhere was not accepted he was castigated as breaking the rules and guilty.

He was guilty as he broke the rules of the competition. He was guilty because what he did to win ( or create good photographs) was wrong. It was wrong ethically or morally but not legally.

Here we have a case where for whatever reason the person was charged and pleaded guilty to breaking a federal act. Whether the Federal act made sense or not is not an issue. He pleaded guilty to it. Legally he was wrong and accepted that, but he is still being supported here.

He has never been asked to defend himself here. He has not been chastised for his actions. His has in fact been supported and made out as a scapegoat.

So why is no one asking for the accused (and person who pleaded guilty) to defend himself here? Why are we only hearing from others who know him, who support him, who have benefitted from him ( https://store.birdsasart.com/shop/item.aspx?itemid=379 ) to defend him?

This is not a troll post, and I hope it is not viewed as a troll post. I read lots of concerns about government and injustice in this thread (and I know there are many instances of these) but I think maybe it is time to step back from the personal relationships that exist with some of the posters and try to view the reaction in support of this member compared to the reactions against a previous member and show some independence of thought.

This person has pleaded guilty to violating a federal act (for whatever reason - whether being guilty or not able to prove his innocence or because of financial restraints).
He was a regular contributor to this site, a regular advertiser and beneficiary of this site. He has been supported by the ownership of this site through support for his books and services and through support in this thread. Others have not had this support and have been vilified (?) for lesser sins of breaking competition rules.

Lets learn from this. Know the rules that protect endangered species. Be responsible for our actions (whether deliberate or not). Help protect a beautify species and photograph it responsibly and within the rules that exist.

cheers
Gavin

[Arthur Morris]

Gavin, I have only one question for you: it is a fact that dozens of fisherman, hunters, and photographers violate the 500 foot rule every day during the kite nesting season. Why was Jim chosen to be selectively prosecuted. Please also read or re-read Michael Pancier's comments in Pane 32.

[Doug Brown]

So why is no one asking for the accused (and person who pleaded guilty) to defend himself here? Why are we only hearing from others who know him, who support him, who have benefitted from him ( https://store.birdsasart.com/shop/item.aspx?itemid=379 ) to defend him?

This is not a troll post, and I hope it is not viewed as a troll post. I read lots of concerns about government and injustice in this thread (and I know there are many instances of these) but I think maybe it is time to step back from the personal relationships that exist with some of the posters and try to view the reaction in support of this member compared to the reactions against a previous member and show some independence of thought.

This person has pleaded guilty to violating a federal act (for whatever reason - whether being guilty or not able to prove his innocence or because of financial restraints).
He was a regular contributor to this site, a regular advertiser and beneficiary of this site. He has been supported by the ownership of this site through support for his books and services and through support in this thread. Others have not had this support and have been vilified (?) for lesser sins of breaking competition rules.

Lets learn from this. Know the rules that protect endangered species. Be responsible for our actions (whether deliberate or not). Help protect a beautify species and photograph it responsibly and within the rules that exist.

cheers
Gavin

Hi Gavin. Jim is unable to comment based on advice from counsel. This story was leaked to the media prematurely (IMO by someone with an axe to grind with Jim), as Jim has yet to appear in court, much less enter a plea. Comments made by Jim at this point could jeopardize the plea deal.

[Joel Eade]

I don't know Jim and I definitely don't know what really happened but I think if he loses his case it could set a precedent that could adversely affect everyone in the business of leading wildlife photography tours. Perhaps those that do know Jim, believe strongly in his innocence and are in the same business should consider getting together and donating some money to help him out and also protect the future of their own businesses. Maybe organize a legal defense fund for those willing to contribute.

[Grady Weed]

I have never met or photographed with Jim Neiger, and I am not going to sit here in judgment when I don't know the facts of the case. However, I would like to address a few things that really tick me off.

Most of these researchers are doing far more harm to birds than any nature photographer ALL IN THE NAME OF SCIENCE. Sometimes when I am photographing bandings, I am actually wincing. I don't like the way the birds are struggling when trapped in mist nets or removed from nest cavities when they are only days old to be poked, prodded and banded...not to mention the GPS devices now being placed on a # of species. Remind me why we as nature photographers are being vilified?

Everyone knows that the media likes to put a slant on almost all stories in an attempt to sensationalize them and make more money. The real facts of the case one way or the other are never going to be known b/c the case is being plea bargained and speculating, just like ***uming, will only make you look like one.

Don't folks on FB have anything better to do that kick people while they are down and rush to judgment when they don't know the man or the facts and probably never will??? I suspect that many of them are living in glass houses, and the hypocrisy is baffling!!! It seems some photographers are posting stories simply to bring attention to themselves rather than to bring about a healthy debate on an important topic. Doesn't anybody have better things to do than trash people they don't even know on social networks?

Nature photographers are not the root cause of issues with endangered species...loss of habitat is. Maybe folks need to be more focused on how they can leave less of a foot print in their own lives rather than talking trash about others. I am just so sick and tired of all of the negativity and hypocrisy out there.

Stepping down off of my soapbox now!

I have never found social media to be of any value whatsoever! A total and complete waste of time. and this case proves it. Thank you Marina for putting it so clearly.

[Grady Weed]

If the statute is a strict liability statute as Michael says (and I have no reason to believe it isn't) then anyone being within 500 feet of a nest is guilty of the offense without regard to intent, knowledge of the law or effect on the protected species. It makes no difference at all if the kites were undisturbed. With a strict liability crime the government doesn't have to prove much, in this case, all it would have to prove beyond a reasonable doubt is that the person charged was within 500 feet of a nest. It could likely satisfy such a burden with eyewitness testimony, photographs, or any number of other ways. Think of a parking violation or speeding, these are examples of strict liability violations. The flip side is that there are few if any defenses to a strict liability offense (statute of limitations, faulty equipment come to mind but not much else).

It sounds like part of the issue here may be one of selective prosecution. If in fact others are also violating the statute why is Jim the only one being prosecuted (if he is the only one)? Any discussion of that without having a ton more facts would just be speculation on everyone's part.

As has been said above, even if Jim is not guilty, the cost of mounting a defense and the added risk of a trial on multiple counts and additional fines and/or jail time if convicted on such counts all have to be considered. The only one who has full knowledge of the facts, his economic wherewithal, the toll a trial would take on himself and his family and his risk aversion is Jim. As a result we can't really read anything into his decision to accept the plea.

The real discussion that should take place is whether strict liability is the appropriate standard for these types of statutes or if there should be a requirement of some sort of culpable conduct e.g. intent, recklessness, negligence, etc. And if it should be a different standard, what can nature photographers as a group do to have it changed.

I am a lawyer but do not practice criminal defense and nothing I've said here should be considered legal advice to anyone.

Rachel


Thank you Rachel for your insight. It really would be best for all of us to leave the situation alone and not make inflammatory comments or rip others apart. I hope Jim can recover from all of this. I find it interesting when the chips are down who you can count on and who will rip you up.

