Reprint of Operation Falcon
On Wings January 1997 Vol 3:1
"... Our purpose is to provide communication among and to disseminate relevant information to interested Members; to provide scientific study of the raptorial species, their care, welfare and training; to promote conservation of the birds of prey and an appreciation of their value in nature and in wildlife conservation programs; to urge recognition of falconry as a legal field sport; and to establish traditions which will aid, perpetuate and further the welfare of falconry and the raptors it employs." Art. 1, Sec.2
This reprint of the Operation Falcon section of the August 1984 Hawk Chalk is intended to provide an understanding of the history and effects of the U. S. Fish and Wildlife's ill- advised use of a sting to enforce laws and regulations affecting falconry and captive breeding of raptors. It has been made necessary because the Service itself has failed the public by providing misinformation in its press releases and ensuing public statements. Facts on what was done and its adverse consequences require distribution beyond the membership of the North American Falconers Association if the faulty policies that led to Operation Falcon are to be identified and corrected. This is a follow-on to an earlier 10-page report dated July 29, 1984, entitled "The Facts About Operation Falcon." Unlike Hawk Chalk, which is intended only for members of the North American Falconers Association, this reprint is intended for distribution to any interested person.
This publication should not be taken as an apology for law violations and violators. The North American Falconers Association insists that its members comply with all laws and regulations affecting falconry on pain of dismissal from the organization, and has started proceedings to remove those who have been convicted as a result of Operation Falcon.
OVERVIEW OF OPERATION FALCON
On June 29, many falconers and raptor breeders were awakened by U. S. Fish and wildlife agents and state game protectors knocking at their doors demanding to see their records, their birds, and in some cases, everything in their houses. In this coordinated raid across the United States and Canada two foreigners and twenty-eight Americans were arrested, over one hundred birds were seized, about forty searches were conducted under warrants issued by federal judges and magistrates, and an undetermined but substantial number of falconers and raptor breeders were subjected to searches under the guise of inspections permitted under the falconry regulations. Nearly all of those arrested, searched or "inspected" were questioned about their own activities and those of other falconers. Most were asked to respond to a prepared interrogatory about the Peregrine Fund.
The next day falconers heard lurid stories on radio and TV and some real surprising things about themselves in their local newspapers. For example, one man who was charged with illegally taking a bird from the wild for his own use in falconry read in his hometown paper that he had made $750,000 by international traffic in birds of prey. This was the result of an imaginative but highly misleading press release the day of the raid put out in the names of the Secretary of the Interior and the Attorney General of the United States. The press release, prepared by the Division of Law Enforcement of the U. S. Fish and Wildlife Service (USFWS), said that by making thirty arrests it had broken up a multimillion dollar international trade in hawks and falcons. [emphisis ours]
It falsely implied that all of the thirty people had been arrested for international black marketing of birds of prey, when in fact only the two foreigners arrested and one of the Americans were accused of this. The remainder of the thirty arrests were of alleged retail customers (many getting free samples) of a sting operation that the Fish and Wildlife Service that had been operating for three and one half years. (Seven other foreigners, including a Frenchman, three Germans, two Canadians, and a Finn were indicted but were not in the United States on June 29 and their alleged offenses are not extraditable; the two Canadians were arrested in Canada and will be tried there.)
On July 29, NAFRA sent a 10-page paper entitled "The Facts About Operation Falcon" to NAFA members in the United States and Canada which attempted to correct the misstatements in the USFWS press release and the many releases and news stories based on it. The fact sheet showed that illegal import and export of raptors was not only on a very small scale but that such as there was in the United States appeared to have been instigated and supported by the USFWS. It also showed there was essentially no commercial trading within the United States. Those conclusions remain valid with very minor exceptions two months later.
Brief History of Operation Falcon
Operation Falcon started in early 1981 when the Fish and Wildlife Service set up John Jeffrey McPartlin in the business of dealing in hawks in Great Falls, Montana. With him, a varying number of Special Agents operated undercover during the period of the sting. Its first recorded activity was in locating goshawk nests and then allegedly assisting three Illinois falconers to take two nesting goshawks from the wild in Montana in June 1981. It is illegal for a nonresident to take a bird from the wild in Montana. Operation Falcon's activities continued to be directed entirely at American Falconers until August 1982, when McPartlin received a letter from Lothar Ciesielski of Cologne, West Germany, asking if he might visit McPartlin and "exchange some experiences concerning falcons and breeding."
Ciesielski visited McPartlin in early October and started a series of dealings which ultimately resulted in shipping nineteen gyrfalcons and three prairie falcons overseas, with the ultimate destination of most of them probably Saudi Arabia. McPartlin also made contact with a group of Canadians who are described in their indictments as engaged in the business of buying , selling, trading and transporting protected species of raptors. Some of the Canadian activity was clearly legal, and McPartlin actually went on a trip to the Yukon in October 1983 to trap gyrfalcons for legal sale in Canada with a Canadian who was arrested later in the United States because of transactions with McPartlin. Ultimately he allegedly exchanged birds illegally with them and bought gyrfalcons, endangered American peregrine falcons taken from the wild in Canada and imported Finnish goshawks from them.
During the course of Operation Falcon the USFWS did not succeed in placing its agents inside either of these two foreign groups, but did do business with them. They provided gyrfalcons to the German group, allegedly buying seven of them from the Canadians and rapping the remainder in Montana. (Gyrfalcons obtained by the USFWS from nests in Alaska were largely given to American falconers; none are alleged to have been shipped overseas.) The USFWS Reports of Investigation (ROI) indicate that a member of the Saudi Arabian royal family may have provided the funding for the German group, with the Germans merely getting a commission. Saudis appear to have been heavily involved through their embassy.
McPartlin's dealings with Americans included helping them to obtain birds after advising the recipient it was improper (even climbing the tree himself to remove eyases from the nest), selling birds for relatively small sums, giving birds away in an illegal way, and using visits, trapping trips, hunting trips and a very large number of telephone conversations to elicit information of illegalities. An indictment states he also arranged to have the German group import two European goshawk eggs in 1983, hatched them in his own incubator and then allegedly gave them to an American to be raised in a captive breeding project in southern California.
A Report of Investigation and McPartlin's diary allege that the birds were delivered to an Illinois falconer when they were about two and one-half months old, and (Diary entry July 17, 1982) that McPartlin (not the man who raised them) was paid for them by the ultimate recipient.
McPartlin continued his involvement in the activities of persons who he helped start in illegal activities. For example, having allegedly started the man mentioned above in the business of raising European goshawks from imported eggs in 1983, an affidavit supporting a search warrant reports sixteen telephone conversations with him in 1984 discussing how and when he might arrange to bring in goshawk eggs from Finland. The same affidavit mentions McPartlin arranging for the sale of the resulting eggs.
During the spring of 1984 the sting was extended to obtaining eggs and young of endangered American peregrine falcons from nests in Utah. According to affidavits, McPartlin and Special Agent Cavitt were personally involved in removing three eggs from an eyrie on Lake Powell, where Cavitt manned the rope at the top of the cliff while the falconer roped down to the nest. The eggs ended up in McPartlin's possession. Documents indicate that the USFWS were aware of plans to visit other eyries. At least three eyases ended up in McPartlin's breeding project. Five eggs were reported to have been broken.
The end of the undercover phase of Operation Falcon came on June 29, 1984, almost three and one-half years after it started. The summer 1984 edition of the periodical The International Game Warden states that briefing sessions were held for USFWS agents and state game protectors to get them ready for the raids scheduled for dawn on June 29. The arrests and searches were coordinated to start at the same time around the country — 6:00 A. M. on the West Coast, 9:00 A.M. of the East Coast. Searches and arrests in Canada were scheduled with them. Large groups of USFWS agents, state game protectors and in some cases United States Marshals made the arrests and searches. The largest number reported to Hawk Chalk was fourteen, who allegedly came in a window one after another.
Although the USFWS announced that forty search warrants had been executed, with the implication that this was the number of searches made, there we actually far more. This is because many of the searches were made not under warrant but under the provisions in the falconry regulations that a falconer must be willing to provide access to his mews and show his records to enforcement agents at any reasonable time: The USFWS made "inspections under this regulation which did not differ materially from searches made under warrant. A few searches under warrant were made after June 29. "Inspections", however were made of many falconers' establishments during July and August.
The seized birds were sent to Great Falls, Montana, where they were kept in a facility that McPartlin, assisted by eight USFWS agents, had set up starting about June 25 at the Ayrshire Dairy, where McPartlin lives as a tenant. NAFA became concerned about the condition of the birds and went to court to obtain access. After almost a week's delay and a threat of a lawsuit by NAFA, access was granted. Dr. Patrick Redig, a NAFA veterinarian, inspected the facility on July 13. He found that it was not built to take as many birds as it received (initially slightly over one hundred), but it would be adequate in the summer. Since it had room for only a few birds indoors, it would obviously not be suitable once winter set in.
