WASHINGTON -- After Mike Dupuy, a master falconer in central Pennsylvania, captured three young goshawks last year, he reported the “takes” to local wildlife officials so the animals could be properly banded and applied to federal permits that allow him to hold up to four birds for falconry and breeding.
He didn’t get the bands. Instead, he wound up in a criminal court battle against the U.S. Fish and Wildlife Service and the United States Attorney for the Middle District of Pennsylvania, Peter Smith, that Dupuy estimates cost him $25,000 -- and could have cost him not only his reputation, but much of his business.
His professional standing and enterprise remain intact, for now, because his and his lawyers’ arguments won out in a daylong courtroom showdown late last month, with a federal judge failing to be convinced by either local or federal officials that Dupuy had done anything wrong.
But the issue that sparked the dispute remains unresolved, and offers a glimpse into how well-meaning federal laws aimed at protecting wildlife can go awry, threatening an apparently law-abiding citizen’s livelihood, and offering fuel for conservative complaints about federal government overreach.
It started last June, after Dupuy wound down a successful spring, capturing three of his coveted birds of prey. The falconer, who has more than 30 years of experience with America’s soaring predators, holds two federal permits -- one for “falconry,” which allows him to take two hawks for falconry per year with a cap of five birds from the wild at any time, and two more for “propagation.”
But the wording on those permits turns out to be unclear. Indeed, it appears to differ from state and federal law, and that led Dupuy and the federal government to interpret what he could do in significantly different ways.
According to court filings, when the falconer got the documents in 2008, the applications for them asked for the types of birds he was working with. At the time, Dupuy specialized in Harris Hawks, and he wrote that on the applications.
His subsequent permits for “falconry” and “raptor propagation,” including papers renewed last year, specifically stated that he could work with Harris Hawks. They also specifically barred him from dabbling with Peregrine falcons, and Dupuy was aware of separate federal laws that specifically bar him from interfering with bald and golden eagles.
But the fearsome goshawks -- written about memorably in a new book by Helen Macdonald -- reside in the same category as Harris Hawks under federal law: non-threatened, non-endangered raptors. Based on his understanding of the law and discussions with officials, Dupuy told The Huffington Post, he believed goshawks were well within the bounds of his permitted activities. So, he readily informed the Pennsylvania Game Commission of his captures last year, telling them he intended to use two for propagation and one for hunting.
“I thought it would be a simple thing where I tell them about the goshawks, and they send me the bands,” Dupuy said.
But according to Dupuy’s account and email exchanges filed along with the legal papers, state game officials balked at Dupuy’s request, saying he was only permitted to have Harris Hawks, and that he had failed to get specific, prior written approval for propagation.
The dispute eventually led to a late June visit to Dupuy’s hilltop home in Middleburg, Pennsylvania, by armed law enforcement agents from the FWS and PGC who warned him they wanted to inspect the hawks. At the time, Dupuy had the foresight to call a lawyer named Thomas Boop, who was a former president of the very agency accusing Dupuy.
“I didn’t just have a lawyer here, I had the former head of the Pennsylvania Game Commission,” Dupuy said.
The agents focused on Dupuy’s lack of any written authorization from the PGC to capture the goshawks for propagation. Federal rules say prior authorization by the state is required. However, as Dupuy pointed argued, any duly permitted falconer already has authorization in the Keystone State -- since the authorization is written right in state code that bars propagating migratory birds, except for raptors.
The case might have ended there. Boop suggested that the two sides get together and figure out how to better align Dupuy’s paperwork with his activities, which, while allowable under the law, were not deemed by the federal officials to be sufficiently covered by the relevant documentation.
“They had no interest in doing that,” said Dupuy.
Several weeks later, in mid-July, he got a citation via certified mail informing him that he was accused of one violation of the Migratory Bird Treaty Act. Officials decided that it was permissible for Dupuy to have his falconry permit account for two of the goshawks, but entirely disregarded the propagation permit, and deemed him to have one more hawk than allowed for falconry. It is unclear why they thought the “Harris Hawk” language allowed goshawks for hunting, but not for breeding.
On the surface, the cost of such a citation doesn't seem to be all that high -- $325, with the processing fee, plus checking the box admitting guilt, just like on a parking ticket. But for Dupuy, who recalls falling in love with birds of prey as a 9-year-old boy reading Jean Craighead George’s “My Side of the Mountain,” the actual penalty loomed far higher.
As the language on his permit applications explained, and as it says in the federal code, being found guilty in any way of violating the Migratory Bird Treaty Act is grounds for having those permits revoked.
“I spoke with people in the falconry community, lawyers, and they told me that in every case, [the federal government] moved to take the permits,” Dupuy said.
Losing them, he feared, would jeopardize his standing as a falconer, and potentially put at risk a number of contracts he has providing food for private raptor owners and governmental programs that use hawks. In essence, Dupuy felt the government was trying to put him "in purgatory" for the five to 10 years it might take to get his permits restored, all based on a paperwork dispute over a single non-threatened animal.
He decided to fight, hiring the Washington law firm of Birch Horton Bittner & Cherot and attorney Jim Lister. And on Feb. 18, Pennsylvania Magistrate Judge Martin Carlson, himself a former U.S. attorney, found that the feds had not proved their case, and acquitted Dupuy.
“I’m so glad this is over, and I can get back to my life,” Dupuy said after the ruling.
But it’s not actually over. The judge told all in involved in the case to do what Boop suggested early on, and go back and work their issues out.
Yet despite losing in federal court, the Fish and Wildlife Service remains unrepentant, and still says Dupuy violated the law.