[Sandy Witvoet]

Sandy, With all due respect, please read or re-read Attorney Michael Pancier's statement in Pane 32. Furthermore, if you witnessed a violation 7 or 8 times over the course of two years would you not have warned the person after the first alleged transgression? Furthermore, why choose to prosecute Jim Neiger when dozens of fisherman violate the 500 foot rule every day during the nesting season?

There is a lot more going on here than meets the eye. Perhaps you can answer my questions. Respectfully.
Hi Artie, pleased to respond... respectfully!
Yes, I carefully read pane 32 (multiple times) ...and have no qualms about the lawyer's opinion..... my post also inferred that there is certainly more here than meets the eye. We do not know about warnings issued at this point... If I was in charge of enforcement... YOU BET I would have given a warning to the person.... and if I was just a "regular 'guy'" I would have approached and asked that he move back, if it seemed necessary. (and, yes, I have done that here on the lake and it's worked quite well!... and when it didn't I enlisted the help of our CO... who asked my opinion "How shall we proceed?" My response: A simple educational visit - worked great. ) .... and also, yes, if fishermen violate that rule, they too should be cited.
I personally agree: "Why Jim?" Answer: I don't know. It could well have been "Why the Fishermen?"


Discussions are good for us, makes us think, evaluate and ponder. Thanks for the op and ability to discuss freely here.

[Dave Mills]

I've read all the posts on this site and others regarding this issue. I don't know Jim so I have no feelings one way or the other. I feel until we know more about the facts in this case publicly and everything that transpired it would be foolish to come up with a definitive opinion. Jim pleading guilty to the charges IMO doesn't help him. I keep wondering about a court appointed attorney if he couldn't afford to hire one. If the govt had a weak case why not use the court appointed attorney? However, I don't know the rules on using court appointed attorneys.
Another factor is just because others got away with breaking the law is not a good excuse to break it yourself.
As Gavi Spooner said "I read lots of concerns about government and injustice in this thread (and I know there are many instances of these) but I think maybe it is time to step back from the personal relationships that exist with some of the posters and try to view the reaction in support of this member compared to the reactions against a previous member and show some independence of thought.

This person has pleaded guilty to violating a federal act (for whatever reason - whether being guilty or not able to prove his innocence or because of financial restraints).
He was a regular contributor to this site, a regular advertiser and beneficiary of this site. He has been supported by the ownership of this site through support for his books and services and through support in this thread. Others have not had this support and have been vilified (?) for lesser sins of breaking competition rules."

I agree with Gavin on the objectivity issue....

[Grady Weed]

I have a question for John Gustella who started this thread: He wrote the following on another Forum when someone mentioned that Jim Neiger was a BAA Posse member:

I didn't know that Neiger was part of that group. But based on some of the discussions I've seen over the years at BPN, it doesn't surprise me.

John, Please explain your comment. I'd appreciate links to the discussions that you are referring to.

Yes John, just what was your intent or reason in starting this thread? What did you hope to accomplish? Did you witness the alleged infractions?

[John Guastella]

Yes John, just what was your intent or reason in starting this thread? What did you hope to accomplish? Did you witness the alleged infractions?

My intent was simple: when a prominent bird photographer pleads guilty to violating the Endangered Species Act -- the single most important piece of legislation protecting wildlife in the United States -- than that's big news and should be discussed widely within the community of bird photographers.

John

[Grady Weed]

My intent was simple: when a prominent bird photographer pleads guilty to violating the Endangered Species Act -- the single most important piece of legislation protecting wildlife in the United States -- than that's big news and should be discussed widely within the community of bird photographers.

John

So before you started this thread did you talk to Jim Neiger? Do you have all of the facts? Do you know Jim, personally?

I'll wager no one here, or any other forum, can put themselves in Jim's shoes, one can never say what they would have done in the same situation unless they have been in the same situation. Keyboard heroes who rip others apart in forums only serve to inflame the situation and give the troublemakers more reason to try to limit access to wildlife or heap all of us in the same nasty group. We owe all fellow photographers, including Jim, the benefit of the doubt. Only he knows why he pleaded the case out. Until HE tells us why, if he thinks it is any of our business, we should remain neutral. YOU would want the same treatment, we all would.

I'll bet the guys who vandalized his boat, to the tune of 10,000 grand, were just as "guilty" of transgressing the Species Act. Yes the law is the law. But where has common sense gone?

[Bryan Munn]

One of my main concerns in a larger sense, is this concept of a "liability" violation, wherein no intent or negligence or even knowledge is required. Walk within 500 feet of an ESA nest, even if you do not know it is there, and BANG you are guilty of a federal crime with penalties that are severe, to say the least. IMHO that is simply a bad law, and one that needs to be greatly tempered by a lot of discretion from the federal justice system as far as prosecutions. From what I know and what I have read here....I don't think we can count on that discretion.

[Grace Scalzo]

I wish that there was a fund that Jim could have accessed so that he could have had his day in court. So unfair, and with far reaching ramifications for the rest of us when you stop and think about it.

[Arthur Morris]

Hi Artie, pleased to respond... respectfully!
Yes, I carefully read pane 32 (multiple times) ...and have no qualms about the lawyer's opinion..... my post also inferred that there is certainly more here than meets the eye. We do not know about warnings issued at this point... If I was in charge of enforcement... YOU BET I would have given a warning to the person.... and if I was just a "regular 'guy'" I would have approached and asked that he move back, if it seemed necessary. (and, yes, I have done that here on the lake and it's worked quite well!... and when it didn't I enlisted the help of our CO... who asked my opinion "How shall we proceed?" My response: A simple educational visit - worked great. ) .... and also, yes, if fishermen violate that rule, they too should be cited.
I personally agree: "Why Jim?" Answer: I don't know. It could well have been "Why the Fishermen?"

Discussions are good for us, makes us think, evaluate and ponder. Thanks for the op and ability to discuss freely here.

Thanks for your thoughtful reply Sandy. All good.

[Joel Eade]

I wish that there was a fund that Jim could have accessed so that he could have had his day in court. So unfair, and with far reaching ramifications for the rest of us when you stop and think about it.
I totally agree and I think he should defend himself if he truly believes he did not violate the law, pleading guilty is the same as admitting you did wrong. I was in a situation several years ago where I was sued for something I did not do. Because of a diversity of citizenship between myself and the plaintiff the case was moved to federal court. In a pre-trial hearing the judge, in a private conference with my attorney, suggested that I plead guilty and settle out of court. He tried to frighten me by saying a jury verdict against me might be financially devastating. I told the judge I could not admit guilt to something I did not do. It took 6 years to go to trial because of inumerable delays. The original judge took sick with cancer and passed away so his docket was hopelessly behind. When it finally happened, the trial lasted 3 days and the jury took 15 minutes to decide in my favor. It was **** at the time but I am happy I stood up for myself. If Jim really believes he is not guilty he should fight if at all possible. This case could be used to put severe pressure on all photography tour operators and if Jim could successfully defend it would be a good thing.

