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Common Black-Hawk (ethical challenges)

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  • Jeff Davis
    Dear birders -- Stan Moore, a raptor biologist and conservationist from Marin County, kindly allowed me to forward this letter he sent to the Ornithology
    Message 1 of 6 , Jun 6, 2005
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      Dear birders --

      Stan Moore, a raptor biologist and conservationist from Marin County,
      kindly allowed me to forward this letter he sent to the Ornithology
      e-mail group (ORNITH-L).

      ----------

      Recently, a report came to my attention of a rare
      sighting of a common black hawk (Buteogallus
      anthracinus) in my area. I am not a birder and not
      experienced in what happens on the ground whan a rare
      bird is sighted and the alert goes out to the birding
      community. But since this rare bird was a raptor and
      was found in my study area, I went to locate it. The
      directions I was given to the viewing location were
      public rights of way, but my luck was bad at first and
      I did not see the bird the first trip out.

      Later, I saw other places which might give better
      opportunities for viewing the black hawk, but they
      were on private land. I drove onto one property, a
      dairy farm, and asked permission to look for the bird
      from their property. The son of the owner was very
      direct. He said that the owner was not willing to
      allow strangers on the property for liability reasons.
      The owner did not want to risk a potential lawsuit
      due to someone accidentally injuring himself on the
      property, and the decision by the owner was firm. I
      thanked him for hearing my request and left the
      property and honored the request. On another day, I
      happened to meet that young man's father, the owner,
      and he repeated the view, and added that the dairy
      maintains liability insurance, and the insurance
      carrier has been trying to find reasons to raise
      liability insurance prices or drop coverage
      altogether. Thus, it is a real issue for this farmer
      not to allow any strangers, including birders on the
      property. HOWEVER, the owner told me that he had
      found birders entering his property without permission
      and had had to ask that they leave. One birder was
      actually swarmed by a group of wild bees and fled the
      area without his scope, and was encountered by the
      owner on his way out due to the bees! That birder had
      the embarassing task of having to return to collect
      his gear after the bees were no longer an imminent
      threat.

      This situation has caused me to think about the ethics
      of viewing rare birds, as related to dealing with
      private landowners, and I have met other landowners
      which have added perspective to the situation.

      I believe that basically you can have three results
      when attempting to obtain permission to enter private
      property to view birds, and each situation offers its
      own opportunities and ethical ramifications.

      First, if the property owner is not home or available
      to grant permission to enter their land, the birder
      has no authority to enter the property and should not
      do so. Yesterday, I approached a property owner in
      the areas where the common black hawk is located, and
      told her that I was seeking an opportunity to view the
      hawk in order to watch it forage, and to try to
      determine how it was hunting and what it was feeding
      on. I told her I had already viewed the bird up close
      on another propery, and named her neighbor who allowed
      me in, but this lady's property offered a potentially
      better opportunity to watch the bird forage. I asked
      the lady if she was aware of the rare hawk. She
      replied that indeed she was aware of it, and that she
      was quite upset over the presence of the hawk because
      birders have been entering her property without
      permission. She said that just the day before she had
      been in her own back yard and looked over to see men
      with giant spotting scopes walking across her fenced
      property as though they were on a public park. And
      this was not the first time. The lady was willing to
      discuss my request with her husband, but she made
      clear that any agreement would be for a one-time-only
      visit of specified duration, and would not give me
      privileges to invite others to the property or to
      return without future permission. I let the lady know
      that I understood her position completely, and looked
      forward to hearing her decision in a couple of days.
      I did have opportunity to show the lady some photos I
      had taken of the common black hawk, and quickly
      realized that none of the birders who entered her
      property ever bothered to show her any information on
      the rare bird. She saw my photos and said, "Oh, I
      guess it does look sort of like a turkey vulture"!
      And when she said I might be able to return next week,
      she expressed interest in seeing more of my photos of
      other birds and sharing them with her husband, too.

      So, one possibility of seeking permission to visit a
      property is to not encounter the owner, and another is
      to hear a negative response to permission to enter
      private land to view a rare bird. In either case, if
      the birder has not received express permission to
      enter a private property, ethics requires that the
      birder not enter the property, not jump a fence, not
      sneak on the property for a peak, etc.

