Missouri Falconers Association - Members Site
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Missouri Falconers Association - Members Site |
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Reg Change Comments
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Comments to Changes in the Federal Regulations
Governing Falconry: RIN 1018-AG11 Submitted by the Board of Directors, Wild Raptor
Take Conservancy April 2005 The Wild Raptor Take Conservancy
(WRTC) Board of Directors would like to thank Brian Millsap, Chief, and Dr. George Allen, Wildlife Biologist, Div. of Migratory
Bird Management, for all of their time and effort in preparing the proposed changes to the falconry regulations. We understand
that there were many points of view that required attention and respect, and that such an undertaking was an exercise in compromise.
We hope all who partake in this endeavor will feel a sense of debt and gratitude to these two outstanding individuals. In
this spirit, the WRTC Board of Directors would like to share our concerns and our agreements with this proposal in the hope
that we can make an overly regulated program into a well managed efficient and effective system. Before enumerating these
points, it is only proper that we establish an understanding of the climate in which we presently operate, so as to provide
a record for present and future reference of our position. To begin, it is important to consider
the purpose of government agencies empowered to manage our natural resources. Their purpose is to protect resources from abuse
and neglect in order to ensure the continued availability of these resources for present and future generations’ access
and use. Prohibitions of uses are strictly a means to limit access to certain resources when they are threatened by a condition
or activity, as the intent of the Migratory Bird Treaty Act (MBTA) originally expressed and as the Endangered Species Act
(ESA) presently covers. When there is no threat, these government agencies are directed to provide citizens access to natural
resources to the degree the resource can bear harvest without causing harm to it or society; or to use one Federal agencies’
expression of this standard, sustained-yield is the guiding principle. Special
interest groups inside or outside the Service, no matter how large or powerful, who may wish to interfere with the agency’s
responsibilities, cannot be allowed to project their subjective values upon another portion of society since this would support
and perpetuate majority infringement upon a minority, which is strictly prohibited as encompassed in the 14th Amendment. Next, it is important to consider
the purpose of the MBTA and the authority the Service is vested with. As stated in Title 16, Chapter 7, Subchapter I, sec.
701, it provides, “…The object and purpose of this Act is to aid in the
restoration of such [wild] birds in those parts of the In Sections 703 and 704, respectively,
the MBTA provides, “Unless permitted by regulations, the Act provides that it is unlawful to pursue, hunt, take, …
possess, offer to or sell, … any migratory bird….” and “[T]he Secretary of the Interior may adopt
regulations determining the extent to which … taking … of any migratory
bird, … will be allowed, having regard for … distribution, abundance, economic value …” but not personal
use. Let us consider what the Act provides for: it sets limitations on take, transportation, possession – as it relates
to take – and trade, but there is no provision for how lawfully acquired migratory birds can be personally used (being
separate from exchange and transportation issues in order to manage commerce) by permittees – it manages social intercourse
as it relates to commercial trade of migratory birds or their parts. Therefore, the personal use of legally acquired raptors
is outside the scope of the MBTA’s authority and intent. Finally, it is necessary to take
a closer look at where these regulations initially came from and what purpose they were meant to serve. The concept of falconry
regulations was initiated by certain individuals on the Board of North American Falconers’ Association (NAFA) in the
early 1970s who desired to manage their sport and they found a receptive audience within the Service, though the States could
just as easily have served this purpose; however, these individuals believed a Federal program would be more uniform and therefore
easier to initiate and maintain. So with this in mind, we need to understand that we are in unauthorized legal territory since
the MBTA has no provisions in this realm – they had to be artificially created by falconers and the Service by misconstruing
the intent of the Act. Another reason these individuals
felt we needed falconry regulations was to provide protection from the attacks of anti-take type of organizations –
without regulations it was believed that falconry might not survive the onslaught coming from the bird watching community
(demonstrating that the 14th Amendment, though still in force, is not always applied). We need to remember that
these NAFA Board members belonged to a group which was one of two basic factions within NAFA – at that time it was in
the dominate position – and, like any faction, it asserted its own perspective on the falconry community. The rules
we presently live under were written by a committee established by this group which did not and does not necessarily represent
the will of the membership. For example: Consider the 3-bird limit: this was established since individuals on this committee
believed that the average falconer who had a job and family could not fly more than 3 birds. They never took into consideration
all other individuals who had more time on their hands. In effect, this committee, in conjunction with the Service, initiated
a highly restrictive program, thereby establishing, perhaps unintentionally, the premise that falconry is a “granted
privilege,” in the disparaging sense, rather than a liberty, right, or blessing as the word privilege means in this country. Having established the environment
within which we presently operate, it needs to be understood that WRTC is not asking to eliminate all regulations pertaining
to falconry. Our intention is to establish management parameters that are sensible and achieve the desired goal of providing
adequate protection to raptors without resorting to micromanagement methods. Such methods often do not discriminate between
important and petty issues, frequently causing resources to be expended in areas that do not rate the time and expense, and
potentially make “criminals” out of falconers for issues that have little to no significance – which is
not a matter to be taken lightly in a free society that values individual rights. At the same time we do not desire the loss
of our liberties in the name of conservation when it has been adequately demonstrated they do not contradict or oppose one
another. Managed properly, liberty compliments conservation, as raptor breeding and Ducks Unlimited thoroughly demonstrate;
whereas, prohibitive types of regulations retard or arrest progress (consider where the anatum peregrine would be today if
falconers were not allowed to take them from the wild in the 60s and eventually breed them). Our position having been adequately
expressed, let us proceed to enumerate our positions on the proposal: 1.