[Grady Weed]

I totally agree and I think he should defend himself if he truly believes he did not violate the law, pleading guilty is the same as admitting you did wrong. I was in a situation several years ago where I was sued for something I did not do. Because of a diversity of citizenship between myself and the plaintiff the case was moved to federal court. In a pre-trial hearing the judge, in a private conference with my attorney, suggested that I plead guilty and settle out of court. He tried to frighten me by saying a jury verdict against me might be financially devastating. I told the judge I could not admit guilt to something I did not do. It took 6 years to go to trial because of inumerable delays. The original judge took sick with cancer and passed away so his docket was hopelessly behind. When it finally happened, the trial lasted 3 days and the jury took 15 minutes to decide in my favor. It was **** at the time but I am happy I stood up for myself. If Jim really believes he is not guilty he should fight if at all possible. This case could be used to put severe pressure on all photography tour operators and if Jim could successfully defend it would be a good thing.

Some very good advice for all of us to consider. I hope Jim makes out and is able to clear his name. But all of that of course is up to Jim.

[Bryan Munn]

I totally agree and I think he should defend himself if he truly believes he did not violate the law, pleading guilty is the same as admitting you did wrong. I was in a situation several years ago where I was sued for something I did not do. Because of a diversity of citizenship between myself and the plaintiff the case was moved to federal court. In a pre-trial hearing the judge, in a private conference with my attorney, suggested that I plead guilty and settle out of court. He tried to frighten me by saying a jury verdict against me might be financially devastating. I told the judge I could not admit guilt to something I did not do. It took 6 years to go to trial because of inumerable delays. The original judge took sick with cancer and passed away so his docket was hopelessly behind. When it finally happened, the trial lasted 3 days and the jury took 15 minutes to decide in my favor. It was **** at the time but I am happy I stood up for myself. If Jim really believes he is not guilty he should fight if at all possible. This case could be used to put severe pressure on all photography tour operators and if Jim could successfully defend it would be a good thing.


I agree in principle....but once charges are filed there is really no way to "win". Even if you successfully defend yourself, you wind up financially ruined. I have always thought that the law should require the prosecution to pay defense costs when a defendant is aquitted....it seems like common sense to me.

The other issue....if you take the case to trial and lose, the penalties imposed by the judge will typically be many times more severe....because you had the "gall" to stand up for yourself. This is true not only in federal court, but state court as well.

I can plainly understand why someone who is not guilty might wind up pleading guilty....the system is structured to coerce a plea out of them.

[Marina Scarr]

Something happened last evening that made me think of this thread and realize how much the case against Jim is about selective prosecution. I was photographing at a nearby wood stork rookery situated in a small neighborhood. Keep in mind, the wood stork is listed as an endangered species under the ESA. Several neighborhood residents regularly feed the wood storks and other species right on the edge of the road within 100 feet of the island where they are currently nesting. Local Audubon is fully aware of this practice and has adopted a laissez faire attitude for several reasons which make sense. I have a sneaking suspicion that many a nature photographer and layperson have broken the law under the ESA without even knowing it. As I photographed at the rookery last night, I wasn't 500 ft back from the nest of an endangered species, and neither are any of the Audubon board members when they are out there monitoring, counting and photographing. This leads me to surmise that Jim may well have ticked off the wrong person.

Having worked in the legal field for 20+ years, I can verify that it is customary for many an accused to plead guilty in order to avoid a long and costly court battle with an UNKNOWN outcome. I am not sure whether folks are aware that well over 95% of cases never see the inside of a courtroom. Our legal system may be the fairest in the world, but it remains flawed.

[David Stephens]

On one of my local Facebook forums, in reaction to this same event with Jim, I posted that we all needed to be aware of the rules. The forum is full of bald eagle images that are clearly a violation of the letter of the law regarding these birds that are "Of Special Concern." One of the participants, who'd posted many images from very close to Hunting Perches and Winter Night Perches wanted me to post the link to the regulation. I found them again and posted, but it took me over an hour of searching to find the link again.

It is indeed hard to know when you're violating a law. Casual observers of bald eagles in Colorado, around Denver, wouldn't realize that they still need any special treatment. They sit on hunting perches watching fishermen, they have hunting perches right over picnic tables. Their winter night roosts are 50-feet from a popular campground, etc., etc. I spent much of last evening, sitting in my car-blind, watching them fly in and out of one of their night roosts, trying to get good flight shots. People came and went and mostly stayed at their cars. One friend actually approached the tree line with his 100-400mm lens (I was shooting at 1000mm) so that he could get a nice shot. When I told him that he'd actually broken the letter of state law, he was very surprised. He hadn't stressed any bird, in fact birds flew in as he stood there.

I maintain good relations with rangers (one of them even pulled up behind me and took a picture of the eagles), but you never know when you might get crosswise with one, through no fault of your own. Suddenly, repeatedly violating the letter of the law, could land you with a citation. One reason that I don't spend more time at our nearby Federal NWR is that the rangers there seem much less tolerant. Don't you dare stop to shoot the great horned owl nesting in the limb overhanging the main road. (Horned owls aren't Endangered or Of Special Interest, but I get more grief for shooting them than any other bird.)

All wildlife photographers should realize that there are special rules and laws regards Endangered and Of Special Concern birds and animals. Some of those animals are VERY tolerant of humans (some eagles, most Osprey, burrowing owls) and following the Audubon ethics of not stressing them, could still put you in violation of a Federal law. Know which birds have special rules and be aware that someone may be watching you approach a tolerant, nesting Osprey, taking your picture and laying a plan to get you busted.

[Grady Weed]

On one of my local Facebook forums, in reaction to this same event with Jim, I posted that we all needed to be aware of the rules. The forum is full of bald eagle images that are clearly a violation of the letter of the law regarding these birds that are "Of Special Concern." One of the participants, who'd posted many images from very close to Hunting Perches and Winter Night Perches wanted me to post the link to the regulation. I found them again and posted, but it took me over an hour of searching to find the link again.

It is indeed hard to know when you're violating a law. Casual observers of bald eagles in Colorado, around Denver, wouldn't realize that they still need any special treatment. They sit on hunting perches watching fishermen, they have hunting perches right over picnic tables. Their winter night roosts are 50-feet from a popular campground, etc., etc. I spent much of last evening, sitting in my car-blind, watching them fly in and out of one of their night roosts, trying to get good flight shots. People came and went and mostly stayed at their cars. One friend actually approached the tree line with his 100-400mm lens (I was shooting at 1000mm) so that he could get a nice shot. When I told him that he'd actually broken the letter of state law, he was very surprised. He hadn't stressed any bird, in fact birds flew in as he stood there.