      But what if the owner does grant permission. One
      owner did grant me permission immediately, and her
      adult son even gave me a tour of the property and
      guided me to the perched bird! I was very thankful,
      and I showed my thanks by (1) making sure that I did
      not abuse my privilege by assuming that I had blanket
      permission to return at my leisure to look again or
      invite others to see the bird, and (2) I expressed my
      appreciation with small gifts. I gave the property
      owner a small, paperbound book on birds of California,
      and I brought back duplicate photos of my best photos
      of the common black hawk. Later, when I met an adult
      relative of the first owner, I found out that he had
      great interest in preserving the habitat, and was
      engaged in seeking funding for a habitat
      preservation/restoration campaign, and he saw the
      value of having a rare bird on that property from a
      public relations perspective. He wanted scientific
      information on the species, and I brought him as a
      gift my personal copy of the Birds of North America
      species account on Buteogallus anthracinus. And I
      offered my support for his project. But I made it
      clear that I would not abuse the relationship by
      presuming that I was welcome on the property at my own
      discretion, but would seek permission to return and/or
      to invite any others to the property.

      I believe that in addition to ethics in dealing with
      landowners, there is a great benefit in extending
      common courtesy and sincere show of appreciation for
      the generosity and cooperation of landowners. Two of
      the three landowners I interviewed in connection with
      the presence of a rare common black hawk expressed
      irritation at having negative experiences with
      birders. For many birders, viewing birds in a given
      location is a once in a lifetime matter. For me, in
      my area, I want to have ongoing relationships with
      landowners in connection with my long-term study. But
      even if it was a one-time deal, I believe it is best
      to behave ethically while dealing with private
      property owners, even if it means sacrificing the
      ability to access viewing opportunities from time to
      time.

      For those interested in seeing a couple of my photos
      of the common black hawk that showed up in my area,
      Joe Morlan was kind enough to place two photos on his
      rare bird webpage, which anyone can view at:

      http://fog.ccsf.cc.ca.us/~jmorlan/gallery.htm


      Happy ethical birding!


      Stan Moore San Geronimo, CA stangabboon@...

      ----------

      Although birders generally behave in a manner that complies with ABA's
      Code of Ethics (http://www.americanbirding.org/abaethics.htm),
      sometimes the thrill of the hunt for a rare bird overrides good
      judgment and common courtesy. I do believe, however, that the few
      individuals who have such ethical lapses are statistical outliers.
      Every hobby and profession has them. Nonetheless, we all need to be
      reminded to behave in a way that best represents our group.

      Jeff Davis
      Prather, CA
    • creagrus
      All California nature lovers, including birders, should be aware of California Civil Code section 846, which relieves landowners of almost any liability when
      Message 2 of 6 , Jun 6, 2005
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        All California nature lovers, including birders, should be aware of
        California Civil Code section 846, which relieves landowners of almost
        any liability when they grant permission to enter their property.
        Therefore the excuse given by the dairy farm owner encountered by Stan
        Moore was completely bogus.

        Civil Code section 846 reads, in pertinent part:
        "An owner of any estate or any other interest in real property, whether
        possessory or nonpossessory, owes no duty of care to keep the premises
        safe for entry or use by others for any recreational purpose or to give
        any warning of hazardous conditions, uses of, structures, or activities
        on such premises to persons entering for such purpose, except as
        provided in this section.

        A 'recreational purpose,' as used in this section, includes such
        activities as fishing, hunting, camping, water sports, hiking,
        spelunking, sport parachuting, riding, including animal riding,
        snowmobiling, and all other types of vehicular riding, rock collecting,
        sightseeing, picnicking, nature study, nature contacting, recreational
        gardening, gleaning, hang gliding, winter sports, and viewing or
        enjoying historical, archaeological, scenic, natural, or scientific sites.