NAFA and the North American Peregrine Foundation have both written the USFWS expressing concern over the need for adequate long term care of the birds and offering help in disposition of those that may be forfeited. Any that are to be released to the wild will require conditioning so that they will be strong enough to survive. Only falconers are able to provide that conditioning. The USFWS has recognized this in one case and turned over a gyrfalcon it removed from a nest in Alaska to Bill Tilton, President of the Alaska Falconers Association, to prepare it for release. Al Nye met with the USFWS in Washington the week of September 24 to discuss the matter.
Since the July 29 NAFA Fact Sheet was issued, plea bargains have been made in the U.S. District Court at Great Falls, Montana, ending the cases of the German Marcus Ciesielski (the only member of his group to be captured) and six American falconers.
Trials of the remaining defendants in Great Falls, except for one plea bargain hearing, are scheduled for November 20. As they cannot all take place on that date, some will be delayed further. A trial is scheduled in Los Angeles for October 16. Trial dates are not known for the cases in Denver.
Because the government has been offering attractive plea bargains for those who plead guilty and the cost of going to trial is high, it is likely that many more defendants will plead guilty in return for lenient sentences. This may well be in their own best interests, but NAFA would like to see at least one well-prepared case come to trial to test the legality of the sting operation itself. To make the sting work, it was necessary to stop enforcing the law for the three and one-half years it lasted. We would like to have a sting that lasts that long declared illegal since NAFA wants the falconry regulations and wildlife laws enforced continuously and fairly, not sporadically.
In addition to the cases coming under indictment the USFWS has said there are forty indictments still coming, to be issued after the court calendars are cleared of those already awaiting trial. Even though the persons indicted live in many different jurisdictions and indictments have been returned in three, all of the existing indictments and a large fraction of the potential indictments depend on the testimony of the USFWS "confidential informant." (actually a full-time paid employee), John Jeffery McPartlin of Great Falls, Montana. If more than a very few of the remaining twenty-three cases come to trial, he may be tied up for months, preventing speedy trial for others. Excessively delayed trials would lead to automatic cancellation of their indictments.
Search Warrant Affidavits Provide New Information
The July 29 Fact Sheet was based largely on the indictments and information gathered at the arraignments in Great Falls July 13 together with information provided by NAFA members. Since then, a large amount of additional government information on the cases under indictment has been released New information sources provide understanding of what may be involved in cases where indictments have not yet been returned. The week of September 17 the USFWS turned over to several members of the press and to NAFA many of the affidavits supporting search warrants not only on those indicted but on others whose premises were searched on June 29 and later. These affidavits, while public documents available on request, are scattered among different courts so that no one outside the government had more than a few before USFWS handed them out.
Unlike the indictments, which have been screened by both prosecutors and grand juries to eliminate as much hearsay and irrelevant matter as possible, the search warrant affidavits contain a vast amount of unscreened material. They include transcriptions of conversations that reflect boasting, hearsay and conjecture. It is therefore risky to use them without carefully evaluating both their contents and the source of their contents. In the affidavit supporting the issue of a warrant to search the premises of a particular falconer, there are frequently references to other falconers and to birds that they were involved with as well as those belonging to the falconer whose name is on the document. It is frequently unclear whether transfer of a bird was done legally with the proper papers or not.
Notwithstanding the foregoing comments, it is necessary to say that the search warrant affidavits allege substantial falconer misconduct beyond that shown in the existing indictments. The pattern found in the affidavits is similar to that in the indictments: one possible additional case of illegal international trade in raptors, essentially no illegal trafficking within the United States, a few more alleged purchases of hawks from McPartlin, a few purchases of birds from several breeders, two more alleged cases of laundering eggs or eyases through captive breeding projects operating under special purpose permits, and a substantial amount of band manipulation and false reporting of where and how birds have been obtained.
NAFA deplores these violations of the falconry regulations that it wrote and were adopted intact by the USFWS.
Other New Sources of Information
This report is based on more than the indictments, the hearings and the affidavits supporting search warrants. An inside picture of Operation Falcon comes from a significant fraction of McPartlin's official diary and from USFWS Reports of Investigation (ROIs) that have been made available to NAFA by defense counsel for some of the cases that have been made available to NAFA by defense counsel for some of the cases that have been settled. There are not generally available to the public, but at the same time NAFA is not restricted from using those it has obtained The ROIs are subject to the same caveats as the warrants supporting affidavits. Unlike many search warrant affidavits, however, there is enough detail in the ROIs to permit some evaluation of the truth or falsehood of the allegations they contain. For example, they provide enough information to lead Hawk Chalk to be suspicious of any uncorroborated allegation by Lothar Ciesielski, the most talkative of the German group, who accused many American and German breeders of violations. (He also said that the bald eagles presented to President Reagan in 1982 by the West German government had not been bred in captivity but were removed as eyases from the wild in Canada, a statement that Hawk Chalk believes is false because Steve Baptiste of Reno, Nevada has reported he saw one of the eggs after it pipped in a German incubator.) The ROIs and the diaries also provide indications of significant misconduct and bad judgment on the part of the persons operating the sting.
Another new source is the so-called "Rule 11 Statement" in which the U.S. Attorney summarizes the evidence he would have presented had the case come to trial in those instances where cases are terminated by plea bargains. Rule 11 Statements provide narratives that are useful in understanding what went on. Also, some newspaper reports, especially one in the Arizona Daily Star have been helpful. Another possible source would be the thousand or more tapes handed over to the defense attorneys of McPartlin's telephone calls and face-to-face conversations, but NAFA does not have the tapes or the time required just to hear them. McPartlin taped hundreds of hours of his telephone conversations, and he and the USFWS agents also carried concealed tape recorders to record some face-to-face conversations. The USFWS has summarized or quoted in the Reports of Investigation those tape-recorded' conversations it considers important. Information culled from these new sources is analyzed in subsequent articles in this Hawk Chalk.
The Charges and Potential Punishment
The indictments all charge the defendants with crimes that can be punished by large fines and imprisonment. At the arraignments in Great Falls on July 13, the United States Attorney provided statements of the maximum punishment that each defendant could receive, and typically it was in the area of ten years in prison and $5,000 to $30,000 in fines. A large proportion of the indictments are for violations of the Lacey Act (penalties increased from a misdemeanor to a felony in 1981) and making false statements about the source of birds they obtained, also a felony. An example is, "...[the defendant] filed with the Colorado Division of Wildlife a 'Notice of Raptor Acquired' which falsely stated that he had captured a gyrfalcon in Weld County, Colorado, when in fact the gyrfalcon had been unlawfully captured in Montana by another individual..."
Initial Results of Court Action
The first case to be called for trial was that of Marcus Ciesielski, the younger brother of Lothar Ciesielski (alleged to be the most important member of the German group of international traders). Marcus Ciesielski had been arrested June 29 at Great Falls and had been in jail ever since. Judge Hatfield made a remark in court about the third week of August that he wanted the man to be brought to trial promptly so that he could get him out of jail. He was therefore scheduled for trial on August 28. His lawyer offered about 85 pages of motions, including some alleging outrageous government misconduct in that the government was far too involved in causing the crime to be able to prosecute anyone for committing it.
The United States Attorney had been offering plea bargains to a number of defendants, many of them including a felony count and substantial fines, but as far as can be learned no prison terms. He started to bargain with Ciesielski's attorney, Eugene Iredale of San Diego, on the same basis but his offer was refused. After several further offers, he made one that was so advantageous to the defendant that it could not be refused; $10,000 fine (less than the cost of continuing the defense) to be paid half immediately and half later; immediate release from jail, where he had been held for two months on $250,000 bail to prevent his flight from the United States; unsupervised probation, effectively until the second half of the fine was paid; expungement of the conviction from his record in accordance with the Youth Sentencing Act at the end of the probation period; and a promise by the United States Attorney to write a letter to the Federal Aviation Administration or its German counterpart explaining that his record did not include this as a conviction if either one attempted to take his pilot's license away because of it.
After the pleading and sentencing, the United States Attorney read his Rule 11 Statement which provides the evidence that he would have presented had the case actually been tried. This was perhaps the most interesting part of the trial because it gave an insight into what had actually taken place. The next cases to come up at Great Falls followed the pattern set by the Ciesielski case. These misunderstandings on his part regarding the reported offense does not constitute trafficking, and as far as be determined, there is essentially no trafficking internal to the United States.
