During nesting season, don’t run afoul of migratory bird law (2023)

When Elise Lauderdale heard that the owner of her apartment complex planned to powerwash the entire building, she had a feeling it might end badly for the barn swallows nesting on her balcony.

Sure enough, one day after the eggs hatched, Lauderdale’s boyfriend called her at work. The powerwashing crew had blasted high-pressure water at the nest, leaving behind a soggy bundle of mud and sticks and three dead barn swallow nestlings. Lauderdale cried as she and her boyfriend buried them on a grassy overlook nearby.

“I was really good up until I buried them,” she said. “It all hit me. I guess it’s because I do care about animals so much, but it just hit me really hard.”

Not only did the nest’s destruction disturb Lauderdale, but she knew it was probably illegal.

While researching anything she could find to save the birds, Lauderdale had stumbled upon a relatively obscure 100-year-old federal law that protects most birds in the U.S. from being killed or traded. During nesting season, which in Texas lasts from spring to early fall for most species, the law prohibits people from harassing birds or harming their nests.

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The law is the 1918 Migratory Bird Treaty Act, or MBTA, one of the first laws passed in the U.S. to protect wildlife. It grew out of a convention between the U.S. and Canada in 1916 when both countries agreed to protect birds that cross their borders. Today, the act protects hundreds of species, including barn swallows.

Violators can be charged with a misdemeanor with a maximum fine of $15,000, six months in prison or both. Those who “knowingly” violate the act can get a felony charge carrying a $2,000 fine and up to two years in prison.

At Brackenridge Park a few weeks ago, Alesia Garlock invoked the MBTA when she saw a man with his family yelling and throwing sticks at birds nesting in a tree near the banks of the San Antonio River.

“I told them, ‘Hey, don’t do that!’” Garlock said. “He said, ‘Why not?’ ‘It’s a federal offense,’ I said.”

Garlock is a birdwatcher who enjoys photographing the tricolored herons, great egrets, cattle egrets and snowy egrets that build groups of nests called rookeries.

“They’re going to be gone within a month,” Garlock said. “If the babies are here, give them another month.”

All these birds are protected under the MBTA. The act is often credited with saving the snowy egret from extinction after hunters seeking its plumage for women’s hats nearly wiped it out in the 19th and 20th centuries.

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Unlike its better-known cousin the Endangered Species Act, the MBTA does not only protect rare species standing eye to eye with extinction. Many birds on the list are common, some annoyingly so.

Barn swallows, for one, are sometimes seen as a nuisance for building nests in clusters under eaves, bridges and garages. They are extremely common and live all over the world.

Another bird on the list is the brown-headed cowbird, which bird lovers hate for its absentee parenting habits. Cowbirds lay their eggs in other species’ nests and watch from afar as their young crowd out the hatchlings of those other species.

Even worse is the common grackle, which some San Antonians call the H-E-B bird. At dusk, they fill parking lots with clicking, screeching, poop-dropping swarms.

“It’s like a bad Hitchcock movie every time I go to the Quarry or the river,” said Amy Hardberger, a St. Mary’s University law professor who teaches environmental ethics in her classes. “I, personally as an animal lover, don’t find a particular value for grackles.”

While the MBTA requires treating all species on the list equally, “in reality, there is a heightened caring and awareness of things that are majestic and also things that are less common,” Hardberger said.

“You have to make a differentiation between the word of the law and the goal and desire of the law,” she said. “This is an ethical conversation, and is there a hierarchy in ethics.”

That’s probably why the MBTA seems to be used on a case-by-case basis. An Audubon Society primer called its enforcement by the U.S. Fish and Wildlife Service “arbitrary and difficult.”

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In 2015, special agents and wildlife inspectors with the USFWS were involved with 600 MBTA cases across the country, according to its most recent law enforcement report. Some of these ended in fines and jail time.

One recent case in Texas involved an East Texas farmer who spread feed corn laced with pesticides over his fields, trying to kill feral hogs. It worked, but wildlife agents also found dead bird carcasses, according to the USFWS. The farmer pleaded guilty to misdemeanors of violating the MBTA and unlawful use of pesticides.

In another case from 2015, USFWS agents worked with the Texas Parks and Wildlife Department in a sting operation to buy owls, hawks and bird parts. Four people got seven years’ probation and had to pay $7,000 in restitution to an unnamed wildlife rehabilitation center in San Antonio, according to USFWS.

Undercover USFWS agents also bought 35 dead hummingbird carcasses that year from a vendor selling them as chuparosas, or “romantic good luck charms.” That unnamed vendor got four years’ probation and $5,000 in fines and had to pay $1,000 restitution to the Neotropical Migratory Bird Conservation Fund.

Those are all a bit more extreme than what happened on Lauderdale’s porch at the Honey Hill Apartments near Loop 410 and Bandera Road. On Thursday, the San Antonio Express-News called and emailed the apartment offices and those of its owner, Denver-based Catalyst Multifamily Management. The company did not respond.

Lauderdale said she tried her best to warn them before it was too late. After getting a notice May 3 about powerwashing, Lauderdale called the management office to put it on notice about the MBTA. Someone took her number and said they would tell the crew about the birds.

Just to be sure, she made signs in black marker on orange craft paper reading “Warning! Baby Birds! Please, be careful.” Another sign spelled it out in more detail: “These birds and their nest is protected under (the MBTA), a federal law it is illegal to kill them”.

After she returned to find the dead nestlings, she went to the office in a fury, wanting to talk to the manager and assistant manager, who she said were nonplussed.

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“They were very dismissive of it even after I had the legal paperwork,” she said. “They just kind of flipped through it really casually and handed it back to me.”

So she called the TPWD’s San Antonio law enforcement office. In a phone interview last week, Game Warden Jonathan Balderas said he called the apartment offices “just to inform them they can’t be doing that, can’t be messing with an occupied nest.”

Because the law is federal, enforcement would have to come from USFWS, Balderas said. Whether that agency will get involved is unclear.

Lauderdale said that after Balderas called, she noticed that the powerwashing crew had stopped blasting the swallow nests, though a few had been spray painted. She was not sure if that harmed the nestlings.

“It’s too late for the ones that are on my patio, but at least for now it appears the others that weren’t taken down … might be safe,” she said.


Twitter: @bgibbs

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