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"We initially denied them the right to take photos," says Hildebrandt, who was coordinator of Adobe Mountain at the time. But the law firm threatened to sue, he says, so it was allowed to shoot film and video. The shoot, which the state was never paid for, produced footage used in advertisements in the early 1990s, says Hildebrandt. "They got some footage they would have had to pay someone else for."
But Mark Goldberg says he is shocked that someone is saying his law firm threatened to sue Arizona Game and Fish over filming of an eagle. Such communication would never have been authorized by him, he says. "It is not my desire to put pressure on anyone to film an eagle."
Goldberg does, however, support the use of eagles in commercials. Limiting their use would be a form of censorship, he says. "The way we use the eagle energizes people to renew their sense of appreciation of eagles. It reminds people of how much they love them, and that reinforces people's commitment to see the eagles treated properly and protected."
There are higher-profile examples of the commercial use of raptors, such as the appearance of a captive Harris hawk in the television series Sinbad, which includes the hawk in its credits at the end of each show. And there are lesser-known examples, such as Fielding McGehee, a falconer in Prescott, who was asked on February 12, 1997, to bring two of his raptors to the grand opening of Wild Birds, a new pet store in Prescott.
Afraid he might get in trouble, McGehee called the Arizona Game and Fish Department's Kingman office and explained the pet-store appearance, which he wouldn't be paid for. "I understand that Game and Fish has been unhappy about what is defined as commercial use of education or falconry birds, and I do not want to get crossways with these people," McGehee wrote in a memorandum that Ostwinkle sent to the Fish and Wildlife Service, objecting to the proposed suspension of his license.
McGehee says he talked with Jim Withan, who not only gave him the go-ahead, but told him he could be paid for his expenses. A few days later, Wild Birds opened for business with McGehee inside, showing customers his raptors.
But McGehee's memo, along with more than 30 other examples of commercial uses cited by Ostwinkle, did little to sway the Fish and Wildlife Service. The real issue, says McKeever, is that Ostwinkle broke the law. Citing other possible offenders is no defense. "A lot of people drive drunk, but that doesn't make it legal."
Other wildlife regulators say commercial use is not so cut-and-dried. State and federal falconry permits are issued that allow for educational uses of raptors, which means that falconers can make their bird part of a public presentation, as long as it carries the message of conservation.
But once money is offered for that presentation, where does the falconer draw the line? Should he or she refuse the money, or can the falconer collect just enough to cover expenses? What if the payment exceeds expenses? And what kind of an organization can a falconer accept an offer from? What if the presentation will benefit a for-profit company by attracting business? Such questions point to the gray areas in state and federal law.
Kerry Baldwin, education chief for Arizona Game and Fish, says this gray area is what has gotten falconers with education permits into trouble. "Over time, someone says, 'Thank you for coming to our group. We'll give you a stipend,'" he says. The next time, a falconer is offered more money and accepts, realizing that the income helps offset the high price of keeping these birds, says Baldwin.
Soon, the falconer is accepting more and more offers, even when the educational value is questionable. "What happens is oftentimes people who have these animals have blurred the line between educational and commercial use of the animal," Baldwin says. "What you're doing is using state property for personal gain."
But for Ostwinkle, the question is not where the money goes or who stands to benefit. The real issue is his rights as a falconer, as detailed in the Migratory Bird Treaty Act. The act was passed to protect certain birds, but it was also passed to help people who had an interest in these birds, says John Arnold, Ostwinkle's attorney. At the time, those people were primarily hunters who were concerned that regulations would restrict their sport too heavily. States that attracted hunters, particularly those in the South, were afraid they would lose a lucrative part of their tourism industry. Their influence is what led to Section 704 of the act, says Arnold, which specifies that the U.S. Department of the Interior, which oversees the Fish and Wildlife Service, must take into account the "economic value" of migratory birds when adopting regulations.
Arnold argues that regulators should have considered the economic value of the birds in Ostwinkle's possession before they restricted his use of them. Federal law does not prohibit commercial use of raptors. In fact, it leaves room for such uses based on the birds' economic value, he says, so long as there is no harm to the species.