The next cases to come up at Great Falls followed the pattern set by the Ciesielski case. These involved six falconers, three of whom were members of NAFA: Erich Awendern (NAFA), Frank Metallo (NAFA), Kenneth Powell (NAFA), and Scott E. Uhwat of Illinois; Gregory E. Johnson of Minnesota; and Ronney L. Roach of Utah. All felonies were reduced to misdemeanors, with no imprisonment. In most of their indictments there was at least one count that was a misdemeanor; in one , however, there were only felonies, and that indictment was quashed and replaced by and "information" that contained the requisite misdemeanor. In two cases the plea bargains were left the sentencing to the judge.
Penalties were one hundred hours of community service; one hundred hours of community service plus repayment of the $1200 cost of two trips from Illinois to Montana for arraignment and sentencing; a $3500 fine; sixty days of community service plus a $3500 fine; 480 hours of community service plus a fine of $5,000 which could be paid over a period of five years; and a fine of $10,000. All sentences included periods of probation, either supervised or unsupervised. In all cases, final sentencing was deferred until the end of the probation period.
In the United States District Court in Kansas City, Missouri falconer Jeffrey Peters (a member of NAFA) was sentenced to one and one half years in federal prison and a $10,000 fine. he had allegedly been given a merlin caught in Utah by Utah residents and reported to the State that he had taken it in Missouri. The judge is said to have stated that the heavy punishment was to set an example for those trafficking in protected birds. If so, it appears to reflect a misunderstanding on his part, since the reported offense does not constitute trafficking and as far as can be determined there is essentially no trafficking internal to the United States.
It is becoming clear the major government weapon the plea bargaining process is the use of felony charges in the indictments, because of the severe impact a felony conviction has man's record. There is a strong pressure, regardless of guilt, to accept the certainty of a misdemeanor rather than to risk being convicted of a felony.
This issue of Hawk Chalk bears a copyright notice. However, reproduction of complete articles from this reprint is authorized for any purpose without prior permission. Reproduction of sections of articles is also authorized provided isolated pieces are not reproduced out of context in such a way as to change their intended meaning. Any statistics may be reproduced. However, in granting this permission, the North American Falconers Association takes no responsibility for the consequences of any errors or omissions, although it has made every effort to insure that the material presented is factual. - Williston Shor, Hawk Chalk Editor. Copyright 1984 in the U. S.A. by the North American Falconers Association
Endangered Species Act Authorizations. Hearings before the Subcommittee on Environmental Pollution of the Committee on Environment and Public Works. 99th Congress. First Session. April 16 and 18, 1985 S. HRG 99-70. A Bill (S. 725) to authorize appropriations to carry out the Endangered Species Act of 1973 during fiscal years 1986, 1987, 1988, 1989 and 1990.
Excerpts from the Hearings:
(Page 522 and 523) Appendix B
On Friday, June 29, 1984 at 6:00 AM, five Federal Fish and Wildlife and California Department of Fish and Came investigators visited my home in Lafayette.
Upon their arrival that morning, my family and myself were in bed and asleep. When I opened our front door, they demanded that I show them my raptors, facilities and records. I politely asked them if they could please wait until 8:00 AM (the time we usually arise) when my family could be dressed and presentable. They responded that they were in a hurry and must do this inspection now. I said I would be glad to let them walk through the house to closely inspect my raptors in the backyard (the only easily accessible entrance to my backyard is through the house) at a reasonable hour and when my family was up. I also told them that I had nothing to hide and was legal. At that time they made the accusation that I was not legal and was in violation of the law, because they could see an unbanded, mounted raptor through the window. I showed them that this alleged "illegal mounted raptor" was a ceramic figurine of a Goshawk.
They continued to demand entry into the house so they could inspect the bands on my birds in the rear courtyard. All of the birds in the courtyard were visible through the large picture windows next to the front door. I told them my falconry license and breeding permit both state that inspection may be at any reasonable hour, and 6:00 AM was far from a reasonable hour for my family and myself. They said they felt this was a reasonable hour and if I denied them entrance to my home and backyard they would have both my breeding permit and falconry license revoked. They also took many pictures, including shots of my wife and myself in our night clothes, without our permission.
I agreed to show them (at 6:00 AM) all raptors. facilities and records they wanted to see provided they didn't have to enter the house and disturb my family until at least 8:00 AM. I then proceeded to show them all my records, breeding facilities and two of my eight raptors, plus answered all of their questions. I even obliged them by bringing a falcon that they requested to see from the backyard, through the house and out the front door for them to observe closely.
They still kept insisting on their entering the house to view the remaining six birds and their bands. I again suggested they wait and watch the birds until 8:00 AM or return in the afternoon when I could meet them after work. They continued their threats of revoking my permit and license if I didn't let them into the house before 8:00 AM. They also inferred that I knew of illegal dealings with raptors and that I might have been involved with these dealings.
I have had a lifelong love and dedication for raptors and other wildlife and have been a falconer for thirty years and a raptcr breeder for over ten years. I produced the first captive bred falcons to be intentionally released back to the wild in California and have so far produced more captive bred falcons for breeding programs, falconry and wild release than any other individual in California. I have also been involved with many educational programs for both federal and state agencies, including holding a volunatry position as a raptor advisor to the California Department of Fish and Game. I have never received any monetary gain for my investments in time and monies for these endeavors, but I have received a lot of personal satisfaction to see my efforts pay off for those that I love -- raptors.
I have always prided myself in being fair and helpful with law enforcement agencies int he past. I have a great respect for raptors; their conservation and safety. Because of this, I was upset, enraged and abashed at this intimidating and unreasonable disturbance by this attempted invasion into my home at such and early hour.
(Pages 524 - 529)
Appendix C [Ed Note: I have put this in first person narrative form rather than use the numbered columns written by this witness]
INFORMATION SUPPLIED BY CHARLES E. ROBINSON (CR)
Persons referred to in statement:
Ernest H. Mayer (SAC)
Supervisory Special Agent
Division of Law Enforcement
U.S. Fish and Wildlife
Service 6006 Schroeder Road
Madison, Wisconsin 53711
Barbara A. Wolf (DNR)
State of Wisconsin
Karsasville, Wisconsin 53139
Gus W. Ernst (DNR)
State of Wisconsin
Milwaukee, Wisconsin 53212
Maureen Robinson (Wife)
Visit by Law Enforcement to Check Birds and Band Numbers
The following notes were made on July 3 dealing with the investigation made at my house on Saturday, June 30, 1984, starting at 4:15 p.m. The written narrative does not relate the heated, adversarial and threatening nature of the questioning which was conducted during the visit described below.
I was in the back yard getting ready to leave the house to go to the farm in order to take care of the birds. Three people approached me and said they would like to talk with me about my birds. These three people were Ernest H. Mayer - SAC, Barbara Wolf - DNR and Gus Ernst - DNR.
I asked them what they wanted and Mayer (SAC) said he wanted to check my birds and their band numbers. I immediately obliged and first took a large female redtail out ofher free-flight chamber. He asked if it was a male redtail. She was an unmistakable huge female, immediately recognizable by anyone knowledgeable about raptors.
Mayer then read the band number and wrote it on an 8 x 11 sheet of paper together withthe female sign, using a brush pen. Wolf took a flash-bulb Polaroid picture of the setup directly into the face of the bird while I was holding her. I then took everybody to the other side of the house where two falcons were perched. I asked Mayer and both wardens (DNRs) if they knew the species of birds. Mayer knew the Lanner from previous visit but the other two did not. None of the three were able to identify the Prairie. Mayer said he had been attacked by a bird like that (Prairie) after he took her off infertile eggs for a band check. The bird went for him as he left. My wife remarked that the bird would be upset and probably stop incubation. Mayer replied that it did not matter since all birds were to be checked no matter what.
BW (DNR) again took flash bulb pictures directly into the faces of these two falcons after SAC read the band numbers and so noted same on 8 x 11 sheets of paper. I held the birds in all picture taking, then invited all into dining room. At first only SAC came in. I returned to the back door and again asked the two DNR and Maureen in. DNRs seemed reluctant but did come in.
I told SAC that I had seen on NBC News the night before an item about a big bird bust. Told SAC that I had recognized one of the people (Wallace) on TV from Illinois. SAC said he was one of the biggest dealers involving millions of dollars in the exporting and illicit trafficking of birds of prey. SAC said several falconers were on the USFWS payroll for three years and they were going to clean up falconry. SAC said Cornell was involved in marketing raptors. He said the government had wasted $172,000 on Cornell and they would close them down.
SAC then pulled out a multi page questionnaire and started to read from it, making notes as he went. The questionnaire was lengthy so it is necessary to paraphrase the specific questions which were directed at Cornell as follows: Did you ever buy a bird? Do you know anyone who has ever bought or sold a bird? Howmuch money did Cornell want for a bird? What was the minimum amount of money you had to pay Cornell for a bird? Do you know anyone who got a bird from Cornell?
SAC then asked me to sign the questionnaire that SAC had made notes on. He said that he wanted to read the questionnaire first so SAC gave it to me to read. I read SAC questionnaire and asked for a copy. He said that he had no copy for me.
