Environment workshop in Sofia, Finnish cases

DEROGATION FROM THE PROTECTION OF BIRDS

Application of the Birds Directive 79/409/EEC

Introduction

The following is a presentation of two separate cases decided by the Administrative Court of Turku. Both cases concern derogation from the provisions of the Birds Directive for killing birds that are protected under the Directive. The court’s decision was not further appealed against in either of the cases, so the decisions are final. The facts and arguments have been delimited to some extent for instructional purposes.

Finnish legislation and the Birds Directive
Council Directive 79/409/EEC on the conservation of wild birds (the Birds Directive) has been transposed into Finnish law by the Nature Conservation Act. According to the Nature Conservation Act, deliberate killing and capture of specimens belonging to a protected species is prohibited. Concerning derogation from the protection of birds referred to in Article 1 of the Birds Directive, the Act refers directly to the Directive, stating that in special cases the Regional Environment Centre is authorized to permit derogations from the above mentioned prohibitions on grounds set forth in Article 9 of said Directive.

According to Article 9(1) of the Birds Directive, Member States may derogate from the protective prohibitions where there is no other satisfactory solution, for the following reasons:

• (a) - in the interests of public health and safety,
  - in the interests of air safety,
  - to prevent serious damage to crops, livestock, forests, fisheries and water,
  - for the protection of flora and fauna;
• (b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;
• (c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

Article 9(2) further demands that derogations meet certain formal conditions. These, however, will not be discussed in the context of this presentation.

According to the Nature Conservation Act, the right to appeal decisions taken by a Regional Environment Centre belongs to those whose rights or interests are affected by the matter in question. With some exceptions, which are not relevant with respect to the decisions at hand, the right of appeal also belongs to any registered local or regional association whose purpose is to promote nature conservation or environmental protection.

Case 1: Great Cormorant (Phalacrocorax carbo)

The Great Cormorant is a large black seabird, which in recent years has become the subject of social controversy in Northern Europe, mainly due to an explosive population growth. Especially inhabitants of the coasts often view the large cormorant colonies as a threat, because they consume substantial quantities of fish and destroy nearby vegetation.

Appealed decision

In this case a professional fisherman, who uses tens of daily-examined fishing nets, had applied for permission to kill seven cormorants in the vicinity of his nets. As grounds for his application he stated that the birds from a nearby cormorant colony, numbering around 900 nesting couples, damage his fishing nets and eat the fish caught in them, and that the derogation would have a deterrent effect (cormorants would learn to fear and avoid the nets) which would prevent damage from occurring.

The Ministry of the Environment had given a statement in the matter. The Ministry noted that the Government had decided to permit restriction of the cormorant population in specific problem areas, and stated that in light of available data, the water area in question could not be considered such a problem area.

The Regional Environment Centre had denied permission to derogate, stating that this was not the sort of serious damage meant by the Birds Directive and that the presented solution (killing seven birds) would have no effect on the described problem.

The appeal

The fisherman appealed the Environment Centre’s decision, demanding that the decision be overturned and the derogation granted.

As grounds for the appeal, the appellant repeated prior arguments and cited research describing the type and quantity of fish generally consumed by the Great Cormorant, and argued his livelihood in fishing was jeopardized by the constant damage caused by the birds. He also stated that, in addition to preventing serious damage, the derogation would serve a research purpose in that the effects of the applied-for measures could be confirmed.

In its reply to the appeal, the Environment Centre contested the views of the appellant, citing other research data, according to which the Great Cormorant primarily consumes only species of fish with no commercial value.

Case 2: Grey Heron (Ardea cinerea)

The Grey Heron is a large wading bird also presently increasing in population in Finland. The Grey Heron’s primary food sources are fish and frogs, and it has been known to cause losses especially to fish farms.

Appealed decision
In this case a commercial fish farm in an inland lake had applied for permission to kill five herons stating that the birds cause extensive damage to the raised fish and shellfish and that attempts to protect the enclosures had been unsuccessful. The purpose of the derogation was again to produce a deterrent effect. The applicant had provided an estimate of the losses suffered in the previous year, which amounted to 31,051.16 euros. The number of herons found in the vicinity of the lake numbered around 50-100 individuals annually.

The Regional Environment Centre had granted the derogation, stating that the damage caused by herons is serious and that there are no other available solutions.

The appeals

The Environment Centre’s decision was appealed by two local environmental organizations and one private person residing in the vicinity of the farm.

The appellants claimed that the sought-after solution (killing five herons) would have no effect on the problem, since the heron population did not form a colony, and the birds present at one point in time were not necessarily the same ones present at a later date, which undermined the argument regarding deterrent effect. The appellants further claimed that there were indeed other satisfactory solutions (adequate protective constructions could be deployed and workers could be hired to scare herons away from the farm). The appellants noted that, considering the extent of the damage, an investment in high-grade protective constructions would quickly compensate for its cost.

The private person’s appeal was based on the hazards caused by the actual hunting of the herons. According to real estate data, the appellant’s property was located by the same lake as the fish farm, but had no boundary line in common with it.

The Environment Centre replied to the appeals that it did not consider the Birds Directive to require certainty in respect to the presented measures bringing about the desired result, but that this can instead be verified in following up the derogation. Further, the Centre stated that an inspection of the fish farm had shown that protection of the enclosures had already been attempted, to which end the enclosures had been extensively covered with fishing nets and strings. The Centre did not consider the possible long-term benefits from an investment in expensive protective constructions to be a relevant factor when assessing whether or not a solution is to be considered satisfactory.

Main legal questions

Do all the appellants have the right of appeal in the matters in question?

• Who has standing in this type of matter?
• Is derogation necessary to prevent serious damage to fisheries or are there other grounds for granting the derogation?
• Is the damage serious?
• Will the applied-for derogation prevent the damage?
• Is there a satisfactory solution other than derogation?
• Have potential solutions been sufficiently considered?
• Complementary considerations
• How should the presented evidence/accounts be assessed?
• Who, if anyone, has the burden of proof concerning contested facts?
• How should the presented scientific data be assessed?
• Scope of judicial review: What is the relevance of the Ministry’s opinion in Case 1?