By Ray Stern
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By Amy Silverman
By Stephen Lemons
By Stephen Lemons
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Jerry Ostwinkle glared out his front window across the street at the green trucks with white government license plates that had staked out his home for the past several days. It wouldn't be long before three federal wildlife agents would be walking up his driveway.
The knock came, and seeing the swell of 38 millimeter revolvers on their backs, Ostwinkle armed himself with a .45 and opened the door. They had come for his golden eagle.
Ostwinkle took them around back where the young female raptor perched, recently rescued from a backyard swimming pool in Tucson and brought to Ostwinkle by a wildlife rehabilitator there. Ostwinkle, a master falconer and recognized expert on birds of prey, didn't try to stop the agents. But he wasn't about to let them carry her away in the small box they brought, which contained a perch so tiny in diameter the eagle would have wrapped its 3-inch talons around it and stabbed itself with its own claws.
Ostwinkle gave the agents his own bird box, and seeing their hesitation, he even picked up the eagle and placed it inside. The agents eventually took the bird to a falconer in New Mexico for safekeeping. And that wasn't the end of it. Ostwinkle's life gradually would be turned upside down.
It was like an amateur drug bust, Ostwinkle says. The U.S. Fish and Wildlife Service had been monitoring him for months as part of "Arizona Falconers," a massive sting operation that targeted several high-profile falconers. The investigation produced numerous charges, but few convictions -- court records indicate that the evidence, in most cases, was considered too minor to warrant prosecution.
By federal law, eagles are a protected species. Ostwinkle, however, is a hunted man.
Despite more than 3,000 hours of experience with golden eagles and permits that allowed him to have the rare birds, Ostwinkle says officials from the federal wildlife service have done everything they can to keep him away from birds of prey.
They have revoked his master-level falconry and eagle permits, hauled him into court with falsified documents and come to his door twice, each time to take away one of his golden eagles. "What they did was nothing less than abuse," he says. "You can't get rid of them. They will not go away."
Ostwinkle is tangling with an agency that is bullish in its regulation of falconry, an ancient sport practiced today by fewer than 6,000 people nationwide. Stringent regulations have put falconers, a rugged and often anti-government breed, at odds with regulators, who have never been completely comfortable seeing wild birds under human control.
"The feds think what we do with these birds is a selfish thing and we shouldn't have them," says Ostwinkle. "People are simply flying birds, minding their own business and spending their own money. They don't deserve what they get."
What falconers get is everything from paperwork hassles to search warrants on their homes. State and federal wildlife officials say the enforcement is necessary to ensure that migratory birds are treated properly. Regulation keeps falconers honest, they say. The Arizona Falconers Association had gotten lax in reporting the acquisition and transfer of birds, and the sting operation forced them to police themselves and improve their image, says Mike Senn, assistant director of field operations for Arizona Game and Fish.
"It made the Arizona Falconers Association clean up their act," he says.
The bigger problem, regulators say, is that falconers can get too close to their birds, treating them like personal property. And some end up making the wrong decisions.
"Birds are something that are a public trust. That's something people have trouble understanding," says Cyndi Perry, chief of the bird conservation branch of the Fish and Wildlife Service. "That bird is not that person's bird, it's the country's bird, and they are under permit to hold it."
But falconers consider the birds their personal responsibility, and therefore their personal property. Asking a falconer to detach himself from his bird is unrealistic, falconers say. The birds are their passion.
Rex, Ostwinkle's second golden eagle, was like one of his children. Saved from almost certain death as a baby, Rex was raised by Ostwinkle until the bird was five years old. On April 29, 1998, federal wildlife agents took Ostwinkle's permits and seized Rex, leaving Ostwinkle feeling like the parent of a lost child. "It crushed me for them to take Rex. It absolutely killed me," says Ostwinkle, his booming voice softening a bit. "That was the hardest thing I ever had to do in my life."
