Thursday, March 3, 2011

The Attorney for Passenger Pigeons (Part 3 of 3)

 © 2011 by Henry Melton

Judge Engelmann called him to answer questions.
"Mr. Springdale, I'm interested in the statement in your brief that an award to a trust organization for the passenger pigeon would be the same thing as an award to the species.  In other cases, a trust organization is the appropriate administrator of an award, since the individuals of that species are incompetent.  However, I fail to see how a trust for a class of incompetent individuals is the same as a trust for a class of nonexistent individuals.  How do you resolve this difference?"
Blake felt his mind race.  He'd thought long and hard about this one.
"Your Honor, what, exactly, is a species?  It is a mistake to think of a species as a set of individuals.  If so, the species is different from one moment to the next as individuals die, and are born, or hatched."  The judge cracked a slight smile.  "Under that definition, the species of March fruit flies is a different thing than the species of May fruit flies, since no individual lives longer than a few days.
"Nor should I think a copy of the genetic code to be enough to be considered a species, otherwise the Human Genome database would have to be considered a part of humanity, and the existence of Martha, the stuffed bird in the Smithsonian could be considered evidence that the Passenger pigeon is not extinct.
"No, the idea that a species can be 'extinct' gives us the clue that 'species' is a process that can be extinguished.  Put simply, a species is the process that preserves the existence of a genetic code.
"And by that definition, the Ectopistes migratorius has never quite gone out of existence.
"When their population crashed, people were concerned.  Efforts were made to collect the birds and breed them in captivity.  When these last individuals died, they were preserved for study.  And when the last one died, people cared.  In the historical exhibits, are the poems and the passionate writings by people expressing their loss.
"I submit that as hopeless and ineffectual as it seemed, those early efforts were part of the process that now has a real hope of preserving the genetic code of Ectopistes migratorius.  For a brief time the spirit of the passenger pigeon has left the flesh of its native host, but it has the chance to return!
"The details of my proposal explain the rest.  A trust entity would, upon the grant of the award, become Ectopistes migratorius for legal purposes, providing the process that would eventually preserve this genetic expression."
The judge asked for more details about the trust, forcing him to think fast.  There were indeed pitfalls.  Fund administrators could hold the species hostage and preserve the trust even when the technology was ready to restore the birds.  
But, he was able to describe remedies.  At least in his own mind, he sounded like he'd been working on the idea for years.  Who knew what the judges thought?
There were many more questions:
"What is your reasoning for placing the levy on the jurisdictions indicated?"
"How did you choose the 100 million dollars?  That's a nice round number.  Did you pull it out of a hat?"
"What makes you think the species can be reintroduced into the wild, given the changes to the land in the last 150 years?"
"Council for Humanity has described the effects of the large flocks as horrific -- flocks scavenging food so completely that nothing is left for other animals, nesting so heavily that all the trees are broken down, droppings collecting several inches deep.  Why should humans pay to re-introduce such a plague on themselves?"
Blake tap-danced as hard as he could to answer their questions, and smiled when he stumbled.  They knew he was a last minute substitution, or at least they should.  He could only do his best.
Then, it was Humanity's turn to be grilled.  Blake took careful notes.  He had only one chance left, in his summation.  He had to hit every weak point that the judges had left un-demolished.
There was a pause in the proceedings, as he collected his notes.  His mind was overflowing with data, important points to make, and a dozen different strategies.  There wasn't time to do it all.
"Mr. Springdale?  Your summation."
He nodded, as his mind suddenly went blank.  Still he rose from his desk and stepped to the center.
The only thing he could think about was Aunt Margaret's tear, when he had talked about the passenger pigeons.  Did her death today, on her birthday, mean that she'd been aware of what he said?  What had she been thinking?  What memories had he stirred?
He faced the judges.
"I am here today to speak for the passenger pigeon, and to speak against humanity.
"But more importantly I am here to speak for justice.  We have created Declaration of Species Equivalence, and to that I must speak.  
"No one denies that the 18th and 19th century Americans killed Ectopistes migratorius in large numbers.  No one denies that the prime habitat for these birds, the large beech forests, were largely cut down to make farmland.  No one denies that in 1914, Martha, the last known passenger pigeon, died.
"What is debated is the cause of this extinction, and humanity's culpability in it.
"One part was the harvesting of so many birds.  I say 'harvesting' because hunting was hardly involved.  Millions of birds at a time were shipped to the cities of the East Coast.  But this couldn't have been the sole cause.  Killing a million out of a population of three billions is still only one out of 3000.  No, this can only be part.
"The loss of the beech forests is likely a much greater cause of the population crash, but still -- not all the beeches are gone.
"No, there is something more.
"Council for Humanity has alluded to some defect in the species.  The passenger pigeon just wasn't good enough to survive this misfortune."
He looked from judge to judge to judge.
"But species equivalence is more than just the name of a law.  It is the underlying principle of this proceeding.  We cannot say, 'This species is defective, because it didn't tolerate human instituted changes.'
"The passenger pigeon may have needs that were beyond the ken of 19th century science.  They were a grand social animal.  Their flocks flew as one being.  They ate together, they few together, they nested for the night together.  They were a species of flocks, more than individuals.
"Just because we humans can breed and thrive in small numbers if we have to, does not mean that another way is defective.
"Audubon noticed that in the great American flocks the birds always produced two eggs, but puzzlingly, among the birds sent to England, they never produced more than one egg.  Yes, there are mysteries here, but just because they don't act human, doesn't mean they are any less deserving of legal protection than any other species."
He looked at his empty hands.  "There is one other, very compelling point.
"We all know that we are guilty.
