Hybrid Comments from Jason Jones

JASON C. JONES
ATTORNEY AT LAW

5632 South 2200 West
Roy, UT 84067

(801)628-9251

January 27, 2012

Public Comments Processing
Attn: FWS-R9-MB-2011-0060
Division of Policy and Directives Management
US FWS
4401 North Fairfax Drive, MS 2042-pdm
Arlington, VA 22203-1610

Re: Comments on Docket FWS-R9-MB-2011-0060

To whom it may concern:

I am a falconer and raptor propagator.  Some of the raptors I possess for falconry and raptor propagation are, and have been, hybrids between native and non-native raptors. I oppose the proposed change to the definition of “hybrid” to include hybrids between native and non-native raptors. The MBTA explicitly limits FWS authority to regulate only native raptors.  Hybrid raptors of any type, including hybrids between two native species and hybrids between a native species and a non-native species, are not a “native species” as defined by the terms of the MBTA.    As such, FWS has no authority to regulate any raptor hybrids and the proposed amendment should not be implemented. Additionally, FWS should not spend resources regulating an entirely new class of animals but should rather focus their limited budget on native species. Regulating hybrid raptors should be left to the states, same as every other exotic species. I oppose the FWS’ proposed change in the definition of “hybrid” more specifically for the reasons stated below:

1.       The FWS’s entire argument in support of granting non-native hybrids protection under the MBTA is moot as congress amended the MBTA in 2004 to clarify that the legislation only provides protection to native species naturally occurring within the boundaries of the U.S. without the assistance of humans.

In 2004, Congress specifically limited MBTA protections to naturally occurring native birds, including raptors, and, as there are no native occurring hybrids between native and non-native species of raptors found in the U.S., the FWS lacks authority to regulate their possession. The 2004 MBTA amendment nullifies FWS’s attempt to justify the proposed regulation change with reference to cases and policies occurring prior to the 2004 MBTA amendment which may support a “broad interpretation of hybrid” to include non-native hybrids. In 2004, in response to Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001), Congress amended the MBTA, adding section (b) and explicitly excluding non‑native species from the protections of the Act.  Hill involved the question of whether a non-native mute swan was protected under the MBTA, as it was then written. The amendment further defined the term "native" to mean, “occurring in the United States or its territories as the result of natural biological or ecological processes.”  16 U.S.C. § 703(b)(2)(A).  Finally, the amended Act stated that, "a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human‑assisted introduction shall not be considered native...."  Id. at 703(b)(2)(B) (emphasis supplied).

As a result of Congress' action, the D.C. Circuit found itself revisiting the plight of the mute swan.  In Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006), the Court again analyzed a challenge to Maryland's swan reduction plan.  However, because of the intervening Congressional action, the outcome was very different from that in Hill.  The Secretary of the Interior argued that scientific and historical evidence indicated that the mute swan was not native to the United States.  The Court agreed, and stated that the plain text of the amended Act, "clearly and unambiguously provide[s] that the Migratory Bird Treaty Act does not protect non‑native species such as the mute swan."  Id. at 877.

All hybrid raptors between a native species and a non-native species are non‑native because they do not occur “as the result of natural biological or ecological processes,” but rather “solely as the result of intentional or unintentional human‑assisted introduction.” 16 U.S.C. § 703(b).    The raptor hybrids in question occur entirely as the product of human‑controlled processes, specifically the very proximity to one another. By definition, a non-native raptor does not occur naturally within the bounds of the U.S. and therefore could not possibly breed with a native raptor without human intervention.  ““Native” is a term used to describe a species that occurs in a given ecological or geographic area strictly as a result of natural biological and ecological processes (i.e., no direct human involvement).” See Testimony of Matt Hogan, Deputy Director, U.S. Fish and Wildlife Service, before the House Resources Subcommittee on Fisheries Conservation, Wildlife and Oceans hearing on exotic bird species and the MBTA. (December 16, 2003)(http://www.fws.gov/laws/TESTIMONY/108th/2003/Hoganmuteswans.htm). Because the hybrids occur solely as the result of intentional human acts, they clearly fall within the 16 U.S.C. § 703(b) limitation to the MBTA.

In the present case there is no ambiguity and the intent of Congress is clear.  “Title I of S.2547 clarifies that the Migratory Bird Treaty Act’s prohibition on taking, killing, or possessing migratory birds applies only to native migratory bird species whose occurrence in the United States results from natural biological or ecological conditions.”  S. REP. 101-313, 2004 WL 1909561 (Leg.Hist.)  Indeed, the plain text of the MBTA explicitly excludes species which occur “solely as a result of intentional or unintentional human‑assisted introduction.” 16 U.S.C. § 703(b).  Because any hybrid with any part non-native raptor  does not occur without human intervention, it is a non‑native species as defined by the amended MBTA.  The agency’s inclusion of hybrids between any type of raptor bird on the list of birds protected by the MBTA is in conflict with the statute, and is therefore impermissible.

2.       FWS attempting to regulate the possession of non-native hybrids, and therefore non-MBTA regulated raptors, based on FWS’s assertion that their law enforcement agents may have difficulty distinguishing hybrid raptors from native raptors is the equivalent to the DEA attempting to regulate baking soda because their agents could possibly confuse it with cocaine in the field.

