In the Chicago area, a famous piping plover couple, Monty and Rose, captured the public’s attention when, in 2019, they nested in a crowded area on Montrose Beach (which is why they were named Monty and Rose) and then went on to successfully breed there. This marked the first time in over 60 years that piping plovers had successfully fledged in Chicago and Cook County. Members of the public were astonished to observe this gentle and delicate bird species amid all of the human chaos near their chosen nesting location.
Monty and Rose bred in Chicago for a few years, hatching many chicks. The public also rallied to protect this pair of endangered species and their offspring, revealing the multiple reasons and ways that the public can and should protect local biodiversity. For example, the public worked together to raise awareness about these animals and also to monitor and safeguard the nests. The birds’ presence caused an entire community, city, and region to band together to ensure that piping plovers were known, protected, and afforded an opportunity to live their lives. Although Monty and Rose have since died—piping plovers usually live between five and 11 years—one of their offspring, Imani, still lives on the same beach, which we know about thanks to the people who monitor the beaches, report bird sightings, and work to keep them protected.
Monty and Rose also reveal something of the human inspiration and ingenuity to protect biodiversity. Piping plovers are often anthropomorphized, which basically means that humans assign human-like qualities or names to them. This naming mechanism enables the public—especially children—to know and respect them.
This technique—and the respect for animals it engenders—spread in the United States as a result of successful humane education efforts that emerged in the late 1800s. Humane education can be described as the field of teaching that fosters kindness and respect for all living beings, including animals. Early humane education efforts in the United States were practiced by animal welfare advocates working to prevent cruelty to animals by teaching children about kindness and compassion for all animal beings. According to some humane educators, the way that people treat animals is often indicative of how people treat other people. Nat’l Link Coal., The Link (2023).
This connection aligns with the global One Health approach, which recognizes the interconnection between people, animals, and the environment. Ctrs. for Disease Control & Prevention, One Health Basics (2023). One Health efforts support the health of the biodiversity of living organisms on the planet. Supported by the U.S. Centers for Disease Control and Prevention and the World Health Organization, successful One Health efforts have the power to prevent some zoonoses (diseases shared between people and animals, such as SARS-CoV-2) by encouraging people, the government, and entities to make decisions and maintain global health security with the understanding that such decisions may impact people, animals, and the environment. Given that biodiversity on the planet impacts human life, the well-being of humans depends upon the well-being of other species, including birds such as the piping plover. Thus, biodiversity and One Health efforts are correlated.
These different recognitions of connections between humans and wildlife are relevant to the piping plover because humans have a reciprocal relationship with the species. Humans protect this bird, and the species keeps humans updated about the health of the ecosystem. (This is known as an indicator species.) As an indicator species, the piping plover is useful to humans because the species maintains clean beaches by eating marine worms, crustaceans, and insects. Having clean beaches provides an added recreational and economic benefit to humans. As such, the piping plover’s role in the ecosystem is significant; without them, their prey could increase and their predators decrease, which would impact many other species. The populations of some inland species also support healthy agricultural production because the piping plover eats insects. In addition, the birds along the shore aerate the top layer of sand. This improves the richness of the shore. These birds play an important role in the health of the ecosystem.
Regardless of the usefulness of these birds to humans, however, the piping plover deserves protection for their own sake. This article takes a closer look at the piping plover and the legal protections that the bird currently receives.
What Is a Piping Plover?
Many people admire the piping plover (Charadrius melodus), a migratory shorebird with a high-pitched and melodic peep-lo call. Visually, however, these birds may be difficult to identify because of their small size and sandy-gray plumage. An adult may weigh only 54 grams (approximately 1.9 ounces) and a chick can weigh a mere six grams (approximately 0.21 ounce).
The appearance of the piping plover largely depends on whether the bird is an adult or young bird. Generally, the adult birds are sandy gray with white plumage on their underbellies. Breeding piping plovers often have an incomplete black band—like a beautiful Enso circle—below their collars. As the year progresses and summer turns to autumn, the black band turns gray. Likewise, their legs transition from bright orange to pale orange or yellow. Their orange and black bills become all black. Whereas juvenile birds may look similar to adults, the appearance of many of the fledglings can be compared to cotton balls.
