Thinking of using SUA to study birds in the U.S.? Read this first!

This news and analysis are provided by the Ornithological Council, a consortium supported by 11 ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including Ornithology Exchange and the Ornithological Council!

On 24 January 2018, the Ornithological Council (OC) submitted a petition for rulemaking to the U.S. Department of the Interior, asking that the USFWS re-write its regulations pertaining to the Airborne Hunting Act.

Earlier in the month, OC asked the Office of the Solicitor to advise the U.S. Fish and Wildlife Service (FWS), other federal agencies, and the state agencies that this activity is not subject to the Airborne Hunting Act. OC also asked that if the Solicitor determines that the use of drones to study wildlife is subject to the AHA, that the Solicitor address the need for permits, and specifically federal permits, given the lack of state laws pertaining to drone use for wildlife research and monitoring. In support of that request, OC submitted the entire legislative history of the AHA, a comprehensive review of the state laws pertaining to drones, and a critical literature review.

The requested rulemaking is needed because under current regulations, the USFWS actually prohibits itself from issuing permits under the AHA, except in very limited circumstances. It was thought in 1972 (when the AHA was enacted) that the states would develop their own airborne hunting regulations. Most have done so but those laws pertain only to actual hunting and only to game species;. Some states reiterate the exemption language of the AHA regulations but, as explained below, that exemption is unclear at best as to scientific research and monitoring generally.

More specifically, it is not clear if the exemption is limited to state and federal agencies and their contractors. Only a few states allow use of drones for research and monitoring to some extent. Therefore, if the Solicitor determines that the use of drones for wildlife research is covered by the AHA, permits would be needed and a single federal permit would be far more efficient and practical than waiting for dozens of states to promulgate their own statutes and regulations, particularly in the case of states that already have statutory restrictions on drone use that would have to be amended. It would also allow researchers to obtain a single permit for research and monitoring to take place in more than one state.

The petition asked that the USFWS issue permits for SUA use for ornithological study under existing MBTA regulations rather than establishing a new permit, which would be time-consuming. Obviously, such a permit would be needed for other taxa but allowing the use of MBTA permits for ornithological research would avert that delay.

NOTE: The critical literature review has been published as an addendum to Guidelines to the Use of Wild Birds in Research and is now available on the new OC website. If you are writing your animal care protocol, it should be very helpful to you and your IACUC.

More background, for those who want to know...

The AHA originated with a 1969 television documentary about airborne hunting of wolves in Alaska. In response to the ensuing public outcry, two congressmen sponsored legislation to ban the practice of hunting from aircraft. The legislation was intended to address hunting and nothing other than hunting. As is the ordinary practice in the legislative process, federal agencies with an interest in the subject were consulted. The Department of the Interior (DOI) raised concerns that the statute might prohibit scientific research. In response to that concern, the language of the bill was revised to include an exemption for persons operating under a license or permit of, any State or the United States to administer or protect or aid in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops. As the legislative history (below) makes clear, this exemption addressed DOI’s concern that the language of the bill as introduced might prohibit research by private universities, institutions, and foundations.

At the first hearing on H.R. 15188, Leslie Glasgow (then Assistant Secretary of the Interior for Fish, Wildlife, Parks, and Natural Resources) voiced the objection of the Department of the Interior to enactment of the several bills introduced to prohibit airborne hunting. He explained:

Among are objections are the scope of their language and their form as an amendment to the Fish and Wildlife Act of 1956. Though we do not anticipate that enactment would hamper the conduct of most airborne research activity undertaken by employees of the States or Federal Government, such research by a private university, institution, or foundation would be curtailed. However, the bill does not clearly exempt governmental employees engaged in duties other than those associated with the administration or protection of land, water, or wildlife (16 March 1970 hearing, p. 23).

That the statute does not prohibit the use of aircraft for research activities is unequivocally supported by the statement of co-sponsor of H.R. 15188, Rep. Dave Obey (D-WI) when the original legislation came to the House floor in 1970:

Mr. Speaker, the substantive objections to this legislation have been met. It will not prohibit research by university or other personnel. It is flexible enough to allow either State or Federal authorities to issue permits which will exempt persons from the prohibitions provided for in the bill (116 Cong. Rec. 40205; 7 December 1970).

Unfortunately, the actual language of the bill, as enacted, failed to express that clear intent to exempt non-governmental scientific research from the statutory prohibitions. The definitions failed to stated that “administer[ing] or protect[ing] or aid[ing] in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops” was intended to include scientific research and monitoring. The lack of specificity in the statutory language has resulted in uncertainty as to the application of the exemption to research and monitoring. Given this uncertainty, many state wildlife agencies and FWS officials seem to err on the side of caution and determine that aircraft (manned or unmanned) can be used only by state agencies or contractors of state agencies.