Standing in his shop in dusty jeans and a worn tee shirt emblazoned with a drawing of Rex, the 41-year-old builder talks with quiet frustration about the collapse of his life since Rex was seized. His children suffered without the bird, which had become their playmate. Work suffered as he lost sleep and yelled all day at the workers he supervised. And his wife nearly left him.
"He's got a lot of anger," says Pam Ostwinkle. "When Jerry was home, he was never home. His mind was someplace else. I got to a point I couldn't stand it."
Ostwinkle and his friend and fellow falconer Gary Lollman, whose permits were also revoked, started drinking too much, Ostwinkle says. Their lives, consumed by an obsession with birds of prey, had been stripped away.
The State of Arizona sued the two falconers for their part in having Rex filmed at the Grand Canyon for a commercial for the Bravo Card, a now-discontinued credit card that Dean Witter was promoting at the time.
The Arizona Game and Fish Department had records of the financial arrangements the falconers made for the shoot, and they caught Lollman advertising raptors for filming purposes, with a credit for the Bravo Card commercial. The department says their permits did not allow the commercial use of raptors. Ostwinkle was also charged with failing to register one of his falcons by having the department put a band on its leg within the federal government's five-day limit. A court in Page found them both guilty.
Then Lollman and Ostwinkle discovered that dates on the department's investigative reports had been altered to meet the statute of limitations. The state failed to file suit within the one-year requirement, so officials made it appear that the investigation began later, thereby falling within the statute of limitations, according to court documents.
The case was dismissed on appeal in December 1998.
The ruling provided little solace for Lollman, who was still facing the repercussions of a search warrant served on his home one Sunday night in 1995. Federal agents scoured every corner of his house from 7 p.m. until midnight, looking through cupboards, the freezer and his wife's underwear drawer. They even opened her box of tampons and peeled each one open. Lollman says they were looking for any evidence that he was commercializing wildlife.
They found a videotape of the Bravo commercial shoot, and they seized eagle feathers and several raptor skulls and wings, items they argued were illegally in his possession. Lollman used the bones for educational presentations, he says, and he was allowed to have the feathers as part of his eagle permit. Lollman was on a waiting list for a golden eagle, and Ostwinkle had given him the feathers so that Lollman would have replacements if his eagle's feathers were ever damaged.
A federal court found him guilty, giving the Fish and Wildlife Service one of its few convictions as part of Arizona Falconers. Lollman got a fine, probation and suspension of his license for a year, but the convictions sunk even deeper into his life. When the Camp Verde Town Council and the local newspaper caught wind of the ruling, Lollman was pushed out of his eight-year job as the town's recreation and maintenance director. He has since been hired in a similar job for the Yavapai-Apache Indian Community, but his days of doing field research on spotted owls for Humboldt University, being called "bird man" for his presentations at schools and being president of the Arizona Falconers Association are over, he says.
"I became passionate . . . then it all gets yanked away," says Lollman. "People could care less what happens to us."
Lollman has given up the fight. His family grew tired of the suspicious clicks during telephone conversations, and of being constantly paranoid that federal agents were watching over them, he says.
But Ostwinkle will stop at nothing to get his eagle and his permits back. After years of spending more time in the wild with birds of prey than with his family, Ostwinkle says the last thing he will tolerate is a bureaucrat behind a desk telling him what to do with his raptors.
"Rex was my property," he says. "He was permitted to me, and I didn't do anything that was not falconry."
To win, Ostwinkle must beat the federal government in court, a feat that his fellow falconers say is impossible. "Jerry will be doing this 'til the day he dies," says Lollman. "He's so tenacious, but I have concerns. I don't think you can take on the government and win."
Ostwinkle is taking on an opponent that is often zealous in its mission to protect migratory birds. Oversight of falconers is an important part of that mission, says Steve Middleton, a supervisor and special agent for the Fish and Wildlife Service. "It's a pretty strictly regulated sport because falconers are permitted to do something that no one else is allowed to do: take a wild raptor from the wild."