“No Federal falconry permit will be required…”
Except as provided for below in item number 25, the removal of Federal permitting is a step in the right direction. Federal
authority should be involved only to the extent that responsibility for the health of migratory bird populations is at issue.
Beyond this, States are more than adequate to manage programs such as this; in fact, they are better adapted to these ends.
However, if the Service’s regulations burden the States with too much regulatory requirements, some States are threatening
to withdraw from continuing a falconry program. The burden of a program would then fall squarely on the shoulders of the Service. 2.
“Activities with migratory birds are prohibited unless specifically authorized by
regulation.” The MBTA does not provide for this assertion when the proposed regulations address “activities.”
It should state, Taking of migratory birds are prohibited unless specifically authorized by regulation, which would
incorporate sustained-yield or harvestable surplus principles. This is in line with the MBTA given the fact that it states,
“Unless permitted by regulations, the Act provides that it is unlawful to pursue, hunt, take, … possess, offer
to or sell, … any migratory bird…. [T]he Secretary of the Interior shall make and publish all needful rules and
regulations for carrying out the purposes of this Act….” No mention of activities
with migratory birds can be found in the Act; though one can say that the means
to take, come into possession, transport and trade are provided, thereby defining the “purposes of the act” since
the purpose is to protect species from harm to their populations – not to protect individual birds (consider depredation
permits which allow the killing of raptors). Once legally harvested, a bird is out of the wild population, thereby diminishing
the Service’s authority and responsibility substantially. The establishment of unbiased harvest mechanisms, seasons,
numerical limits, and commercial trade, are all legitimate responsibilities for the Service, but personal use after the fact,
falls into the realm of citizens’ rights and liberties. We must remember that unless enumerated and explicitly provided
for by sound law, government is restricted from any activity, power, or authority. The Service is attempting to assert this
rule upon citizens, which contradicts the very principle and purpose of the Constitution, i.e. in effect it is removing the
restriction placed upon government and transferring it to citizens. Without justified restrictions (such as the ESA authorizes,
for example), permittees are free to exercise their liberties as they see fit. Whereas, without enumerated provisions, the
government can do nothing but support the liberties citizens enjoy, given the fact that the government’s very existence
is to protect citizens’ liberties. In light of the falconry
communities’ contributions to raptors’ interests, and conservation efforts in general, there is no justification
for such a prohibitive assertion. Such excessive prohibitions restrict experimentation and new discoveries without sound reasoning;
however, we can never know what losses we are incurring since we are not at liberty to discover where our talents might take
us. We need to remember, the greatest raptor innovations did not come from the academic community, they came from the laity.
It is interesting
to compare migratory bird hunting regulations to falconry regulations. Migratory bird hunting regulations take the fundamental
approach of describing what is prohibited in order to properly manage waterfowl populations; whereas falconry regulations
take the approach of describing what is permitted since it is perceived everything is prohibited unless provided for. This
is not only illegal but also illogical since it would take volumes of texts to define what would be permissible if we took
the present approach to its logical conclusion. (Compare this to the argument against incorporating the Bill of Rights in
the Constitution. It was understood that we could never define all the rights the people possess. Therefore, we embraced only
the most fundamental rights as worthy of definition, and incorporated the 9th Amendment to protect all others.