I maintain good relations with rangers (one of them even pulled up behind me and took a picture of the eagles), but you never know when you might get crosswise with one, through no fault of your own. Suddenly, repeatedly violating the letter of the law, could land you with a citation. One reason that I don't spend more time at our nearby Federal NWR is that the rangers there seem much less tolerant. Don't you dare stop to shoot the great horned owl nesting in the limb overhanging the main road. (Horned owls aren't Endangered or Of Special Interest, but I get more grief for shooting them than any other bird.)

All wildlife photographers should realize that there are special rules and laws regards Endangered and Of Special Concern birds and animals. Some of those animals are VERY tolerant of humans (some eagles, most Osprey, burrowing owls) and following the Audubon ethics of not stressing them, could still put you in violation of a Federal law. Know which birds have special rules and be aware that someone may be watching you approach a tolerant, nesting Osprey, taking your picture and laying a plan to get you busted.

And therein lies the problem! What gives someone the right to selectively, most likely incognito for lack of a better term, to "get you back" by using the "law" to get you busted. We are living in an age where folks use nefarious means to pay someone back or cause enormous grief because of different perspectives or viewpoints. The ESA needs tweaking and enforcing by "solid professionals" folks who live in the real world not one created by Walt Disney.

I love animals as much as anyone else. But people are more important. When someone has broken the law, as in the case here, there is no need to fine someone out of business or cause them lifelong financial ruin. A lot of criminals are let off on more lenient terms than this case. Way too many people are willing to crucify someone from their computer keyboard. I appreciate David's post here. TFS.

[Don Thompson]

It is indeed hard to know when you're violating a law. Casual observers of bald eagles in Colorado, around Denver, wouldn't realize that they still need any special treatment. They sit on hunting perches watching fishermen, they have hunting perches right over picnic tables. Their winter night roosts are 50-feet from a popular campground, etc., etc. I spent much of last evening, sitting in my car-blind, watching them fly in and out of one of their night roosts, trying to get good flight shots. People came and went and mostly stayed at their cars. One friend actually approached the tree line with his 100-400mm lens (I was shooting at 1000mm) so that he could get a nice shot. When I told him that he'd actually broken the letter of state law, he was very surprised. He hadn't stressed any bird, in fact birds flew in as he stood there.

Are you saying that if I am standing there and an eagle flies in and lands next to me, I am supposed to leave the area?

[David Stephens]

Are you saying that if I am standing there and an eagle flies in and lands next to me, I am supposed to leave the area?

Well...maybe. Does it happen to you over and over while a wildlife officer observes you? Remember, you're not allowed to use logic.

[Don Thompson]

I don't want to hijack the thread, but you haven't cleared anything up for me. I am confused to what you were initially trying to say, and your response didn't help.

Thanks for responding.

[Jon Swanson]

Having an eagle land next to you is much different than purposely driving your boat (regardless of whether it is electric powered or rocket powered) 100 feet of the nests knowing that there is a 500 foot rule. That is utter silliness to compare. I think we need to wait until the facts come out but as stated somewhere earlier there is a video of him inside this 500 foot barrier. So I don't know what the issue is about being railroaded when the law was broken and there is video evidence. I surely think there should have been verbal warnings before the law was laid down on him and perhaps there were. We will never know for sure as that is a he said she said thing. I do think they came down extremely hard on him for whatever reason.

I had someone (not naming her name) who went on one of his tours who works for our raptor center say she was taken aback by his tactics on his tour when she was on it. those are her words not mine and this was 8 years ago.

Please don't compare this to speeding or other laws. We know all laws are enforced differently and to compare one to the other means you are extremely naive or grasping at straws.

This will have a profound affect on people floating up to loons with babies/nests disturbing them for tours, other tours, etc. There are more eyes on people when they know someone is getting paid for what they are doing. The ethical standard is raised and hopefully those that don't meet this standard are weeded out.

[Rachel Hollander]

Jon - I think I am the only one who referred to speeding and I did so to give examples of strict liability violations/crimes that people would be familiar with in an effort to explain a little more why Jim might have decided to plead guilty rather than attempt to mount a defense even if he has one and to put the burdens of proof in context. I assure you, as a litigator, I am neither naïve nor grasping at straws.

Rachel

[Jon Swanson]

Why did you give those examples knowing the way law works? Speeding does not = robbery, etc. Comparisons of different crimes are ridiculous. Comparisons of similar infractions are more relatable. As a litigator you should know that. And….there are good cops and bad cops. Just like good litigators and bad litigators. I take the word of the person I am paying other than an internet source ;) Not saying you are either because I don't know you.

[Rachel Hollander]

Jon - As I said, I used those as examples of strict liability violations, ones that do not need any form of mens rea to be convicted of violating. Many people up thread were saying that even if Jim was within 500 feet of a nest, they know Jim and do not believe that he would ever actually have harassed a snail kite. I was pointing out that because the Endangered Species Act has a strict liability standard it doesn't matter if going within 500 feet actually caused any harm or appeared to cause any harm. Similarly, it does not matter if the person intended to be within 500 feet or even knew being within 500 feet was unlawful. Robbery is not a strict liability offense. The simple fact is that the strict liability offense most people would be familiar with is speeding. The speeder does not have to have caused an accident to be guilty, nor do they have to know what the speed limit is on that particular road to be found guilty of speeding. Similarly, the argument that everyone else was speeding is not a valid defense to a speeding ticket. For selective prosecution to be unlawful, it has to amount to the violation of a constitutional right such as being prosecuted because of your race, religion, national origin, etc or others not being prosecuted solely because of their race, religion, national origin, etc. Here's a link to a U.S. Supreme Court case discussing selective prosecution: http://www.law.cornell.edu/supct/html/95-157.ZO.html. Given that, prosecutors do have broad discretion in whether or not to prosecute someone or to offer a plea due to the actual circumstances involved so long as they are not doing so for an improper reason. Similarly, law enforcement officers can let people off with a warning if they believe the situation warrants it. None of us know sufficient facts from the news article or what has been said in this thread to know if warnings were issued and ignored or if there is anything nefarious at play here.

Again, by posting, I am not rendering legal advice upon which people can rely. Rather, I am trying to add to the discussion so that people understand the concepts and impact of the law.

As I said up thread, whether or not strict liability is the appropriate standard is a subject that may be ripe for debate but it is the standard until it is changed by lawmakers.

Rachel

[Jon Swanson]

Someone had to really push the issue to make this happen. For whatever reason. We will never know but it seems really harsh to do this to someone without warning them if that is the case. I just wonder why they pushed so hard for this prosecution /legal action? Was it making an example out of someone? Personal? Just a lot that we all don't know other than what information has been released by the press. I am not judging or making a decision due to this as well. Just seems extreme.

