Least Terns are among the most human-sensitive species of birds nesting on coastal sand dune habitats and beaches in west-central Florida. Just like their interior cousins on the Platte River in Nebraska, the Atlantic race of Least Tern has very specific nesting requirements - just the right amount of small pebbles, just the right amount of drainage, just the right distance away from storm surges, and other factors. I have had a kinship with this species ever since a paper I published in 1983 on their ecology along the Platte River in Nebraska was one of the principal pieces of evidence used to justify listing the Interior race of this species as an Endangered Species.
Black Skimmer is one of the more unique seabirds anywhere in North America and especially in coastal Florida. Their uniqueness comes from the anatomy of their bill where the lower mandible is demonstrably longer than the upper mandible. The bird uses this to "skim" over shallow water collecting food items in its mouth.
Like the Least Tern, Black Skimmer has some exacting habitat requirements for nesting. A big factor for them is the lack of disturbance from humans, dogs, and other beach invaders.
Yesterday, April 1, I spent much of the morning hobbling around on North Lido Key beach looking for migrating birds and just generally soaking in the ambiance of the powder white sand beach there. North Lido Key beach provides an abundance of nesting habitat for seabirds like the Least Tern and Black Skimmer. Because of its remoteness and the fact that a walk of at least 1/4 mile is required to get there the beach is also important for nesting Loggerhead Sea Turtles.
As I approached the beach from the North Lido Key forest side I encountered the following sign that was with a bunch of other signs along the periphery of the area that had been cordoned off by Sarasota County to protect nesting Least Terns and Black Skimmers and their habitat.
The sign sends a pretty strong message to anyone using the beach during tern and skimmer nesting season. Disturb the birds and you could wind up in prison for two years.
There is only one problem with the wording on the sign. It references the Migratory Bird Treaty Act, a strict liability law that is the basis for the protection of almost every species of wild native bird in the United States. The problem is that "disturbance" as mentioned on the sign is not a prohibited action under the Migratory Bird Treaty Act. It is illegal to disturb or harass a species listed under the Endangered Species Act. There is also a provision in the Bald and Golden Eagle Protection Act that prohibits disturbance, but not so the Migratory Bird Treaty Act.
The wording on the sign creates a sticky wicket (as the cricket-playing Brits would say). Someone cited for a legitimate violation of the Migratory Bird Treaty Act who retained a smart lawyer (oxymoron?) could have the case thrown from court if the lawyer could convince the judge that the wrong information was provided to the public on the posting sign.
I know this from personal experience. We had the wrong wording on a sign along the Platte River regarding nesting birds and a case was tossed from court almost before it hit the judge's desk because it was pointed out the public was being given the wrong information. This was a painful lesson for me to learn.
So... what to do about these signs that are up on both North Lido Key and on Siesta Key? I contacted the woman in charge of beach resources for Sarasota County, told her what the issue is and suggested a simple change that should send the same message as before but do it in a way that any citations or arrests won't be thrown out of court. After talking with her I sent the following email to her for clarification. (For obvious reasons I have removed the name of the US Fish and Wildlife Service Special Agent mentioned in the email).
Dear (Sarasota County Person - I removed this person's real name for the blog posting):
I enjoyed talking with you today regarding the signage that Sarasota County and the City of Sarasota have put up around the periphery of least tern and black skimmer nesting areas on Lido Key and Siesta Key in Sarasota County. As a little background I wanted to let you know the following:
I am retired from 31 years as a wildlife biologist with the US Fish and Wildlife Service and now live in Sarasota. Yesterday, April 1, 2010 I was hiking and birding on North Lido Key beach when I came onto the area cordoned off to keep people out of the seabird nesting area there. At the edge of the nesting area are educational signs with the logo of the County and the City admonishing beach visitors to avoid disturbing nesting birds. The signs state that "disturbance" is a problem for nesting birds and then the signs go on to cite the Migratory Bird Treaty Act (16 USC 703-712) as the legal authority. The signs also state a fine for violation of the Act.
Unfortunately disturbance is not a prohibited action under the Migratory Bird Treaty Act. It is under the Endangered Species Act, but not under MBTA. When I saw the wording on the sign I had a flashback to a case we had in Nebraska where we (the Fish and Wildlife Service) did not have the correct verbiage on a sign protecting a bird nesting area. A sharp attorney who knew the Act was able to get the case thrown out of court because we failed to use the correct words.
I don't want that same thing happening with nesting birds in Sarasota County.
I called Fish and Wildlife Service Special Agent XXXX XXXX in XXXX Florida yesterday and XXXX confirmed my interpretation of the Act - there is no prohibition on disturbance. After we chatted a bit we came up with some alternative language I would like to suggest the County put on the signs. These words will still be educational but will also not be something likely to get a case tossed from court should one of our Special Agents or the Florida Fish and Wildlife Commission have to apprehend someone for a violation.
I would like to suggest that the verbiage on the signs be changed to:
"Birds nesting in this area are protected by the Migratory Bird Treaty Act (16 USC 703-712). Criminal violations of the Act are punishable by fines up to $250,000 and up to two years imprisonment."
Yesterday I confirmed the monetary fines and jail time with the Chief of the Division of Refuge Law Enforcement for the Fish and Wildlife Service.
This should be a simple fix that allows the public to be informed (and hopefully frightened!) while not providing a loophole for someone to get a case tossed.
In our conversation today you indicated that Sarasota County would likely be willing to make this fix on the signs (and I will volunteer to go out and replace the old signs with the new verbiage when the new signs are available). Should the cost of making these changes be excessive, I might be able to talk one of my old colleagues into providing some Fish and Wildlife Service funds to defray costs of making new signs. In fact, it might not hurt to get the Fish and Wildlife Service logo and put it on the signs to help back up the county's message.
Please let me know if this works out for you. You mentioned me possibly volunteering with the county. My background during 31 years was primarily in ornithology and in wetland ecology. Since moving to Florida I have developed a strong sense of kinship with sea turtles and would be tickled to help you with any sea turtle habitat protection activities in which you are engaged.
Thanks again for your willingness to make this simple fix work to benefit our coastal bird resources. Please contact me at the address or phone number below if I can be of further help.
Good on ya, Sarasota County!! They did the right thing immediately and the simple fix is in. Now should one of our Agents or the State have to bust someone for a violation of the Act the case likely won't be thrown out of court on a technicality.
This is another example of working with people to get good things done for the earth. And doing so I actually felt like I was a US Fish and Wildlife Service wildlife biologist again - if even for just a short period of time. It felt good making a difference.