By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
The violations include Ostwinkle's failure to band and report the recapture of one of his birds within the federal limit of five days, not having a proper rehabilitation permit when he was given the female eagle, and the most serious allegation, transporting Rex and another bird for commercial use.
All of the charges are baseless, Ostwinkle says. The banding violations, for example, were incorrect because there is no requirement that he band his bird, which was recaptured, not acquired.
Ostwinkle also disputes the allegation that he did not have a proper rehabilitation permit when he was given the female eagle. As a volunteer for the Adobe Mountain Wildlife Center who helped rehabilitate many raptors, including five eagles, Ostwinkle assumed he was covered under a blanket permit for the center's volunteers.
Sandy Cate, coordinator of Adobe Mountain, which is a part of Arizona Game and Fish, says active volunteers fill out a form and are allowed to rehabilitate wildlife. Although Ostwinkle was an active volunteer when Rex was given to him, he was not active when he had the female eagle. Nonetheless, McKeever says Ostwinkle was required to apply for a separate rehabilitation permit.
Ostwinkle's biggest issue today is the charge of commercial use, which he admits is true. Calling it a violation of his permit, however, is false, Ostwinkle says, and he is trying to prove this point by suing the Fish and Wildlife Service in federal court.
At the heart of his case is his decision to fly Rex over the Grand Canyon for the Bravo Card commercial. Many people doubted that Rex could make the flight and return successfully because of the strong wind currents swirling between the canyon walls, he says. They could suck the eagle down into the canyon. But Ostwinkle was sure he could make it by gliding above the currents. Bravo paid him $2,000 to give it a try.
Rex met his expectations, lunging from Ostwinkle's fist, sailing high above the canyon floor and circling back toward the camera crew and dozens of spectators. It turned into a beautiful commercial and was an awesome opportunity to fly Rex, Ostwinkle says.
But Fish and Wildlife Service officials were not as impressed. State and federal regulations do not allow the commercial use of migratory birds, they say, which meant Ostwinkle had violated his permit.
"Our concern is not with profit, but with conservation of the natural resource," says agent Middleton. "If they launch the birds so they fly around until they are tired, that's exploitation of our natural resources."
Allowing for commercial uses would only promote that exploitation, he says. "People would rent birds to go to dinner, parties, and to go with their Halloween costume." None of these uses benefits the bird, and could be harmful, Middleton says. "I've been in front of the camera plenty of times to know it's stressful. It's not what the birds are there for, and it's not why they were allowed to capture the birds."
But Ostwinkle says it's nonsense to think Rex was harmed in any way while being filmed in the commercial. He was simply flying, as he usually does, with his caretaker. The only difference was that this flight fueled the town of Page's economy by paying everyone from the National Park Service for use of the site at Lee's Ferry to local restaurants, which fed production workers, Ostwinkle says.
The commercial also helped the film industry in Arizona, which has been trying to change the federal restrictions to allow the use of raptors in film, television and still-photography production. In July 1997, the Arizona Film Commission petitioned Arizona Game and Fish for an amendment to its rules. But so far, the commission hasn't gotten anywhere because federal rules supersede state regulations, says director Linda Peterson Warren. "It's difficult to move mountains when it's federal statute."
In the meantime, Arizona, which has attracted filmmakers interested in capturing birds of prey in the state's picturesque settings, is losing business to other states that either don't know the federal statutes, or look the other way, she says.
The result is an abundance of advertisements using wildlife, including raptors, that even the Fish and Wildlife Service admits is going unchecked.
"We've been very lax in letting a lot of this happen, when perhaps we shouldn't have," says Perry, of the Fish and Wildlife Service. What is needed is a more consistent application of wildlife laws across states, she says, especially with the mounting interest in filming raptors.
"It seems that in the last two to three years, it's started to heat up, with people wanting to use birds in movies, in shows, in floats and parades. . . . We have to seriously think about conservation of the species," she says.
But until the federal government figures out what it will do, Ostwinkle says it's unfair to single him out in the deluge of raptor filming nationwide, including Arizona.
There is the Renaissance Festival, which people pay to attend, where captive birds of prey are on display. And perhaps the most glaring example of raptor commercialization, television commercials by Goldberg and Osborne. The law firm used a rehabilitated bald eagle with a broken wing from the state-funded Adobe Mountain Wildlife Center.