[Bryan Munn]

Why did you give those examples knowing the way law works? Speeding does not = robbery, etc. Comparisons of different crimes are ridiculous. Comparisons of similar infractions are more relatable. As a litigator you should know that. And….there are good cops and bad cops. Just like good litigators and bad litigators. I take the word of the person I am paying other than an internet source ;) Not saying you are either because I don't know you.

I think we have to make comparisons of different crimes, at least in terms of severity and appropriate punishment, if we are to pursue any concept of balance and justice.

For example, I think the penalties described in this thread for the crime of coming within 500 feet of an ESA nest are utterly ridiculous. There is no way in the world that the prosecution could prove that the defendant even had any impact whatsoever, on the nesting birds or on anything else. For this crime he was sentenced to a $9000 fine and two years of federal probation, if he is lucky, and that is only because he was willing to plead guilty and forego his right to a court trial. What would have happened if he had taken the case to trial and lost? Federal Prison?

IMHO the penalties for most federal crimes are ridiculously severe. There is a state politician here in California who was recently charged by the feds for corruption (not that I am the least bit sympathetic of dirty politicians), and it has repeatedly been reported that if convicted on all charges he faces up to 400 years in federal prison. Really? First degree murder in California nearly always results in a 25-life sentence, with the convicted normally eligible for parole in around 20 years. How is this balance? First offense residential burglary in California, of an occupied dwelling, usually results in around a $1500 fine and a year of probation. Are we to believe that coming within 500 feet of a bird nest, even without intent or knowledge, is a more severe crime than burglary?

This is why I call federal crimes "political" crimes. There is seldom a clear victim, like someone who was assaulted or stolen from. Rather federal law, by and large, is written and enforced to reflect the politics of the day. There is a huge political slant to how and when federal law is enforced, and the severity of the sentences when it is. How can we help but assume that the ridiculously severe penalties are a thinly veiled attempt to make us fear the power of the federal government? It worked on me....I'm afraid.

[David Stephens]

Having an eagle land next to you is much different than purposely driving your boat (regardless of whether it is electric powered or rocket powered) 100 feet of the nests knowing that there is a 500 foot rule. That is utter silliness to compare. ...

Agreed, that you can't compare a bird landing above you to seeking the bird, but what about purposefully driving up to within 150' a Winter Roosting Perch or a Hunting Perch in my car? The roost has a 500' limit, but I'm stopping on a public road. I see no difference between a public road and public waters. BTW, the birds are tolerant of my behavior and seem to come and go whether I'm there or not.

[Arthur Morris]

Having an eagle land next to you is much different than purposely driving your boat (regardless of whether it is electric powered or rocket powered) 100 feet of the nests knowing that there is a 500 foot rule. That is utter silliness to compare. I think we need to wait until the facts come out but as stated somewhere earlier there is a video of him inside this 500 foot barrier. So I don't know what the issue is about being railroaded when the law was broken and there is video evidence. I surely think there should have been verbal warnings before the law was laid down on him and perhaps there were. We will never know for sure as that is a he said she said thing. I do think they came down extremely hard on him for whatever reason.

I had someone (not naming her name) who went on one of his tours who works for our raptor center say she was taken aback by his tactics on his tour when she was on it. those are her words not mine and this was 8 years ago.

Please don't compare this to speeding or other laws. We know all laws are enforced differently and to compare one to the other means you are extremely naive or grasping at straws.

This will have a profound affect on people floating up to loons with babies/nests disturbing them for tours, other tours, etc. There are more eyes on people when they know someone is getting paid for what they are doing. The ethical standard is raised and hopefully those that don't meet this standard are weeded out.

Jon, Let's simplify things. Jim is in the process of pleading guilty to being well within the 500 foot rule. The sole video shows him sitting quietly in his boat roughly 100-125 feet away from an unseen kite nest. Here's where the railroaded part comes in. Let say that there is a law against jaywalking where you live. Everybody jaywalks. You are often in a hurry so you jaywalk quite a bit. Some law enforcement guy sees you jaywalking, but rather than warn you or cite you, he takes a video. He does that for two years. Then he brings charges against you and only you. Not the 100s of others who jaywalk ever day. They have you on tape jaywalking 200 times. The judge is incensed that you would violate the law 200 times. So he decides to lay the lumber on you and you alone. Plead guilty and pay a 10,000 fine or go to trial and risk penalties of up to $200,000.

Jim's story is even worse because their is a total of one video as noted above and no evidence of any kites flying from a nest, no evidence of his intentionally flushing kites off the nest, and no photos or videos of him harrassing any Snail Kites.

I know that my jaywalking scenario is a bit of a stretch but my question is would you go to trial? And please do not tell me that have never or would never jaywalk :)

ps: I see that you have a problem with folks making money from bird photography. There are no standards for photographing loons in most states other than personal ethics, and those should be the same for all. And this case will have zero effect on folks floating up to loons whether for fun or for profit except in states where they are Endangered (Vermont) or Threatened (New Hampshire and Michigan).

[Arthur Morris]

I think we have to make comparisons of different crimes, at least in terms of severity and appropriate punishment, if we are to pursue any concept of balance and justice.

For example, I think the penalties described in this thread for the crime of coming within 500 feet of an ESA nest are utterly ridiculous. There is no way in the world that the prosecution could prove that the defendant even had any impact whatsoever, on the nesting birds or on anything else. For this crime he was sentenced to a $9000 fine and two years of federal probation, if he is lucky, and that is only because he was willing to plead guilty and forego his right to a court trial. What would have happened if he had taken the case to trial and lost? Federal Prison?

IMHO the penalties for most federal crimes are ridiculously severe. There is a state politician here in California who was recently charged by the feds for corruption (not that I am the least bit sympathetic of dirty politicians), and it has repeatedly been reported that if convicted on all charges he faces up to 400 years in federal prison. Really? First degree murder in California nearly always results in a 25-life sentence, with the convicted normally eligible for parole in around 20 years. How is this balance? First offense residential burglary in California, of an occupied dwelling, usually results in around a $1500 fine and a year of probation. Are we to believe that coming within 500 feet of a bird nest, even without intent or knowledge, is a more severe crime than burglary?

This is why I call federal crimes "political" crimes. There is seldom a clear victim, like someone who was assaulted or stolen from. Rather federal law, by and large, is written and enforced to reflect the politics of the day. There is a huge political slant to how and when federal law is enforced, and the severity of the sentences when it is. How can we help but assume that the ridiculously severe penalties are a thinly veiled attempt to make us fear the power of the federal government? It worked on me....I'm afraid.

Brilliant and appreciated.

[Grady Weed]

Here in Maine we have specific laws to discourage people from harassing or disturbing the Common Loon. I have rarely heard of someone being charged with the statue, usually it is a boater or fisherman driving the boat too fast creating a wake that swamps the nest or worse running over the nesting loon. When a loon is stressed out or feels endangered, it screams bloody murder, everyone in 1/2 mile can hear it. Most people up here show respect for them and see viewing them as a privilege, thank goodness.