I said I would not sign anything for which he had no copy. Then SAC told me that I was being uncooperative and was obstructing justice by delaying him. I said that we could get a photocopy downtown. SAC said that he had no time to go running all over town. He again pressed me to sign. SAC continued the pressure threatening by claiming that I was obstructing his investigation. I told SAC that he was threatening and intimidating. SAC denied it and I repeated same.
I asked my wife to call legal counsel. I briefed my attorney on the visit and questionnaire and then asked if I should sign. He said, "No way," and asked me if I wanted him to come over. I said "yes' and he would be there right away. I told SAC that my legal counsel was on the way over whereupon SAC became upset. SAC accused me of stalling and obstructing his investigation. He then said that he would give my counsel only five minutes to get there since he had to go on to other sites and continue his investigation.
SAC then asked me for my records. I asked, "Vet records?" SAC said the records required by regulations to comply with the law. I again asked what records. SAC then told me that I was violating the federal regulations and obstructing his investigation by not cooperating. I then excused myself to go to get something from the van. I returned with a tape recorder and placed it on the dining room table. SAC became very upset. He said it was a violation of federal statutes and federal law to tape record our conversation and ordered me to turn it off or he would leave. I was not sure so I turned the tape recorder off.
SAC again asked for my records. I then went to the TV room to get my records and relative correspondence. SAC followed me when I went to get my records. SAC remarked that I had some nice decoys and statues. I then asked what specific records he wanted. SAC was not specific so we repeated two more times the scenario already noted.
I again reminded SAC that he was threatening and intimidating me. SAC then told me that he would be very specific and tell me what he wanted. SAC then started thumbing through several sheets of paper (supposedly the regulations). SAC continued thumbing through the pages and not finding what he had wanted. I started to count the page flips after SAC had been doing it for a few times. I counted at least 12 page flips.
SAC then said he could not find what he wanted so that he could not quote directly since the regulations were not with him and he did not want to give wrong information. I showed him permit numbers for both falconry and propagation.
My attorney arrived about 5:00 p.m. and asked to be filled in. SAC said that he was there to talk to me about my bird business. My attorney interrupted and said that this was a hobby and a sport and not a business. SAC became very excitable and said that he had a right to come in any time he chose and check the birds and records as he wished. SAC said that he was not interested in semantics. Attorney reminded SAC that the words used were his and that I had a right to an attorney.
SAC said that he had a lot to do yet and that we were delaying him, so he went out the front door with the two DNRs.
SAC then came back and said that he would forget the records if he could complete the bird check. Attorney took SAC's name as well as the name of his superior. SAC, DNRs, my wife and I went to the farm. Bird band numbers and pictures were taken of the two peregrines, the goshawk, and the redtail. The pictures were shown to me.
Their business seemed to be over so I offered to show them all the facilities. They visited the pigeon coop as well as the quail and mouse raising facilities. I then offered to show SAC and DNRs the new house that was being built. They all spent some time going through every room and they liked the view. SAC then suggested to DNRs that they meet downtown and that he would buy. They left about 6:00 p.m.
My civil rights were violated by the insidious threats made by SAC, suggesting that I was obstructing justice. SAC tried to deny me legal counsel by suggesting that I was not cooperating and that he was going to leave after he found out that counsel was on the way over. SAC denied my rights to do as I wished in the house in an attempt to get precise documentation with a tape recorder by claiming it was against the law. SAC was clearly fishing for information for which he had no specifics when I realized that he could not tell me what specific records he wanted to see. He was simply using the band check feature on the permits to come upon my premises and make broad claims without knowing specifics.
SAC knew he lied to me and misrepresented himself since he clearly wanted to get together with the DNRs downtown over coffee after he left my premises.
(Pages 159 - 168)
STATEMENT OF FRANK BOND
Mr. BOND. Thank you, Mr. Chairman. I appreciate the opportunity to be here this afternoon.
I am Frank Bond, an attorney from Santa Fe, NM, a member of the North American Falconers Association, and an active falconer.
Mr. Chairman, I won't touch on the national debt. That is beyond us. It seems like it anyway. I am pleased to be here to represent the North American Falconers Association on this distinguished panel. I have submitted for the record a statement, and I would like to have that recorded in the proceedings.
The North American Falconers Association is here to demonstrate its strong support for the Endangered Species Act, and also for the amendment that was exempted, the one subspecies, the peregrine falcon, that comes under it. in 1978. We believe that the Congress demonstrated real foresight and wisdom in the original passage of the act on behalf of those flora and fauna which, by the acts of man or by natural causes, have been severely declining or in fact, since the time of the passage of the act, have become extinct.
Just to clarify the record, Mr. Chairman, the only subspecies we know of, of the peregrine falcon, that comes under the act whereby this exemption applies is the anatum subspecies, one of three of the North American subspecies, the other two being the tundrius and the peleai subspecies. I think that needs to be clarified.
In 1978, when a number of people, including some of us here, recommended the exemption be amended into the Endangered Species Act, the Congress in its committee report encouraged raptor propagation for science, conservation, and recreation purposes.
I remind the committee and you, Mr. Chairman, that that amendment took place in 1978. It was not until July 8, 1983, that any regulations having to do with that were promulgated under that exemption. We had a full long 5-year wait before there was an orderly implementation of that amendment. And it was clear that when the regulations came, although the regulations were codified in the sections dealing with the Migratory Bird Treaty Act, raptor propagators and similarly, falconers, dealing in another aspect of the use of the resource, are the most restricted and regulated people working under the Migratory Bird Treaty Act.
In fact, as I indicated, the regulations were finally passed on July 8, 1983, which fully implemented the exemption that we are talking about and the point of the controversy here, but as a matter of fact the seamless leg marker, which was the cornerstone of the orderly implementation of those regulations to be able to determine which birds were captive bred and which weren't, was not actually developed until the fall of 1983, thereby missing the entire 1983 breeding season. Finally, in 1984, in which we had only one breeding session so far, Mr. Chairman, it was available, and a few people did use it.
Therefore, given the fact that "Operation Falcon" was revealed on June 29, 1984, well into the 1984 breeding season, and the very fact that only about 6 or 7 States by that time had promulgated companion regulations to comport with the regulations under this exemption, we have hardly had an effective time period to determine the efficacy of the 1978 amendment.
As you have heard, "Operation Falcon" which was a "sting" operation designed by the Division of Law Enforcement of the Fish and Wildlife Service, was revealed on June 29, 1984, and in the press release issued by the then Secretary of the Interior, William Clark, and then Attorney General of the United States William French Smith, there were allegations of a large black market; 400 birds having been taken during that period of the "sting" operation which began, I believe, in 1980, and that many of the birds had been offered for sale in the United States. It is beyond us still, looking at the record carefully, that there was any black market really in evidence. And the prime example of that, Mr. Chairman during this operation the Fish and Wildlife Service Federal agents, to my knowledge, were unable to purchase a raptor of any species in the United States from a falconer or propagator, other than through their operative, who was a "sting" operative that set the whole mechanism in place.
Further, Mr. Clark Bavin, Chief of the Division of Law Enforcement—who is here, Mr. Chairman; he can refute me if he would like—[he] admitted in a private conversation at the Raptor Research Foundation meeting on October 26, 1984, in Blacksburg, VA, that in fact there was nothing in the record that demonstrated that there were actually 400 birds that were taken from the wild and offered for sale in the United States during those 3 years.
With respect to the press release, which we believe did many falconers extreme harm, most of whom were not implicated whatsoever in this operation, we believe that either the allegations must be substantiated for the record, provided to the Congress and to us and others who are interested, or there ought to be a correction made by a public statement.
Simultaneously with the press release by Secretary of the Interior Clark and the Attorney General, the National Audubon Society, through their contact, Mr. Amos Eno, issued a similar release exactly the same day, and in fact, where the Fish and Wildlife Service estimated that some 30 people were arrested that day, the National Audubon Society's press release exaggerated that figure to 50, including the allegation that a number of prominent national leaders and officers of the North American Falconers Association— they referred to it as the "National Falconry Association" in the press release—were also indicted and charged. Just for the record, Mr. Chairman, to my knowledge no national leader or officer of the North American Falconers Association was arrested or charged.
Second, in an interview with Alaska Public Radio, Mr. Eno admitted that the numbers he used there were basically his own estimates. And I do have a transcription of that interview. I am not sure, Mr. Chairman, whether that interview was actually aired or not, but it was prepared for airing.
The question then focuses on Operation Falcon—let me begin by saying that the North American Falconers Association and I personally as an officer of the court do not condone illegal activity by any of our membership or by any of the public with respect to endangered species, wildlife laws, or, for that matter, in my own case, any law. So what we must ask ourselves in terms of the importance of the Endangered Species Act here before you today under review, Mr. Chairman, is, what is the best way to enforce the law?
