Speculation abounds regarding the death of thousands of red-winged blackbirds in the town of Beebe, Arkansas, with some blaming lightning, hail, tornadoes and even fireworks set off by New Year’s Eve revelers.
Now, concerns are growing as some hundred thousand dead fish were discovered in the Arkansas River following the initial New Year’s Eve occurrence. Although the incidents were not similarly located and do not appear to be linked, superstition has met suspicion in the small Arkansas town and beyond.
The Arkansas Game and Fish Commission (AGFC) is officially heading up the investigation, and the most recent lab reports from the Arkansas Livestock and Poultry Commission have determined that the birds died of massive trauma found in the breast tissue, along with clotting and internal bleeding.
But, scientists in Arkansas and elsewhere can’t agree on the cause. The director of Cornell University’s ornithology lab, John Fitzpatrick, believes the birds were roosting when they were sucked up by a violent air current, killed by exposure to moisture and cold temperature then dropped from thy sky as the current dissipated.
Others, though, are not so sure. The competing theory offered by scientists is that New Year’s Eve fireworks startled the birds into the air where they became confused, causing a flock-wide tailspin. Supposing that was true and could be proven, a question arises whether liability could attach to the revelers in the form of negligence, and what department could enforce a fine or charge.
The AGFC would be the enforcement agency regarding the illegal “taking” (killing) of red-winged blackbirds in the state, unless those birds were federally protected under the Migratory Bird Treaty Act. Federal law takes precedence in such matters, unless the federal government defers to the state, which it often does in minor cases.
That appears not to be an issue here. In fact, under Section 14 of the AGFC Code Book, blackbirds are considered a nuisance species, and takings – which can be unintentional by definition – can be sanctioned under permit. But, the revelers would not have had such a permit, and even if they had it would not have been for the taking of 5,000 birds.
So, could the AGFC, with sufficient proof that specific individuals were responsible for the fireworks (perhaps not impossible in a town of only 5,000 people), impose a fine for the unlawful taking of the birds?
Technically, it is possible, because even unintentional takings are actionable and there was no permit issued. But, the following question is whether it would be in the interest of justice to do so. The discharge of fireworks in the state of Arkansas is widely legal, and it would not have been the intent of the revelers to kill birds. In fact, even if they were aware birds were roosting in the area, it could easily be argued that it was not foreseeable that the birds would be harmed, which is a necessary element of negligence.
In short, due to the nature of the birds (not endangered), the lack of intent and the inability to prove negligence, it would not serve the interests of the people or the community to pursue enforcement or legal action.
Photo courtesy of Manjith Kainickara