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Randito
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PostTue Mar 16, 2021 7:05 pm 
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catsp wrote:
It has onerous potential penalties, and as a result it was routinely used to harass and threaten.

As with the article linked in the OP you don't cite any examples of the law being applied in that way.

catsp wrote:
On top of that, it' has been very selectively applied.

Again you don't provide any examples to support this argument.  Nor do you provide examples that this law is being selectively enforced any more unevenly than any other laws where police officiers and prosecutors execise discretion.
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Pyrites
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PostTue Mar 16, 2021 7:49 pm 
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I confess Iíve hit flying tweety birds while driving, as well as a grouse oddly flying across 410 on E side of Chinook in the dark one night.

I have zero concern some federal officer is going to knock on my door.

Best.
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catsp
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PostTue Mar 16, 2021 8:22 pm 
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Randito wrote:
As with the article linked in the OP ... you don't provide any examples to support [these] argument[s].

Well, thanks for at least tacitly acknowledging you hadn't read the article. wink.gif

Providing one or two examples is never going to be enough, as you apparently want to argue on points that I believe even most advocates of the MBTA would concede.  The MBTA is routinely held over the head of industry in order to get them to make changes. I mean, that's what the FWS admittedly does. It's not so much "you can't kill any migratory birds or you'll be prosecuted," as it is "if you do these things we will permit you to kill (a presumably lesser number of) migratory birds."

As for selective application, isn't there proof in the very argument earlier made so loudly here - that the average individual need not be at all concerned with prosecution under the MBTA, not even for acts that plainly fall within its reach? (I'm specifically talking about the "incidental take" part - not intentional conduct.)

The Act is used to beat certain industries about the head and shoulders. I don't have any particular problem with that in theory, nor do I have any particular problem with what it seeks to accomplish. I simply have an issue with the incredibly overbroad instrument provided by the MBTA.
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catsp
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PostTue Mar 16, 2021 8:24 pm 
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Pyrites wrote:
I confess Iíve hit flying tweety birds while driving, as well as a grouse oddly flying across 410 on E side of Chinook in the dark one night.

I have zero concern some federal officer is going to knock on my door.

Best.

1. Me neither.

2. Fortunately, the point missed your car entirely, apparently flying right over your head!

Be best.
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Randito
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PostTue Mar 16, 2021 9:12 pm 
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catsp wrote:
Providing one or two examples is never going to be enough

Sounds a lot like the propagandists "do your own research" punt when they are unable to provide any evidence.
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catsp
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PostTue Mar 16, 2021 9:54 pm 
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ďTo conserve migratory birds and ensure compliance with the MBTAís prohibition on ďincidental take,Ē FWS used a range of strategies. It sent companies notice of the risks their facilities and equipment posed to migratory birds, issued industry guidance, informally negotiated remediation, and issued permits authorizing takes.... The agency prioritized a cooperative approach with industry over enforcement actions. ... Its enforcement efforts were aimed first at achieving voluntary compliance; when those strategies broke down, FWS pursued fines and prosecution of recalcitrant companies.Ē

Excerpt from 2020 SDNY court opinion. Link to opinion can be found here: Court Strikes Down Trump Administration Policy That Let Companies Kill Birds
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Randito
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PostTue Mar 16, 2021 10:01 pm 
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catsp wrote:
ďTo conserve migratory birds and ensure compliance with the MBTAís prohibition on ďincidental take,Ē FWS used a range of strategies. It sent companies notice of the risks their facilities and equipment posed to migratory birds, issued industry guidance, informally negotiated remediation, and issued permits authorizing takes.... The agency prioritized a cooperative approach with industry over enforcement actions. ... Its enforcement efforts were aimed first at achieving voluntary compliance; when those strategies broke down, FWS pursued fines and prosecution of recalcitrant companies.Ē

Excerpt from 2020 SDNY court opinion. Link to opinion can be found here: Court Strikes Down Trump Administration Policy That Let Companies Kill Birds


Neither your nor the linked article in the OP or in this new link there are still no examples of individuals being prosecuted for non-intentional killing of birds under the MBTA-- which is the scare tactic put forth in the OP.
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catsp
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PostTue Mar 16, 2021 10:56 pm 
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Randito wrote:
Neither your nor the linked article in the OP or in this new link there are still no examples of individuals being prosecuted for non-intentional killing of birds under the MBTA-- which is the scare tactic put forth in the OP.

