daniel.barton

Thanks for the thoughtful post Alex. I decided to actually talk to some PhDs who study the legal (rather than

ethical) issues behind the MBTA and ESA instead of spouting off on my own anecdotal knowledge/experience of these

issues. The rub is that 'take' is a vaguely defined term. It is essentially up to enforcement & individual

prosecuters to decide what they'd like a court to decide is actually 'illegal'. The reason for this ambiguity is

this passage, the definition of 'take' from 50 CFR 10.12 (the definitions section of the MBTA):

 

"Take means to pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture,

or collect. (With reference to marine mammals, see Part 18 of this

subchapter.)"

 

Apparently, the main problem is no one knows what 'attempt to pursue' actually means. State laws are often just

as ambiguous because they lifted the definition of take from the MBTA. As Alex noted, the ESA imposes stronger

protections in terms of 'take'. We really all don't have any business messing with nesting federally threatened

or endangered except in cases such as that described by Greg Stephens. I don't work on any T & E species at the

moment so I hadn't thought about the ESA much. One thought would be that disturbing state T & E species, of

which there are many more than federal species, is illegal and certainly unethical.

 

So, after talking to people who actually work on legal issues with wildlife professionally, I feel slightly

corrected in the sense that 'disturbing' non T & E bird species usually wouldn't be considered illegal and that

'harassing' would only be if such harassment were egregious. Permits are required to do things like seriously

disturb nests for collection of morphometric data, filming behavior, banding, etc. Nest boxes are generally

completely overlooked (as I noted above) because there is clear intent to benefit birds.

 

Thanks for many thoughts on the ethical issues.<div></div>

Semantics. But don't forget this part.

 

"if photography at nests is not harassment then it is not illegal" <--- !

Ed, please read what I wrote:

 

"disturbing birds at nests is not only unethical, but illegal in the United States without permits" <--- disturbing

 

"harassing birds protected under this statute (which counts as 'take') is a crime" <--- harassing

 

"if photography at nests is not harassment then it is not illegal" <--- !

 

So I believe you misunderstood my original post and the follow-up.

 

I never said the law about photography (there actually is none, which I am fully aware of if you read what I

wrote) made a distinction between cavity nesters and open cup nesters, just that nest boxes are clearly a special

case when considering what constitutes harassment. I also never said the Citizen Science program is illegal, or

anything even remotely resembling that, just that Cornell probably works with USFWS to get a permit.

Wow, thanks for many thoughtful replies. I only have a couple of comments to add:

 

First, it IS illegal to harass wildlife under a variety of state statutes, and for migratory birds, under the federal Migratory Bird Treaty Act of 1918. This is applied to nesting birds. I am a biologist, not a lawyer, but harassing birds protected under this statute (which counts as 'take') is a crime. So if photography at nests is not harassment then it is not illegal, but in my humble opinion it often is and it has been considered so, but only with colonial-nesting birds and waterfowl. I don't think that many conservation officers worry much about people harassing the Yellow Warbler ('dickey-bird') nesting on their local creek. I was being a bit dramatic there, but people have certainly been charged with misdemeanors for harassing nesting birds. I think nest boxes have always been loosely considered (e.g. ignored) under this body of law, because there is clear intent to benefit migratory birds (but consider cleaning an active House Wren nest out of a bluebird box - technically a felony, I believe). Monitoring of bird nests through Cornell's citizen science work is almost certainly covered under some permit or another they have, just as the British Trust for Ornithology's nest card scheme is. I am grateful to those of you who participate, because birds are one of our most beautiful natural resources and deserve greater protection and respect.

 

Second, there's no way to tell if monitoring nests affects nest success because assessing success at unmonitored nests is basically impossible. Numerous researchers have addressed this in ways I won't get into, but the basic problem is: if a bird nest gets eaten in a forest and no one is around to watch, does it still get eaten? I will say two things on this, that are well-supported by my own experience and the primary literature on this subject: birds sometimes abandon nests in response to disturbance, and it is certainly possible to lead predators to nests. I'll say it again, because I think bird conservation is really important: disturbance at nests CAN cause abandonment and predation. Yet, this is incredibly rare in cavity nesting birds and thus they are very tenable to both monitoring and research. This is a major reason so many people (citizen-scientists and scientists) work with boxes. Plus, you don't have to 'find' nest boxes which is a major investment of time and energy when studying open cup-nesting species.

 

And Steve: you do pay for a lot of research, including mine, with your tax money. I'm happy to share it, it's my job.

Dear All,

Photography of birds at their nests can clearly precipitate predation or abandonment of nests. For this

reason, many wildlife photographers have rightfully avoided or shunned this practice and branded it unethical (I

would like to point out that disturbing birds at nests is not only unethical, but illegal in the United States

without permits). Given the paramount importance of bird conservation, this is a critical consideration. I was

today anonymously remonstrated in another thread for photographing birds at nests. This raised, what, to me, is

an interesting question. If one is in the position (such as I am) to legally photograph bird nests as part of a

permitted research program that involves greater disturbances to nests than photography (e.g. weighing and

measuring eggs and young, videotaping of parental behaviors, capture of parents, collection of genetic samples

from offspring and parents, etc.), does this community still consider it unethical to take such photos? Is it

unethical for me to display such photos that were legally taken, as it may encourage other photographers to

attempt to do the same thing illegally?