In fact, it seems that between 1980 and 1984, when the "sting" operation was revealed, there was a suspension of the law enforcement activities under the Lacey Act, the Endangered Species Act, and the Migratory Bird Treaty Act. The "sting" operative Obviously, Mr. Chairman, no action was taken because, with it, that kind of an operation dues not thrive. We feel that had there been a systematic, fair, continuous, and even law enforcement effort throughout the period of time, we might not have seen those problems that we have seen by the actual encouraging of wrongdoing. the Division of Law Enforcement used was turned in on three occasions to State authorities in Montana; he was turned in to State authorities in Wyoming; and he was turned in to a Federal law enforcement officer in the State of New York.
I think the agency can speak to the actual number of convictions and fines levied, and in my opinion everyone who went up there and pleaded guilty justified exactly what they got. There is just no excuse for any kind of wrongdoing or law breaking whatsoever.
I remind the committee once again that it is an extremely small number in terms of the total number of falconers in the United States. But three went to trial, Mr. Chairman. Three decided not to plead guilty, and we understand there is at least one more trial scheduled. That trial took place last fall in Montana, or, rather, it was during the early winter in Montana. One was convicted. His case is under appeal now to the circuit court of appeals. Two in were acquitted. I think the interesting point of the acquittal. Mr. Chairman, to demonstrate the aggressive nature of the "sting" operation, was that for the first time in the history of the law enforcement activities of the Service there were two apparently successful entrapment defenses.
Mr. Chairman, we are going to address a couple of other things that I think Dr. Burnham got into a little earlier. We in fact, as an association, were incensed by the use of endangered species or, in this case, their parts, their eggs, for a "sting" operation. We believe there is no justification for it whatsoever. But on May 18 and 19, 1984, a special agent of the Service and a "sting" operative, Mr. John Jeffrey McPartlin of Great Falls, MT, who had been a previously convicted trafficker in birds of prey, accompanied two target suspects. They went there, and in fact one of the targets did lift the eggs out of the eyrie, and those eggs were then lifted to the top of the cliff by Special Agent John Gavitt.
Mr. Chairman, it seems to us that while it is important to make a case against those who might have a propensity to do something wrong, we think that the nature of the resource is much more important than the case, given the fact that they had a number of other cases that were subsequently made. Mr. Chairman, I want to clarify this. There is nothing in the regulations or the act that I can find that allows law enforcement officers to be taking these kinds of liberties with endangered species.
The second point I want to make, Mr. Chairman, is that, also as part of the "sting" operation, Mr. McPartlin in his capacity offered for sale a number of gyrfalcons, some of which apparently were taken from the State of Alaska without officials of the State of Alaska having any knowledge of that taking and obviously without their authority or permits being issued for that taking.
If there is not a violation of law there—and I see that the possibility is that there is, by that taking in Alaska without State authority—then in fact it violated a Federal-State trust we all live under for those of us working with birds in the various States of the Nation.
Mr. Chairman, since the operation there were approximately 100-plus birds confiscated on June 29. Those have been held in large part by the Service at their facility in Montana. We were told right from the beginning that none of the birds would be returned. In fact, some are beginning to be returned, but the remission proceedings have been incredibly slow.
Mr. Chairman, we are constantly concerned about the welfare of those birds, and we hope that the remission proceedings will pick up in speed so that their welfare is protected and the decision on individual bird will be made soon.
Mr. Chairman, I am going to bring up something else that was alluded to by Mr. Breaux this morning while Mr. Jantzen, the Dirrector of the Fish and Wildlife Service, was presenting his testimony. And that was a document, Mr. Chairman, that I have in my hand that is called "Operation Falcon." And I have a package of these documents, Mr. Chairman, for every member of the committee, but because of the sensitive nature of this document, I would prefer to give it to you, Mr. Chairman, so that you can review and scrutinize those documents in camera. This was a document that was sent to the States, at least to these three States, Washington State, Idaho, and New York State. It got to Idaho on August 3, 1984. It had a "received" mark on it. But the importance of this is that it apparently is an internal document which reviews internally for the Service the allegations made by name, et cetera, of people involved. And the sensitivity is that there are some inaccuracies in there whereby people are named as defendants that were never charged, to our knowledge.
And finally, there is what I consider to be in the last section a really scurrilous attack, unfounded and unjustified, against the Peregrine Fund, which was represented by Dr. Burnham today. The only thing we can believe, Mr. Chairman, by the fact that it has been sent to three States, is that it has probably been sent to all 50 States, so that it sought to prejudice the State regulators against falconers.
Nevertheless, Mr. Chairman, I want to re-emphasize that the majority of falconers and raptor propagators work within the spirit and the intent of the law, all of the laws dealing with raptors. The falconry community, as Dr. Burnham has indicated, not only contributed birds, money, and time, but they pioneered some of the techniques for raptor propagation. And the fact is that we are interested in conservation. I think we have demonstrated, through our interest in this particular subspecies of bird—and obviously the technology goes to other birds in trouble—our interest in birds of prey generally.
And to test the 1978 exemption and to throw it out when in fact, Mr. Chairman, to my knowledge, not one single charge was made against any individual based on this exemption, I feel that it would be premature in the extreme for the Congress to consider amending the exemption at this time without a full opportunity in coming years to test it.
I am confident that, with the seamless marker that is the cornerstone of the efficacy of those regulations, the Congress, and particularly this committee, will find the middle road in terms of how you would approach any procedure to change the amendment, and that further, Mr. Chairman, my commitment is—and I gave it to Mr. Bavin this morning—that we will cooperate, we will meet, and we are happy to join with the Service in any way whatsoever to curtail any illegal activities, not only if the potential for that were from a member of our association but also from any other.
Finally, Mr. Chairman, those few people who were indicted, charged, and convicted who were members of our association are being systematically removed from membership, as it is a policy of our bylaws.
Thank you, Mr. Chairman, and I appreciate the opportunity to make this statement.
Mr. Bosco. Thank you very much, Mr. Bond.
I would suggest, insofar as the testimony that you wanted to offer is concerned, that you send that individually to the members of the committee. I would prefer here to just take testimony that you would like to make public, because I think that would probably be of most benefit to the public. •
Mr. Boar:. Thank you, Mr. Chairman. I will do that.
[The prepared written statement of Mr. Bond above, follows in the transcript]
Frank Bond - Written Testimony
On June 29, 1984, the Division of Law Enforcement of the Service revealed its Operation Falcon, a three year covert "sting" operation. A small percentage of the membership of The North American Falconers Association was searched, charged, or arrested for violations of wildlife laws dealing with birds of prey. Other people were charged who are not members of The North American Falconers Association. The Service's June 29 joint press release, by then Secretary of the Interior William Clark and then U.S. Attorney General William French Smith. claimed large scale black market dealings by falconers of hawks and falcons both in the United States and abroad. During the early morning raids on June 29, over 100 falcons and hawks were seized and approximately 30 people were arrested by Special Agents. Agents reported that none of the birds would ever be returned. but in fact some have and will be as individual owners are afforded their due process rights.
This Subcommittee must not be confused that Operation Falcon was necessary because there were abuses of the 1978 exemption to the Act; as far as we know, to date there are no charges against any defendant based on this exemption. As stated, the exemption had not been implemented. To date, Operation Falcon deals with violations which occurred prior to the e implementation of the July 8, 1983 rules.
The allegations in the June 29, 1984 press release by Secretary Clark U.S. Attorney General Smith have resulted in extreme harm to the membership of The North American Falconers Association. The allegations include the following:
Multimillion dollar illegal black market in birds is a worldwide problem of serious proportions;
As many as 400 birds were illegally taken from the wild with many being offered for sale to buyers in the United States. Europe and the Middle East. where they were used primarily for falconry purposes;
Greatly concerned about the impact illegal trade is having on wild population of birds, converting a public trust to a private gain; and
A multimillion-dollar illegal market is threatening the existence of some species, and creating an incentive for organized activities.
After reviewing the indictments, affidavits in support of search warrants, Rule 11 statements (all public records), and Reports of Investigations (supplied by defendants), we find no evidence of a multimillion-dollar black market in the United States. In fact, prior to the black market ring set up by the Division of Law Enforcement, there appears to have been essentially no black market at all. The Service's agents in Operation Falcon were unable to buy any raptors in the United States.
Mr. Clark Bavin, Chief of the Division of Law Enforcement, at the Raptor Research Foundation meeting in Blacksburg, Virginia on October 26, 1984, confirmed that there is no evidence in public documents that 400 birds were taken from the wild during the period of Operation Falcon and offered for sale. Further, knowledgeable ornithologists find no justification for the statement that any North American raptors have been threatened by illegal harvesting during the period of Operation Falcon. In fact, because of control of pesticides, restocking the wild with captive-bred birds and other conservation efforts, much of it by falconers, the populations of peregrine falcons have increased greatly during this time. The allegation that an illegal market is threatening the existence of some species is unsubstantiated.
