The Environmental Journal of Southern Appalachia
Tuesday, 14 February 2023 15:47

‘Egregious’ abuse of power: Judge slams TWRA falcon seizure and owner’s prosecution

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Falcon 7 2048x1492Lamar bestows a kiss on one of her raptors. John Partipilo via Tennessee Lookout

Judge rules that Tennessee Wildlife Resources Agency grossly overstepped its bounds following citizen complaint

This story was originally published by Tennessee Lookout.

NASHVILLE — Holly Lamar, a master falconer and owner of a Nashville “bird experience” business, has a story to tell about each one of her 13 captive-bred birds of prey.

The story behind Faith, a 7-year-old peregrine falcon, is tied to a particularly rough patch for Lamar, who experienced success as a Grammy-nominated songwriter, then lost nearly everything. The 20-day-old chick arrived just after Lamar fell victim to a financial scam that wiped out earnings from her music career.

She picked the name “Faith” to symbolize the feelings of trust she was trying to regain in her life — and as a nod to Faith Hill, the country singer who recorded “Breathe,” a 1999 megahit co-written by Lamar. 

Faith, the falcon, is now dead — one of 13 falcons seized by officers with the Tennessee Wildlife Resources Agency in a sweeping August search of Lamar’s home and property that a Nashville judge later characterized as “egregious,” an “abuse of the law” and a violation of Lamar’s constitutional rights.

TWRA obtained the search warrant just days after Lamar filed a complaint against an agency employee in charge of enforcing raptor regulations. The employee, Lamar told the Lookout, had given her conflicting information about state raptor permit rules, and failed to respond entirely to other questions, for months.

He was intimidating, she said. He told Lamar he was a former homicide detective and domestic violence investigator experienced in complex investigations —and now he was investigating Lamar.

The TWRA employee, Captain Rusty Boles, has not previously served as a homicide detective or domestic violence officer, a Lookout review of state police certification records and inquiries to his former employers found.

Lamar would not learn of the 30 misdemeanor charges against her for three months — after her birds, cell phone, computer, photography equipment, office files, compact disks and other possessions were taken from her suburban home in the Davidson County’s White’s Creek neighborhood, effectively shutting down her bird education business.

It wasn’t until January — five months after Lamar’s birds and possessions had been taken from her —that Davidson County General Sessions Judge Lynda Jones ordered their immediate return, dismissing the warrants and issuing a blistering commentary from the bench:

“I feel that the defendant’s Constitutional rights have been violated in (an) egregious manner,” Jones said during the Jan. 6 hearing, according to a transcript of the proceedings.

“For the state to come in in August after a complaint has been rendered about an employee and ask for a search warrant is an overreach of the government,” Jones said. “Going in and taking someone’s property that’s not justified and then holding it for two months and bringing criminal charges later is an abuse of the law.”

“The state is further concerned about potential for malicious prosecution,” the judge said.

Lamar’s confiscated birds — among them, a Harris hawk, Aplomado falcon, hybrid Barbary falcon, American kestrel, Eurasian eagle owl, Augur buzzard, two Saker falcons and a barn owl — have since been returned, but of her two peregrine falcons, only Levi survived his five months in a TWRA-contracted facility under conditions that Lamar called wholly unsuitable. At times Faith was kept in a dog crate, covered with a blanket. Lamar keeps birds in large outdoor sheds, with sunlight and room to fly.

Lamar said she is heartbroken at the loss of Faith, who died over the Christmas holidays. She is also struggling financially in the aftermath of bird education business losses she incurred, while spending tens of thousands of dollars in her legal defense.  

“This could have been stopped multiple times before my bird died,” Lamar said last week. “I kept her alive for seven years across three continents. TWRA couldn’t keep her alive for four months.”

Ben Raybin, Lamar’s attorney, said TWRA’s seizure of Lamar’s birds and the criminal charges brought against her “never should have happened.” The search warrants had nothing to do with the wellbeing of the birds in Lamar’s care, instead alleging “mere regulatory violations,” he said.

“The entire ordeal was an injustice to Holly and her birds that exposes significant problems within the TWRA and its regulations considering the judge’s finding that her constitutional rights were violated and the TWRA’s statement that approval occurred at high levels,” Raybin said in a statement. 

Last month, the Davidson County District Attorney’s office withdrew all charges against Lamar. 

“After evaluating the judge’s ruling, a decision by the office was made not to continue the case,” said Ken Whitehouse, a spokesperson for the District Attorney.