I have kayaked very close to them and take my images, then leave them. Any issues I have had with folks are usually a misunderstanding of what I am doing. When they learn I live here and I am just taking images they leave me alone. It has happened only 4 or 5 times to me. I have been here for 27 years now, so most everyone knows me, where I live and what I do for a living. So I have not been bothered for quite some time. Those that did raise issues with me were out of state or seasonal renters on the ponds. Most of them have never seen wildlife, except when they came here to Maine. They have a Walt Disney view on animals. I have found a little education goes a long way to preventing someone calling the Game Wardens on someone for "disturbing the loons".

The bottom line; if most folks were to educate themselves there would be less problems with this issue of "disturbing the wildlife". I feel most people can be reasonable if they just think first, then speak or call the wardens, and then only if they need to. What bothers me most about all of this is the abusive blogs about Jim when almost all of the bloggers don't even know him. All they did was read an article or watch the news clip. Then they screamed bloody murder and called for him to be crucified. It is a bit extreme to fine someone out of business, ruin the reputation of the person or confiscate their very valuable equipment just because they were a bit close to the bird. The person who vandalized Jim's boat most likely transgressed the ESA themselves, and probably will continue to do so. Where is the outrage against that person and the one who vandalized Jim's boat?

You don't find the extreme outrage here on BPN against Jim because most here respect him, value his contribution to the wildlife of Florida and WE ALL perhaps understand you can't always be in compliance 24/7, it's impossible to do so when photographing wildlife. Now that does not make it right to deliberately harass wildlife. And I for one do not. But we have to be more considerate of others, show more understanding and compassion when we screw up. Because we all will sooner or later. Just something to consider next time you or we mess up.

[Jon Swanson]

Jon, Let's simplify things. Jim is in the process of pleading guilty to being well within the 500 foot rule. The sole video shows him sitting quietly in his boat roughly 100-125 feet away from an unseen kite nest. Here's where the railroaded part comes in. Let say that there is a law against jaywalking where you live. Everybody jaywalks. You are often in a hurry so you jaywalk quite a bit. Some law enforcement guy sees you jaywalking, but rather than warn you or cite you, he takes a video. He does that for two years. Then he brings charges against you and only you. Not the 100s of others who jaywalk ever day. They have you on tape jaywalking 200 times. The judge is incensed that you would violate the law 200 times. So he decides to lay the lumber on you and you alone. Plead guilty and pay a 10,000 fine or go to trial and risk penalties of up to $200,000.

Jim's story is even worse because their is a total of one video as noted above and no evidence of any kites flying from a nest, no evidence of his intentionally flushing kites off the nest, and no photos or videos of him harrassing any Snail Kites.

I know that my jaywalking scenario is a bit of a stretch but my question is would you go to trial? And please do not tell me that have never or would never jaywalk :)

ps: I see that you have a problem with folks making money from bird photography. There are no standards for photographing loons in most states other than personal ethics, and those should be the same for all. And this case will have zero effect on folks floating up to loons whether for fun or for profit except in states where they are Endangered (Vermont) or Threatened (New Hampshire and Michigan).


I have no problem with people making $ from bird or any photography. I would like to get that straight right away. It would be a whole other thread about my thoughts on the path 'nature' photography has taken.

I agree with the above analogy and I was guessing something like that had happened. I am just wondering why now? Why do this to somebody without a warning? That is what is baffling to me. I think the reason the boaters and fishermen were not bothered was because each one was not doing the same thing in the same place over and over for years with the intent of getting close to the kites. That is what I am assuming. Just a lot of unknowns and gray areas. There is a lot that needs to come out from both sides for there to be clarity. If it is just one video that is pretty weak!

[Cal Walters]

First, I am glad this discussing is happening - I too saw the FB posts and cringed. It is good we are putting it out in the open. Second, it did get me thinking - do I know all the animals / birds on the endangered species list that I might encounter? I've gotta say - NO! And it is not a simple Google search either. I located this site: http://www.fws.gov/endangered/species/us-species.html but noticed that a few of the species thrown out in this discussion were not on it. So does anyone have a simple way to know the birds in the US to be particularly sensitive with as in 500 ft of sensitivity (knowing we should be sensitive to them all!)? And hey, the Feds made another point - they have a prominent community VERY aware now. I'm not happy with the way they did it - but we are aware - now I just wish I was more informed - per my comment above.

[Grady Weed]

Thanks Cal for the site. I did not know that much was available. A good read for those long winter nights up here in Maine.

[Roger Clark]

This may be my last post on BPN. I do not like many of the tones in this thread, and at the risk of putting forth some science where many here seem to just attack it, I'll give one last try.

First, regarding limits, the key phrase to search for if one wants to try and see what the limits are (and this may help Jim in his case) is: set back distance. One of the key references cited and used to set the distances is:

Rogers and Smith (2002) Set-Back Distances to Protect Nesting Bird Colonies from Human Disturbance in Florida, Conservation Biology, volume 9, issue 1, pages 89-99.
http://onlinelibrary.wiley.com/doi/10.1046/j.1523-1739.1995.09010089.x/abstract

That study found differences between on foot and boats.

The snail kite reference web site where the 500 foot "recommendation" (not a rule) is cited is:
http://myfwc.com/wildlifehabitats/imperiled/profiles/birds/everglade-snail-kite/
"The U.S. Fish and Wildlife Service recommends staying at least 500 feet from any active snail kite nest, which are marked with warning signs in areas where human disturbance is likely."

But just above that sentence is a link to the "Threatened Species Rule":
https://www.flrules.org/gateway/ChapterHome.asp?Chapter=68A-27
which leads to a gobbly-gook array of meaningless documents and I could not find any such rule. Perhaps I missed it.

But below the above sentence, is a link to the "Federal Recovery Plan":
http://www.fws.gov/verobeach/MSRPPDFs/EvergladeSnailKite.pdf
In this document I can find no mention of a rule about set back distances.

A google search for: Set-Back Distance for "snail kite"
finds this:
http://myfwc.com/media/648488/FBCI_Avian_Manual.pdf

which at the bottom of page 12 to top of page 13 gives the snail kite but no set back distance. But on page 11 just after the section Species Grouping: Raptor is an Attn: and the sert back distance is given as 100 meters and a Rogers and Smith reference from 1995 is given. Further, some links, e.g. http://myfwc.com/bba/docs/bba_SNKI.pdf result in 404 Error page not found as did several other links I tried to follow.

So my conclusion is the federal and state web sites and online documents are difficult to navigate at best and trying to find what the rules are is conflicting at best to essentially impossible.


