Too Close for Comfort

The defendant enters a plea of guilty to count one, violating the Endangered Species Act, which carries a maximum sentence of 1 year imprisonment, a fine of $100,000, a term of supervised release of not more than one year, and a special assessment of $25 due on the date of sentencing.

—United States of America v. Jim Neiger

So reads the plea agreement signed on January 29, 2014, by Florida nature photographer James Neiger. Four years earlier Neiger had visited Lake Tohopekaliga, on the border of Kissimmee, Florida, where his business, Flight School Photography, is located. He was guiding a group of shutterbugs paying roughly $300 per person, per day, for the chance to take close-ups of the Snail Kite, a species so rare that a recent survey showed the population has fallen from 3,000 to about 700 in the span of only 10 years. Unfortunately for Neiger, his tour group wasn’t alone: A U.S. Geological Survey researcher was watching as Neiger drove his pontoon boat between an active Snail Kite nest and a Florida Fish and Wildlife Commission sign stating, “Stay Back. Endangered Snail Kites Nesting,” and wedged the boat into the reeds.

Documents obtained through the U.S. Freedom of Information Act report that the researcher witnessed the Snail Kites fleeing from the nest as the photo group clicked pictures of them in flight. He testified that he confronted Neiger, telling him that his group was too close to the kites (well inside the 500-foot legal boundary), and that a year later, on eight days between January and May, he saw Neiger at it again. Then, on February 20, he caught Neiger on video harassing a nesting female Snail Kite for nearly two hours.

Neiger wouldn’t return phone calls or emails to talk about what happened, but he pleaded guilty to knowingly and unlawfully “taking” an endangered species. (Under the Endangered Species Act, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.) The court ruled that Neiger’s actions had interfered with breeding, causing the Snail Kites to abandon the nest, likely leaving their chicks to starve. In exchange for getting to keep his camera, pontoon boat, and motor, Neiger (whose images have appeared several times in the top 100 selections from past Audubon photo contests) paid a $9,000 fine and was sentenced to two years’ probation, with special conditions. They included that he not photograph Snail Kites or guide others to do so during the probation period; refrain from using any photographs taken of Snail Kites on Lake Tohopekaliga during February and April of 2011; submit a formal apology to a birding magazine or similar periodical that covers ornithological photography; and perform 25 hours of community service.

If Neiger ever issued that apology, we can’t find it. But his day in court provides a rare window onto the ethical front lines of nature photography. In the age of Instagram, everyone’s a photographer—and photographers love birds (as do magazines, including this one!). But sometimes we love them too much. 

One foggy monday morning in late February, Ann Paul and Mark Rachal rendezvoused at the Williams Park boat ramp, near Tampa, Florida. Falling into their usual routine, they tossed bags and buckets of gear into a 20-foot Bay Rider emblazoned with a red Audubon insignia matching the arm patches on their shirts. They tightened their ball caps and zipped up their jackets, then set out into the Alafia River and past the Mosaic phosphate plant.  

The scene, with smokestacks and a mammoth conveyer belt looming over the water, isn’t exactly postcard material. But “the birds don’t give a crap about that,” Paul said. And there are birds in abundance here—more than 16 species, including Roseate Spoonbills, Reddish Egrets, White Ibis, and American Oystercatchers. Many of them nest and roost on what’s known as the Alafia Bank, a manmade string of dredge spoils, now covered with mangroves, that date to when the river channel was first widened in the 1930s to allow shipping traffic to pass to and from the fertilizer plant.

Dressed head to foot in khaki, with a toothy smile, sea-blown blond hair, and small gold hoop earrings, the 65-year-old Paul is a fervent conservationist (who happens to know that her Prius can zip along smoothly at 100 miles per hour). As an Audubon warden, she’s also the latest in a long line of biologists dating back to the early 1900s who have made it their mission to protect the birds of South Florida.

