Fenway Park Incident

Lincoln Karim
xxxxxxxxxxxx


April 21, 2008




Rich Lehan,
General Council
Mass Fish & Game
(617) 626-1552
(617) 626-1505 (fax)


Subject: FOIL Request; Destruction of Red-tailed Hawk nest in Fenway Park, Boston.


Dear Sir:


Under the Freedom of Information Law I am requesting the following information:


At or around April 3, 2008 a Red-tailed hawk’s nest was destroyed in Fenway Park, Boston by Tom French, Assistant Director of Mass Wildlife according to a published report by Andrew Ryan of The Boston Globe.

Please provide me with the following information:


1. date & time the nest was destroyed.
2. date and time in which the permit for the above destruction was issued to execute the destruction of the nest in compliance with the MBTA .
3. the name and title of the authorized issuer of the permit used to destroy the hawk’s nest.
4. the reason for the destruction of the hawk’s nest.
5. when the decision was made to execute the action of destroying the nest what fact or facts gathered by the personal involved determined that the nest must be destroyed.
6. provide any data used to determine whether the animal involved in the alleged attack described in the Boston Globe was the same animal which possessed the nest which was destroyed.
7. the name/s of authorized person/s which decided that the incident described in the Boston Globe was an ‘attack’.
8. the details of any official complaint logged with the Mass Fish & Game requesting their intervention in the incident published in the Boston Globe.
9. any written or verbal data in any possible investigation of the incident prior to the destruction of the nest.
10. the name or names of all personal involved in the destruction of the nest.
11. Any documentation issued or logs made, or any registered data before, during or after the destruction of this Hawk’s nest.
12. a detailed account of the procedure used to destroy the nest.
13. a list of all components of the nest including any egg or eggs.
14. the name of the authorized lab which examined any egg/eggs removed from the nest to determine viability and/or to provide data for toxicity, developmental status or problems.


The information requested is going to be used by me to pursue legal action against any possible breech of any active law or laws which are in place to protect Red-tailed hawks, their nests and their eggs.


Please send the following information to the following address:


Lincoln Karim
XXXXXXXXXXXX


Or Fax to:
Att: Lincoln Karim
(212) XXXXXXXX


Please inform me of any charges or fees applicable for the gathering and printing of this material.


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Hi Lincoln -

Thank you for taking up the cause for the Fenway Hawk. i found the response by Dr. French a little shaky, regarding the nest removal and their 'open permit' process. his description of the bird's behavior is also a little suspect (egg laying on bare metal) but I noticed that the hawk in question has a light eye, so it may be a young inexperienced hawk in its second year... then again, he had just described how they had already been trying to foil all previous attempts to nest before laying, so the poor female may have had no choice in the matter.

I did a little research on the MBTA and offer some interesting insight from US Fish & Wildlife site, article titled 'Migratory Bird Permits; Removal of Migratory Birds From Buildings' (Oct 2007) -

http://www.fws.gov/policy/library/E7-19712.html

apart from the standard definition of the Treaty, there is this section in their discussion:

To simplify removal of migratory birds from buildings in which their presence may be a threat to the birds, to public health and safety, or to commercial interests, we will allow the removal of any migratory bird, except a threatened or endangered species, a bald eagle, or a golden eagle, from the inside of any building in which a bird might be trapped, without requiring a migratory bird permit to do so. The bird must be captured using a humane method and, in most cases, immediately released to the wild. This regulation does not allow removal of birds or nests from the outside of buildings without a permit. Removal of active nests from inside buildings must be conducted by a federally permitted migratory bird rehabilitator. skipping down to end of document -

(10) If an active nest with eggs or nestlings is present, you must seek the assistance of a federally permitted migratory bird rehabilitator in removing the eggs or nestlings. The rehabilitator is then responsible for handling them properly. perhaps Fenway is enlisting the help of such a 'permitted rehabber' for their 'open permit' policy.

Best, Anna

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Whether or not the decision to remove the hawk's nest in Fenway Park was 'right or wrong', I am determined to find whether it was done 'legally' or not. Thus far all of my queries seem to indicate that the MBTA was breached. Proper legal measures were ignored and the actions taken by the official authorities did not follow the guidelines of this continuously weakening law. Too often, even when the law is considered, the animals under the protection of this law usually gets the short end of any decisions made. As the self proclaimed master of the earth one would think we would tend to veer on the side of the weaker party but we all see daily that this is not so.