        An owner of any estate or any other interest in real property, whether
        possessory or nonpossessory, who gives permission to another for entry
        or use for the above purpose upon the premises does not thereby (a)
        extend any assurance that the premises are safe for such purpose, or (b)
        constitute the person to whom permission has been granted the legal
        status of an invitee or licensee to whom a duty of care is owed, or (c)
        assume responsibility for or incur liability for any injury to person or
        property caused by any act of such person to whom permission has been
        granted except as provided in this section."

        I have highlighted the words "nature study." During our Breeding Bird
        Atlas project, I found iit useful to carry copies of this statute in my
        car to give to landowners when I asked permission for entry. Once they
        learned there was no liability if they allowed me to enter to look at
        birds (=study nature), that excuse melted away.

        [The only exception to "no liability" is for "willful or malicious
        failure to guard or warn against a dangerous condition." In other words,
        there would still be liability if they installed a hidden trap to
        ensnare birders who entered.]

        We need to spread the word to landowners that there is NO LIABILITY RISK
        in permitting birders on their property. That is a completely fake
        excuse. In fact, they are MUCH SAFER to give permission -- because if
        they do so, there is no liability -- than to risk trespassing.
        Landowners have more dutires toward trespassers than they do to persons
        they permit to enter for any of the enumerated purposes.

        Don Roberson, J.D.



        [Non-text portions of this message have been removed]
      • Brian Williams
        Don - I don t have the text handy, but if it s convenient, it might be handy to define trespassing. I ve read the laws before and could paraphrase, but I d
        Message 3 of 6 , Jun 6, 2005
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          Don -

          I don't have the text handy, but if it's convenient, it might be handy
          to define trespassing. I've read the laws before and could paraphrase,
          but I'd rather not in case I goof.

          Brian Williams


          -----Original Message-----
          From: CALBIRDS@yahoogroups.com [mailto:CALBIRDS@yahoogroups.com] On
          Behalf Of creagrus
          Sent: Monday, June 06, 2005 1:54 PM
          To: calbirds
          Subject: Re: [CALBIRDS] Common Black-Hawk (ethical challenges)

          All California nature lovers, including birders, should be aware of
          California Civil Code section 846, which relieves landowners of almost
          any liability when they grant permission to enter their property.
          Therefore the excuse given by the dairy farm owner encountered by Stan
          Moore was completely bogus.

          Civil Code section 846 reads, in pertinent part:
          "An owner of any estate or any other interest in real property, whether
          possessory or nonpossessory, owes no duty of care to keep the premises
          safe for entry or use by others for any recreational purpose or to give
          any warning of hazardous conditions, uses of, structures, or activities
          on such premises to persons entering for such purpose, except as
          provided in this section.

          A 'recreational purpose,' as used in this section, includes such
          activities as fishing, hunting, camping, water sports, hiking,
          spelunking, sport parachuting, riding, including animal riding,
          snowmobiling, and all other types of vehicular riding, rock collecting,
          sightseeing, picnicking, nature study, nature contacting, recreational
          gardening, gleaning, hang gliding, winter sports, and viewing or
          enjoying historical, archaeological, scenic, natural, or scientific
          sites.

          An owner of any estate or any other interest in real property, whether
          possessory or nonpossessory, who gives permission to another for entry
          or use for the above purpose upon the premises does not thereby (a)
          extend any assurance that the premises are safe for such purpose, or (b)

          constitute the person to whom permission has been granted the legal
          status of an invitee or licensee to whom a duty of care is owed, or (c)
          assume responsibility for or incur liability for any injury to person or

          property caused by any act of such person to whom permission has been
          granted except as provided in this section."

          I have highlighted the words "nature study." During our Breeding Bird
          Atlas project, I found iit useful to carry copies of this statute in my
          car to give to landowners when I asked permission for entry. Once they
          learned there was no liability if they allowed me to enter to look at
          birds (=study nature), that excuse melted away.

          [The only exception to "no liability" is for "willful or malicious
          failure to guard or warn against a dangerous condition." In other words,

          there would still be liability if they installed a hidden trap to
          ensnare birders who entered.]

          We need to spread the word to landowners that there is NO LIABILITY RISK

          in permitting birders on their property. That is a completely fake
          excuse. In fact, they are MUCH SAFER to give permission -- because if
          they do so, there is no liability -- than to risk trespassing.
          Landowners have more dutires toward trespassers than they do to persons

          they permit to enter for any of the enumerated purposes.

