Wildlife photographer pleads guilty to violating Endangered Species Act

[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-flo...ef_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.c...op%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-flo...#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/for...-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/1...089.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/im...de-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/Chap...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/MSRPPDF...eSnailKite.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.