Back at the turn of the 19th century, the wardens were risking their lives—several were murdered—fending off plume hunters. The “crackers,” as the poachers were called, hauled heron pelts by the hundreds of thousands, used the birds for target practice, and raided White Ibis nests to steal their chicks, which they plucked and boiled to make a traditional “curlew purlew” stew served over rice at Fourth of July picnics. Today the threats are decidedly tamer—not some guy with a rifle but recreational boaters, sunbathers, fishermen, birders, and nature photographers. “It has a cumulative effect,” Paul said. “It’s not just one person out there; it can be an onslaught at times.”

As the Tampa Bay regional coordinator for Audubon Florida, she works closely with Rachal, the Coastal Islands Sanctuary manager, to oversee nearly 30 bird islands, including the Richard T. Paul Sanctuary, named for her late husband, a longtime conservationist with the organization. On their patrols, Paul and Rachal have seen it all, from nude sunbathers to a would-be groom who had a helicopter drop him and his sweetheart on one of the islands so he could pop the question. They spend most of their time surveying activities around the islands, posting No Trespassing signs, and managing the habitat. And sometimes, after all that effort, they get genuinely pissed off when people just go ahead and do whatever they damn well please.

On that misty monday, Rachal cranked the motor and whirred out from the mouth of the Alafia River into Hillsborough Bay, then rounded the corner at Sunken Island, a dredge spoil with a small beach and a raised sandbar where shorebirds scurry and egrets prowl for fish. He and Paul were expecting some visitors, and found them. “There they are,” said Rachal, nodding toward the island as he steered.

A pontoon boat ferrying passengers adorned in floppy hats and quick-dry pants was parked just off the beach. Each person was wading in the water, wrangling a big camera lens on a leggy tripod; most were positioned between the boat and the edge of the island, where spoonbills were “sky-gazing”: bobbing their heads up and down to attract a mate.

This is spoonbill heaven. Designated as an official Global Important Bird Area, Hillsborough Bay hosts more than 300 spoonbills courting, feeding, roosting, and raising their chicks. Which is why it’s also a haven for people hoping to take their picture—and willing to pay hundreds of dollars a day to do so with the pros. As one photographer who runs regular workshops on the Alafia Bank writes on his website: “Roseate Spoonbill is one of the most sought after avian photographic subjects in Florida. They are generally hard to find and somewhat difficult to approach. They are relatively easy to find at Alafia Banks—heck, you can’t miss seeing them. The huge incentive to get out to Alafia Banks is the chance to photograph this species at the height of its spectacular breeding plumage.”

“That’s the problem,” Paul said. “The animals are being disturbed when they’re courting. Then the tour groups come back later in the season when the young spoonbills are on the beach during what you would consider the teenage period. They’ve left the nest, but they’re not independent yet. The parents still have to feed them, so that’s also a sensitive time.”

Photographers who attend the tours often return again on their own and repeat the behaviors they’ve learned, Paul said. “They mostly stay off the islands, which is a blessing—the effect of that could be catastrophic.” When the parents get flushed from the nests, it exposes the chicks to predators—Fish Crows, Great Blue Herons, Black-crowned Night-Herons. If chicks fall to the ground, the vultures get them. Once the young birds are flying, they run into other hazards—eagles, power lines, raccoons, cats. “The list of what can kill these birds is very long,” Paul said. “But if they can get past that first year, they can live at least up to 15 years.”

Paul and Rachal cruised by the photographers, noting their distance from the shoreline—probably about 50 feet, they estimated, closer than they would like to see but “not egregious.” The biologists prefer that people stay back 100 feet, at a minimum. “And that may not be far enough,” Paul said. “If the birds respond to people’s behavior, then it’s too close.”

Paul and Rachal are not the police. Unlike the wardens in the early days, they have no authority to arrest anyone. They can only call the Hillsborough County sheriff and report trespassers on the islands—owned by Mosaic and the Port of Tampa and managed by Audubon—and warn recreationists if they’re in danger of bothering the birds, all of which are protected under the Migratory Bird Treaty Act. “We appeal to the better nature of people,” Paul said. “We know people are here because they love it. We ask them to protect the resource and the ecosystem so it will be here in the future when they come back.”