We respectfully request that this Subcommittee demand that the Service substantiate every allegation made. We fear that most accusations were exaggerated and, therefore, must be corrected by issuing a public announcement.
The National Audubon Society, through its spokesman, Amos Eno, also issued on June 29 a press release almost simultaneously with that of the Departments of Justice and Interior. National Audubon's press release expands and exaggerates further the allegations made by the Departments. Mr. Eno's release was most damaging to us because he alleged that the Service would seek felony indictments against over 50 falconers, including many of the most prominent leaders of the national falconry association (sic). No leader or officer of The North American Falconers Association was arrested, so Mr. Eno's accusation is unfounded. Mr. Eno admitted during a telephone interview with Alaska Public Radio that some of the numbers used in the Audubon release were basically his own estimates.
The North American Falconers Association does not condone illegal activities by any of its members. Those persons convicted who are members are being systematically removed or suspended from membership by the Board of Directors.
The North American Falconers Association expects a systematic, even, fair and continuous enforcement of the wildlife laws. It appears to us that the Division of Law Enforcement virtually suspended enforcement for three years so that the "sting" operation could thrive. The "sting" operative was reported to state and federal authorities on at least three occasions by our members, but, obviously, no action was taken against him. This type of action causes us to consider whether the Division of Law Enforcement did not in fact create the majority of illegal activities of the type they sought to uncover.
We ask this Subcommittee to balance whether "sting- type" operations comport with enforcing the Endangered Species Act when compared to efficient, continuous law enforcement. What was the cost of Operation Falcon? This Subcommittee should require the Service to consider the following in lying at a gross figure:
Biological impact on the natural resource and the justification for the taking and use of wild *peregrine falcons and gyrfalcons in the "sting" part of Operation Falcon;
Costs for the "sting" part of Operation Falcon:
Costs for the investigation, indictment, search, arrest, trials, and settlements of the cases;
Costs for the remission proceeding for the confiscated birds; and
Costs for the transport, housing, maintenance and veterinary care associated with the confiscated birds.
The National Audubon Society, the Service, and others were very concerned by the adoption of the 1978 exemption, arguing that it would enable unscrupulous people to defy the spirit and intent of the Act. They would have had every right to be concerned had they foreseen a suspension of the enforcement mechanism available generally under the M.B.T.A. and specifically 50 C.F.R. §21.27 (Special Purpose Permit), §21.28 (Falconry Permits), and §21.29 (Federal Falconry Standards). We question whether the Service did not purposely suspend enforcement in order to prove their point, thereby discrediting the proponents of the 1978 exemption by means of Operation Falcon. While it displeases us to even consider such a possibility, we do know that no one who supported the raptor exemption ever considered or suggested such a "de facto" disregard for the resource. We do not take lightly the gutting of M.B.T.A., since it is under that authority we are granted the privilege of engaging in falconry.
The North American Falconers Association is incensed that Law Enforcement officials and its "sting" operative engaged in the apparent illegal taking of raptors from the wild to use in Operation Falcon. On May 18-19, 1984, "sting" operative John Jeffrey McPartlin, Great Falls, Montana. a previously convicted trafficker in birds of prey, and the Service's Law Enforcement agent, John Gavitt, joined two target falconers at Lake Powell, Utah to take three eggs from a pair of anatum peregrine falcons. McPartlin, with one falconer, directed the operations while Special Agent Gavitt and the other falconer climbed the cliff from which the eggs were taken. Gavitt tended the safety rope as the falconer descended the cliff to reach the eyrie. Gavitt lifted the eggs by rope to the top of the cliff. Although the eggs were viable, only one was hatched successfully by McPartlin a few days later.
We find nothing in the Endangered Species Act nor in its regulations which permits such an operation for law enforcement purposes. That being the case. McPartlin's and Gavitt's activities should be thoroughly investigated and appropriate sanctions imposed.
Further, McPartlin and agents arranged for the taking of gyrfalcons in Alaska without authority from the officials of the State. The birds were used to "sting" various individuals. Without evidence of taking and transfer permits from Alaska, they also seem to have violated several wildlife laws. At the very least, these actions violated the federal/state trust between the Service and Alaska.
While almost all of the people arrested were charged with multiple felonies, nearly all pled guilty in plea bargains in which the charges were reduced to misdemeanors. Many of those who accepted the plea bargains did so because of the potential jeopardy to their careers from a felony conviction. Others accepted plea bargains because they could not afford the high cost of a legal defense. As of now, three people have gone to trial. One of the three defendants who pled not guilty was convicted and has appealed. The two others were tried and acquitted. successfully using a defense of entrapment. These were the first two successful entrapment defenses in the history of the Service's law enforcement operations, according to Law Enforcement Chief Clark Bavin. Apparently the entrapment defenses were successful because the "sting" operative, McPartlin, was extremely aggressive in pursuing his targets.
The Division of Law Enforcement threatens indictment of many more people. To date there has not been an arrest for illegal purchases or sales of raptors independent of the few people McPartlin set up. Meanwhile, in an incredibly slow process, remission proceedings are progressing for birds which were confiscated from owners who were not formally charged. We continue to be concerned about the health and welfare of the birds held by the Service since we believe the birds are being held in substandard conditions.
The Service also produced an undated and unsigned summary document of its actions entitled, "Operation Falcon," which because of the way it presents the data smears by innuendo many U.S. falconers and raptor propagators. We suggest that the members of this Subcommittee review this document in camera, as we do not wish it to be printed as part of the proceedings, because that would further damage these people. We believe this document was sent to most, if not all. state law enforcement agencies with the apparent intention of prejudicing falconers and raptor propagators in the eyes of state regulators.
The document includes such things as a list of occupations of people purportedly arrested and listed as defendants, but in fact, some were not. Defendants and suspects are interchanged freely so as to confuse the reader as to how many people have been arrested. There is a listing of the birds involved, but without relation to the individuals charged or violations of law or even the country where the birds were taken. it includes a series of statements out of context and without reference to a particular case, including one from an individual who was acquitted. The final part is a particularly savage and scurrilous attack on the Peregrine Fund, an internationally recognized conservation organization with its headquarters at Cornell University. The Peregrine Fund, with the cooperation of many American falconers, has produced more peregrine falcons for reintroduction purposes than any other organization in the world. There are numerous hearsay allegations against the leadership of the Peregrine Fund when, in fact, no one affiliated with the Peregrine Fund has been charged with any wrongdoing. This Subcommittee should see that action is taken to censure and reprimand the author of this damaging document.
The North American Falconers Association believes that the Service through its covert Operation Falcon and by its suspension of enforcement for the better part of four years not only encouraged but also participated in the misuse of wildlife. In addition. the June 29, 19S4 press release particularly damaging to The North American Falconers Association membership because it represents an unjustified, broad brush condemnation of all American falconers.
The l978 exemption to the Act must be considered in the cold, dispassionate reality of the circumstances. Although a very few individuals engaged in wrongful and illegal activities, the overwhelming majority of raptor breeders, falconers and others who work with birds of prey do so with respect for the letter and the spirit of the Law. Thus. we seek from the Service a retraction and an apology to the American falconry community generally and specifically, to those individuals wrongfully im¬plicated in the document, "Operation Falcon."
Without the motivation, knowledge and hard work of American falconers, the captive propagation of peregrine falcons and other species would have been doomed to failure. The falconry community has been, in most cases, the driving force behind the protection and recovery efforts for many species. Many falconers have donated birds, time and money for this important conservation work. Despite Operation Falcon's attack, must falconers will continue these laudable efforts.
The North American Falconers Association believes it is important to continue to test the efficacy of the 1978 exemption. The exemption makes it possible to transfer birds with some restriction among individuals for conservation. scientific and recreational purposes. The development's. of the new seamless marker for birds held for commercial purposes will surely stem most of the illegal activity. This new marker replaces the old cable-tie plastic marker which the Service itself admitted wears out, breaks, and is not tamper proof. 48 Fed. Reg. 31606 (l983). Further, we are in the process of developing more sophisticated biological methods of identifying individual birds.
Under the captive propagation regulations, raptor breeders and falconers are the most highly regulated and restricted of all the people working under the authority of the Endangered Species Act and the Migratory Bird Treaty Act. If the Service will maintain effective, fair and continuous enforcement of the laws, we expect to see a drop in the amount of wrongdoing by those few who might consider violating the law.
Finally, The North American Falconers Association believes strongly that to abandon the exemption after only a single year of full implementation would premature in the extreme, especially since it has been implemented only in a few states thus far. The benefits of the exemption will manifest themselves as the American falconry and raptor propagation community hove an opportunity to use it in the coming years.