"I did not know about passenger pigeons until I was assigned this case, but I felt no shock that a species whose numbers were in the billions just 150 years ago, are now entirely gone.  Of course we did it!  You know, and I know, that species are killed off every day, and that humans are the cause.
"We didn't mean to do it.  It was out of ignorance.  It happened long before any of us were born -- but we know we are guilty.
"I submit that in Audubon's day, this dark side of humanity was not a part of the world's consciousness as it is today.  No one back then thought the birds were in any more need of protection than ants.
"In the Garden of Eden, man was made caretaker of over all the animals, but it is only in the last hundred years that that duty has become clear to us.
"The extinction of the Passenger pigeon changed us!  I submit it is the root of the environmental movement.  It is the root of the very declaration on which this court exists.  It is the root of a change of mind, one that may well be our species salvation in the future."
He hit his fist into his open palm.
"Humanity owes Ectopistes migratorius something.  More than just punishment for our own wrongdoing, we owe them something good for the change that has happened to us.  Great good has come from their death, but even greater good can come from their redemption.
"I have a daughter, only a year old.  When she is older, I will tell her about this bird, who flashed like jewels in the sky, and blacked out the sky by their numbers, and whose wings caused the air to hum for hundreds of miles.
"I will also tell her how we were careless, and caused them to die.
"It would be a great thing if I could also tell her about the rebirth of this bird, and it would be even greater if she could see this marvel in her own lifetime, so that when she is old, the thought of the passenger pigeon would bring a smile of joy and pride to her face, and not a tear of regret."
Blake retired to his seat and suffered through the opposition's closing remarks.  He was done.  Anything he had left unsaid would remain unsaid.  He tried to ignore the points that were being made, but no doubt about it; humanity's negotiators were good.  Point by point, he could feel his own statements being undermined, and doubts being seeded.
Finally, the argument phase was done.  The judges retired, and with a nod to the other team, he went back to his temporary office.  He put his head down on the desk and dozed.
Two hours later, he was called back in.
The mediators entered and the court was called to order.
Judge Park, who had not participated in the question and answer session, called him and the other lead negotiator to the center.  Her clearly enunciated English had a distinctive Korean accent.
"In the matter of Homo sapiens vs. Ectopistes migratorius, this mediation board finds for the plaintiff as follows:
"(1) Ectopistes migratorius, commonly known as the passenger pigeon was driven to extinction by various environmental stresses, and that Homo sapiens bears the primary blame for this.
"(2) Ectopistes is acknowledged to be a species under the terms of the UN Declarations of Species Equivalents using the definition of species as an ongoing process to preserve a genetic code, and thus, (3) is entitled to redress by what measures this board recommends."
She looked up from her paper and nodded to him.  He was still absorbing the idea that he had won.
"Mr. Blake.  The board found that your remedy was sound in principle, but that the proposed amount of the award was far in excess of the need, due to the lack of urgency of the remedy.  The goal of restoring the species will not be measurably compromised if it is done twenty years or a hundred years from now.  If individuals of the species were still alive, and on their last legs, then urgent action, requiring a larger outlay would be more appropriate."
He could feel his heart start to sink.  Did that mean he won, but it was just an empty victory, with no teeth?
But she continued, "Accordingly, this board recommends a substantive award of ten million dollars, which should fund the research and genetic material collection phases."
Then her voice notched slightly louder, angrier.
"However, this board finds that extinction of another species for economic gain is unacceptable, and that in spite of the unintentional nature of this extinction, punitive damages shall be added to the award, trebling it to thirty million dollars.
"The board acknowledges that no current individual is to blame for this extinction, and that it was done through ignorance, for if it had been otherwise, the punitive damages would have been much greater."
And as quickly as that, the court was adjourned.
There was a splattering of applause, he turned to see who it was, and didn't recognize anyone.  However, one of the humanity team gave him a surreptitious thumbs-up.
A court official spoke with him for a minute to clarify the details of the award.  He nodded, and accepted the papers.
It took him another hour to leave the building.  Several of the spectators had been reporters, and they all wanted a few words with him.  He made it to the hotel, finally, and was able to call his wife.
She was dealing with the funeral arrangements, and was suffering from the mix of relief and grief that comes when an elderly invalid dies.  She was happy to talk about his trip.
"So, you won, but not everything?"
"Yes.  It counts as a win, and it looks like I have a new client, for I'll have to be a part of this new species trust.  Money-wise, it's wonderful.  I just have a feeling that I didn't do enough.  The passenger pigeon is still dead."
"I know."  Barbara's voice caught.  "Aunt Margaret was special, and I know I'll never be able to tell people what a beautiful person she was."
As he checked out of the hotel next morning, he couldn't take his eyes off the USA Today newspaper he had found in front of his door.
There was his picture, and next to it was a photo of Martha, the Smithsonian's stuffed passenger pigeon.
"$30 Million ISAB Award for Extinct Bird."
He read the article, and it was like an old friend.  Audubon's poetic descriptions tickled his imagination all over again.
There was another paper in the stand, the New York Times.  It showed another of the famous stuffed birds, George.  Its story was about the impact the ruling would have on currently threatened species.  Judge Parks words, on reflection, added up to a formidable threat if any species was deliberately bulldozed out of the way.
The hotel clerk handed him his final tally, and added.  "By the way, congratulations Mr. Springdale.  You did a good job for the birds.  I'm going to tell my kids about it when I get home."
"Thank you."
He went out to meet his taxi, and as he stepped outside, there was a flutter of wings.  He caught sight of a pair of common rock pigeons taking wing.
But he blinked his eyes, and felt spirits in azure and purple, swooping overhead in ancient and grand array.


No comments:

Post a Comment