Pilots Face Jail Over Bird Disturbance

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Prosecutors in Iowa hope to charge two pilots for flying two aircraft low on November 16, 2011, and disturbing migratory birds, in a case that is not only drawing the attention of bird lovers, but also constitutional lawyers. The pilots, Paul Austin and Craig Martin were flying a Fly Baby and an Aeronca at an estimated altitude of 20 feet on two passes at Saylorville Lake reservoir north of Des Moines. Each pass reportedly scattered masses of birds. The men were photographed in the act by a nature specialist and in February, found themselves indicted by a grand jury for violation of the Airborne Hunting Act. The lake does not appear to be charted as a wildlife refuge and the two pilots weren't hunting. But the Act makes the harassment of animals with an airplane a crime punishable by up to one year in jail. A judge will soon rule on the Act's constitutionality and perhaps, as the pilots' lawyer told the judge, whether anyone can determine "if the bird is pleased or annoyed to have taken flight," when in fact, "flying is what birds do." The lawyers also invoked Sully Sullenberger.

According to defense attorneys, hero pilot Sully Sullenberger of US Airways Flight 1549, might also be indicted because he "likely 'harassed' the flock of birds" that he smashed into with his plane, and "he probably 'harassed' fish when he arrived in the Hudson." The defense attorneys hope to make an issue of the law as unclear in its definition of illegal behavior. In a court filing, they argue the possibility that animals may not have the emotional capacity to experience harassment. And, if they do, they question how a pilot can be expected to observe that emotion. Prosecuting attorneys have argued through papers submitted to the court that it should be reasonable to expect that flying an airplane at low altitude over "6,000 migratory birds" should be considered harassment. The law applies a ban on harassment of wildlife and makes it a crime "to disturb, worry, molest, rally, concentrate, harry, chase, drive, herd, or torment" animals. A ruling on the constitutionality of the law is expected in the near future.