The federal prosecution of a tree-trimmer who accidentally felled a nest of herons has caught the eye of Republican Rep. Darrell Issa of California, who calls the action by the U.S. Fish and Wildlife Service "bureaucratic bullying."
Ernesto Pulido was trimming a ficus tree in May when he accidentally cut down a nest of five baby crowned herons who were living above an Oakland, Calif., civic center parking lot.
The tree-trimmer, hired by the U.S. Postal Service to stop birds from defecating on its vehicles, did not turn a blind eye to their plight. He contacted volunteers who transferred the baby birds to a rescue group, where they are expected to survive after treatment.
But now Pulido is facing federal misdemeanor charges after the wildlife service recommended to federal authorities that he be punished for violating the U.S. Migratory Bird Treaty Act (MBTA). The herons are one of 1,026 species protected under the act.
The prosecution caught the attention of Issa, chairman of the House Oversight and Government Reform Committee, who wrote to wildlife service officials questioning the merits and prosecution of such a small infraction.
The congressman argued that Pulido
may be under prosecution because of a public outcry resulting from inaccurate media accounts that suggested the birds were fed through a wood-chipping machine.
"All accounts indicate the activity which disturbed the birds was unintentional," Issa wrote in a May 28 letter to Fish and Wildlife Service Director Daniel M. Ashe, noting that Pulido has voluntarily stepped up to pay for the care of the herons, which suffered scrapes and bruises and one fractured beak, but are expected to be returned to the wild.
"Prosecutions under the MBTA for incidental activity have previously been rebuked by federal courts," Issa noted in his letter, citing a North Dakota case where a court dismissed a complaint against three oil companies after six mallard ducks waded into their oil pits. "In this case, unlike the one [the wildlife service] announced it is bringing against Mr. Pulido, the birds died."
Issa reminded Ashe in his letter that the federal district judge in the duck case, Daniel Hovland, noted to the wildlife service that government-sponsored wind turbines kill 33,000 birds each year, even as the federal agency has continued to issue 30-year permits to developers "to allow for the unintentional killing of bald eagles and golden eagles, birds protected by the MBTA, but also the Bald and Golden Eagle Protection Act."
Issa noted that those calling for the punishment of Pulido, including bird protection groups, have also sought rebuke for the Postal Service. But the wildlife service has not directed its ire at another federal agency.
"The committee is concerned that Mr. Pulido is being subjected to an unfair and unnecessary prosecution because [the Fish and Wildlife Service] is responding to public pressure to act but does not want to seek redress from a fellow federal agency, the U.S. Postal Service," Issa said.
Issa outlined what he described as the Justice Department's failures to look into cases he deemed far more serious than baby birds.
"During my time as chairman of the House Oversight Committee, many agencies have failed to take action and the Justice Department has declined or failed to prosecute federal employees for offenses including: receiving thousands of dollars in impermissible gifts from lobbyists, watching pornography on government computers while on the job, operating private businesses from their offices, lying on official time cards for years, and spending outrageous sums of taxpayer dollars at Las Vegas conventions," Issa noted.
"When so many government workers are offered a pass, referring and prioritizing charges against a private citizen for incidental and relatively minor injuries to a nonendangered species — commissioned by a federal agency, no less — appears nothing short of bureaucratic bullying," Issa said.
Issa has set a June 11 date for a wildlife service response to his committee, including all documents and emails related to the matter.
Pulido is facing a $15,000 maximum fine and six months in jail if convicted. Wildlife service investigators, noting his remorse, have recommended a lesser fine of $1,500.
The use of federal charges to prosecute unintentional crimes was noted recently by the American Legislative Exchange Council (ALEC), which said in a study that "every year, federal, state, and local lawmakers needlessly spend millions of taxpayer dollars incarcerating hard-working Americans who had innocent intentions."
The group decried the growth of sentencing laws and criminal statutes along with the increasing expansion of federal regulations that often ensnare unsuspecting citizens.
ALEC's Cara Sullivan, in an interview with Newsmax, said: "American business owners and individuals are increasingly susceptible to finding themselves on the wrong side of the law. I think there is also a mentality of policymakers to legislate away problems. If there's a problem, let's make a law."
The Fish and Wildlife Service has also made frequent use of the Lacey Act, a 1900 law that makes violating state wildlife statutes a federal felony, often impacting fishermen and hunters who are caught up in federal cases over minor offenses.
"Even if someone receives probation rather than a prison sentence, or a misdemeanor as opposed to a felony, having a conviction on their record makes it more likely they will be ineligible for hundreds of state occupational licenses," said Marc Levin of the Texas Public Policy Foundation. "It might also mean they have trouble obtaining employment, approvals for housing, and loans."