Operation Falcon does not demonstrate in any manner that falconry and raptor propagation are an evil to be wiped away any more than Operation Trophykill, another Service "sting" operation, demonstrates that hunting is bad. Congress must continue to find the reasonable middle ground as it has in this 1978 exemption. [Ed Note: In Operation Trophykill, FWS agents, in a long-term undercover operation, offered a bounty to a hunter to kill golden eagles. It has been reported that at least 11 golden eagles were killed and seized as evidence before the operation was concluded.]
The North American Falconers Association will continue to seek better communications with the Fish and Wildlife Service, particularly the Law Enforcement Division. We feel every attempt muss. made to transform the Law Enforcement Division's adversarial, anti-falconry attitude into one of cooperation and understanding. We stand ready to cooperate where we can to assist the Service in the wise management of birds of prey and falconry,
Appendix A: The Costs of Operation Falcon
The Subcommittee should balance whether "sting" type operations justify their costs when compared to efficient, continuous law enforcement. This Subcommittee should determine what the true costs were for Operation Falcon. The following must be considered:
A. Biological impact on the natural resource and the justification for the taking of wild peregrine falcons and gyrfalcons for the sting part of Operation Falcon.
B. Direct costs for the sting part of Operation Falcon
1. Law Enforcement Agent time
2. Payments including reimbursable expenses, to John Jeffrey McPartlin
3. Funds directly allocated to the McPartlin program
4. Costs of taking birds from the wild by McPartlin and LE Agents
5. Cost of acquisition of birds from captive sources; and
6. Cost of transportation and other costs for moving birds for sting activities
C. Direct costs for the investigation, indictment, search and arrest part of Operation Falcon
1. Agent time spent at investigation
2. Cost of preparation of affidavit and cases for indictment
3. Number of and costs for agents, including travel and support costs, involved in searches and arrests
4. Number of and costs for attorneys from the Departments of Interior and Justice
5. The costs of settling the plea bargains and the costs of trial
6. The costs of defending suits against principals and agents of the FWS as a result of Operation Falcon
7. The costs of the remission proceedings to settle the legal status of each bird held; and
8. Costs incurred due to delay or blocking of remission proceedings by unknown officials.
D. Direct costs for the holding of confiscated birds:
1. The costs of transportation to and care of each bird at the Montana holding facility
2. The cost of construction of the facility
3. The costs of transferring, housing and maintaining birds at facilities in other states
4. The costs for veterinary services
5. The costs for record keeping on each bird; and
6. Who will bear the above costs of confiscated birds if those birds are returned to the people from whom they were taken
NORTH AMERICAN RAPTOR BREEDERS' ASSOCIATION, INC.
A Wyoming Nonprofit Corporation
Robert R. Berry. Pres.
Roger Thacker. Vice Pres.
William K. Mallon. Jr., Secy Treas
S725 ENDANGERED SPECIES ACT REAUTHORIZATION
TESTIMONY OF THE NORTH AMERICAN RAPTOR BREEDERS' ASSOCIATION
TO THE SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
OF THE SENATE COMMITTEE ON THE ENVIRONMENT AND PUBLIC WORKS
APRIL 18, 1985
BY ROBERT B. BERRY
Mr. Chairman and members of the Committee, I am Robert B. Berry, an insurance executive with offices in Sheridan, Wyoming, and King of Prussia, Pennsylvania. I have been a falconer for nearly 40 years and am considered one of the larger falcon breeders in the United States. I am here today as President of the North American Raptor Breeders' Association, a non-profit trade organization established to represent the interests of falcon breeders in North America. We greatly appreciate the opportunity to present testimony and request that our Statement be printed in the proceedings of these hearings.
The Endangered Species Act Exemption
The North American Raptor Breeders' Association strongly supports the currently existing raptor "exemption" of 1978 to the Endangered Species Act of 1973, as amended. The ESA, along with the Federal Falconry Regulations of 1976 and the Raptor Propagation Regulations of 1983 provide the flexibility both to satisfy the legitimate public needs and to safeguard wild raptor populations, including Falco peregrinus anatum. The regulations implementing the raptor exemption establish uniform standards and procedures for the use of qualifying exempt raptors in the sport of falconry and in captive propagation, including the purchase and sale of domestically produced raptors. This statement will consider all peregrine subspecies in the United States because of the potential implications of the "look alike" clause in the Migratory Bird Treaty Act.
Significance of Private Peregrine Falcon Production
In its statement before the House Subcommittee an Fisheries and wildlife. Audubon has called for the repeal of the raptor exemption because in its view, the private peregrine breeders have not fulfilled their responsibility under the exemption to make a significant contribution to the wild peregrine recovery effort. Nothing could be further from the truth. Quoting from the legislative history of the Amendment, the purposes of the exemption are threefold: to "alleviate some of the human pressures on wild raptor populations; increase genetic diversity in captive populations and further encourage captive production of raptors for conservation, recreation, scientific and breeding purposes" H. Conf. Rept. No. 95-1084 at 23 (95th Cong. 2nd Sess. 1978).
Table I below provides a clear picture of the approximate magnitude and trends in the numbers of private peregrine propagators in the U. S. and their current and estimated potential.
The raptor exemption of 1978 was implemented by the raptor propagation regulations in August of 1983 and achieved limited operational status in the spring of 1984. Nevertheless, in anticipation of the new regulations, significant numbers of falconers applied for interim special purpose raptor breeding permits and began to acquire breeding stock mainly from Canadian sources where sales were permitted. The number of licensed peregrine breeders increased over 400% during this 4-year period. Twelve states have now fully adopted the sales provisions of the new propagation regulations and several additional states permit purchase but not sale. The new regulations have encouraged established propagators to maximum production and to exchange valuable breeding stock. The increased numbers of captive-bred peregrines, along with improved federal and state laws, are expected to reduce both the need for and the temptation to harvest wild peregrines illegally and to remove the threat of a potential black market, thus fulfilling the exemption's initial objective to "alleviate some of the human pressure on wild raptor populations."
The second Congressional objective for the exemption, to "increase genetic diversity in captive populations' has been addressed by the North American Peregrine Foundation, Inc., which has funded an International Raptor Registration, maintaining and disseminating computer processed pedigree records similar to the Thoroughbred Racing Association or the American Field's Field Dog Stud Book. Certificates and data retrieval services are furnished to breeders or falconers free of charge to help guarantee the genetic integrity of a viable captive peregrine population.
The raptor exemption's third and final major goal is to "further encourage the production of raptors for conservation, recreation, scientific and breeding purposes." NARBA figures for 1984 disclose 21 peregrines or their eggs were donated or sold for conservation purposes by private breeders in the U. S., which is 25% of the total U. S. production, plus an additional 12 peregrines from private Canadian sources, or a grand total of 33 birds made available for conservation purposes by private breeders in North America. The Peregrine Fund produced 273 peregrines and released approximately 250 to the wild. Inasmuch as a significant number of the Fund's breeding stock was donated by falconers, private propagators are far behind the Fund in both production and birds earmarked for conservation, thirty and thirteen percent respectively, but considering 1984 as the initial operational year under the exemption with only six states having adopted the sales provisions of the new regulations, private breeders can be proud of their accomplishments. We estimate that over half the private peregrine production in the past two years has gone directly into breeding programs, with half of the balance added after a year or two in falconry. Nearly all domestically produced peregrine falcons are lost to the wild or end up in captive breeding programs, bolstering both the wild and captive populations.
The will of Congress as expressed in the exemption. is entirely compatible with the goals of private peregrine breeders and the exemption in its present form is viewed as a valuable conservation aid to protect and perpetuate all peregrine falcons.
Market Prices of Peregrine Falcons
Notwithstanding the prices quoted by the media and protectionist groups of $10,000 or more for a peregrine falcon, the actual prices of domestically produced peregrines legally sold to U. S. citizens in 1983 are much less by comparison and were roughly equivalent to the current a large parrot or macaw. Table II sets forth the range of prices for peregrine falcons sold by U.S. Citizens.
TABLE II* 1983 30 sold price ranging from $1,500 to $3,000 with a median price of $2,000
**1984 44 sold price ranging from $ 400 to $3,000 with a median price of $2,000
* A single Canadian breeder, prices in Canadian Dollars
** Four U.S. breeders sold 26 peregrines; balance supplied by a Canadian breeder
Prior to 1984, a single Canadian breeder maintained a monopoly in peregrine sales in the U. S. marketplace. In 1984, four additional U.S. breeders entered the marketplace. Prices are expected to drop in this decade to between $500 and $1,000 for a peregrine, which is the cost of production, excluding capital cost recovery. Many propagators are hobby breeders who are interested only in defraying or recovering operating costs.
