Everything Happened and Nothing Happened
Did Berkeley Just Violate the Migratory Bird Treaty Act?
It’s Berkeley, everything happened and nothing happened.
If you are wondering why this YouTube photo from Martin Nicolaus is at the top of this Activist’s Diary is followed with these City of Berkeley standard conditions of approval for construction projects the answer is coming.
Land Use Planning Conditions of Approval
V. During Demolition/Construction b. Land Use Planning. Syr
Avoid Disturbance of Nesting Birds. Initial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the Project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the Migratory Bird Treaty Act and the California Fish & Game Code, [emphasis added] nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground-disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.
Wednesday evening, May 13, 2026, Martin Nicolaus stood before the Parks, Recreation and Waterfront Commission, the Director of Parks, Recreation and Waterfront Department Scott Ferris and the public to report during non-agenda comment that the Parks Department mowed the nesting area of Savanah Sparrows in the east meadow of Cesar Chavez Park. Nicolaus spoke to how the tall grasses from the spring rains were the perfect habitat for Savanah Sparrows who build their nests in the grasses. He told us the cries of the Savanah Sparrow could be heard as the city mower destroyed their nesting area during what is the peak mating and nesting season for the Savanah Sparrow.
5-6-2026 Photo by Martin Nicolaus mowing of east meadow Savanah Sparrow nesting habitat
Nicholas said in the seven years the Park Conservancy has been trying to get the attention of the City of Berkeley not to destroy the Savanah Sparrow habitat during mating and peak nesting season only once in 2019 has the City of Berkeley not sent out the mowers to demolish the Savanah Sparrow nesting habitat.
I kept looking for a response from Director Ferris, but he kept his head down and said nothing. The commissioners said nothing. The commission chair said nothing.
The rules for City public meetings prohibit commission action on items not listed in the published agenda, however, non-agenda items brought to the attention of the commission can be scheduled for review, reports and action at future meetings.
The commission could have and still can ask Director Ferris to come back with a report.
None of that happened, of course, because even at the Parks Commission nature takes a back seat to entertainment. This is especially true since Erin Diehm left the commission after serving for nearly nine years. Diehm was the strongest and by far the most consistent voice for nature and habitat on the Parks Commission.
There were lots of things I thought about as I scrambled to read more about Savanah Sparrows on my iPad to follow up on Nicolaus’s comments. I thought about the September 19, 2019 report in Science, “Decline of the North American avifauna” finding that 3 billion birds nearly 30% of all birds in North America had disappeared between 1970 and the date of the report. https://www.science.org/doi/10.1126/science.aaw1313
That report was everywhere in 2019.
I thought about the book I finished in the recent weeks that sits on the top of the New York Times nonfiction best sellers list, Chole Dalton’s Raising Hare: A Memoir. In one of the chapters Dalton describes her agony hearing the cries of the hares as they are being killed and injured in the tilling of a grassy field for planting and wondering if the hare she raised which had rejoined the wild was one.
What I thought about most as I pulled my comment together was the vision of screaming birds on their nests incubating eggs and tiny hatched baby birds as the City’s 12-foot mower chopped up hatchlings and nesting birds for no good reason other than someone decided to order the mowing in May the peak nesting season. There was no apparent thought to the fact that such an action might kill an entire new generation nesting in the park.
If whoever ordered the mowing had thought at all they would have known that such an order and such an act is illegal as Savanah Sparrows are protected under the Migratory Bird Treaty Act (MBTA) https://www.ecfr.gov/current/title-50/chapter-I/subchapter-B/part-10/subpart-B/section-10.13 . They would have known that the Bryant’s Savanah Sparrow found in the San Francisco Bay area in salt marshes and coastal wetlands is a Savanah Sparrow subspecies designated as a California Species of Special Concern. https://californiaspecies.com/animals/passerculus-sandwichensis-alaudinus
Since the Park Conservancy has for seven years been bringing attention to Parks Department of the habitat and nesting of the Savanah Sparrow, the mowing can only be described as intentional destruction and killing of a California Species of Special Concern. And even without the attempts of the Park Conservancy to protect the Savanah Sparrow it would be within the responsibility of the Parks Department to be fully aware of the MBTA and the requirement for protection of habitat during nesting.
It is a mystery how the Planning Department in the Conditions of Approval for construction can so clearly describe the responsibility and prohibition from removing vegetation during nesting season and the Parks Department which has responsibility for vegetation within City parks can so completely disregard nesting birds, especially grassland nesting birds which have suffered a 53% loss as reported in the journal Science.
When I joined Martin Nicolaus the following Sunday morning to survey the mowed area, he pointed to the low tide with and the absence of water birds who should be seen in mass foraging in the exposed mud. There were none. Two egrets showed up a little later and one brown pelican swooped in low over the water. As we walked we looked to the west where dog owners were letting their dogs run in the on-leash area.