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Excerpts from a returned call from:

Dr Tom French
The State of Massachusetts's Wildlife.
508 389-6340
tom.french@state.ma.us


I asked Dr. French if he could provide me with information concerning the destruction of a Red-tailed hawk's nest in Fenway Park on Thursday April 3, 2008 following an alleged attack on a park patron by the female hawk whose active nest was close by.

"Every year 'she' (he kept referring to the female only and not to a mated couple) attempts to build her nest on the stadium and we have the twigs swept away to force her to build elsewhere."

Dr French claims that this hawk built its nest with twigs and a 'knit hat' on the stadium in 'one single day'. This he explains is why the nest was not noticed days before at which point it would have been cleared.

He claimed that an egg was laid prior to the accumulation of these twigs on bare metal. He proposed that since Boston had three days of sub-zero temperatures he knew that this egg was not viable and so no effort was made to test or preserve it. The egg was taken from the nest without any intention to be tested or salvaged.

I pressed him to give me details as to the procedure involved in destroying the nest. I asked for information on how a permit, if any, was obtained to conduct the destruction. I told him that I wanted to make sure that all actions were performed legally.

"We have an 'open permit' to destroy any nest whether there are eggs or not and this permit also entitles us to 'kill the hawk' if we believe it poses a threat to humans!"

As to further legal issues concerning the 'State of Mass Wildlife' he referred me to direct those questions to:


Rich Lehan
General Council
Mass Fish & Game
(617) 626-1552


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(Letter from a friend in CA)

I got your message. I thought it might be easier for me to e-mail you some information so you can have the weblinks you need written down. Call me if you have more questions.

A couple of preliminary thoughts:

First, the Migratory Bird Treaty Act implements several treaties which contain most of the substantive provisions. If you really get into this, you may want to get copies of the actual treaties and review them.

Second, the MBTA is a relatively short statute, that just says killing migratory birds is illegal unless an exemption is created by administrative regulation. So you'll need to look not only at the prohibitions in the MBTA, but also all the regulations that have been created implementing the MBTA.

Here is a good place to find the most recent versions of the MBTA: http://www.access.gpo.gov/uscode/title16/chapter7_subchapterii_.html

This is the official U.S. Government printing office site.

You will also want to look at the regulations implementing the statute that have been issued by the U.S. Department of the Interior. These are found in the Code of Federal Regulations (CFR). You can find most of those regulations pertaining to the MBTA here: http://www.access.gpo.gov/nara/cfr/waisidx_06/50cfr21_06.html


http://www.access.gpo.gov/nara/cfr/waisidx_06/50cfr20_06.html

I don't know the answer with 100% certainty, but unless Massachusetts has some sort of special exemption, it is likely their order to destroy the egg and nest violates the regulations under the MBTA. Check out the regulation at 50 C.F.R. 21.11(c) to see what I mean. But I'm not ready to be on record for that: I'd need to do more research.

Let me know if I can be of more help.


Brent Plater
Visiting Assistant Professor and Staff Attorney
Golden Gate University
Environmental Law and Justice Clinic
536 Mission Street
San Francisco, CA 94105-2968
Phone: 415-369-5336
Fax: 415-896-2450
bplater@ggu.edu


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I believe that the actions taken by officials at Fenway Park on April 3, 2008 were thoughtless and insensitive and not enough was done to preserve or respect the wild animal concerned. The News story about this sad incident served mostly to entertain its audience and offered no sympathy for the innocent creature which was simply trying to survive in an environment which must be shared by Man and animal. Most of my colleagues who heard of this story found it amusing and comical. Here is a wild animal attempting to preserve and procreate its species in a world transformed by one other singular species which proclaims itself superior to all living creatures. The very sport and stadium associated with this incident is a flagship for the non-productive things that we do with our lives and the misuse of the Earth's precious possessions.

The bird was attempting to build a small humble nest to bring its precious young into the world. It chose a spot where a large stadium was built where by masses of over-indulgent humans can sit and gouge themselves in a mindless game. No tolerance or respect was displayed for the welfare of this one precious little animal. As human beings some of us forget who we are and unable to remember where we came from. We are often oblivious to all the struggling life around us, including, not just other animals, but trees, water, mountains and even other human beings who we feel privileged to trample over in our selfish quest to dominate the world we all live in.

Should there be a rational pair of eyes looking down on us I wonder what transpired in the mind behind those eyes when they witnessed what happened to those hawks in that stadium? What just force in the Universe will condone such a bullying action on an innocent creature?