Regarding Alafia Banks, The Florida Fish and Wildlife Conservation Commission Alafia Banks web site: http://myfwc.com/conservation/terrestrial/cwa/alafia/
states "Known as Bird island, this CWA is part of the Richard T. Paul Alafia Banks Sanctuary, managed by Audubon Florida."
So FFWCC has given authority to the Audubon to manage the site, which means their signs should be legal. If there is an actual reason why they would not be legal, I would like to hear the explanation--one that should hold up to the authorities.

Regarding researchers, I have many colleagues who are researchers, including biologists. I do not know any who are not dedicated and concerned about their own disturbance of wildlife or habitat, nor do I know any who are just out to get their name on a paper. They are dedicated to the science and out to help with low pay and often terrible working conditions. I am appalled at the wholesale trashing of researchers here. I don't doubt that there are some bad apples, as there are in every field, but in my experience, that is an exception. A research study may impact a species, but it is controlled and limited. Compare that to the many tourists who may trample an area continuously for months (including some irresponsible photographers, and probably more so by the uninformed wildlife enthusiast, of which there are millions). That is the real threat to species after habitat loss by an expanding human population. The small amount of research that does get done is minuscule in comparison to thousands of photographers, and millions of general population that may impact an area. It is also surprising to me that photographers are quick to point out a few bad apples shouldn't taint all photographers, so why do just that to researchers? Amazing hypocrisy.

For the most part, I see advanced amateur and pro photographers acting quite responsibly, as they tend to be more educated and informed about wildlife. I just returned from a month on the road, from Hawaii to Florida, and I did not see one photographer act irresponsibly toward habitat or wildlife, but I did see some instances of general population being irresponsible. But a few bad apples have given photographers a bad name. We all have seen the stories (e.g. one I remember was a photographer cut down an iconic tree so no others could get that scene). That does not excuse the wholesale trashing of researchers.

People should not make their own rules, saying a sign is illegal. One may not know all the reasons for a closure sign. For example, it may be great area for birds, but may have an endangered turtle that might get stepped on if one enters the area just to photograph birds. Is any photo worth killing an animal for?

[Arthur Morris]

Just a few things Roger. The sign in question at Alafia Banks is in a navigable waterway. James Shadle has spoken to various local authorities who have told him repeatedly that the sign is not a valid sign. In most years the fisherman remove it. In addition, I have been with James on numerous occasions where we have been well behind other signs and have been harassed by various folks from Audubon, oftentimes this harassment has bordered on the ludicrous.

As for researchers, they walk through bird colonies. They hold, weigh, and band chicks. At gull and tern colonies where extensive research is done the researchers are putting the birds up every day, all day long, all season long. On Lake Toho, they drive around at high speeds in air boats. They put transmitters on birds that keep them from copulating. I am not singling out any researchers other than those who band birds and work in bird colonies. Oh, did I mention the effects of bird banding: Every single bird that is caught in a mist net shows bruising on the breast. (By personal comments from John G. Williams, curator or ornithology at the British Museum in Nairobi, curator of ornithology at the British Museum in Nairobi, author of A Field Guide to the Birds of Africa.

In addition, you just told us that on your trip where you saw zero photographers acting irresponsibly. My experiences are largely the same.

Neither I nor anyone else said that avian researchers are not dedicated, that they do not work for low pay, that they do not love the birds and the environment, or they they do not do good science or at times, make important discoveries. What I said is that as a group, they create more disturbance of nesting birds than all of the nature photographers combined. If you wish to wear blinders and state that folks working in nesting colonies and folks banding birds do not cause disturbances, then that is your problem.

Respectfully.

[David Salem]

This whole thing is really too bad and as Marina stated it really winds up being that one vindictive person had it out for Jim and pushed this to the max. Otherwise it would have been a whole different story and probably wound up with a warning or nothing at all. From what I understand many boats and tours travel closer than Jim did and have no clue that the birds are nesting there.
This is one of those "let's make an example of him" deals that happens so frequently, especially with USFW.
Its too bad that Jim didnt have the funds or a fund to take this all the way because the chances are that when he wound up in court, the charges would have been thrown out.
A similar thing happened to a friend of mine quite a few years ago with USFW on a small and frivolous falconry charge. It could have cost him his falconry license and that was one of the ways he made his living so he had to fight it. Many friends pitched in to help his legal fund and he had his day in court. When the case was finally heard by the judge he was flabbergasted that the FEDs had spent this much time and energy on a case and the lack of any real strong evidence and threw it out within a few minutes. The Feds were livid.

[Don Thompson]

This may be my last post on BPN...So my conclusion is the federal and state web sites and online documents are difficult to navigate at best and trying to find what the rules are is conflicting at best to essentially impossible.

First let me say that I hope this is not your last post here. While I don't post much here or anywhere, when it comes to the technical side of photography, I value your opinion. Second, my frustration, and confusion, about this case, comes from what you said about the regulations. It should not be so difficult, maybe impossible, for the average person to figure out what is legally permissible and what isn't. And if it is that difficult to determine, then penalizing someone to the extent Jim faces, is in my opinion wrong.

It is similar to the tax code which is relatively easy to get yourself in trouble, and very difficult to keep the full force of the government from coming down on you. It shouldn't be that way.

Again, I hope to see you posting again soon.

[David Stephens]

First let me say that I hope this is not your last post here. While I don't post much here or anywhere, when it comes to the technical side of photography, I value your opinion. Second, my frustration, and confusion, about this case, comes from what you said about the regulations. It should not be so difficult, maybe impossible, for the average person to figure out what is legally permissible and what isn't. And if it is that difficult to determine, then penalizing someone to the extent Jim faces, is in my opinion wrong.

It is similar to the tax code which is relatively easy to get yourself in trouble, and very difficult to keep the full force of the government from coming down on you. It shouldn't be that way.

Again, I hope to see you posting again soon.

I too hope that Roger is here to stay.

About the difficulty in finding the rules, my experience was similar to Rogers. Someone had recently sent me a piece of Colorado regulation related to Endangered and Of Special Concern birds. I made a comment on a regional FB photography forum about it, commenting that it seemed clear that some of the bald eagle pix being posted seemed to be taken too close to the birds to comply with the code. Well, rightly so, someone asked me for the link to the regulation and after two-hours of searching, I couldn't find it. I retraced my steps and found the link in an earlier post in the very same forum. It was buried in a Colorado Parks and Wildlife site.

It's actually pretty easy to find lists of endangered and Of Special Concern birds, but finding regulations about how to behave around them is not so easy.

[Doug Brown]

Jim just called me to let me know that he has entered a guilty plea; the penalty will be a $9,000 fine and 2 years of probation. He will spend a few days gathering his thoughts, and will then post his side of the story on both this thread and on his website. He's given me permission to post some of the evidence used against him. He confirmed to me that at no point during the investigation was he approached by anyone in a position of authority about getting too close to the Kites.

[Doug Brown]

Here's a photo from 3-9-11 that is representative of the other frames gathered that day. Notice that there is no bird visible. Nor is there a sign warning of a Kite nest. I'll include a crop to show what the sign actually says. There is no evidence in this encounter (or any other encounter for that matter) of Jim flushing a Kite off the nest for a photo opportunity.