But for too long, Fish and Wildlife Service officials have gone too far, Ostwinkle says, and it's time to hold them accountable for their strong-arm tactics. When federal wildlife agents took away Rex, they trampled on his constitutional protection against unlawful seizure of his property, he says.
"What if it was my firearm?" Ostwinkle asks. "They took away my birthright the day they walked in my backyard and took away my bird."
The drama that unfolded between Ostwinkle and the federal government is full of patriotic symbolism: The Fish and Wildlife Service, the guardian of public resources, takes away a citizen's eagle, a symbol of American independence. Now that private citizen is fighting his own revolutionary war to get his eagle and his freedom back from what he considers a tyrannical government agency.
History provides a concrete foundation for the drama Ostwinkle is living out.
To stop the indiscriminate slaughter of migratory birds by hunters, Congress passed the Migratory Bird Treaty Act of 1918. Since then, federal officials have enforced regulations designed to protect these birds. But they have also had to contend with falconers who, like hunters, were given certain rights to birds of prey.
With hunting, regulation is easier. Hunting seasons and other limitations control the amount of prey that will be killed. With falconry, which involves regulating the way a person treats a live bird, oversight is more complicated.
Anyone can take state and federal tests for permits to capture, fly and keep falcons, hawks and other migratory birds. Permit holders must comply with a slate of regulations dictating everything from the type of birds falconers can have to the type of shelter they must provide.
While many falconers support the tight regulations -- drawn up with the help of the North American Falconers Association -- others say enforcement is often unfair and heavy-handed.
Mike Marks says he never had a violation of his falconry permit until he was issued five paperwork violations three years ago, when federal wildlife agents were trying to get him to provide information about Ostwinkle and Bruce Taubert, an Arizona Game and Fish official and falconer who was charged by the Fish and Wildlife Service with violating his falconry permit. Records from Arizona Game and Fish and the Fish and Wildlife Service show that Ostwinkle, Taubert, Lollman and other falconers were targeted in the Arizona Falconers probe.
"They painted this picture of these guys trafficking in birds," says Marks, a soft-spoken falconer who plans to keep his goshawk, Sage, as long as she will stay with him. "They think everyone is a criminal. They think we're just out there trading birds."
Taubert was charged with failing to get written authorization to place his prairie falcon in the temporary care of another, and for being about a week late in reporting the acquisition of a prairie falcon. The Arizona Game and Fish Department refused to prosecute, saying the charges were too minor to warrant court action.
"Most judges would not consider forgetting to leave a note with a friend or reporting the capture of a raptor a few days late worthy of taking up their valuable court time," says Thomas Spalding, deputy director of Arizona Game and Fish, in a letter responding to the federal charges. "In the years I personally enforced state falconry regulations, these occurrences were brought to the citizen's attention with warnings rather than burdening the court system and prejudicing the judges against black and white wildlife violations. Past department attempts at prosecuting these types of offenses have resulted in a zero average."
Authorities say the tension between falconers and the federal government has existed since the sport was legalized by the Migratory Bird Treaty Act. But falconers say their chilly relations froze over the day the Fish and Wildlife Service commenced a nationwide sting operation against falconers 20 years ago.
In "Operation Falcon," federal wildlife agents used Jeff McPartlin, a falconer they arrested for illegal trafficking of birds, to lead them to other falconers suspected of similar violations. By offering to buy the birds illegally, undercover agents nabbed dozens of falconers.
The sting created a deep divide between the government and falconers, who still wince at the memory of that time.
"There's some real harsh feelings," says Harry McElroy, a 70-year-old falconer who has been flying raptors since 1948. "There was no question there was entrapment."
What the government fails to see is how well falconers treat their birds, and how much they have done for the species, McElroy and other falconers say. When the pesticide DDT threatened the survival of peregrine falcons 30 years ago, falconers learned how to breed them in captivity and release them in the wild, helping to save them from extinction.