The piping plover lives along bodies of water, mostly along coastlines. According to the U.S. Fish and Wildlife Service (FWS), there are three geographic populations of the piping plover. One population occurs on the shore of the Great Lakes during breeding and nesting months. Another occurs along rivers and lakes in the Northern Great Plains during breeding and nesting months. The third population is found along the Atlantic Coast during breeding and nesting months. When autumn migration occurs and the piping plovers leave their respective breeding and nesting locations, they fly south to the Atlantic coast, Gulf of Mexico, Central America, and the Caribbean. FWS, Piping Plover (2023).
One way to track the piping plover in your area—and review prior sightings—is to visit a worldwide and free website called eBird. Managed by the Cornell Lab of Ornithology, eBird (and its free mobile application) allows people to track their bird sightings while also contributing to a vast and dynamic collection of data and research. Another useful resource from the Cornell Lab of Ornithology is the Merlin mobile application. Merlin allows someone to identify birds from either a single photo or a sound, or by answering a few simple questions.
How Does the Law Protect the Piping Plover?
A variety of state and federal laws protect the piping plover. For example, in 1985 the piping plover was listed as an endangered and threatened species through a final rule issued under the federal Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., 50 Fed. Reg. 50,726 (Dec. 11, 1985). The ESA was signed into law on December 28, 1973, and it currently protects more than 1,600 animal and plant species in the United States.
The FWS has the authority to implement the ESA for terrestrial species, and the National Marine Fisheries Service has the authority to implement the ESA for most marine species. Decisions about a species listing must be made “solely on the basis of the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A); 50 C.F.R. § 424.11(b).
When listing a species, the appropriate Service must decide whether the species is “endangered” or “threatened” under the ESA. 16 U.S.C. § 1533; 50 C.F.R. § 17.11. An endangered species is “any species which is in danger of extinction throughout all or a significant portion of its range,” 16 U.S.C. § 1532(6), and a threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).
On December 11, 1985, using its authority to list a species under 16 U.S.C. § 1533(b)(1)(A), the FWS listed the Great Lakes piping plover populations as endangered and the Atlantic and Northern Great Plains populations as threatened. 50 Fed. Reg. 50726 (Dec. 11, 1985). The piping plover was originally listed because of demonstrated low numbers of the birds and continued threats to their habitats. The FWS acknowledged in its rulemaking that it had sufficient information to determine that there was a substantial decline of the piping plover and that the bird could be listed. Currently, the global population of the species is estimated at only 6,000 to 8,000 birds.
When a species is listed as endangered or threatened, the FWS may designate a critical habitat for the species. 16 U.S.C. §§ 1532(5), 1533(b)(2). A vital purpose for the designation of a critical habitat is to allocate areas for a species to recover to ultimately be removed from the endangered or threatened list. In 2001, the FWS established a critical habitat for the Great Lakes piping plover. 66 Fed. Reg. 22,938 (May 7, 2001). In 2002, the FWS established a critical habitat for the Northern Great Plains piping plovers. 67 Fed. Reg. 57,638 (Sept. 11, 2002). No critical habitat has been created for the bird’s Atlantic population.
The ESA is not the piping plover’s only federal law protection, however. The Migratory Bird Treaty Act is another significant federal law that applies to hundreds of species of birds in North America, including the piping plover. 85 Fed. Reg. 21282 (Apr. 16, 2020). Prior to its passage, many species of birds were hunted and their habitats were destroyed by human activity. In 1918, the effort to protect migratory birds in North America was realized when President Woodrow Wilson signed the Migratory Bird Treaty Act into law.
The Migratory Bird Treaty Act initially faced challenges to its constitutionality. However, in Missouri v. Holland, 252 U.S. 416 (1920), the U.S. Supreme Court upheld the Migratory Bird Treaty Act as constitutional under the U.S. Constitution’s Treaty Clause. In the decision, Justice Oliver Wendell Holmes wrote:
[b]ut for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is in vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.
Id. at 435.
As its name implies, the Migratory Bird Treaty Act protects migratory birds, and the FWS lists the protected bird species on its website. The piping plover is one of these protected migratory birds.