Nicolaus shared that he had been coming to the Park since 2004, but it was 2014 while he was engaged in trying to get a permanent restroom at Cesar Chavez Park and after the family dog died that he opened his eyes to the nature at this incredible park that sits on top of what decades ago was the city dump.
As I share with others what I learned that evening and the days that followed and put that in the context of what I have observed of this city that some still revere as a beacon of progressive thought and action the three words from Minnijean Brown-Trickey that I used to close my May 15 Activist’s Diary on The Nakba keep coming to mind, “Profound Intentional Ignorance”.
The Parks Commission meeting moved on to the main discussion and agenda item of the evening, dog parks.
Diehm was present to speak up for nature, specifically asking that Aquatic Park be removed from the list of five park locations. Diehm informed the commission and public stating that more than 200 species of birds visit Aquatic Park and the south end, the location of the proposed dog park, is where overwintering water birds rest and feed. New intense usage of this area and the presence of dogs would disturb the birds, flushing and disrupting essential feeding and resting. Yet another example of “death by a thousand cuts”.
The Parks Commission Chair Abshez commented that since people are going to bring their dogs to Aquatic Park anyway, there should be a dog park.
Having designated fenced off-leash areas is no guarantee of responsible dog ownership. Anyone who cares to look can see bad behavior any day of the week. Nicolaus and I saw it on Sunday of dogs running unleashed in areas where dogs are to be under leash control.
The south end of Aquatic Park, the area selected by the dog park subcommittee is the most sensitive refuge area in Aquatic Park for birds.
In the final vote the commissioners removed the proposed dog park site in Aquatic park, not because they were concerned about the impact of dogs on resident birds and the migrating birds which winter at Aquatic Park, but because of the uncertainty of the railroad widening the track area and the removal of all trees and vegetation impinging on the train tracks on the eastern edge of Aquatic Park.
In response to the agenda item on renaming Cesar Chavez Park in light of the New York Times investigation of Cesar Chavez’s decades of sexual abuse of girls and women no new park name was selected.
As I bring this Activist’s Diary to a close, I believe whoever including up the chain of responsibility ordered the mowing of the east meadow nesting habitat of the Savanah Sparrow acted in direct violation of the Migratory Bird Treaty Act (MBTA) and may have violated other state and federal law.
And even if the mowing wasn’t illegal, in all the City hand wringing about how the Marina Enterprise Fund is losing money, what is the point of turning a grassy meadow into some kind of dead zone. Who does that?
The entire disregard of our impact on nature and nature in the urban setting has left me thinking about the gains and losses and City missteps chasing the next moneymaking scheme.
In 2022 the City of Berkeley paid the international landscape architecture consultant group Hargreaves Jones $1,200,000 to gentrify the Berkeley Marina through the Berkeley Marina Area Specific Plan (BMASP). Hargreaves Jones created such a public response uproar among park users that Martin Nicolaus put the collections of essays, flyers, letters and comments into a book published under the title of Love Letters to the Park: Public Response to the Berkeley Marina Area Specific Plan (BMASP).
My copy of Love Letters to the Park is somewhere in this messy house.
The BMASP was another scheme from the Berkeley City Council to turn Berkeley’s largest park into a money-making enterprise. If my memory is correct the Hargreaves Jones plan included an amphitheater right by the Savanah Sparrow nesting area if not right in the middle of it.
Not much else happened in the week ending May 16th.
The May 12 city council meeting lasted all of 52 minutes from 6:08 pm to 7 pm.
At the Thursday evening Zoning Adjustment Board (ZAB) meeting we learned that review by the ZAB and approval for a demolition permit is required if a single-family home is demolished to build another single-family home. No special hearing is required if the single-family home is demolished to be replaced by two or more dwelling units/houses.
I managed to fit in most of the forum for city council candidates for District 7 which is the district for UC Berkeley representation. You can make up your own mind, here are the recordings thanks to Margot Smith. Syrack Micael: 26 Minutes
Aiden Hill: 25 Minutes
and John Espinosa: 25 Minutes
To close with a happier note my neighbor and I are on monarch chrysalis watch.
Diehm in all her roles supporting nature saving trees in traffic circles, co-authoring the City approved native plant list, spearheading the creation native-plant gardens in parks, organizing the community and gathering letters from scientists to push the final step in the Bird Safe Building Ordinance on June 6, 2023, maintaining and coordinating volunteers for the Native Plant Habitat Gardens in city parks, the role that brings particular joy today is her (and husband Keith) native plant garden in their yard in the annual Native Plant Garden Tour.
Diehm convinced me and I convinced my neighbor to fill our yards with native plants. My neighbor has surrounded his house with narrow leaf milkweed that dies off each fall and returns in the spring. The caterpillars are everywhere chewing up the milkweed leaves, growing and fattening up for their remarkable metamorphosis into a monarch butterfly. The first monarch is about to break out of its chrysalis.
The green chrysalis with gold spots has turned brown with the monarch wing showing through.
As I finish the monarch butterfly has emerged.
Nature has a way of nurturing our spirit.