I suspect we'd need to read a few court rulings on how the MBTA is
implemented before we should start worrying about the legality of how we
variously "pursue" birds in the field (migratory or otherwise).

A few comments and observations I wanted to mention (or reiterate)
regarding flushing Black Rails.

*1. *I hope it's clear by now that we should all *know the ABA Code of
Ethics* (http://www.aba.org/about/ethics.html). Read it periodically, and
actively try and put those words into practice.

To clarify what the take-home message should be from that Code of Ethics, I
quote a recent hollywood pirate's take on a similar Code: "the code is more
what you'd call "guidelines" than actual rules." ;-)

*2.* That said, we should ask ourselves whether individual actions contrary
to that code of ethics should be treated as *"Punishable Crimes" or
"Teachable Moments."*  Should we treat "violations" as an offense that
demands some sort of punishment? Or should we instead consider the
situation as an opportunity to educate? (I favor the latter approach). Yes,
it's incredibly tempting to take a pound of flesh from those who've
committed crimes against birds or birding -- I've been there -- but
typically *those punative actions really aren't good for birders or for
land owners or (importantly) for birds. *

In other words, when people screw up, cut them some slack and make sure
everyone learns from the experience so it doesn't happen again. There's
rarely any need to take it beyond that.

*3. Protecting birds is complicated. *The biggest problem threatening the
vast majority of bird populations is habitat loss. Flushing a Black Rail in
a mostly-cut (and presumably a soon to be completely cut) hay field should
be *far *more forgivable than knowingly marching them off their nest and
risking nest failure (which is the situation most laws and codes of ethics
are more concerned with), and even that heinous act is arguably far more
forgivable than completely destroying said wetlands all together. I'm sure
that somewhere in Ohio there are some nice grasslands or wetlands that are
about to get obliterated, and it's too bad we're hung up on flushing one
bird instead of protecting that entire community of organisms.

It is entirely appropriate to condemn flushing the bird and to condemn
harassing it with recordings in order to get a look at it, but this is one
of those situations where a lot of birders behaving badly probably had a
*RELATIVELY* minor impact.

One could even take it a step further, and (optimistically) say that the
stress we collectively put on that bird might even be "worth it" if a
handful of the HUNDREDS of people who visited the bird came away from that
experience more inclined to fight for preserving local habitat, if they
read the ABA Code of Ethics for the first time, or if they learned that
there are some really awesome little birds that pass through our Ohio
wetlands, etc. Especially if there was no long-term negative impact on what
very well might just be a passing migrant.

*4.* Lastly, I wanted to throw out the idea that perhaps we didn't engage
enough with the rail(s) -- could it have had a nest there?  I would have
loved to see someone carefully inspect every square inch of that patch of
greenery to try and confirm whether or not that bird was attempting to nest
in the area. Unlikely, yes, but not impossible. Below is some text gleaned
from the Breeding page for Black Rail taken from the Birds of North America
Online (http://bna.birds.cornell.edu/bna/species/123/articles/breeding).
 Black Rails in our region could be on their breeding grounds this time of
year, if they found a mate and suitable habitat.

Good birding,
-Paul Hurtado

---

Breeding

Phenology
Pair Formation

Little information. If calling individuals indicate approximate dates of
pair formation, then pairing may occur Apr–Aug in Eastern Black Rail (Davidson
1992
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib016>,
MLL), late Feb–Jul in California Black Rail (Flores 1991
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib035>
).
First Brood Per Season

Peak of laying for Eastern Black Rail as indicated by dates of nests with
complete clutches is 20 Jun ± 16 d (SD), *n* = 57, range 9 May–15 Aug
(Western Foundation of Vertebrate Zoology [WFVZ] nest records, Clarke 1884
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib011>
, Bent 1926
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib006>
,Kerlinger and Sutton 1989
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib052>,
MLL; also see Fig. 5
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/galleries/figures/figure-5>).
Sample sizes too small to determine if there is geographic variation in
clutch size. Most nests (39/57) found in Jun. Initiation dates of 8 nests
in Florida ranged from 30 Apr to 5 Jul (MLL). Little evidence of geographic
variation, possibly because these dates include second nests.

California Black Rail laying peaks 1 May ± 24 d, *n* = 100, range 10 Mar–6
Jul (WFVZ nest records, J. G. Evens pers. comm.). Five nests in Arizona
were found between 19 Apr and 23 Jul, but this may include second nests (Flores
and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>);
most Arizona nests in Apr (39/100) and May (41/100). Hatching dates poorly
known because most nest records from collected clutches. Range between 5
May and 23 Jul in Arizona (*n* = 5), between 19 May and 25 Jul in Florida (
*n* = 6) (Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>,
MLL). Duration of parental care unknown.
Second Brood Per Season

Circumstantial evidence (female with egg in oviduct 18 d after her clutch
hatched, radio-telemetered male incubating in Apr and again in Jul, and
August nest dates) suggests Black Rail lays replacement clutches or second
nests (J. M. Juban *in* Conn 1989
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib013>
, Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>
).
Nest Site
...Microhabitat

Low, marshy meadows, dense freshwater marshes, and thick marsh vegetation
near upper limits of high tides (Stephens 1909
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib083>
, Harlow 1913
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib043>,
WRE). Sites vegetated by a mixture of old, dead vegetation and newly grown
vegetation. Nest placed over moist soil or very shallow water, often in
areas of higher elevation than surrounding habitat. Five nests in Arizona
had water 1.2 ± 1.2 cm deep, range 0–3 cm (Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>).
Substrate at nests at interior freshwater marshes topographically diverse,
with small pools interspersed with mud or moist soil. Sites not concealed
by tall vegetation are covered by fallen layers of vegetation from previous
years’ growth. Most nests placed in clump-forming plants such as
needlerush, cattails, saltgrass, bulrushes, and cordgrass. In San Francisco
Bay salt marsh, several nests found in pickleweed (J. G. Evens pers. comm.).
Site Characteristics

Nests placed in center of clumps of vegetation, at or near upper limits of
marsh vegetation, well concealed. Height of nest above substrate usually
low, but ranging from 0 to 45.7 cm (Ingersoll 1909
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib050>
, McMullen 1944
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib059>
, Harty 1964
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib044>).
Five Arizona nests averaged 6.4 ± 3.4 cm (range 2–11 cm) above
substrate (Flores
and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>
).

...
Incubation
...Incubation Period

In Arizona, 17–20 d (*n* = 5; Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>).
In Florida, 19–20 d (*n* = 3; MLL).
Parental Behavior

Both sexes incubate. Individuals from 2 pairs in Arizona spent 47.2 ± 6.8%
(SD; male observed 3 d) and 43.0 ± 2.2% (female observed 4 d) of their
diurnal time incubating (Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>).
These birds also averaged 7.2 ± 1.9 and 8.0 ± 0.7 daily incubation shifts
averaging 48.6 ± 44.8 and 47.5 ± 43.4 min each. One female observed for 4 d
incubated nest alone and spent 47.0 + 4.4% of time incubating, with 1.8 ±
0.4 incubation shifts/d, averaging 256.3 ± 172.6 min. Adults turn eggs
periodically (J. M. Juban*in* Conn 1989
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib013>).
Some reports suggest Black Rails readily abandon clutches (Huey 1916
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib047>
,Heaton 1937a
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib045>),
but this may be true only in early incubation (Flores and Eddleman 1993
<http://bna.birds.cornell.edu/bna/species/123/articles/species/123/biblio/bib036>
).
...

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