Oakland Public Works Routinely Violates Migratory Bird Treaty Act and CEQA

Each year the City of Oakland, Public Works Department, removes, by their own account, several hundreds of mature trees throughout the City of Oakland. Approximately 25% of all trees removed by the City are located in the area north and east of 580 in the Oakland hills. The remainder of trees are within the flatlands. Oakland trees are removed either by the City within the City right-of-way or by private parties that obtain discretionary, tree removal permits from the City. These trees, public and private, are removed during all times of the year, including during the bird nesting season which occurs between approximately February 1 and August 31.

Unfortunately, the Public Works Tree Services Program, which is managed by Deputy Public Works Director, Brooke Levin, has consistently violated state and federal law that protect nesting birds by removing trees on City right-of-way with nesting birds and active bird nests during the nesting season or by permitting the removal of trees by private parties without any conditions requiring the property owners to comply with the Migratory Bird Treaty Act or the State or Federal Endangered Species Act to protect threatened or endangered birds.

The Federal Migratory Bird Treaty Act of 1918 (MBTA), which is administered by the California Department of Fish and Game and the United States Fish and Wildlife Service, implements various treaties and conventions between the U.S. and Canada, Japan, Mexico and the former Soviet Union for the protection of migratory birds. Under the Act, taking, killing or possessing migratory birds is unlawful. Over 800 birds are currently on the protected list--this includes a significant number of birds in the San Francisco Bay Area.

Unless permitted by regulations, the Act, among other prohibitions, provides that it is unlawful to pursue, hunt, take, capture or kill; attempt to take, capture or kill; possess, any migratory bird, part, nest, egg or product. To enforce the Act, authorized Department of Interior employees may arrest a person violating the Act and a person, association, partnership or corporation is guilty of a misdemeanor and subject to a fine up to $500, jail up to six months, or both.

One might ask why the City of Oakland is subject to such laws in urban areas like Oakland. It is because birds know no bounds and they fly. California and particularly the San Francisco Bay Area are integral routes along the Pacific Flyway that supports the migration of millions of birds, many of whom nest in the San Francisco Bay Area, including within urban areas adjacent to San Francisco and Suisun Bays.

The Deputy Public Works Director, Brooke Levin, and the current City Administrator, Dan Lindheim, have been notified by members of the public that the Tree Services Program she administers is not following state and federal laws related to the Migratory Bird Treaty Act. A Public Records Act request of Ms. Levin reveals the City of Oakland has no active or ongoing training program to inform its staff of the requirements of the Migratory Bird Treaty Act, routinely removes trees without any established protocol to survey trees by a qualified biologist or ornithologist prior to the removal of trees, and has failed to implement construction work windows to avoid the nesting season or work arounds to prevent the removal, disturbance and abandonment of nests due to tree removal activities and/or other Public Works construction activities in the City. Other public entities, such as the California Department of Transportation and the San Francisco Public Utilities Commission, routinely implement strong measures to protect nesting birds and have even curtailed or delayed construction activities to ensure compliance with the MBTA.

 

These measures to protect migratory birds are often included as part of avoidance and minimization measure or even mitigation under the California Environmental Quality Act (CEQA). Caltrans and the SFPUC also routinely replace the removal of trees at a 3:1 or even higher ratio to offset the cumulative visual and biological effects of tree removal. However, the City of Oakland has never undertaken a comprehensive CEQA review of its tree removal program and its tree removal permit program to assess the cumulative effects of removing hundreds of mature trees on an annual basis, over many years, and to ensure its actions are consistent with the MBTA and other environmental laws such as the State and Federal Endangered Species Acts. Instead, the City has piece-mealed the removal of individual trees by generally declaring them to be exempt from the requirements of CEQA or not conducting any CEQA review at all. The City has routinely failed to document in writing its determinations justifying the removal of trees or its rationale for exempting CEQA review.

It is hard to understand how the City of Oakland can simply ignore the requirements of CEQA. Particularly since its tree removal program qualifies as a project under CEQA, the City exercises discretionary permitting authority in issuing tree removal permits, and the program has the potential for direct, cumulative affects to wildlife, as well as affects to visual and aesthetic resources, and the removal of trees within and outside the public right-of-way without adequate conditions routinely results in the violation of the MBTA by City staff under Ms. Brook's leadership, as well as by private parties. 

Once again, Brooke Levin seems to think that she and her staff in the Department of Public Works are above the law. This seems to be a recurring theme with her. Loss of staff or reductions in staffing, as she seems to believe, are not an excuse to skirt or violate state and federal laws or fail to adequately document the legal rationale for removing trees in the City of Oakland as required by the City's tree ordinances.

As we move towards the nesting season and the chainsaws of public works begin trimming trees or removing trees, Brooke Levin and the City should be aware that it could be subject to complaints to the California Department of Fish and Game and the United States Fish and Wildlife Service for violating the Migratory Bird Treaty Act. Our new Mayor, Jean Quan, would do well to review the management and oversight of the Tree Services Program.

Bird Photos: Living with Wildlife http://blogs.marinij.com/living_with_wildlife/