God knows I will certainly be on the side of Man if I looked around me and saw my fellows as a clean sober-minded species who lived in tune with the Earth and had set a sound wholesome standard of living. But how can I stay silent and accept the greed and gluttonous behavior of my own species and watch them destroy truly noble creatures that live pure wholesome lives?

I have to leave it up to that elusive just force out there to set things right in her own time and pace, and all I can do in the meanwhile is to make sure I contribute the least to the injustice that we all level on the lives of our precious animal friends.

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Letters concerning the Fenway Park RTH Incident:


I too am very saddened by the Fenway incident. It is really sad that people who are employed by MA Wildlife do NOT protect wildlife and that red tailed hawk or her nest & egg. I had a bad feeling about it when I saw the news that night. We know that they did not do all they could to help the hawk. Thanks for all the info. & all that you have done.

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Just want to say right now how embarrassed to say I am from Massachusetts and to be a fan of the Red Sox after visiting your site today. I'm appalled to read about the destruction of the hawks nest at the Fenway. Cruelty and disregard to animals like that is not excusable. I hope those involved will be punished to the extent of the law and that the nesting red tails will find a new location within the city to hopefully be able mate again and rebuild within this season. We can only hope.


Thank you for being there for the animals...


Sheryl
Westborough, MA


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As much as I hated to read of the removal of the Fenway Park nest, I really think they did the right thing. Whenever the Red Sox had a home game in the next month, the hawk would have been frightened off the nest for hours at a time. No egg would ever survive in that environment. They're trying to convince the hawk to move elsewhere. Sometimes that's OK. I'm sure in January, when the stadium was empty, the hawk thought that she had found the perfect place to build a home. Now that it's April...not so perfect. I respect their decision to remove the nest.


I agree with most of the battles you choose to take on. I would let this one go.


Trish T.
Cheshire, CT


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I was deeply saddened and shocked that the officials in Fenway Park made the decision to cruelly tear down the hawk's nest - while it still contained an egg!! It proved to me, once again, that people consider wildlife something to controlled and don't truly respect their needs. Couldn't they have at least waited until the egg hatched and then removed the nest later in the year? I kept thinking of the mother hawk frantically looking for the trashed nest and her unborn young.


Lincoln, thank you for your vigilance, protection and love for our wildlife. If only there were more people like you.


Sincerely,
Joan C.
New York City


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i just saw this pop up on AOL (consider the source). girl 'attacked' by hawk and drew blood. RTH was only protecting nest built in Fenway Park. end result: they REMOVE the nest - egg and all - at the direction of State Wildlife Officials.


doesn't the Migratory Bird Act protect against nests in use?


- A


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I feel very sorry for the little girl who has been attacked by the red-tailed hawk in Boston. The hawk must have felt threatened by presence of a lot of people and just tried to protect it's egg in the nearby nest like any parents who would take any actions to protect their newborn baby sensing any danger!


However, I find the news of removing the nest and egg of a resident red-tailed hawk at the direction of state wildlife officials very disappointing. Please see http://sports.yahoo.com/mlb/news?slug=ap-fenway-hawkattack&prov=ap&type=lgns for details.


I know that you, your friends and supporters have successfully protested and restored the nest of the red-tailed hawk in NYC. What can be done to help these helpless birds in Boston?


Thank you.


Regards,
Kauser


P.S. I am a regular visitor of your daily postings of Palemale and Lola!


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from New York Bird Club (bestbirdclub@yahoo.com):

To view the thread go to: http://forums.manhattanbirdclub.com/tool/post/luciedove/vpost?id=2621223

Subject: red-tailed hawk attack; anti-Yankee sentiment? Message: This is not a huge problem, at least not so far:

http://www.boston.com/news/local/massachusetts/articles/2008/04/03/hawk_swoops_from_fenway_park_railing_attacks_girl_on_school_tour

Red-tailed hawks apparently try to nest in Fenway Park, Boston; and their presence is tolerated, to a certain extent.

A couple of days ago, a hawk at Fenway flew over the head of a young teen-aged girl, and struck out at her (with claws?; with beak?), and drew some blood. Nothing serious: the girl is OK. (And the press seem to have taken off with the coincidence that her name is Alexa Rodriguez, i.e. very close to the Yankees' famous highly paid player A-Rod; so there is a vaguely supernatural speculation flying around that the hawk is the "genius," the protective divinity, of the Yankee-hating Red Sox.)

What we need to keep an eye on is: Are conditions OK for birds, including red-tailed hawks, at Fenway Park?; and, Will the hawks now be driven away, for the sake of public safety?

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