Boles, the TWRA officer, was unavailable for an interview last week, an agency spokesperson said. TWRA officials “followed proper protocol” in Lamar’s case, Emily Buck, the spokesperson said. That included getting initial approval to seek warrants by a district Captain and a regional major, before obtaining the District Attorney approval, she said. 

“TWRA is committed to continuously evolving policy and regulations to improve law enforcement procedure and the conservation of birds of prey and other wildlife species,” Buck said. 

“We make every effort to educate the public about proper care and handling, but the Agency is tasked with pursuing enforcement when violations persist after education efforts fail.”

The case is the latest in a series of recent controversies over how the state wildlife agency chooses to exercise its power over Tennessee residents.

‘Unprecedented’ in the modern history of U.S. falconry

In late 2021, TWRA was the subject of rare bipartisan pushback from Tennessee lawmakers over its plans to raze thousands of acres of public forests in the Bridgestone Firestone Centennial Wilderness Area, without notice or input from local residents or elected officials.

In March 2022, a three-judge panel in Benton County concluded that TWRA officers’ long standing practice of conducting warrantless searches and electronic surveillance on private property gave rise to an “intolerable risk of abusive searches” and was  “unconstitutional, unlawful and unenforceable” The agency, represented by the Tennessee Attorney General, is appealing that decision to the Tennessee Court of Appeals.  

Last May, a shakeup inside the agency led to the abrupt terminations of key leadership staff, including its then deputy director and two top lawyers. By then, the agency’s executive director had also announced his retirement.

It was in the midst of agency turmoil — February 2022 — that Lamar first encountered Boles, a TWRA wildlife officer since 2001 who had only recently taken on responsibilities for raptor regulation after a longtime colleague retired.

Falconry is the practice of using trained raptors — among them eagles, hawks, falcons and owls — for hunting wild game. Specifically, Tennessee law defines it as “the sport of taking quarry by means of a trained raptor.”

The birds can be legally owned for other purposes, too, including education, breeding and abatement — the use of raptors to deter human-wildlife conflicts, such as seagulls disrupting airport operations.

How the raptors are used, for sport, breeding or abatement, and whether they are exotic or native, wild-caught or captive-bred are subject to an array of state and federal regulations that Lamar was seeking to navigate.

Jones, the judge, characterized the laws as “very ambiguous, vague, a lot of puzzle pieces that don’t properly fit together.”

A state permit limits the number of raptors for use in falconry to five. The permit application alludes to the state’s definition of falconry, asking — for example: “how many years of active falconry (hunting quarry)” the applicant has.  Additionally TWRA regulates only wildlife that is native to Tennessee.

But Lamar said she wasn’t using all her raptors for hunting, and just four of Lamar’s birds are native to Tennessee.  

Falconry is the practice of using trained raptors for hunting wild game, but the birds can also me legal owned for breeding, education and deterrence of human-wildlife contact.

Lamar has a master falconry permit from the state, along with federal permits allowing her to possess unlimited numbers of raptors for education, breeding and abatement. She was seeking information from Boles about any additional state permits she required. 

Lamar uses birds for breeding, education and she hoped to get state approval for abatement: one of the jobs she has had to forgo was to control an enormous influx of Blue Starlings at the Nashville Symphony. For months, Lamar said, she sought answers from Boles, the state’s chief enforcer of raptor permits, on what other types of state permits she was required to obtain.  

Boles’ either failed to provide answers and, when he did respond to Lamar, gave responses that were “ widely divergent from that of his predecessor and decades of previous TWRA interpretation,” according to a motion filed by Lamar’s attorney.

Boles took the position that anyone with a falconry permit was limited to five raptors, regardless of whether they were also in possession of birds for other purposes. It was a position not taken by any other state wildlife agency, according to two national raptor organizations that intervened in support of Lamar in the criminal case against her. 

Laura Hazelett, president of the American Falconry Association, said she unsuccessfully sought to share that information with Boles before Lamar’s birds were seized. TWRA’s enforcement action, Hazelett said in an interview, has unsettled the greater U.S. falconry community, a group that consists of 4,000-6,000 people who practice the ancient art of using raptors to hunt quarry, raise birds of prey for education and breed them.

A friend-of-the-court brief  submitted by the North American Falconer’s Association said state permits limiting the number of birds used for falconry are not intended to apply to raptors used for other purposes.

The 2,000-member organization, which helped craft federal falconry regulations, called the TWRA’s efforts to prosecute Lamar  “unprecedented” in the modern history of U.S. falconry — and a “misapplication of the law.”

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