 

This is an interesting issue to me for several reasons, but please note that my observations are specific

to songbirds (this is what I professionally study). Firstly, I do believe that many serious wildlife

photographers disturb adults near nests without realizing so. Pretty much every single adult bird one sees and

photographs during the summer (i.e. not migration) has an active nest or fledglings. If it's just sitting there

'being photographed' it is probably doing so because it's trying to return to its nest and you are standing very

close to it. The only exceptions to this rule are foraging birds and singing males. Thus, summer songbird

photography generally involves disturbing nesting birds whether one knows it or not. Second, no one seems to

care about photographing and thus drawing attention to fledglings, yet during this time period young are

generally just as subject to mortality (usually predation) as during the nestling period. Third, I've never

heard a peep about the ethics of photographing birds in the hand while handling them for research, but there are

tens of thousands (literally) of such photos on the internet. I've taken hundreds of such photos while

banding birds but I've always found them a little distasteful relative to free-ranging birds.

 

Any opinions are welcome, and I am more than happy to remove every nest photo (what, all 2 I've posted

thus far) I have from photo.net if anyone thinks that this encourages people to disturb nesting birds.

 

Best,

Dan

 

p.s. I never alter vegetation at nests for any reason, research or photographic.

Dear Caped Crusader,

I am a PhD student in evolutionary biology, and the photos I take of bird nests at nests that I am checking

during my research. I have been doing this for about 10 years. I bring a camera along prior to checking their

contents for hatch, measuring nestling growth rates, etc. I have federal and state permits to do so. I greatly

appreciate your efforts to avoid disturbing nests and spread information about how to avoid disturbing nests, as

bird conservation is a critical concern world wide. I hope all amateur and professional wildlife photographers

adhere to such rules.

 

Best,

Dan Barton

I worked in Venezuela for two months this year, and I spent a good bit of time photographing birds (and some crummy scenery/landscape shots) there. It doesn't sound like you're shooting small birds, so I can't say much useful about technique except don't forget about fill flash, it'll save many shots. As for keeping your stuff working & dry:

 

1) Visit and take pictures in the dry season. If you are ignoring this advice (I mostly did), then:

2) Bring a solid umbrella, no matter how stupid it makes you look to locals. Figure out a way to attach it to you or a monopod or trekking pole or tripod if you want to shoot and change lenses in the rain.

3) Never change lenses unless you have to. Bugs crawl in the body and die, and humidity stinks.

4) Keep your camera at ambient temperature or higher than ambient temperature. Always! Don't let it get cold. Air conditioning, and then back out into the humidity, will fog things there that you didn't know could be fogged.

5) A Pelican case (a big one) and lots of bagged dry-rite or silica to dry out your gear. Works like a charm. But, don't forget that if you put your camera in here, it is buffered from changes in the ambient temperature. Thus, as it warms up, your camera will still be cold. I have a black Pelican case and so I just stuck it in the sun if I was outside birding and had the camera in the case.

 

I had almost no problems even doing stupid things like shooting immediately after very heavy rains.

Apologies Mark, I misunderstood you. It seemed you were putting down my honest attempt to answer the original point of this thread, which (quite respectfully, here!) you have mostly ignored. In response to a post asking about handheld shooting at low shutter speed people have posted *beautiful* handheld shots that were clearly shot at very high shutter speeds. The only exceptions to these are maybe 4 of the 20-some photos you posted, some nice shots by Douglas Herr, and the amateurish nest shot I posted. This thread has generally ignored the original poster, but has been packed with gorgeous shots.

Mark, I think that in general your shots are beautiful. But, calling my suggestion to take 'several shots in bursts' small advice is fairly typical of your contribution to this discussion. You basically go on to give the exact same advice I give after ridiculing mine.

All models I have witnessed are gimmicky junk.

I enjoyed this lively discussion and wanted to say, in response to the original poster, that hand-held shots of birds do appear possible even for the relative DSLR neophyte such as myself. However, I spend a lot of time looking through binoculars and think I don't shake too much (except when I over do the coffee). For example, the following image of an incubating Gray-headed Junco is razor-sharp full size, and I took it at 1/20 sec f/10 with a Rebel XTi and a 300 mm F/4 IS L. The IS was in mode 1, and I was playing with stopping down for more DOF after taking a nice sharp one at f/4. I took this exact shot at f/10 1/20 sec several times in a burst and I trashed the blurry ones. That seems to be an important thing that many of the contributors here ignored: at these shutter speeds most of what you get is probably going to be crap except that one nice crispy one that pops out. So shoot a bunch in these conditions...<div></div>

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