Their task is made more challenging by the fact that it’s tough to prove that such human intrusions kill birds. “Fish and Wildlife officers want us to produce a scientific study that shows the negative impact recreational boaters and photographers have on these different species,” Rachal said. “It’s just not in the literature—it’s a lot of anecdotal evidence from managers and biologists that see it every day, see the changes over years. But there’s no studies isolating those effects on birds.”

One body of anecdotal evidence concerns the Reddish Egrets on Alafia Bank. “They like to nest specifically where the photographers like to camp out every year,” Rachal said. “We think that constant pressure is causing a reduction in their numbers.” A few years ago there were 40 pairs—one of the highest concentrations in the state. “Now we’re at 15 to 20 pairs,” Paul said. “While it’s difficult to relate this decline to a single cause, we do know for certain that there was significant disturbance at Alafia Bank by nature photographers taking pictures of courting Reddish Egrets and Roseate Spoonbills.”

On their first pass by the photographers, the biologists decided to leave them alone. But later in the day, on their second pass, it was a different story. They estimated that one member of the group was within 10 feet of the mangroves, and others were creeping to well within 20; the spoonbills that remained had shifted toward the opposite end of the beach. “They’re too close. We’ll have to go talk with them,” Paul said. “We hate talking to them. It’s never pleasant.” 

Rachal, a 36-year-old biologist born and raised in Chicago, pulled the boat up near the photographers’ pontoon, and Paul took her position near the bow. “Hi,” she said to the photographers, who mostly kept their backs turned. “We ask that you stay back from the beach. Earlier we didn’t say anything because you were at a safe distance, but now you’re too close. We ask that you stay back so your presence doesn’t disturb the birds. We saw some spoonbills fly . . .”

One photographer cut her off: “Do you ever think they might fly off because that’s just what they do?”

“Yeah, that’s possible,” Paul said, raising her voice a notch. “But these courting birds are sensitive to disturbance, and that’s why we ask you to keep your distance. You’re not breaking the law—we all know that. But we ask that you keep your distance because these birds are nesting. They need to be here." 

The tour leader thanked Paul, and called his clients back to the boat. Shouldering their tripods, they returned single file.

“This is why we want a buffer,” Paul said after leaving the group. Audubon Florida is working with the state Fish and Wildlife Conservation Commission to get a Critical Wildlife Area designation for Alafia Bank. That would mean the sheriff could arrest anyone who came within a stipulated distance of the bird sanctuary. Paul is lobbying for that 100-foot line and working with the landowners to advance an application to the Fish and Wildlife Commission. Within that process there will be a public comment period. “We expect some opposition from the photographers,” Paul said. “But with the equipment they have, why do they have to get so close?”

The ethics of nature photography is an extremely touchy subject, with passions running high on all sides of the debate. Some photographers challenge the recommendations made by biologists and land managers, saying they’re too strict and seriously biased against anyone carrying a tripod. According to Arthur Morris, who has been making award-winning pictures at wildlife refuges and sanctuaries for more than 30 years, “If you have a big lens, you’re a criminal—period.”

Morris is a 68-year-old retired schoolteacher who wears his gray hair in a ponytail and signs his emails with “love” and smiley faces. He isn’t shy about sharing his opinions and tales about run-ins with refuge staff and even the police. And he’s adamant that he and most other photographers are ethically in the clear. “Hey, listen, do I ever scare a bird by getting too close? Yeah, once in a while,” Morris said. “So does everybody who walks to the beach and goes outdoors and opens the door of their house or their cabin. I try to do my best and not do anything that will have a negative impact on the birds, especially nesting birds.”