Without the 9th, there could not have been a Bill of Rights since the Framers knew government officials would erroneously
perceive that only the enumerated rights would belong to the people and all others would belong to the government –
the antithesis of their intent.) 3.
“You must submit to your State … that regulates falconry a signed and dated statement
showing that the owner of the property [which can be the falconer] on which your falconry facilities are located … understands
that the falconry facilities, equipment, and birds may be inspected without advance notice by State or Federal authorities
at any reasonable time of day.” This is a blatant abuse of government power and we adamantly oppose it. This is forcing
an action by citizens under a state of duress, also known as coercion. To add to this, the MBTA contradicts the above assertion
when it provides, “Any employee of the Department … authorized by the Secretary … to enforce the provisions
of this Act shall have power, without warrant, to arrest any person committing a violation of this Act in his presence
or view and to take such person immediately for … trial …; shall have power to execute any warrant
or other process issued by an officer or court of competent jurisdiction for the enforcement of the provisions of this Act;
and shall have authority, with a search warrant, to search any place….” Nowhere does the Act provide for
the authority of a State or Federal officer to search (referred to as inspect) any premises without a search warrant; it merely
provides for the power to arrest if a violation occurs “in his view.” What it provides for is that officers seek
and acquire a warrant before searching any citizen’s property, otherwise why would such language be included? If the
proposed assertion had legal force, no warrant would be required since Service officers could search a permittee’s property
anytime they choose; warrants would then be superfluous. This proposed provision contradicts the 4th Amendment
with its Search and Seizure Clause where it states, “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” Also, 14th Amendment principles come to bear on the subject as it relates
to the privileges and immunities; due process; and equal protection clauses. A treaty, such as the MBTA, cannot supersede
any provision in the Constitution, since it is the supreme law of the land, making a treaty subservient to it. The fact that
we allow officers to inspect our facilities and equipment (which is a choice rather than a demand, and does not need to be
accomplished by law enforcement officials) to ensure compliance prior to the permit’s issuance is separate from an “inspection”
after the permit has been issued (which then becomes a demand by Law Enforcement, which can be used as a premise to pursue
a separate, and perhaps mischievous, agenda without any sanctuary from unprincipled officials who have a prejudice against
falconry, as Operation Falcon clearly demonstrates). In the first case, no permitted activity has yet taken place, since no
permit has been issued, so no violation can occur; in the second case, since the permittee had previously complied with the
permit requirements, as the issuance of a permit demonstrates, the only reason law enforcement officials would want to “inspect”
the permitted falconer’s premises at a later period is to seek violations which itself is a violation of the law as
established by the Search & Seizure Clause. Leaving interpretation of falconry provisions to the discretion of officers
who know nothing about falconry and frequently are against it, is clearly a violation of civil liberties. If officers and
agencies who are entrusted to protect our liberties through the vehicle of law do not follow it themselves, how can citizens
be expected to abide by it any better and therefore be held accountable to it? Officers and agencies must be held to a higher
standard than citizens since they are supposed to be the guardians of our liberties. The natural progression
of this erosive approach of our liberties is to continually make incremental strides in this direction; to imperceptibly loose
fundamental liberties our society possesses. As citizens become acclimated to one set of restrictive principles, it becomes
easier to assert a new set of restrictive principles – ad infinitum. This may not be the intention, but it is the result
as we travel down the regulatory road, all in the name of protecting us from ourselves. An important point
to consider: All of this regulation over a private activity, once a raptor has been legally acquired, as opposed to a more
public activity such as breeding waterfowl for food, crosses into the realm of invasion of privacy. While many falconers are
willing to accept some encroachment for the good of the sport and raptors, taken too far, falconers will need to seek a remedy
to the Service’s perceived arbitrary powers. 4.