          Don Roberson, J.D.



          [Non-text portions of this message have been removed]




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        • h.karr@comcast.net
          While I agree with this analysis, I also note that people who have no legal basis for making a claim for damages still sometimes file lawsuits, forcing
          Message 4 of 6 , Jun 6, 2005
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            While I agree with this analysis, I also note that people who have no legal basis for making a claim for damages still sometimes file lawsuits, forcing landowners and their insurers to incur defense costs -- and sometimes they even do this intentionally, with the goal of settling for nuisance value. And for some insurers, one such claim and settlement is more than enough reason to cancel coverage. So the landowner's concern about losing his insurance coverage may be a real and valid reason for declining permission to enter.

            Harrison Karr (also a J.D.)

            -------------- Original message --------------
            All California nature lovers, including birders, should be aware of
            California Civil Code section 846, which relieves landowners of almost
            any liability when they grant permission to enter their property.
            Therefore the excuse given by the dairy farm owner encountered by Stan
            Moore was completely bogus.

            Civil Code section 846 reads, in pertinent part:
            "An owner of any estate or any other interest in real property, whether
            possessory or nonpossessory, owes no duty of care to keep the premises
            safe for entry or use by others for any recreational purpose or to give
            any warning of hazardous conditions, uses of, structures, or activities
            on such premises to persons entering for such purpose, except as
            provided in this section.

            A 'recreational purpose,' as used in this section, includes such
            activities as fishing, hunting, camping, water sports, hiking,
            spelunking, sport parachuting, riding, including animal riding,
            snowmobiling, and all other types of vehicular riding, rock collecting,
            sightseeing, picnicking, nature study, nature contacting, recreational
            gardening, gleaning, hang gliding, winter sports, and viewing or
            enjoying historical, archaeological, scenic, natural, or scientific sites.

            An owner of any estate or any other interest in real property, whether
            possessory or nonpossessory, who gives permission to another for entry
            or use for the above purpose upon the premises does not thereby (a)
            extend any assurance that the premises are safe for such purpose, or (b)
            constitute the person to whom permission has been granted the legal
            status of an invitee or licensee to whom a duty of care is owed, or (c)
            assume responsibility for or incur liability for any injury to person or
            property caused by any act of such person to whom permission has been
            granted except as provided in this section."

            I have highlighted the words "nature study." During our Breeding Bird
            Atlas project, I found iit useful to carry copies of this statute in my
            car to give to landowners when I asked permission for entry. Once they
            learned there was no liability if they allowed me to enter to look at
            birds (=study nature), that excuse melted away.

            [The only exception to "no liability" is for "willful or malicious
            failure to guard or warn against a dangerous condition." In other words,
            there would still be liability if they installed a hidden trap to
            ensnare birders who entered.]

            We need to spread the word to landowners that there is NO LIABILITY RISK
            in permitting birders on their property. That is a completely fake
            excuse. In fact, they are MUCH SAFER to give permission -- because if
            they do so, there is no liability -- than to risk trespassing.
            Landowners have more dutires toward trespassers than they do to persons
            they permit to enter for any of the enumerated purposes.

            Don Roberson, J.D.



            [Non-text portions of this message have been removed]



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            [Non-text portions of this message have been removed]
          • Jeff Davis
            Stan Moore s response... With all due respect, I don t think it is seemly for a recreational birdwatcher to be carrying copies of the Civil Code in order to
            Message 5 of 6 , Jun 6, 2005
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              Stan Moore's response...


              With all due respect, I don't think it is seemly for a
              recreational birdwatcher to be carrying copies of the
              Civil Code in order to persuade landowners to allow
              them access to property. In the case of the dairy
              farmer I spoke to, his insurance agent had instructed
              him to not allow strangers on his property, and if I
              were that land owner, operating a business on his
              private land, I would be much more interested in what
              his insurance agent had to say than what some
              birdwatcher had to say.

              I can just imagine a birder telling such a landowner
              that his instructions from his insurance carrier are
              completely bogus, and then insisting to be allowed on
              the property. Very impressive -- NOT!