"We've learned more about raptors because of these people right here," says Chris Williamson, a former insect collector and raptor enthusiast, during a day spent with a group of falconers while they flew their birds. "If you didn't have guys like this, who liked birds this much, you wouldn't have peregrine falcons or the number of raptors in the sky today."
Ostwinkle's work with Rex was no less heroic. Bumped out of the nest by his siblings, the golden eagle was discovered in the Hualapai Mountains near Kingman by hikers who fed Rex their food for several days before taking him to the Adobe Mountain Wildlife Center. The baby bird was malnourished and appeared to have a head injury, so the center turned to Ostwinkle, an experienced volunteer. Ostwinkle agreed to rehabilitate the 45-day-old eagle and return it to the wild, if possible.
"When we got the eagle, they thought it had two days, max, to live," says Ostwinkle, his face tanned a deep brown from days in the sun. "We never had an eagle this young."
Rex surprised everyone and lived. Force-fed egg yolks and syrups to build up his electrolytes, Rex continued to grow. And the bird wasn't injured. The hole in his head reported by those who found him was his ear. Soon, it would be time to start teaching him what food was.
Ostwinkle placed two rabbits in Rex's chamber, and for eight days, Rex played with them -- until Ostwinkle killed the first rabbit and showed him what was under the fur. The next day, Rex killed the second rabbit.
Now the eagle needed to learn to hunt, but it wouldn't be easy. Every time Ostwinkle took Rex out to find prey, the eagle failed and nearly starved. Ostwinkle sat down with his wife and his employer to discuss the time off he would need to train Rex, and for the next nine months, he took the eagle to the mountainsides to learn to fly, spot prey and dive down for the kill. Gradually, Rex became a supreme hunter, killing up to half a dozen jackrabbits each week.
Without Ostwinkle, Rex would never have learned to be a golden eagle.
Like other falconers, Ostwinkle lived a life that revolved around birds of prey. He would spend hours a day manning the various raptors in his care, getting them used to people and to latching onto his gloved fist. But the biggest commitment was to flying the birds and hunting with them, sometimes with fellow falconers whose passion for the sport brings them back to a remote area off Interstate 17 and Dugas Road, southeast of Prescott.
Standing around the campfire drinking beer and cooking sausage on a chilly October morning, the falconers look like any group of guys on a camping trip, except for the ring of falcons and hawks behind them, tethered to wrought-iron perches. Occasionally one leaps off, its fluttering wings yanked back to the ground in mid-flight.
The men spend the next few hours talking about the birds, turning around every so often to check on them, like worried parents.
"It's not a sport, it's not a hobby, it's a passion," says Ted Diamont, a retired New York police officer and falconer who prefers to fly goshawks. "It's a part of your life, your soul."
Most falconers are obsessed with their birds, he says; some have lost their jobs, their income and their wives over the feathered animals. Ostwinkle confirms this, blaming falconry for the breakup of his first marriage.
"You're giving up quite a lot," Ostwinkle says, adding that probably two-thirds of falconers are divorced because of the sport. "Once you're in the zone, you think of nothing else but the bird."
The thrill is in the hunt, the falconers say, as they wait for the weight of their birds to drop. Soon the birds are hungry enough to be loaded in the trucks and driven up the hill, where jackrabbits and other small prey are hiding in the bushes.
"If we ever get in a head-on, we'll all be decapitated by our perches," jokes Marks before untying Sage, his goshawk, and placing her onto the bar behind his seat.
The birds wobble back and forth as the four-wheel-drive trucks bounce up the mountain, but the birds are calm with their hoods on. At the top, Alan Malnar takes out Jackie, his red-tail hawk, removes her hood and raises his glove in the air. As Jackie lunges from his fist, the falconers scatter across the mountainside, using sticks to beat the bushes in their path. They are "flushing" the area, or scaring prey from their hiding places, and Jackie is following them overhead. Suddenly, a jackrabbit darts into a bush and the falconers scream, "Ho! Ho! Ho!" Jackie dive-bombs through cat's claw and sinks her talons into the white fur, the jackrabbit squealing in pain.