Representatives for the agency declined to comment on the case before the judge’s ruling, saying they would not address the matter until the legal proceedings were concluded. After the case was decided, they again initially declined to speak but later offered a statement. They referred all other questions to Smith, the U.S. attorney who personally tried the case.
“U.S. Fish and Wildlife Service officers are responsible for enforcing the Migratory Bird Treaty Act (MBTA) and other laws and regulations that protect the nation’s wildlife. It is the responsibility of citizens involved in permitted migratory bird-related activities (such as falconry) to understand and abide by these laws,” said the statement from Fish and Wildlife Service spokeswoman Laury Parramore. “In this case, Service agents observed a violation of the MBTA and acted accordingly by issuing a violation notice to Mr. Dupuy, who could either pay the collateral forfeiture amount on the violation notice or appear in court. He chose to exercise his right to contest the charge in federal court.”
She did not answer questions about why agents could not work out a basic disagreement, rather than take steps to threaten a person’s livelihood.
Similarly, Pennsylvania Game Commission officials declined to discuss their motivation.
“As far as any question on why the charge against him went as far as it did or why the charge went to hearing as opposed to being resolved some other way, I would think would be a question for [U.S. Attorney Smith] to answer, not us,” said PGC spokesman Travis Lau. “I can’t answer any questions as to why a federal case was prosecuted as it was because it wasn’t our case.”
Lau declined to make available officials involved in the case.
Smith could not explain why the wildlife officials felt bound to push the issue as hard as they could instead of clarifying the law or issuing new paperwork. But for his part, he said he felt that given the adamant positions on each side, he was obligated to do his best for the federal government.
“It’s more than a misunderstanding," Smith said in an interview last week.
“Although Mr. Dupuy admitted that he might have been confused, his position, from everything he has said and everything he has submitted to us, is that he’s right on his interpretations of the regulations and he continues to believe he is right,” Smith said. “And it’s the opposite position taken by both the game commission and the Fish and Wildlife Service, which to me means we could have this come up again, especially when spring arrives and Mr. Dupuy is out again conducting his activities as a falconer by looking for birds to capture for his own purposes.”
Smith said he and the judge think all involved can sort the issues out, short of winding up back in court.
“The best way to resolve that is administratively, and through whatever procedures there are at the Fish and Wildlife Service and the game commission to decide who’s correct,” Smith said.
While no one was willing to speculate on what motivated the wildlife officials to go to the mat over one bird, Smith did offer a possible window into the thinking of law enforcement when if comes to falconers.
“It’s possible here that a person -- I’m not saying he did it in this case -- that a possible person would prefer to challenge the agencies this way in a criminal proceeding, even at a level of petty offense, than to directly ask the agencies the question, especially if you had any reason to believe the answer was going to be no,” Smith said. “Then if you get a ‘no’ answer from the agencies, you can always challenge it administratively, which he never attempted to do in this case.”
Law enforcers may tend to view the average falconer as apt to disregard the letter of the law and push the boundaries as far as possible. But Dupuy, who lectures on the decriminalization of falconry, is open in discussing the equal antipathy falconers feel toward the federal government.
“There is a long rich history of mistrust and a continued sense of paranoia among falconers that they’re out to get us,” said Dupuy, pointing to a sting that the Fish and Wildlife Service ran more than 30 years ago called Operation Falcon that was aimed at illegal trade in the birds, and remains a sore spot in the falconry community.
Although a number of bad actors were netted in the series of raids across the nation, falconers remain convinced that many of the people charged never would have done anything wrong if undercover Fish and Wildlife Service agents hadn’t offered them the means, and persuaded them.
Dupuy and many of his brethren feel like they are singled out because the traditional hunting community doesn’t understand what they do. And many conservationists don't see them as stewards who breed new stocks of birds, but as thieves who steal creatures from their nests. By Dupuy's estimate, most hatchlings -- up to 90 percent -- die in the wild, and they have a much better chance of surviving and breeding in captivity.
“We are the only hunters that extract from the wild an animal alive,” he said. "We’re permitted to take these birds alive, with the goal and project of keeping them alive in captivity so that we might use them in what I consider the zen-like art and sport of falconry, where the bird is your gun.”
Dupuy suggested that targeting falconers allows authorities to please both the beer-can-and-ammo crowd, along with the birding and conservation communities.
“What they can do is use us as the whipping boy for the hunting community, and say, ‘Look who we caught at a nest or taking a bird,’ because everybody else disposes of the animal the way the hunting community thinks is respectful -- you shoot the damn thing,” Dupuy said. “Because we take it alive, there’s this culture of we’re bad because we take it alive and we try to keep it alive to use it as our weapon. It’s really weird, but that’s what it amounts to.”
Still, Smith insisted the fight was purely about making sure the rules are followed, not about punishing anyone. And he said Dupuy and the game wardens would have to work it out.
“I think we’re going to ask the agencies to start that process, and see where it goes, not to take his permits away, but to resolve this issue,” Smith said.
The fact that Judge Carlson, Smith and Dupuy attorney Lister all think the dispute can and should be worked out outside of a courtroom probably won’t do much to convince falconers -- and others suspicious of the federal government -- that the motives of the Fish and Wildlife Service were pure, even if they may be.
But Lister says the botched case offers a lesson and an easy path forward for the agency.
“What this case demonstrates is that issues concerning how you interpret regulations in permits should not be brought in criminal court, putting the license holder in fear of a criminal conviction,” Lister said. “A way to make life better for everyone, including the regulators, is to convert this so that the next time something like this happens, there’s a letter that goes out asking for an explanation, not a notice of violation and charge in a criminal court.”
Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.
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