The Migratory Bird Treaty Act prohibits the killing of migratory birds without prior authorization from the FWS. More specifically, the law makes it “unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, [or] possess . . . any migratory bird, any part, nest, or egg of any such bird. . . .” 16 U.S.C. § 703(a). A violation of the Migratory Bird Treaty Act is a misdemeanor that is punishable by a fine of up to $15,000 and imprisonment for up to six months. Id. § 707(a). The law also states that any person who “knowingly . . . take[s] by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird” commits a felony punishable by a fine of up to $2,000.00 and imprisonment of up to two years. Id. § 707(b).
The Migratory Bird Treaty Act also authorizes the secretary of the interior to “determine when, to what extent, if at all, it is compatible with the terms of the conventions to allow the hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suitable regulations permitting and governing the same. . . .” Id. § 704(a). The secretary of the interior delegates this authority to the FWS.
Another federal law, the National Environmental Policy Act (NEPA), exists to (1) “prevent or eliminate damage to the environmental and biosphere,” (2) “stimulate the health and welfare” of all people, and (3) “encourage productive and enjoyable harmony” between humans and the environment. 42 U.S.C. § 4321. To achieve its goals, NEPA requires agencies to prepare a “detailed statement”—an environmental impact statement—for any “major Federal actions [that] significantly affect the quality of the human environment.” Id. § 4332(2)(C). To determine whether an environmental impact statement is required, the agency must conduct a “hard look” at the environmental concerns. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); 40 C.F.R. § 1501.3.
NEPA has been used to try to help the piping plover. For example, in May 2023, the Center for Biological Diversity, the American Bird Conservancy, and other organizations filed a lawsuit against the Federal Aviation Administration alleging a failure under NEPA to analyze and mitigate alleged environmental harms resulting from the SpaceX launch program in Boca Chica, Texas. Press Release, Ctr. for Biological Diversity, Lawsuit Aims to Protect Texas Wildlife Habitat, Beach Access from More Exploding Rockets (May 1, 2023). Because the SpaceX launch site is located near habitat for protected species, including the piping plover, the lawsuit alleges that a full environmental analysis is needed to address the impact of rocket explosions and fires that could destroy habitats.
Many states have laws to protect the piping plover, too. For example, several states have their own endangered species laws that apply to the species. For example, the Commonwealth of Massachusetts has its own endangered species act, Mass. Gen. Laws. ch. 131A §§ 1 et seq., and related regulation, 321 CMR 10.00 et seq., and lists the piping plover as threatened. Another state that protects the Atlantic piping plover is Rhode Island. Rhode Island supports the protection of its bird populations through its endangered species of animals and plants law. R.I. Gen. Laws §§ 20-37 et seq.
The ABA’s cat trap-neuter-vaccinate-return program is one example of the sort of practical change that can protect species like the piping plover.
State and local officials can also provide additional protections in support of the piping plover through other laws and ordinances and methods of enforcement including installing fencing and enclosures, closing shoreline access for humans, and working with federal and other partners to monitor piping plover breeding and wintering grounds. As such, there may be a number of jurisdiction-specific laws and policies that may be used to either directly or indirectly protect the piping plover.
Why Does the Piping Plover Need Human Support?
Despite humans’ fascination with piping plovers like Monty and Rose, direct and improper human interaction is bad for the species. When piping plovers are disturbed, they may leave the region—including abandoning their eggs or fledglings—which is disastrous to the survival of the species. Humans need to be further educated about ways to better harmonize our existence with the birds. For example, people could be better informed to (1) not touch the birds or their eggs, (2) take care and not accidentally step on or damage nesting areas, and (3) avoid direct contact with any bird or group of birds given the shyness and nervousness of the birds (including avoiding groups of birds). Also, when birds migrate each spring and fall, it can be helpful to dim lights in the evenings so that birds do not become disoriented.
Piping plovers are easily disturbed. As such, domestic animals such as free-roaming dogs and cats can contribute to their decline. The American Bar Association’s (ABA’s) cat trap-neuter-vaccinate-return program is one example of the sort of practical change that can protect species like the piping plover. In 2017, the ABA passed Resolution 102B, which was advanced by the Tort Trial & Insurance Practice Section (TIPS) and crafted by the TIPS Animal Law Committee to support trap-neuter-vaccinate-return programs.
