All,
It is not my intention to begin yesterday's discussion again, but some
off line contacts are worth mentioning, at least briefly.
I received thirty-six off line contacts. I have responded directly to
all but two of these. Every off line contact I received was civil, which is to
say no one flamed me. Thank you for this courtesy. To the individuals who
thanked me or said something nice about me on or off line, thank you.
Earlier I quoted Federal Regulation, Title 36CFR 2.2 (a)(2). As was
stated earlier, I have previously discussed this regulation with one Federal
wildlife biologist, three US law enforcement rangers, an acting Chief of
Police
at a National Park Service venue, and a Public Affairs representative at the
United States Department of the Interior. These individuals all agreed that
taping on Federal Lands is a violation of the regulation cited.
A former National Wildlife Refuge Manager, someone who responded to my
earlier post on line, later wrote me off line to tell me that technically, I
correctly cited the regulation at issue. This person also stated he thought
the regulation might be amended, and that he did not believe playing tapes at
a reasonable level could have a biologically significant impact on bird
populations.
Another law enforcement official from a National Park Service venue
phoned last night to say he has been following the thread of this discussion.
This officer told me taping on Federal Lands is indeed illegal, but that, at
his venue, this issue is handled on a case by case basis, often by a friendly
discussion or with a warning being issued. We also discussed the issue of
selective enforcement, and I was told that this is a problem at almost every
level of law enforcement.
Several people commented off line that there is not much doubt that the
use of tapes on Federal lands is indeed illegal. No off line respondent
directly challenged the meaning or the scope of the regulation at issue.
Without
exception, people writing off line told me that they did not believe most
birders abused tapes when using them in the field. One respondent pointed out
ways tapes might be helpful. Others again raised the issue of selective
enforcement. It does seem that some venues permit taping, while others do not.
This
can't be helpful.
A former US Justice Department attorney wrote to say that the Code of
Federal Regulations are not actually statutes, in generally accepted legal
terminology. CFR's are codified regulations issued by an administrative
agency.
But, according to the writer, when one violates either a statute or a duly
authorized regulation, the net result is the same.
Consequently, I do believe it is fair to suggest that people using tapes
and other electronic devices on Federal land might wish to investigate this
matter more fully. There really is no ambiguity regarding the original intent,
the meaning, or the enforceability of this particular regulation. I
certainly do not believe that birders playing tapes on Federal land should
automatically assume that this activity is either permitted or lawful.
Also, someone thought I should make it clear that pishing is not illegal
on Federal lands, or anywhere else. Obviously, this is true.
I got a lot of mail from people who support the principle of passive
birding. I do not believe that more passive birders are somehow more sensitive
or
better birders than people who pish and play tapes. I am trying to be less
intrusive whenever I bird. The idea that a few would find fault with this
puzzles me. Regardless, I know lots of great birders who pish and who on
occasion play tapes too.
One person commented on the way I connected big deal listers with taping.
I apologize for doing this. I do not have a problem with people keeping life
lists, state lists, ABA lists, or any other type of list. Using the phrase
big deal lister in this context was inappropriate.
Paul Kane
Falls Church, VA