Keep moving them goalposts! smile.gif

Iíve made it clear Iím not defending the OPís intent (whatever it was) or any overwrought language in the wattsup article. Donít know why people keep going back to that. :shrug: Iíve also made it clear that Iím not particularly concerned with being prosecuted under the MBTA for some goddam chiffchaff that might dive into my two story panorama window. . Donít know why people keep going back to that one too. :shrug: :shrug:

IMO (and frankly, by its plain language), the MBTA is wildly over broad. I think thatís a bad thing. Iím not particularly anti-gov or anti-reg, and I have no issue with the protection of most birds. (If Iím being honest, while I donít mind the black-necked stilt, not really a fan of the black-legged stilt.) But arguably laudable intentions donít make a bad law good. Itís not really complicated. If you believe laws that provide the possibility for vast overreach are ok, then ok, just say that. But it has nothing to do with any fear that Iím going to be targeted.

Oh yeah, almost forgot (cuz itís sorta besides the point), though me Ďn pyrites ainít gonna worry none bout individual persecution under the MBTA, thatís not to say it canít or doesnít happen.

Issa Questions Federal Prosecution Referral of Calif. Tree-Trimmer
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Randito
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PostTue Mar 16, 2021 11:46 pm 
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catsp wrote:
Randito wrote:
Neither your nor the linked article in the OP or in this new link there are still no examples of individuals being prosecuted for non-intentional killing of birds under the MBTA-- which is the scare tactic put forth in the OP.

Keep moving them goalposts! smile.gif

Iíve made it clear Iím not defending the OPís intent (whatever it was) or any overwrought language in the wattsup article. Donít know why people keep going back to that. :shrug: Iíve also made it clear that Iím not particularly concerned with being prosecuted under the MBTA for some goddam chiffchaff that might dive into my two story panorama window. . Donít know why people keep going back to that one too. :shrug: :shrug:

IMO (and frankly, by its plain language), the MBTA is wildly over broad. I think thatís a bad thing. Iím not particularly anti-gov or anti-reg, and I have no issue with the protection of most birds. (If Iím being honest, while I donít mind the black-necked stilt, not really a fan of the black-legged stilt.) But arguably laudable intentions donít make a bad law good. Itís not really complicated. If you believe laws that provide the possibility for vast overreach are ok, then ok, just say that. But it has nothing to do with any fear that Iím going to be targeted.

Oh yeah, almost forgot (cuz itís sorta besides the point), though me Ďn pyrites ainít gonna worry none bout individual persecution under the MBTA, thatís not to say it canít or doesnít happen.

Issa Questions Federal Prosecution Referral of Calif. Tree-Trimmer


No charges were in fact filed.

https://www.eastbaytimes.com/2014/06/06/no-charges-against-tree-trimmer-who-injured-herons-at-oakland-post-office/

Mind you this was a case of a tree trimmer cutting down trees to reduce the amount of bird poop falling on postal trucks.    So it's not like the tree trimmer was unaware that there could be birds in the trees.


The OP article claims that an individual that accidentally hits a bird while driving their car could be prosecuted.   While that is technically true, more drivers are killed by lightning strikes each year than have ever been prosecuted for accidentally killing birds.    So the claims are just nonsense.
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catsp
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PostWed Mar 17, 2021 5:53 am 
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Randito wrote:
an individual that accidentally hits a bird while driving their car could be prosecuted.† While that is technically true...

Thank you for the acknowledgement and concession. Btw, ďtechnicallyĒ is unnecessary, as ďtechnically trueĒ is the same as just plain old unadorned ďtrue.Ē wink.gif. But please permit me to once again note my point.

1.  Neither of us is concerned with our potential prosecution under the MBTA for accidentally ďtakingĒ that inattentive Band-tailed Pigeon with our classic Chrysler LeBaron convertible.

2. But you are apparently okay with a law that actually makes #1 criminal conduct. Apparently you are okay with it on the principle that it only gets used against the actual ďbadĒ people (industry etc.), and not against you or me for our own ďcriminalĒ conduct. Iím simply not okay with that principle. Thatís it.
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Tom
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PostWed Mar 17, 2021 6:17 am 
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Quick glance at the first page of the trip report forum shows 30 TRs with single digit replies.  Thanking someone for their contribution might be a better way to add value to this site.
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