Also see CFR Title 50, Volume 1, Chapter 1, Part 13, sec. 13.21, (e)(2) where it states, “Any
person accepting and holding a permit under this subchapter B acknowledges the necessity for close regulation and monitoring
of the permitted activity by the Government. By accepting such permit, the permittee consents to and shall allow entry by
agents or employees of the Service upon premises where the permitted activity is conducted…” Sec. 13.47 continues
this unconstitutional assertion. It is arbitrary and an abuse of discretion. Again, the MBTA does not provide for this “monitoring”
of private use and private property by government; if it did, it could not have passed Congresses’, the Executive’s
or the Judiciary’s scrutiny, since this assertion is repugnant to the principles of a free society. The whole concept
of protection that the MBTA provides is to prevent indiscriminate killing (taking and possession of raptors prior to raptor
related regulations was insignificant; whereas the killing of raptors was unbounded, hence the reason falconers pushed for
protection). The MBTA was not created to regulate individuals in regard to private use of migratory birds. If not explicitly
provided for, the Service’s hands are tied, otherwise Law Enforcement, which has a history of prejudice against falconry,
can arbitrarily assert any opinion it embraces with no check on its powers. Consider the California “inspections”
during the present comment period; it is quite apparent that a faction of the Service’s law enforcement community attempted
to intimidate falconers into behaving as submissive subjects of the realm; there can be no other logical conclusion given
the timing. Officers concerned about citizens’ perceptions would have delayed such an undertaking until after the comment
period had ended. With this perceived “power” to “inspect” at will, Law Enforcement wields a heavy
hammer over citizens who are easily intimidated. This leaves the door wide open for blatant abuse of power. 5.
In reference to the definition of falconry: We feel the simpler it is the better, so as to minimize
misconstrued or manipulated interpretations. Therefore we propose, “Falconry means the sport of hunting quarry by means
of a trained raptor.” 6.
“Electronic reporting of acquisition, transfer, or
loss of raptors held for falconry will be implemented.” Minimizing paperwork is always a good thing when the circumstances
allow for it; however, it would be more appropriate for falconers to report raptor acquisition to their States and for the
States to report quarterly to the Service, so long as the State maintains its falconry program; otherwise, by default, it
would return to the Service. Reporting acquisition of migratory birds is a good example of the Service’s legitimate
authority regarding “possession” regulation. In this way, the Service can measure falconry’s impact on raptor
populations, should there ever prove to be an impact. There must be provision for other-than electronic reporting as well. 7.
“Apprentice falconers will be allowed to possess Harris’s
hawks.” States should manage which raptors are suitable for falconry purposes at all levels. Therefore, the Service
should have no definition as to which species are allowable to apprentices; ESA reference should be the only Federal provisions
falconers should be limited by. 8.
“Apprentice falconers may possess non-imprinted captive-bred
birds of the species they are allowed to possess.” We believe for the first two years apprentices need to experience
the taking and training of passage raptors in order to become well rounded falconers, therefore we disagree with this proposal;
except for those apprentices in their teenage years who will be apprentices for more than two years – these should be
allowed domestic-bred raptors after their 2nd year in the program. 9.
“Master falconers will be allowed to keep five raptors
for use in falconry…” There is no legal or biological reason why there is any limit placed upon falconers;
this is a subjective restriction that has no place in law (consider raptor breeders and educators who have no such limitations
asserted upon them). In fact it can create “criminals” when there is no justification for the restriction. Therefore,
we ask that this unjustified numerical restriction be removed from our regulations entirely since this is a self-regulating
issue. 10. “The required examination for apprentice falconers and new residents may
be developed and administered by each State…” Again, the more responsibility a State has over falconry, the
better. Besides, this is a micromanagement issue. However, if a State wishes to bow-out of managing falconry, by default this
responsibility should be transferred to the State falconry organization or a national falconry organization. Inspections would
also have to be transferred to such authorities. 11. “A new resident of the U.S. can qualify for a falconry permit…”
This is in concert with our immigration policies. Immigrants desiring residency deserve the chance to the pursuit of happiness
like any of us. Here is another good example of the Service’s legitimate authority. 12. “Facilities and equipment requirements are simplified and rewritten to
make them easier to understand.” Here too, States, through their local falconry organizations, should determine
what is appropriate for facilities and equipment. Now that States have over 30 years with the Service’s oversight of
this program, a culture has evolved and it is highly unlikely that any of the States would change much of anything to the
present requirements other than to simplify it. Therefore, this too should fall under the jurisdiction of States. 13. “Possession of facilities for housing raptors will not be a prerequisite
for obtaining a permit.” We appreciate this as well. This too should fall under the jurisdiction of States or falconry
organizations. 14. “The 180-day-per-year limit on take of raptors from the wild is removed.”