Status of Raptor Propagation Regulations
The Federal Raptor Propagation Regulations of 1983, which implement provisions of the ESA Exemption, have been adopted in 12 states (Colorado, Georgia, Idaho, Kentucky, Maryland, Louisiana, Missouri, Nevada, Oregon, Utah. Washington and Wyoming). Several additional states allow purchase but not sales (California, Oklahoma, Minnesota and Montana), and at least one state has authorized sale fcr Conservation purposes (South Dakota).
Benefits of Existing Federal and State Regulations Under the Exemption
Legal sales of domestically produced exempt and non-endangered peregrines clearly benefit the species both in captivity and the wild. Table I illustrates the significant impact of the new propagation regulations on the numbers of private propagators and peregrine falcons produced. Production is expected to increase dramatically as currently held breeding stock reaches sexual maturity and as new propagators gain practical experience. Given the numbers of variables affecting successful peregrine production, accurate estimates for even the current year are subject to error, hence the range of figures for projected production in the 1989 year in Table I. Nevertheless, even if we assume the worst possible scenario and select our lowest production estimate of 307 birds, the numbers of .peregrines being produced by private propagators at the end of this decade will exceed the annual production of the species in the wild east of the Mississippi River prior to the widespread use of DDT in the 1940's.
a. an increase in the numbers of birds held for captive propagation. because sales will make additional birds more affordable and because the prohibition against using falconry birds in captive propagation has been repealed; and
b. an increase in genetic diversity, previously discouraged because there was no incentive to exchange valuable breeding stock (monitored by the North American Peregrine Foundation's International Raptor Registration Program); and
c. increasing numbers of propagators will reduce the threat of a catastrophic loss to an individual peregrine subspecies resulting from fire, windstorm, disease or other peril.
2. Benefits to wild peregrine populations include:
a. a decrease in potential human pressures for scientific, educational and recreational uses because:
i) sales will encourage additional domestic production making more domestic birds available;
ii) illegal laundering of birds from the wild will decrease when legal sources become available at competitive prices;
iii) black market operations will disappear when forced to compete with legitimate operations at competitive prices; and
iiii) falconry ethics against the taking and sale of wild birds, which may be compromised when other legal avenues are not available, will be promoted by propagators and falconers alike.
b. an increase in the numbers of peregrines accidentally lost to the wild from the falconry community, estimated at up to 10% each year. The 2200* U. S. falconers are currently holding a variety of long-winged falcons estimated at 800 to 1,000 birds, including peregrine falcons. As the premier species for classical falconry, a majority of long-wing falconers will choose a peregrine when available, so that unintentional releases will be substantial in future years; and
c. a decentralization of captive propagation facilities will prevent the possibility of catastrophic loss resulting from a fire, windstorm, disease or other peril. In September of 1984, Patuxent Wildlife Research Center lost 20% of the entire captive whooping crane population from Eastern equine encephalomyelitis, a fast- acting viral disease transmitted by mosquitoes. It is unwise to place all of our eggs in one basket; and
d. the creation of a reservoir population of peregrine subspecies which may be tapped for conservation purposes. The Peregrine Fund will not subsidize the peregrine indefinitely, nor can the Fund be expected to maintain representative gene pools of the various peregrine subspecies once the recovery phase of reintroduction is completed; and an increase in the numbers of peregrine falcons available to state conservation agencies for reintroduction (the Minnesota Peregrine Project has released 27 peregrines in the past 3 years and expects to release up to 30 birds in 1985. The Missouri Raptor Propagation and Rehabilitation Project and the Illinois Peregrine Project hope to commence peregrine release work in 1985. All of these programs are dependent upon private propagators for their birds.).
Operation Falcon and the Propagation Regulations
The federal 'sting" entitled "Operation Falcon" has delayed adoption of the these regulations have not yet been involved in any indictments, or implicated in any affidavits for search or seizure, or in any of the government informant's notes.*
In fact, the new regulations were designed to alleviate the need for sting-type operations by providing a legal source of birds to the falconry community not otherwise available. Nevertheless, many state governments have delayed adoption of these regulations because of the continuing nature of Operation Falcon.
* Statements to the contrary by Audubon in its Statement on HR 1027, before the House Subcommittee on Fisheries and Wildlife appear to be based on a misunderstanding of the Service's raptor marking system. Audubon acknowledges two types of marker when, in fact, there are three. The confusion has apparently arisen because the Justice Department in its indictments refers to markers as "non-reusable federal raptor markers", color coded black for wild-taken birds or yellow for captive-bred. Audubon has assumed this yellow non-reusable federal marker was the new yellow seamless marker, when, in fact, it was the old style yellow flexible nylon marker that could easily be manipulated by unscrupulous individuals. Because of this critically important invalid basic premise - many of Audubon's figures as respects the raptor propagation community are incorrect and hence its conclusions are unjustified. The new yellow seamless marker, appropriately characterized by the service as "tamper proof" came into existence in the spring of 1984 and overlapped the 3 1/2-year covert phase of Operation Falcon by little more than a month. That this new and vastly improved marking system, along with its stringent reporting and record keeping requirements, is involved at a11 in Operation Falcon, is unlikely.
It is unlikely that the propagation regulations are involved in illegal activities uncovered by Operation Falcon. Only six states (Colorado, Georgia, Louisiana, Oregon, Utah and Wyoming) had implemented the new regulations in time to permit raptor Sales in 1984 and Washington implemented use of the new seamless marker. Of even greater significance, only seven propagators sold raptors under the new regulations in 1984, and only four of these individuals sold peregrine falcons. Certainly, these regulations, which evolved over an 8-year period and represented a majority of informed opinion, have not been adequately tested..
In our opinion, sting operations like Operation Falcon are only able to proliferate in an artificially regulated climate which unduly restricts or prohibits free market mechanisms. It is not altogether inappropriate to compare the intolerable legal climate which existed during the days of alcohol prohibition with the dilemma faced by the falconry community when the ESA of 1973 prohibited access to the wild peregrine which has been considered the premier bird for classical falconry for centuries. The raptor exemption of 1978 and the new raptor propagation regulations of 1983 were designed' to solve this dilemma, by permitting falconers and propagators access to endangered peregrine falcons held in captivity before November 10, 1978.
The decline of the peregrine was caused by reproductive failure due to egg breakage induced by ingestion of DDT contaminated prey. The recovery of the peregrine in the U. S. is occurring because of reduced levels of DDT in the environment and the release of captive produced peregrines. We are unable to find any meaningful biological data which even suggests that the decline of the peregrine was caused by human take or disturbance other than destruction of habitat, or that the recovery of the peregrine is being hindered by this same human interference.
The recovery of the peregrine in the U. S. can logically be divided into three phases. In phase I, we learned how to breed peregrines in captivity in meaningful numbers; in phase II, which continues today, we developed techniques to successfully reestablish viable wild populations of peregrines; and in phase III, we will meet the challenge to maintain a healthy wild peregrine population in a changing world. The Peregrine Fund played the major role in phase I and continues in a leadership position in phase II, supported by a variety of private and public groups. Along with subsidizing state recovery programs which the Peregrine Fund is unable to support in phase II, both the falconry community and the breeders will assume key roles to monitor, assist and whenever necessary, subsidize established peregrine populations in phase III of the peregrine recovery.
The reestablishment of the peregrine into habitats from which it was extirpated because of environmental contamination is considered by many as one of the outstanding conservation achievements of this century. It is essential that both the Raptor Exemption to the Endangered Species At and the federal falconry regulations remain intact to guarantee the continued success of this program.
The falconry community has assumed a leadership position in raptor conservation for several decades and has pioneered a variety of programs to help guarantee the survival of all raptorial species, including publicity and public relations to halt raptor persecution, raptor rehabilitation, electrocution abatement, pesticide abatement, captive propagation and reintroduction of threatened and endangered species, to mention a few. Falconers are directly responsible for the strict federal falconry regulations designed to discourage all but the truly dedicated sportsmen. Falconers championed the raptor exemption to the ESA to facilitate reintroduction of the peregrine in the U. S. and to guarantee the existence of a viable captive population should another environmental catastrophe threaten the chemically sensitive wild population. Falconers supported the concept of legal sales of domestically produced raptors as a means to encourage captive propagation within the framework of existing regulations.
Our existing raptor laws are not perfect and will continue to evolve over time as new data is gathered. Nevertheless, we have a firm base upon which to develop model laws where the legitimate rights of our citizens complement biological parameters insuring the survival of wild ecosystems. The falconry community has demonstrated its dedication, commitment and competence to justify its stew¬ardship role as a major benefactor to our raptor resource. We respectfully request the continued support of the Congress to help us fulfill this obligation.
On behalf of the North American Raptor Breeders' Association, I would like to thank the Chairman and members of the Subcommittee for your kind attention and consideration of our views.