Alleging that non-native hybrid raptors should be regulated under the MBTA because identification of MBTA covered raptors may simply be difficult for FWS law enforcement goes against the absolute truth that the government must prove identity of every contraband item, in every criminal case, involving alleged illegal possession of any item,  as part of their case in chief.  It is the government’s duty to prove the item in possession by the citizen was in fact an item specifically regulated, and/or prohibited, by law.  The FWS law enforcement is held to the same standard.

The fact is that the majority of FWS field law enforcement agents can’t readily distinguish a pure native species of raptor from a hybrid raptor, whether between a two native species or a native and non-native species, or even a native raptor from a pure non-native raptor.  This is not because of the impossibility of the identification; it is simply a lack of training on the part of FWS. Most falconers, raptor propagators, or even ornithologists with expertise in raptors, can readily distinguish a raptor from any of these different groups. Lack of training does not relieve the FWS of their duty to positively identify the exact raptor species, or hybrid of raptor species, before they have authority to regulate that particular bird in possession of the citizen. 

Fortunately, we now have bands which are used to identify individual birds and their parentage.  Identification by law enforcement is not an issue. In the instance that a non-native hybrid raptor may be legitimately difficult to discern from a native raptor, the parentage of native raptors, non-native raptors, and hybrid raptors can be readily established by banding, micro chipping, breeding records, and personal testimony. Additionally, inexpensive laboratory DNA identification techniques are readily available for determining parentage from a single feather pulled from the chest of any raptors. 

DNA identification markers have already been established for all native raptors which are used in falconry, making the cost of identification of an individual raptor’s parentage less than $50. It is accepted and readily available technology to use a feather from a bird to establish parentage.  There are “DNA fingerprints” that have been identified for all hawks, falcons, and eagles which are native to the U.S.  It is a simple laboratory process to determine what the parentage is of any raptor which both parents are native species.  A DNA test on any raptor to establish parentage from two native hawks, falcons, or eagles should be less than $50.  The instances when the need for a DNA test to identify parentage of a raptor are almost nonexistent.  This cost is far less than the cumulative cost to tax payers to have the FWS regulate an entire new class of raptors on a national level. [1]

3.       Management of non-native raptor hybrids is the responsibility of the states, with no involvement required of the federal government.

“First, considering that the MBTA and the four bilateral conventions that it implements are, in essence, bird conservation statutes, it does not make sense for the federal government to expend limited resources conserving introduced species at the possible expense of native species.” Testimony of Matt Hogan, Deputy Director, U.S. Fish and Wildlife Service, before the House Resources Subcommittee on Fisheries Conservation, Wildlife and Oceans hearing on exotic bird species and the MBTA. (December 16, 2003)(See http://www.fws.gov/laws/TESTIMONY/108th/2003/Hoganmuteswans.htm). Non-native raptor hybrids are under the regulatory authority of the states, it is not the place of the FWS to attempt to regulate them under the authority of the MBTA.  The resources of the FWS, provided by the taxes of the citizens, should only be spent regulating native raptors.  The FWS has already openly agreed with this statement. “The Service believes that protecting exotic bird species under the MBTA would be counterproductive to the primary purpose of the Act and divert resources needed for the conservation and management of native species.” Id.

Non-native raptor hybrids pose no special threats, greater or less, than any other non-native species of raptor or hybrid between two native raptors. Should a particular non-native raptor hybrid actually cause damage, or threaten to cause actual damage, to a native species of raptor, there is a litany of federal regulation, separate from the MBTA, to address importation, possession, exportation, and removal of non-native birds. “For example, the Lacey Act restricts the importation, acquisition, and possession of wildlife deemed “injurious” and the Service has established regulations on injurious wildlife. The National Invasive Species Act, passed by Congress in 1996, authorized the Aquatic Nuisance Species Task Force, which the Service co-chairs. In 1999, President Clinton signed Executive Order 13112, establishing the National Invasive Species Council to coordinate federal invasive species activities and calling for the issuance of a National Invasive Species Management Plan. These laws and the Executive Order are consistent with the Service’s exclusion of exotic bird species from the protections of the MBTA.” Id.  Additionally, CITES and the Wild Bird Conservation Act regulate the importation and exportation of native and exotic raptors.  There is ample legislation preventing the parade of horribles which FWS has alluded to if non-native hybrid raptors are treated the same as every other exotic species of bird.

The FWS’s argument that they need authority to regulate non-native hybrid raptors or they can’t regulate hybridization with “prohibited raptor” is also without merit.  “Prohibited raptors” refers to a species of native raptors that have been named because they require special protection to ensure their continued survival within the bounds of the U.S.  A hybrid between any “prohibited raptor” and any other raptor, be it native or non-native, is not a species that FWS is charged with regulating or conserving.  It is not the place of the FWS to spend a dime regulating hybrids because they are not native species. So what if FWS can’t regulate hybrids with any part “prohibited raptor”? The survival of the actual “prohibited species” is not effected in any way, shape, or form.

For the above stated reasons, I oppose the FWS’ proposal to amend the definition of “hybrid” in § 10.13 to include non-native raptor hybrids of any type.  The regulation should be amended to correctly reflect the regulatory authority of FWS and completely eliminate regulation of any type of raptor hybrids.

Sincerely,

Jason C. Jones