"You hear that squeal?" asks Diamont. "That's what we live for. It's almost better than sex."
The rabbit is drenched in blood, but as Malnar rushes to the scene, he hovers over Jackie, panicked about the feathers the thorny bush ripped from her chest. "She's freaking. I've got to let her settle down."
Jackie is rewarded for the kill with meat, and the group starts the hunt again with another bird. "This is a blood sport," says Diamont. "It's an addiction."
The addiction comes from sheer awe of the birds, falconers say, watching the beauty of their flight and their power and precision when killing prey. It's the reward for the hours of training to get raptors to return to them after a day of hunting.
After years of working with falcons and hawks, Ostwinkle's reward was to one day have a golden eagle. Rex more than fulfilled that ambition.
Having been in close contact with Ostwinkle for months, Rex had begun to depend on him for his every need, a process called imprinting. Rex would call to Ostwinkle, the same way an eyas, or baby eagle, calls to its mother from the nest. If another bird scared him, Rex would scurry for cover between Ostwinkle's legs. In his truck, on the way home from a day of hunting, the eagle would sleep in Ostwinkle's lap.
The intense imprinting meant that Rex could never be released into the wild. It also meant trouble for Ostwinkle with Kamile McKeever, legal instruments examiner for the Fish and Wildlife Service, who expected the bird to be either released to the wild or sent to a zoo.
"The bird was allowed to be in his possession, but it is not his bird," she says. "It's a public resource. It belongs to you; it belongs to me."
Ostwinkle refused to give Rex up, insisting that the best place for the eagle was in his care. He then went over McKeever's head, getting approval from law enforcement officials at the Fish and Wildlife Service -- a maneuver that left a sore spot with McKeever, who hasn't trusted him since, Ostwinkle says.
With Rex, Ostwinkle became one of only a handful of falconers nationwide to legally possess a golden eagle. He says he's been accused of having Rex imprint on him so he could keep him, but he insists it's not true. "Because Rex was 45 days old, I thought there was no way it would imprint. I had no idea they were that intelligent."
Most birds of prey imprint to their mothers within the first two months of life, authorities say. Falconers who take birds after that time can usually avoid imprinting behavior and safely release the bird back into the wild. Eagles, however, are different.
Because of what he learned from Rex, Ostwinkle says he believes any eagle taken and released in its first year of life will die in the wild without proper training.
The observation is groundbreaking, some wildlife biologists say, and it could change the way rehabilitators prepare captured young eagles for release in the wild.
"There should be no question of his expertise in the natural history of eagles, falcons and other birds of prey, and the conditioning techniques necessary to return them to wild condition," says Thomas Hildebrandt, a wildlife program manager for the Arizona Game and Fish Department. Hildebrandt wrote a letter supporting Ostwinkle's desire to start "hacking" eagles back into the wild.
The hacking technique has proved successful in releasing young peregrine falcons and other juvenile raptors because it avoids the imprinting process, Ostwinkle says. A bird is placed in a box, high upon a pole, which it learns to think of as its nest. Without human contact, food is lifted to the bird, usually something in full form, like a jackrabbit carcass, so the bird recognizes what it is eating.
Slowly, the food supply is reduced to a live rabbit that is bound and easy to catch. The approach mimics what mother eagles do, which is injure prey so their young ones can get their first easy kill. After that, food is cut off, forcing the hungry birds to leave the hack site.
While they are away, the box is replaced with a scale, which the falconer watches from afar through a telescope. When the bird returns, the falconer can check its weight to see if it caught and ate anything. If not, the process of feeding and hunger motivation starts over again, until the bird becomes a successful hunter.