              My view is that a property owner does not even owe a
              birder any explanation for refusing entry, and
              overruling objections by some sort of interpretation
              or display of the law is itself a questionable
              approach.

              This attitude of some birders of having some sort of
              "right" to enter private property by virtue of no
              liability is the same mentality that allows them to
              enter when no one is watching or otherwise without
              permission.

              The fact that birders consider the opportunity to add
              a species to their "life list" as a form of "nature
              study" is also questionable, if not deceptive
              (self-deceptive, too). People who will bend the
              definiton of "study" will likely bend the definition
              of "ethics" and "legality" in my experience.


              Stan Moore San Geronimo, CA
              stangabboon@...


              -------------

              Jeff Davis
              Prather, CA
            • creagrus
              A number of folks have emailed privately regarding my post on Civil Code section 846. Some expressed the point that landowners have a perfect right to refuse
              Message 6 of 6 , Jun 6, 2005
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                A number of folks have emailed privately regarding my post on Civil Code
                section 846.

                Some expressed the point that landowners "have a perfect right to refuse
                to allow permission to cross their land, even if it is an
                'inconvenience' to birders," and this is of course true. No landowner
                is required to give permission to enter their land for any purpose,
                absent a warrant.

                Others express the opinion that "the statute does not protect the
                landowner or his insurance company from lawsuits and the legal fees
                required to get the lawsuit dismissed." Yes, I guess, but misleading
                and pretty irrelevent. From the insured's point of view -- the
                landowner's point of view -- his or her insurance will provide the
                defense at no cost to the landowner. That is part of the cost of the
                insurance, and it is built into the system. The cost of defending
                against frivolous lawsuits is already way overblown by insurers, and is
                already part of the premium. There is no risk to the landowner to allow
                permission to enter for birding, unless he/she is uninsured (extremely
                unlikely). As to the cost of the insurance company to defend and get
                dismissed a frivolous case? It is de minimis. That cost is so small
                when compared to the cost spent by insurance companies in fighting
                perfectly good lawsuits that it is so low as to be nothing.

                Another wrote to say that there is the risk of insurance rates rising
                even if one has a meritless lawsuit filed against the landowner. That
                has not been my experience. The types of rates they rise on "claims,"
                as opposed to actual damages paid out for actual liability, are
                professional liability insurance (attorney malpractice, medical
                malpractice insurance) and not typical homeowner/landowner situations.

                One raised the point that occasionally bogus lawsuits are filed to get
                "nuisance" value, but I can't imagine that happening when there is no
                debate about "duty." Under section 846, there is no "duty" to warn
                against dangers on the land, and no "duty" to make the land safe.. In
                most situations -- like driving a car -- each of us has a "duty" to
                drive safely and we can be sued, even falsely, when someone says we
                drove unsafely and caused injury. But the lack of "duty" under section
                846 pretty much eliminates the "nuisance" lawsuits because they don't
                have a legal leg to stand on, no matter how flimsly. They can easily be
                dismissed at minimal cost.

                To assuage those landowners for whom Civil Code section 846 is not
                enough, I have often offered to sign a waiver of liability in addition
                to the protection offered by section 846. One can even sign a waiver
                that requires the signer to "defend and indemnify" the landowner. In
                other words, you promise to pay for the landowner's defense of any
                lawsuit that you file against him or her for injuries during your
                birding on the property, and agree to repay to the landowner any damages
                you might recover. That is an absolutely no risk promise to the
                landowner. Even if you sue and his/her insurance company has to defend,
                the landowner and his insurer can get back all the costs of throwing you
                out of court.

                I have found that a discussion with landowners on these topics reduces
                their fears and misconceptions greatly, but not always. There are still
                some who refuse access, often saying something like "well, I don't want
                you finding an endangered species on my land." I usually explain that
                Common Black-Hawks or whatnot are not endangered, and that's all I'm
                looking for. But some still say "no" and that is their right. Yet my
                experience during the Breeding Bird Atlas is that the vast majority
                would listen to all these reasons, and most often give permission.

                Don Roberson, J.D.


                [Non-text portions of this message have been removed]
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