[Ed. Note: Important case: If these pilots are found not guilty it
may destroy the hunter harassment law as it applies to birds.]
April 13, 2012 - HuffingtonPost.com
IOWA CITY, Iowa (AP) — Prosecutors hope to use a rarely enforced
federal law to punish two Iowa pilots whose low flying disturbed
thousands of resting migratory birds in a case that centers on this
question: Is it a crime to harass animals?
In a case drawing attention from bird lovers, two Des Moines men
have been charged with violating a federal law that prohibits using
aircraft to harass animals. A judge is expected to decide soon whether
the Airborne Hunting Act is constitutional. Attorneys for the two men,
Paul Austin and Craig Martin, say it's not.
Among the questions being debated: Are birds capable of feeling
harassment? And if harassing birds is a crime, wouldn't Capt. Chesley
"Sully" Sullenberger have violated the law when he accidentally struck
a flock of geese before famously landing his plane safely on the
Hudson River?
Both sides agree Austin and Martin were flying low on Nov. 16 as
they passed over Saylorville Lake, a reservoir north of Des Moines
known for birdwatching. Tens of thousands of pelicans, ducks, geese
and other birds stop there every fall to rest and feed before
continuing south.
A natural resources specialist for the U.S. Army Corps of
Engineers, which manages the lake, saw the two planes pass about 20
feet above the water, disrupting thousands of white pelicans and other
birds. Once the birds settled on another part of the lake, the planes
passed by again, sending them back into flight, prosecutors said.
Natural resources specialist Jonathan Wuebker snapped photographs
and eventually cited Austin and Martin for flying "in a careless,
negligent or reckless manner" over protected land.
Then in February, a grand jury indicted the men on charges of
violating the Airborne Hunting Act, which carries up to one year in
jail. Prosecutors also aim to seize their small planes — a 1974 Magnus
Bowers Fly Baby and a 1946 Aeronca.
Prosecutors say the law applies even though the pilots weren't
hunting because its ban on harassment makes it a crime "to disturb,
worry, molest, rally, concentrate, harry, chase, drive, herd, or
torment" animals with a plane. Wuebker compared it to using a car to
chase deer through a field.
"When it is intentional or blatantly obvious, I would definitely
consider that harassment. But that's not my decision," he said, noting
trial is scheduled for May 30.
Austin and Martin have asked a judge to dismiss the case, arguing
the law is unconstitutionally vague. In a court filing, defense
attorneys said it "seems doubtful" that animals experience the kind of
human emotional response necessary to feel harassed. And how can
pilots know?
"Flying is what birds do. Who can say if the bird is pleased or
annoyed to have taken flight? Indeed, who can say whether the bird's
flight was the result of any cognition and not just impulse?" they
asked.
Austin's attorney, William Ortman, said Monday that the law doesn't
draw a clear line between legal and illegal behavior.
In court documents, defense attorneys noted that planes routinely
strike birds on accident. They cited the 2009 incident in which
Sullenberger successfully ditched US Airways Flight 1549 in the Hudson
River after a flock of geese hit it following takeoff. Under the
government's theory, they argued, Sullenberger "likely 'harassed' the
flock of birds that downed his plane, and he probably 'harassed' fish
when he arrived in the Hudson."
Martin's attorney and a spokesman for the prosecution did not
immediately return phone messages.
In a filing last week, assistant U.S. Attorney Cliff Wendel
rejected the idea that Congress meant to punish pilots for something
"so common and unavoidable" as bird strikes. But he said reasonable
pilots know that flying planes at a low altitude above thousands of
resting birds would be considered harassment. It's like one famous
legal definition of pornography, he said: you know it when you see it.
People know when they're harassing someone, "whether it's an older
brother picking on his little sister; a baseball pitcher intending to
hit the batter; or two pilots, flying their airplanes 20 feet above
the ground, while making two passes that both times cause 6,000
migratory birds to flee from their resting place," Wendel wrote.
Robert Johns, a spokesman for the American Bird Conservancy, said
Saylorville Lake was an important resting spot for migrating white
pelicans and "this sort of behavior should not be tolerated."
"The pilots in this case showed a callous disregard for the birds,
the natural environment, and anyone who might have been peacefully
enjoying them," he said.