For young eagles, whose learning curve is longer than other raptors, hacking is crucial for their reintroduction into the wild, says Ostwinkle. But so far, he hasn't had the chance to try out a hack site on eagles. The female raptor from Tucson was going to be his first one, helped along by Rex, who would act as her surrogate parent. But the Fish and Wildlife Service took her away before Ostwinkle had the chance to hack out the younger eagle, and now she's imprinted and nonreleasable for sure, he says.
Had the female eagle stayed with him, she would have been successfully returned to the wild, where she would have reproduced, says Ostwinkle. As an imprinted raptor, however, she is unable to mate with another bird of prey. "When they took that eagle from me, they lost 20 eagles because she can't breed,'' he says.
Hacking of eagles and other birds of prey is not commonly done because it is so time-consuming, says Hildebrandt. But he says it may be an option wildlife specialists should look into. "Although we feel like we're doing good things, it may not be enough," he says. "Jerry's findings may increase our workload."
With his permits revoked, however, Ostwinkle can no longer work with raptors from the United States, and he cannot use the hack site his friend and fellow falconer Bill O'Brien helped him set up on federal land O'Brien leases at Eagletail Ranch, west of Phoenix.
The loss has been staggering for Ostwinkle, whose devotion to eagles and other birds of prey has attracted a strong following in the falconry community. Although some falconers have kept their distance for fear of being dragged into his battles with the federal government, many admire his convictions.
"I don't know how to help him," says Morley Nelson, a well-known falconer who is credited with changing the American mindset about eagles and other raptors with the 11 films he did, including seven with Walt Disney. Nelson has golden and bald eagles, some of which were used in the films to show audiences that the birds were beautiful, smart creatures, not vermin to be shot and killed.
The filming effort succeeded, he says, but whether Ostwinkle can prevail is uncertain. "He's got a lot of problems, but he's fighting it beautifully."
Ostwinkle is brash and unafraid to speak his mind, characteristics that have not helped his tangles with the government, says O'Brien. "Jerry needs a keeper when he's talking to bureaucrats."
With short, unbrushed hair that used to hang below his shoulder blades, Ostwinkle has had a life far removed from bureaucracy. His mother, Carol Ostwinkle, remembers a boy who slipped garter snakes up his sleeves, hid turtles in his bedroom and skipped school to be outdoors. "He should have been born with Huck Finn," she says.
His father, Dr. Richard Ostwinkle, former chief general surgeon at the now-defunct Phoenix General Hospital, says he could never have asked Jerry to go into medicine. "That's too restrictive for him. He's too much of a free spirit."
Having worked for more than a decade to earn the right to have an eagle, Ostwinkle compares his eagle permit to his dad's surgical degree. Still, nothing could teach him more about the rare birds than his years with Rex.
A ruthless hunter, Rex killed more than 500 rabbits during his five years with Ostwinkle. Arizona State University students would meet Ostwinkle and Rex outside the city to learn firsthand how eagles fly, hunt and live their lives in the wild.
When he wasn't out hunting, Rex's life was much different from other eagles'. Balanced on a perch in Ostwinkle's truck, Rex would travel to Boy Scout meetings, nursing homes and social clubs, where Ostwinkle would teach hundreds of people each year about birds of prey.
"That eagle saw more people than Ladmo," says Ostwinkle. "I have pictures of paraplegics holding that bird."
Rex, however, had become more than a teaching tool. He was Ostwinkle's fourth child.
Beside the photos of his wife, two sons and daughter on the mantel in his living room is a framed photo of Rex -- one of many that cover the walls of his home in Glendale. Stacks of color slides and videotapes show the chestnut-brown bird and its six-foot wingspan soaring over Ostwinkle's head. A short call and a lift of his glove in the air and Rex would glide back to Ostwinkle's arm.