On some beaches, bigger vehicles driving on the beach flatten the shoreline, making it easier for humans to ambulate. Other vehicles are used for fun and exploration. However, vehicles and electronics, such as drones, are scary to piping plovers. Laws could better limit these beach uses during the piping plover’s critical mating, nesting, and fledging times.
According to a 2019 study published in Science, humanity has lost more than 25% of birdlife since 1970. This figure includes rare and threatened birds as well as more common and widespread birds.
Another way to help piping plovers is to report banded birds. The FWS website contains information about how and where to report these birds. The bands help the FWS assess whether recovery efforts are working. The color, shape, and location of the bands or flags on a banded plover reveal where the bird originates or where the bird was banded. People who report their sightings of banded plovers may obtain a certificate acknowledging their contribution to the conservation and recovery of the species from the U.S. Geological Survey’s bird banding program.
Nevertheless, piping plover populations are still impacted by habitat loss, climate change, predation, agricultural development, neonicotinoids (a type of insecticide), disease, oil and gas wells (as a result of noise and possible spills), water level fluctuations, and nest disturbance. Report, FWS, Region 6, Draft Revised Recovery Plan for the Northern Great Plains Piping Plover (Mar. 16, 2016). In an effort to protect the populations, many legal developments that relate to the piping plover and other bird species have occurred; ongoing legal issues about agricultural development, pipelines, crops, and climate change impact both the piping plover and other species, including the aforementioned legal matter involving the rockets in Boca Chica, Texas.
Previously, the American Bird Conservancy sued the New York State Department of Parks in federal court under the ESA for allowing feral cat colonies at Jones Beach State Park, within close proximity to piping plovers. Am. Bird Conservancy v. Harvey, 232 F. Supp. 3D 292 (E.D.N.Y. 2017). The judge denied the state’s motion to dismiss and the matter was settled—the cats were removed and relocated.
The federal, state, and local laws, policies, and initiatives that support piping plovers and other birds are critical to the success of the populations. Along these lines, more support is needed for mechanisms to keep some areas of the coast inaccessible to humans. Earlier this year, on Endangered Species Day (May 19, 2023), the Biden-Harris administration announced a $62.5 million investment for endangered species recovery efforts. Monetary contributions have helped the piping plover population, especially in the Great Lakes region where it is endangered. In 2020, the U.S. Environmental Protection Agency (EPA) shared that it contributed approximately $2.7 million over the span of the five years in support of the Great Lakes Restoration Initiative. Press Release, EPA, EPA Highlights Recovery of Great Lakes Piping Plover (Aug. 13, 2020). Thanks to strong laws and enforcement, awareness, and support, the Great Lakes piping plovers are making a comeback (in 1990, there were only 12 pairs in the Great Lakes region). As the year 2023 marks the 50th anniversary of the ESA, this continued progress is worth celebrating.
What Future Does the Piping Plover Face?
According to a 2019 study published in Science, humanity has lost more than 25% of birdlife since 1970. Rosenberg et al., Decline of the North American Avifauna, 366 Science 120 (2019). This figure includes rare and threatened birds as well as more common and widespread birds.
With many bird populations in decline, no one knows what the future holds for the endangered and threatened piping plover. Their survival is a known unknown.
The piping plover’s fate, however, has more universal implications for biodiversity. Because the piping plover is an indicator species, the birds can reveal the condition of the larger ecosystem as a whole, including inland areas and coastal habitats. Their presence or absence demonstrates the health of habitats and may indicate whether further habitat protections are needed. The piping plover’s absence impacts larger and smaller species, which invariably affects human health.
The piping plover yearns to be protected and left alone. They are both delicate and resilient. Their gentleness urges humans—especially lawyers—to be stewards and advocates of biodiversity and the ecosystem; their resilience inspires people toward connection and gratitude.
With dedication and effort, piping plover populations can increase. An ultimate goal is to recover piping plover numbers by creating and maintaining the habitats on which the bird needs to thrive without the need for much human intervention. However, given that human activity will likely continue to impact piping plovers and their habitats, it is possible that there will always be work to do in the form of public outreach and education, even after piping plover populations have improved. The human connection, as when the Chicago community banded together to protect Monty and Rose, may be a critical factor in protecting the piping plover and the healthy aquatic biodiversity that the bird reflects.