It is wonderful to see this as one of the proposed changes. This is another good example of the Service’s legitimate
authority. 15. “… When flown, a hybrid must have an attached radio transmitter
that will allow the permittee to locate it…” Since hybrids should not breed in the wild, every precaution
should be made to prevent their loss. This is another good example of the Service’s legitimate authority. 16. “All falconers will be responsible for treatment and rehabilitation costs
of falconry raptors injured in trapping efforts.” Veterinarian costs can easily become prohibitive; if taken too
far, the liability in this proposal could carry it to ridiculous heights where only the wealthy might afford the risks incurred
in trapping. We ask that this proposal be removed since treatment of injured raptors is automatically an assumed responsibility. 17. “Banding of all goshawks taken from the wild will be required.”
We oppose this requirement and the need for banding any wild raptor except those under the protection of the ESA. Banding
adds to micromanagement problems which adds to costs and potentially creates conflicts with citizens, and with no benefit
accruing to raptor populations, falconry, or society. 18. “Temporary release of falconry raptors to the wild (“hacking”)
will be allowed.” Since there is no authority to prohibit this activity, there is no authority to authorize it either,
except for hybrids. To add a provision such as this is to assert that no activity is allowed unless provided for (we do not
observe such micromanagement provisions in raising waterfowl). This would require encyclopedic type of provisions, the concept
of which is repugnant to a free society. 19. “… The raptors do not need to be transferred from the falconer’s
falconry permit if they are used temporarily for propagation.” There is no reason why raptors cannot be used simultaneously
for falconry and propagation. If numerical possession restrictions were removed from falconers, this would be a moot point;
thereby reducing the paperwork burden on the Service and States in keeping track of transfers back and forth between falconry
and propagation permits. Therefore, we recommend that if permittees have both a propagation and falconry permit, they should
be allowed to use all of their raptors for both falconry and propagation since this would create no conflict whatsoever. Also,
by encouraging raptor propagation, greater knowledge will develop and a greater population will be available for the future
should a particular wild species require assistance. 20. “A falconer may transfer a wild raptor captured under a falconry permit to a propagation permit after the raptor
has been used in falconry for at least 2 years. Previously, raptors taken for falconry could be transferred to another permit
type immediately after capture.” We disagree with this restriction. Since we can only take eyasses or trap passagers
(not of age to breed) and can only take two wild raptors per year (please also recall our disagreement with the two wild bird
per year limit), it is presumed there is no reason to transfer them to propagation permits until they are of age to breed.
However, if a falconer wishes to build a breeding stock of raptors but wants to determine whether the birds are suitable for
breeding, i.e. have sufficient falconry attributes, the proposed limitation would prevent him from taking an additional bird
for two years if his 3-bird falconry limit is achieved. This would be an unjustified burden to his efforts of establishing
a breeding stock with no social or biological benefits; therefore we oppose this restriction. All of this would be moot if
numerical possession limits were removed and birds could be used simultaneously for both activities. 21. “General and master falconers may use suitable raptors they hold in conservation education programs without an
additional permit.” Again, since there is no authority to prohibit this activity, there is no authority to authorize
it either. To add a provision such as this is to assert that no activity is allowed unless provided for. This would require
encyclopedic type of provisions; however, the MBTA only authorizes the management of take and trade, but not use. Also, providing
such narrow definitions in education as relating only to “conservation” is arbitrary. Why isn’t educational
use of raptors in demonstrating aerodynamics, as it relates strictly to physics, acceptable, for example? What about art and
the painting of raptors? Is conservation superior to all other forms of education; and for that matter is education superior
to all other uses for raptors? This type of assertion is riddled with arbitrary values, therefore having no place in law. 22. “The age for apprentice falconers is lowered from 14 to 12.”
The WRTC concurs with this change. However, the establishment of the proper age should be set by the States so as to keep
the Service out of micromanagement issues. 23. “General and master falconers may assist … wildlife rehabilitators
in conditioning of raptors for release to the wild.” Falconers and rehabbers should work closely so as to further
our conservation efforts and further our knowledge of raptors by sharing information and through the combined efforts for
the successful release of rehabilitated raptors. Man’s understanding of raptors will be furthered through this union.