Like many full-time photographers, Morris guides tours because he says it has become very difficult to get by simply selling photos. He leads roughly a dozen photo safaris a year, with price tags varying from $400 per person for a one-day workshop to about $3,500 for a four-day tour, not including lodging. International trips are significantly more expensive. Most of his customers are intermediate to advanced photographers, often toting up to $20,000 worth of gear, he said.

Each year Morris takes clients to the Alafia Bank, largely because it’s such a great place to see spoonbills. “They can on some days be somewhat difficult to approach,” he wrote on his website, promoting a recent tour. “On some days we may be able to get ridiculously close to them.”

Not surprisingly, Morris and the Audubon Florida biologists are at odds about what constitutes “ridiculously” close. “We only photograph from the water,” Morris said. “We’re not allowed on the island—never been on the island. But it’s sort of difficult in the struggle to get good pictures and stay on the right side of the law, and stay on the side of what’s morally right.” He gets annoyed about being constantly reminded to keep his distance. “You get your chops broken nine times out of ten. Even if you’re 50 yards off, they tell us we’re 50 feet away—‘You’re not breaking the law, but that’s what we prefer.’ We prefer you don’t bother us all the time.”

His feeling is that research biologists do way more harm to the birds than wildlife photographers do. “To survey the nest, they send a party of three to four people. They walk on the island, use mirrors to check the nests, band the chicks, and use ladders. We’re 50 feet away—and you guys are walking on the island.”

Ann Paul countered: “We had a spoonbill banding project [from 2003 to 2005] trying to gather some information about the biology of the birds. We found out that after nesting, these birds travel widely, to Georgia, North Carolina, and beyond.” Another finding: The birds start to nest at age four. “Previously, it wasn’t known when they reached sexual maturity. We’ve learned all this scientific data because of the banding project. Did we disturb the birds? You bet. But the work was carefully planned to balance the need for additional information with the short-term impacts of being in the colony for a few days each spring.”

Morris doesn’t waver. “I understand that there has been some good done by researchers,” he said. “But I stand by the fact that there is more disturbance done by the researchers in a single day than by all the bird photographers in a single year.”

After being interviewed for this article, Morris expressed interest in working with the Audubon Florida biologists to help protect the birds, and he offered to provide them with free pictures for educational purposes. In response, the biologists emphasized that they collaborate with photographers who are sensitive to wildlife and habitat, and that they’re making an effort not to use photographs that were made while disrupting the birds. When Paul was asked if she would work with Morris going forward, she said that he’d been argumentative about following guidelines in the past, and she expressed concern about whether he would listen now: “How many times does someone have to misbehave before you don’t give them another chance?”

Nature publications, including Audubon, wrestle with how to tell whether a photograph was taken ethically. “When something’s too perfect, that’s when I have to question it,” Audubon creative director Kevin Fisher said, offering an owl-in-flight example from this year’s Audubon photo contest. “Something seemed off. But a lot of times we just don’t know. We have to trust our contributors. And we are going to make mistakes.”

Unfortunately, there’s no eco-seal like “USDA Organic” or “GMO-free” for pictures, photography director Sabine Meyer said. “It would make my job a lot easier!” She tries to work with responsible photographers and stock agencies, and relies on bird experts, mainly Audubon’s field editor, Kenn Kaufman, to vet photos. “He’ll say if he sees something suspicious, like when a bird looks stressed.” Meyer also acknowledged that magazines play a significant role in what tempts people to push the limits. “We are the ones who have such high standards and demand more and more unique photography.”

Bill Thompson III, the editor and co-publisher of Bird Watcher’s Digest, won’t publish anything that seems questionable. “No shot is worth damaging a bird,” he said. But he’s also sympathetic: “A lot of people just don’t know they’re doing something wrong. Because anybody can plunk down $8,000 and get a top-of-the-line camera and a good enough lens and start out the door. There is a huge thrill when you get a really nice shot. It’s addictive, that’s for sure.”