[Doug Brown]

Here's a still frame from a video they shot of Jim and a client. Again there is no visible sign warning of a Kite nest, and there is no evidence of Jim attempting to flush a bird. Here's a quote from the researcher who was narrating as he made the recording: "The bullrush patch directly to the left of him (Jim) has a nest that is possibly in the building stages at this point. It hasn't been checked by the Snail Kite crew yet."

This and the other photo I posted earlier make up 1/3 of the days that were submitted as evidence of misconduct.

[Doug Brown]

Here's the photographic evidence from another day. No sign and no bird.

[David Salem]

Pretty shabby evidence!! Any law school student would be able to tear that apart. Im glad Jim was able to get a hold of the evidence videos. Im sure it will show a different story of what people probably think happened, and along with his explanation, will clear his longtime upstanding name.

[Doug Herr]

Here's a still frame from a video they shot of Jim and a client. Again there is no visible sign warning of a Kite nest, and there is no evidence of Jim attempting to flush a bird. Here's a quote from the researcher who was narrating as he made the recording: "The bullrush patch directly to the left of him (Jim) has a nest that is possibly in the building stages at this point. It hasn't been checked by the Snail Kite crew yet."

An unconfirmed nest site? This evidence seems speculative at best. Was this part of the evidence against Jim? In any event I apologize to Jim for my earlier rush to judgement whether he knew of it or not.

[Sidharth Kodikal]

Thanks for sharing these photos and the info, Doug.
The "evidence" indeed looks quite weak. The "news" article in the OP painted such a slanted picture that was meant to make readers rush to judgement.
Hopefully all of this will be over with soon and Jim will be back to doing what he does best.
Jim, all the best!

[Bill Jobes]

Here is a link to the story on last night's WESH-TV newscast. The Neiger case is the second one covered in the piece.

http://www.wesh.com/news/central-florida/brevard-county/men-seen-on-youtube-harassing-manatees-plead-guilty/24843966

[Arthur Morris]

Here is a link to the story on last night's WESH-TV newscast. The Neiger case is the second one covered in the piece.

http://www.wesh.com/news/central-florida/brevard-county/men-seen-on-youtube-harassing-manatees-plead-guilty/24843966

Thanks for sharing and making me nauseous....

[David Stephens]

Here is a link to the story on last night's WESH-TV newscast. The Neiger case is the second one covered in the piece.

http://www.wesh.com/news/central-florida/brevard-county/men-seen-on-youtube-harassing-manatees-plead-guilty/24843966

Interesting. I once, accidentally, fell on a manatee in the St. John's river. Both the manatee and I walked on water getting out of the area. I wonder why the one in the video seems so slow to move. Her calf looks old enough to move fast.

[kevin Hice]

First When you get any kind of violation of the law it is way cheaper to plead than to defend yourself.And when it comes to wildlife laws especially federal walk in and tell a lawyer you need him to defend yourself on a federal law $$$. As a holder of a federal falconry permit I have first hand experience. the Feds will burn a falconer in a heart beat over a infraction. Have a gyr falcon shot and all you get is lip service.Its too far from their office to investigate.Oh they will investigate if its not to hard.Do all the foot work yourself and even then its no big deal . I have had two falcons shot in the last ten years.Gave all kinds of information even the violators address. Never even contacted the violator. I can tell you when you get out west a lot of raptors get shot. Their are a lot of ranchers who see every raptor as a chicken hawk.They will tell you thats why their aren't any pheasants left.They don't see any loss of habitat or overgrazing. Then you have state law enforcement and their not overly enthusiastic to do anything .It is a fine line they walk small communities Locals are all related.For the most Part Ranchers are electing local judges.A lot of this is political or not worth the time.You tell a state wildlife officer you had a gyr shot .I think most cant tell the difference between a redtail.Oh and I forgot who played the most significant recovery of the Peregrine falcon?That would be falconers and we cant even take one out of the wild.So yes I do have some problems with the feds.

[Steve Maxson]

[QUOTE=Roger Clark;978629]

"Regarding researchers, I have many colleagues who are researchers, including biologists. I do not know any who are not dedicated and concerned about their own disturbance of wildlife or habitat, nor do I know any who are just out to get their name on a paper. They are dedicated to the science and out to help with low pay and often terrible working conditions. I am appalled at the wholesale trashing of researchers here. I don't doubt that there are some bad apples, as there are in every field, but in my experience, that is an exception. A research study may impact a species, but it is controlled and limited. Compare that to the many tourists who may trample an area continuously for months (including some irresponsible photographers, and probably more so by the uninformed wildlife enthusiast, of which there are millions). That is the real threat to species after habitat loss by an expanding human population. The small amount of research that does get done is minuscule in comparison to thousands of photographers, and millions of general population that may impact an area. It is also surprising to me that photographers are quick to point out a few bad apples shouldn't taint all photographers, so why do just that to researchers? Amazing hypocrisy."

As a former Wildlife Research Biologist (retired) who worked in the field with a variety of birds for 35 years - I would agree completely with Roger's comments on this subject.

[Grady Weed]

Roger, Steve,

I would hate to lose your valuable insights, contributions etc... to this site because of the huge uproar over the incident in question here. If we did, that would serve the nay sayer's and opponents of our hobby. I do not necessarily agree with everything everyone posts here. Nor do I expect everyone here to agree with me on my posts. We all think just a bit differently on these sensitive issues. As you both said, "there are bad apples in every group, club, organization etc...That's because we are all imperfect people, no exceptions to that rule!

Whenever some incident like this happens, their are always some who trash the supposedly guilty party without knowing ALL OF THE FACTS. I don't think we will ever get rid of those who do so. Too many today sit behind the computer keyboard and rant, say things no one would say to the other face to face. The global community has been made smaller with the internet, so some will inevitably take advantage of that and use it irresponsibly. It would be nice just to ignore them and hope they will go away, but they wont. Education is the key, of course they have to listen for it to be an effective tool. That's a whole different topic to address.

I hope this incident settles down soon so we can get back on topic and take good images and share them with others. I for one am taking the "Maine Master Naturalist Program" in order to help me to educate others in the field. I want to address clubs, organizations and individuals in order to educate them about what the state of Maine has to offer us in the way of wildlife and the beauty of our landscape around us.

I can understand your frustrations of this thread and the topic of harassing wildlife in general. But I would hate to lose any over what we all have not the full facts on. It is sad this has taken on a life of it's own and has detracted from the goal of us all as photographers. And to me that's is to make beautiful images of the life around us for others to enjoy. Thank you for listening everyone. :)

ps: I have to admit this thread has gotten my attention. I have replied a number of times. More than anything else, as Roger stated it is the attitude or the deep seated feelings that has been the most revealing. I hope we can change some of that.