We should go further and explicitly provide for falconers to hunt with rehabbing birds so as to make sure they are capable
of survival. This is another example of the Service’s legitimate authority of migratory bird management since it is
related to “possession” as it relates to “take.” 24. “A [foreign] visitor to the U.S. with a falconry permit … may practice
falconry in the U.S. …” We agree with this allowance. This is yet another example of the Service’s legitimate
authority. 25. “What will happen if we suspend a State’s … certification? If we suspend a State’s …
certification, we will require that all raptors … held for falconry … be transferred to other falconry permittees
or … released to the wild …, or euthanized.” This becomes an issue of property rights and this could potentially
derail the whole Federal falconry program given the fact that there is no authorization for the Service to regulate personal
use of migratory birds once legally harvested and no conflict between “possession” and raptor populations occur
– management of take and trade is the MBTA’s directive. Under the proposed scenario, wild take could be prohibited
in a State until the State is re-certified (can the Service require waterfowl hunters to return frozen carcasses of waterfowl
from the previous year’s harvest if their State suddenly does not comply with Federal waterfowl hunting regulations?
No, of course not; residents will merely be unable to hunt waterfowl). Once taken from the wild, migratory birds must be considered
harvested until released back to the wild, which should be considered a gift to
wild populations. This is the reason the details of managing a falconry program should be left to the States so that the Service
is not boxed in a corner should the proposed question ever come to pass; and the more micromanagement encompassed, the greater
the possibility of conflicts with States and with falconers, and to what end – to satisfy the prejudices of those who
discriminate against individuals who harvest living wild animals and then domesticate them for personal use? However, if the Service
still intends to go forward with this provision, the regulations should contain provisions whereby the Service retains some
permitting authority to deal with falconers in those states which do not adopt the new regulations or are in violation of
the Federal falconry program and are unable or unwilling to comply. If the Service is unwilling to do so, the Department of
Agriculture can fill this need. 26. “A falconry bird is considered to be taken from the wild only by the person who originally captures it; the bird
is not considered to be taken from the wild by any subsequent permittee to whom it is legally transferred.” This limitation
needs to be handled in two ways: first, eliminate the 2-bird per year wild-take limitation and provide for a conservative
sustainable-yield management mechanism – since falconers have no impact on wild populations – pursuing a course
of management similar to waterfowl (but certainly not as extensive) once the EA has taken place; and second, eliminate the
need to provide a 3-186A form (hard copy or electronic) for the simple transfer of freshly trapped raptors when it is purely
an issue of favor and courtesy to a fellow falconer – the Board of WRTC believes a 5 day grace period is appropriate
to achieve this end and any wild-take limit should be applied to the receivers permit and that he should submit the 3-186A
form. Trapping hawks is not like hunting in a local community; it can take extensive planning and travel to acquire the more
highly desirable raptors (for waterfowl hunters who can afford extensive trips, they are able to share their catch with friends
with no need for reporting anything – tagging is all that is required). This restraint could appear as an attempt to
minimize the harvest of these birds. 27. In addition to the restriction just cited, another one further clarifies the assertion: “If you are not present
at the immediate location where the bird is taken from the wild, the person who removes the bird from the wild … must
report take of the bird…. The bird will count as one of the two birds the person who took it from the wild is allowed
to capture in any calendar year. … The person who takes the bird from the wild must report the take even if he …
promptly transfers the bird to another falconry permittee.” The only plausible explanations for this restriction is
to minimize the harvest of the more highly desirable and romanticized raptors or the fear of commercial dealings in raptors.
However, this does not provide grounds to restrict citizens’ activities, for if this were legitimate grounds, then the
government would be free to erect barriers at every turn in order to prevent the “possibility” of citizens from
breaking any law. In 50 CFR 21.29, i,
4, it provides, “… any raptor other than endangered or threatened species taken under a depredation (or special
purpose) permit may be used for falconry…” If transferring raptors under depredation permits is acceptable without
any numerical limit, why are falconers restricted in the manner proposed? This would indicate a bias against falconers since
in either case there is no impact on wild populations. 28. “Additional information. (1) Are birds removed from the wild for falconry always considered ‘wild’
birds? Yes, no matter how long such a bird is held in captivity or whether it is transferred to another permittee or permit
type, it is always considered a ‘wild’ bird….” This is a misuse of the meaning of the word wild as
it relates to the meaning of the word domestic or domesticate. The Oxford English Dictionary defines domestic as it relates
to animals as, “Living under the care of man, in or near his habitations” and it defines domesticate as, “To
accustom an animal to live under the care and near the habitations of man; to tame or bring under control; to civilize.”