And there’s no shortage of addicts. Last year when a pair of Great Horned Owls nested near a popular picnic area at Florida’s Fort De Soto Park, another wildlife photography hotspot, the Twittersphere exploded. “As soon as that first tripod hit, the news went out on Brdbrain [a popular listserv],” park supervisor Jim Wilson said. “We had 40 to 50 photographers standing 10 deep behind a barricade at the nest. It was absolutely nuts. People were coming in by the busload.”

Wilson has mixed feelings about listservs and social media. On one hand, they’re a miraculous tool for getting the word out about conservation efforts and campaigns, and for birders and photographers to find out when a rare species is spotted. Unfortunately, he said, that can also cause a stampede. But Wilson’s major gripe is when birders and photographers employ birdcalls—another controversial practice—to, say, catch an owl’s attention for a “cameo shot” or to flush some warblers into a place where they’re more visible. Like many other biologists, he worries that the use of calls dupes birds into expending valuable energy while needlessly defending their territories. “To me it’s just unnecessary. If you don’t have enough time to do it right, then maybe you should find another hobby,” he said. “Birds are pretty predictable. If you get quiet and wait, they’ll generally come to you.” He emphasized that the majority of people follow the rules. “Ninety-nine percent of photographers are well behaved; we just don’t want that one percent to ruin it for the rest of them.”

Sadly, that does happen. Last year in Minnesota, a huge influx of Snowy Owls, Northern Hawk Owls, and Great Gray Owls descended from Canada and the Arctic, and a few photographers started using bait to draw the birds in. The shooters worked in pairs, with one person using a fishing rod to cast a lab mouse or a faux rodent made of felt over the snow near an owl, and the other getting in position to take the photo. “These people were going out and spending the entire day with an owl, continually trying to get flight shots, for hours and hours on end,” said Carrol Henderson, a biologist who has been with the Minnesota Department of Natural Resources for 42 years. “In many cases, the owl wasn’t even allowed to capture or eat the prey.” What’s more, this was all happening next to roadways, putting the birds at risk of being hit by cars.

The situation quickly escalated. “The photographers started moving out in front of everybody else, really degrading the viewing experience of everybody who was attempting to watch the same owl,” Henderson said. “If people approached and questioned their ethics, they were actually threatened with violence.”

Soon it wasn’t only photographers trying to use bait. “There was a person who put a mouse and a GoPro on top of his cap and tried to get the owl to fly right at his face,” Henderson said. “You could lose your eyeballs! But it just shows the extent to which some people will go.”

The Minnesota legislature is now considering a bill to prohibit the luring of owls, excluding anyone with a permit or other authorization from the U.S. Fish and Wildlife Service. It wouldn’t be the first state to come down on wildlife photographers who use bait. Four years ago in Montana, a 35-year-old man was sentenced to 10 days in jail and fined $1,035 after he illegally fed bighorn sheep to get a picture of them with Lone Peak in the background. Because the photographer lured the sheep to an area near a busy highway, one biologist speculated that his actions might have caused the deaths of the three bighorn sheep that were killed in car collisions at the site.

Even outside the United States, nature photographers can wind up facing legal action, especially where nesting birds are concerned. In Scotland in 2011, two photographers were charged and fined for disturbing a pair of nesting White-tailed Eagles—a species reintroduced after being extirpated from Scotland in the early 20th century—because they placed a blind near the nest, causing the birds to fly and cry in alarm.

While such court cases are fairly uncommon, almost anyone can relate to that yearning to get just a little closer for a great photograph. Connie Toops, a founding member of the North American Nature Photography Association, knows the feeling, but as a professional freelance photographer and former nature interpreter with the National Park Service, she had some advice. “Never push it,” she said—just back away so you don’t alter the animal’s behavior. “My question has always been, what do you do as a photographer if nobody else is watching? You really are the person who determines your own ethics.”

Just Say Know

Audubon guidelines help photographers enjoy wildlife responsibly while also being mindful of animals’ safety. The North American Nature Photography Association’s Ethical Field Practices guide offers additional practical tips here—nanpa.org/docs/NANPA-Ethical-Practices.pdf.