"It was just an incredible sight to see those two work. It was amazing," says his mother, Carol. "He had complete control of that bird. We'd be standing there, and the bird just knew who his caretaker was."
The bond was also a reality for his wife, Pam. If she took one step too close to her husband, Rex would start flapping his wings. "I love to watch him fly," she says. "My son was in Jerry's backpack when he flew Rex."
But living with a man and his eagle has its compromises, Pam says. Rex loved being with the dog and the kids, but having the eagle and other birds of prey in the house was never easy for her. "I don't like them in the house, but I deal with them in the house," she says. When the birds are new, sometimes it's necessary to bring them in from the outside shelter so they can get used to people, Pam says. "All I ask is that he clean up the paper and the feathers."
Minor inconveniences aside, Rex was part of the family, Pam says, and she never wanted to see him go. But with government vehicles outside their home, the investigation was getting too close to home for her. Jerry Ostwinkle says he bought a second house to protect his family.
Months later, federal wildlife agents arrived to seize Rex. Ostwinkle went around back, picked up the eagle, and gave him to Steve Middleton, one of the agents who had staked out his house before.
Back home, Pam got the news about Rex. "I had to turn around and tell the kids, and the kids were crying," she says.
Afraid of what might happen to the bird, Ostwinkle says he warned Middleton that the eagle's talons were dangerous, but that Rex was not a dangerous bird. Within four days, someone at Adobe Mountain, where the eagle was taken temporarily, told Ostwinkle that Rex's talons were cut off, Ostwinkle says.
"I thought at the time I had signed his death warrant," he says.
McKeever denies that Rex's talons were ever clipped off while he was in Arizona. "Nothing was done to harm the bird whatsoever," she says. "We have recent pictures of Rex, and he is in perfectly good shape."
Rex was placed with a master falconer and educator with about 30 years of experience, McKeever says, but she won't say where the bird is. "We consider him as being in the witness protection program."
Ostwinkle has heard Rex is in Texas being fed, but never flown. McKeever says Rex is not being flown because imprinted birds have a tendency to go after humans, looking for food. "He's in a good, reliable place. I placed him as if he was my own kid."
Ask McKeever why the bird was seized and the answer is simple: Ostwinkle violated his falconry permit nine times. The sheer volume of violations is what prompted the service to go through the nearly year-and-a-half-long process of revoking his permit, she says.
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.
"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.
"They've lost sight of the roots of the law and what's beneficial," says Arnold. "There's absolutely no testimony in the Golden Eagle Protection Act and the Migratory Bird Treaty Act that there was the slightest concern that these birds would get their picture taken."
Fish and Wildlife Service officials say Arnold's interpretation of the law is way off. Saying economic value and commercial use are the same thing is a stretch, says Art Garcia, an attorney representing the federal government in Ostwinkle's case. Besides, he says, it's clear from state and federal regulations that use of the birds for financial gain is not permitted. "You can't commit an act in violation of the regulations and say the regulations are wrong," says Garcia.
What Ostwinkle is trying to do is rewrite history, he says. "What chance is there that Congress is going to pass an amendment that you can use these birds for commercial purposes, especially the American golden eagle?"
Ostwinkle should have treated his eagle permit as a rare privilege, and one that is not worth the risk of losing by violating the law, says Garcia. "Congress gave specific provisions for the use of protected species, but I would think if they had their druthers, they wouldn't even have allowed that."
Ostwinkle says he's ready to rewrite history, if that's what it takes to protect falconers' rights and get his eagle back.
As far as McKeever is concerned, a reunion between Ostwinkle and Rex will only be accomplished in court. "He's not going to be returned," she says. "He belongs to the public."
Ostwinkle says the only place Rex belongs is on his fist, and one day he will be back there. Ostwinkle has already made plans to drive to Texas, where all he will have to do is call Rex's name and the eagle will recognize him, he says. "He should immediately start bowing at me. If he does, I'll know he was just waiting for me."