This defines what falconers do with wild raptors. The fact that raptors can revert back to the wild after release is irrelevant
since in a sense, so could a man. Reverting back to the wild merely implies the ability of living off the land, which a man
can do just as feral dogs and cats can do. It would appear that
this provision is an attempt to keep raptors in a state of perpetual “wildness” so as to preserve the Service’s
authority over the privately held birds. Domestic or wild, it’s an argument in semantics, since the U.S. Supreme Court
has ruled that wildlife is owned by no one until possession takes place (see We could look to the
way in which wild horses are transferred to citizens as an example. Once the equestrian has satisfied established requirements,
the horse becomes his sole property. 29. “You may charge a fee for presentation of a conservation education program.” … “Presentations
that are not specific to falconry and conservation education are not permitted.” … “You may not use falconry birds for entertainment; advertisements; promotion or endorsement of any
products, merchandise, goods, services, meeting, or fair; or as a representation of any business, company, corporation, or
other organization.” … “You may not use falconry birds to make movies, commercials, or in other such commercial
ventures.” First, when referring to education, such narrowly defined terms such as the word “conservation”
is subjective and entirely unnecessary. However, more importantly, there is no authority provided in the MBTA that provides
for commercial use restrictions (once again this is an issue of use or activity) other than in trading raptors or their parts;
without explicit authority, this provision would have no force. Consider the waterfowl hunting industry and all the advertisement
using waterfowl for commercial promotion. Discriminating against the use of raptors is an anti-capitalistic position in a
capitalistic society – this is a conflict of interest since one of the fundamental purposes of our government is to
support and expand economic opportunity for citizens, when there is no social conflict, rather than pursue its contraction.
30. Regarding the Regulatory Planning and Review section: As demonstrated by the criteria of the Executive Orders and the
Acts cited, falconry has no impact on any activity nor any wildlife population. Given this fact, why does falconry require
greater restrictions than any other outdoor activity? 31. “What is the legal basis for regulating falconry?” This references use of raptors when it states, “The
MBTA prohibits any person from taking … selling … or undertaking any other uses of raptors … unless
the uses are allowed by Federal regulation…”; the MBTA does not provide for the word use; the Service had
to create this presumptively. And again under the same section, item (2) the Service creates its own meaning for the term
possession. While possession is provided for, the definition the Service asserts does not concur with the intent of the MBTA.
Based on the intent, “possession” has to do with how one comes into custody of a migratory bird, such as trapping,
shooting, trading, etc., and whether or not the “possession” is in conflict with wild populations’ circumstances;
not how it is used for private purposes. It’s meant only to manage possession as it relates to take in order to prevent
indiscriminate killing, since this is the very reason why raptors were brought under the protection of the MBTA. Let us consider an example
of a violation: the Act states one cannot kill, trap or trade a migratory bird. But what if someone trapped or killed a bird
illegally and then gave it to another individual as a gift and the second individual was caught with the bird. He could say
he did not violate any provision in the Act since he did not take it himself or buy it – it was given to him. This is
where the “possession” provision is the controlling factor; it is meant to restrict take in order to manage it – it was not meant to eliminate take.
This is why some form or forms of take need to be provided for in order to manage
the resource. This is the extent of the possession provision. Falconry is a legitimate,
healthy and beneficial use of the resource; therefore the Service has no authority to deny citizens their right to use this
plentiful natural resource. 32. In reference to the change in the timeframe required to be a sponsor, we desire to retain the present requirement of
merely being a general falconer. Here again, this should fall under the authority of the States alone. 33. In reference to “May another person care for my falconry birds for me?”
This too should be managed by States; and in this case, family members should be allowed to care for birds. 34. In reference to “Are falconry facilities, birds, equipment, and records
subject to inspection?” The only legally justifiable items that can be “inspected” after a permit has
been issued are the 3-186A forms and permits since they belong to the government. The falconer merely needs to produce these
documents to government officials to remain in compliance with this provision. 35. In reference to the suspension of a State’s or Tribe’s certification. It is proposed to give them one year
to come into compliance; this demonstrates a desire to work with and instruct the States. Why can’t the Service’s
Law Enforcement community view its relationship with citizens in the same light rather than the hunter and huntee relationship?
