A Keys Yacht Club Needed A New Roof — The Fix Disturbed A 'Colony' Of Protected Birds
One day last spring, a roofer arrived at the Florida Keys Wild Bird Rehabilitation Center with a bin containing chirping chicks and eggs, not such an unusual delivery for the center during nesting season.
People often mistake hatchlings learning to fly as orphans or find eggs in nests they’ve moved, said the center’s director, Jordan Budnik.
But this was extraordinary even by Keys standards: the bin held 27 state-threatened least tern chicks and 100 eggs taken from the roof of the Futura Yacht Club.
“I was stunned. There were so many that you couldn't really tell what was a baby and what was an egg. It was just this mass of just young birds,” Budnik said.
It was also, she said, “certainly the first time that an individual had ever brought us an entire colony’s worth of a threatened species of native bird.”
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Least terns are a noisy presence in the Keys and along Florida’s coast, fishing off the shores and returning to beaches to nest on sand. But increasingly, as beaches grow more crowded, terns have disappeared.
Since the 1960s, North America’s population has dropped by nearly 90%, according to the Cornell Lab of Ornithology, largely because the birds have lost their nesting grounds.
“It’s being lost to erosion and sea level rise, habitat conversion, as well as disturbance,” said Julie Wraithmell, executive director of Audubon Florida.
And then there’s people.
“If people inadvertently flush the parents from their chicks and eggs, they'll actually cook in the hot Florida sun,” she said. “Disturbance can be a real problem for a lot of these birds.”
The resourceful birds began nesting on gravel rooftops, where about 60% of Florida’s least terns now nest and rear their young, Wraithmell said. That means baby terns in the Keys are now more likely to turn up on the roofs of gas stations, strip malls or a yacht club then they are on a beach.
“They're kind of like islands in the sky,” she said. “They're like a flat beach, but elevated. It doesn't have disturbance. It's not getting flooded.”
Roofs have become such an important part of the tern’s survival that Florida wildlife managers keep a list of rooftops identified as nesting grounds and notify owners near nesting season. They provide signs, warning people to leave the birds alone and put out press releases.
“We'll go to these historical breeding sites or addresses of rooftops that have supported colonies in the past and we will either in person or send them a letter explaining this has been documented as a historical breeding site,” said Evan Laskowski, a captain with the Florida Fish and Wildlife Conservation Commission.
Getting the message out is not always easy, he said, and often wildlife officers find themselves with a choice: issue a warning and help educate the public, or file charges.
"These cases are very tricky to prosecute because most people don't intentionally harm, or want to harm, these species. It's usually a case of them not knowing the rules or laws,” he said. “So it's tough. A lot of these cases will go to trial and we will lose them in trial.”
When the roofer from the Futura Yacht Club dropped off the bin at the rehab center, Budnik said the chicks had a chance of surviving if they were returned quickly to their nests. So she called the roofing company owner and manager.
“We explained we are going to need to put them back immediately,” she said. “They said yes, please. Please we don't want to be breaking the law. Please return the babies.”
But on the way, Budnik said her manager got a call from the president of the club’s homeowner association.
“He was less than thrilled,” she said, and called repeatedly. “He was very defensive. claiming that he was fine for the state of Florida because he only saw that [terns] were endangered out in the Midwest, which they are. But these animals are protected by a slew of legislation.”
WLRN tried multiple times to reach the yacht club president, leaving messages at the club and calling and emailing the club’s attorney. No one responded.
Budnik worried about what her crew might encounter at the yacht club, so she called the Fish and Wildlife Conservation Commission, which sent a team to help. An agent who helped return the chicks and some eggs also met with the club president and roofing company and gave them a warning, thinking the chicks might survive, according to an incident report.
Then Wraithmell later saw a posting about the incident on the rehab center’s Facebook page, along with another separate incident in Miami. She contacted the Fish and Wildlife Commission’s top brass to ask what was being done.
“Our members are angry,” she wrote. “However, I’m even more concerned that other building owners and roofers may see them and think this is acceptable, resulting in little more than stern education from the agency.”
So fish and wildlife officers dug a little deeper. And an agency biologist found a potential smoking gun, according to a follow-up report later included in the court file. Futura was on the list of properties that got sent letters in 2019 warning that terns used the roof for nesting. The rehab center also sent a letter saying because the eggs were jostled and they could not not identify which nests they were taken from, it was unlikely any survived.
After consulting with his supervisors, and the Monroe County State Attorney’s Office, the agent charged the yacht club homeowners association with violating the Migratory Bird Act. Everybody agreed the roofers were trying to do the right thing but the homeowners association should have known better.
“There’s no way you could get on a rooftop and not realize what you stumbled into,” Wraithmell said. “These birds, their defense mechanism is to fly around and to bomb you. I mean, they will regurgitate. They will defecate. It is not a pleasant experience.”
But when it came to prosecuting the violation, a second-degree misdemeanor in Florida punishable by 60 days in jail, six months probation or a $500 fine, things sort of fell apart.
“There just isn't a mechanism in this misdemeanor world, at least the one I'm in in this office, to prosecute corporations for a second degree misdemeanor,” said Assistant State Attorney Jorge Jaile. “My options are incredibly limited because I cannot take a corporation's liberty away.”
The case would have ended differently, he said, if it had involved lobsters or other wildlife the state protects with more stringent laws. In lobster cases, Jaile said he can stack charges and file a charge for every violation.
“The Legislature has spoken and said that lobsters can be charged separately,” he said. “Let's say there are 40 undersized lobsters. You can multiply that times five hundred dollars. If I could impose a fine of that size, then I have a lot more of a bargaining chip against a corporation than a $500 fine.”
The laws need to change, he said.
“The Legislature really is the one involved in the punishment,” he said. “They can charge the corporation and again, levy huge fines, which I think would be a great way to incentivize condos and other big buildings from messing with eggs on the roof. And then you have a much lower burden of proof. All of this is something that needs to happen at the Legislature.”
Wraithmell opposed the deal and told Jaile that Audubon wanted nothing to do with it.
But in March, she got a $1,000 check from the Futura Yacht Club and a letter from the prosecutor.
“This was the best our office could do,” he wrote.
“It's blood money,” she said. “It should be several times that magnitude for the harm that was done. A thousand dollars, quite frankly, would simply be the cost of doing business for somebody who wants to reroof their condo.“
She refused to cash the check and instead turned it over to a nonprofit that supports the Fish and Wildlife Commission.
Unless disturbing the hundreds of protected birds that inhabit the Keys carries stiffer penalty, Budnik said she doesn’t expect much to change.
“That's the crux of the issue. If people and companies see [harming protected birds] as a cost of doing business, that they can pay a thousand dollars to disrupt a threatened population and then go about their day and still get what they want?“ she said. “We need to fix that. We as a community, as law enforcement, as anybody down here, we need to fix that.”