I tried to reply to the group about one aspect of this yesterday, but my
message apparently didn't go through in two tries.
I have had contrary interpretations to Paul about the scope of the regulations.
Not that it allows taping, but that it does not prohibit it per se and that it
leaves room for each facility to define the details of whether and when it will
allow taping. This was clearly stated to my recollection just a month or so
ago by a D.C. official on Birdchat or Texbirds, and echoed by several federal
park managers who said that they had varying policies at their facilities. It
is also hard to see how, if the regulation on its face prohibits use of taped
calls, it also does not prohibit pishing, since they have the same inyent and
effect, though pishing is normally less intrusive.
In general, federal (and state) facilities are probably bad places to use tapes
in any event, because of the higher traffic and consequent risk of undue
disturbance. Regardless of what the regulation actually means, as to which I
am now puzzled, it is certainly a wise idea to check with the staff before
using tapes on any federal property, even if there are no posted rules (as many
of them do have posted rules against taping).
Hopefully, I can keep to my vow to stay silent on this issue now.
Eric Jeffrey
Falls Church, VA
-----Original Message-----
From: Pmkane1953@xxxxxxx
To: va-bird@xxxxxxxxxxxxx
Sent: Fri, 15 Jul 2005 05:26:22 EDT
Subject: [va-bird] Tapes
All,
It is not my intention to begin yesterday's discussion again, but some off
line contacts are worth mentioning, at least briefly.
I received thirty-six off line contacts. I have responded directly to all
but two of these. Every off line contact I received was civil, which is to say
no one flamed me. Thank you for this courtesy. To the individuals who thanked
me or said something nice about me on or off line, thank you.
Earlier I quoted Federal Regulation, Title 36CFR 2.2 (a)(2). As was stated
earlier, I have previously discussed this regulation with one Federal wildlife
biologist, three US law enforcement rangers, an acting Chief of Police at a
National Park Service venue, and a Public Affairs representative at the United
States Department of the Interior. These individuals all agreed that taping on
Federal Lands is a violation of the regulation cited.
A former National Wildlife Refuge Manager, someone who responded to my
earlier post on line, later wrote me off line to tell me that technically, I
correctly cited the regulation at issue. This person also stated he thought the
regulation might be amended, and that he did not believe playing tapes at a
reasonable level could have a biologically significant impact on bird
populations.
Another law enforcement official from a National Park Service venue phoned
last night to say he has been following the thread of this discussion. This
officer told me taping on Federal Lands is indeed illegal, but that, at his
venue, this issue is handled on a case by case basis, often by a friendly
discussion or with a warning being issued. We also discussed the issue of
selective enforcement, and I was told that this is a problem at almost every
level of law enforcement.
Several people commented off line that there is not much doubt that the use
of tapes on Federal lands is indeed illegal. No off line respondent directly
challenged the meaning or the scope of the regulation at issue. Without
exception, people writing off line told me that they did not believe most
birders abused tapes when using them in the field. One respondent pointed out
ways tapes might be helpful. Others again raised the issue of selective
enforcement. It does seem that some venues permit taping, while others do not.
This can't be helpful.
A former US Justice Department attorney wrote to say that the Code of
Federal Regulations are not actually statutes, in generally accepted legal
terminology. CFR's are codified regulations issued by an administrative agency.
But, according to the writer, when one violates either a statute or a duly
authorized regulation, the net result is the same.
Consequently, I do believe it is fair to suggest that people using tapes and
other electronic devices on Federal land might wish to investigate this matter
more fully. There really is no ambiguity regarding the original intent, the
meaning, or the enforceability of this particular regulation. I certainly do
not believe that birders playing tapes on Federal land should automatically
assume that this activity is either permitted or lawful.
Also, someone thought I should make it clear that pishing is not illegal on
Federal lands, or anywhere else. Obviously, this is true.
I got a lot of mail from people who support the principle of passive
birding. I do not believe that more passive birders are somehow more sensitive
or better birders than people who pish and play tapes. I am trying to be less
intrusive whenever I bird. The idea that a few would find fault with this
puzzles me. Regardless, I know lots of great birders who pish and who on
occasion play tapes too.
One person commented on the way I connected big deal listers with taping. I
apologize for doing this. I do not have a problem with people keeping life
lists, state lists, ABA lists, or any other type of list. Using the phrase big
deal lister in this context was inappropriate.
Paul Kane
Falls Church, VA