36. The five bird limitation – only three of which can be from wild-take – is too restrictive and has no legal
justification for this assertion. Consider game farm depredation permits that allow the killing of raptors, which is considered
undesirable but acceptable; but for falconers to have more than three wild birds is viewed in a negative light. Taking depredating
raptors from game farms for falconry purposes would be far more in line with the intent of the MBTA than killing them. Therefore,
we propose that there be no possession limit asserted against master falconers. 37. In reference to, “Total take of nestling American peregrine falcons …
is limited to 5 percent …” This does not belong in the falconry regulations. It is a matter that belongs under
the Management Plan or an Environmental Assessment for a particular species. As peregrine populations increase, the 5% limit
will need to be increased based upon sustainable-yield principles. 38. In reference to, “May I take a species that was recently removed from
the List of Endangered and Threatened Wildlife to use in falconry?” The word Federal
needs to be included so that States will not interpret this to apply to their own individual State’s listings. Prohibiting
the use of endangered species is another example of the legitimate authority for the Service’s oversight of raptor possession
issues. 39. In reference to, “What should I do with the carcass of a falconry bird
that dies?” Since the birds are the property of the falconer as the Supreme Court has established on numerous occasions,
the Service has no authority, other than trade issues, to dictate what the falconer may personally do with deceased birds. 40. In reference to, “May I use other falconry training or conditioning techniques?”
Since there is no authorization to restrict this, there is none to allow for this provision. In addition, this is a micromanagement
issue of such insignificance that it doesn’t even belong under State oversight. 41. We request a let-it-lay provision that protects falconers from accidental take of migratory birds when out of season.
In addition, we request the same provision for other protected species. This is another good example of the Services authority
over migratory birds. 42. We request a provision that allows for falconers to post a bond for a falconry bird when a falconer is cited for a
violation. This is for the protection of the raptor, and defends the principle of innocent until proven guilty. 43. The provisions addressing “feather damage” should be removed since these are subjective judgments that
officers will rarely be able to ascertain as to what was the cause of the damage to feathers, e.g. was it due to a perch or
a struggle with quarry? 44. The provisions detailing perch surfaces should be removed since the “rough surface” suggested is a value
judgment of certain falconers that is not necessarily accurate, e.g. prairie falcons perch on telephone poles or rocky cliffs,
both of which can be perfectly flat. In general, administrative issues
in management of a falconry program should be left to the States since States are more responsive to the needs of their residents;
they can handle local issues with greater understanding and clarity; and they are more suited to handle issues that are not
related to MBTA provisions. Also, administrative issues are typically of little significance compared to the larger goals
the Service must address. Expending energy and resources on such petty issues is to divert and disperse our wildlife management
efforts in unproductive ways, and wildlife agencies are already burdened with enough responsibilities and not enough resources
(some States may bow out of managing falconry if there are additional responsibilities to contend with). In addition, unnecessary provisions
in the hands of mischievous officers could be abused to the detriment of citizens. We must take into account that law officers
can be just as abusive of the law (especially laws related to constitutional rights) as citizens can be. The results are far
more harmful from the officer than from the citizen due to: the officer’s potential abuse of citizen’s rights;
the consequent negative view citizens develop toward officers and the law; and the subsequent tearing at the legal fabric
of our society which is the greatest of all evils in a political system. The fewer laws and regulations there are (especially
when they serve little purpose; or incidents they were meant to prevent would occur so infrequently as to be irrelevant) the
fewer opportunities for an unscrupulous officer to behave abusively. Only those laws and regulations that offer the greatest
benefit with the least social cost are socially and legally just in a free society. It is not our intention to paint
the Service in a negative light – there are good and bad elements in any institution, including our own. No gathering
of men, governmental or private, is immune from the depravity found deep in the breast of some men, but such bad apples must
not be used as an excuse to attack these institutions. For if this were acceptable, the legal attacks asserted against the
falconry community in the past would justify a commensurate political assault against the law enforcement side of fish &
game agencies. Such antagonism is void of any productive results; it only leads to an escalation of animosity and a diversion
of resources to unproductive and anti-social ends. What we’ve provided here
is a demonstration of conflicts with civil liberties and to provide recognition of a justifiable management approach, and
most importantly, with no detrimental effects on raptor populations, which is what’s at issue regarding the MBTA. Any
proposed changes to the present system – which has been erroneously perceived as a legally sound program – must
demonstrate sound legal reasoning in order to defend the changes from challenges within and outside the Service. Absent a
legally defensible position, changes would be extremely difficult to enact. It is in this vein that the WRTC Board of Directors
humbly submits the preceding comments for your consideration and use in formulating a legally sound managerial approach to
falconry. Board of Directors Wild Raptor Take Conservancy
President, Bill Murrin Vice President, Ron Krupa Director, Bob Herrick Director, Kevin Suedmeyer Director, Scott Hartman Director, Eddie Morgan Canadian Director, Kim Hodson |
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