Requestor: Gordon D. Tresch, Esq., Village Attorney Village of Kenmore 2919 Delaware Avenue Kenmore, New York 14217-2394
Written by: Patrick Barnett-Mulligan, Assistant Attorney General
I am writing in response to your request for an Attorney General's opinion as to the authority of a village police department to enter private property and shoot pigeons.
Article 11 of the Environmental Conservation Law contains provisions which protect and otherwise regulate various forms of fish and wildlife in the State. Section 11-0513 of the ECL deals specifically with pigeons and gives the village board the authority to take action against pigeons which pose a menace to public health:
"Notwithstanding any other law to the contrary, the local legislative body of any city, town or village, or in the city of New York the Department of Health may take or issue a permit to any person to take pigeons at any time and in any humane manner in such municipality, whenever such body or administration finds that pigeons within such municipality are or may become a menace to public health or a public nuisance; provided, however, that no pigeon may be taken in a manner which will endanger other animal life, persons or property." ECL § 11-0513(2).*
Under this section, pigeons can be taken only under certain circumstances. Initially, there must be a finding by the village board that the pigeons are, or may become, "a menace to public health or a public nuisance". ECL § 11-0513. This determination is to be made by the village board. The police department or other village agency cannot take action without such a finding by the board.
Furthermore, although section 11-0513 is silent on the exact manner in which the birds are to be taken, it does require that the birds be taken "in any humane manner", and that "no pigeon may be taken in a manner which will endanger other animal life, persons or property". ECL §11-0513.
Your letter raises the question of whether the police can enter private property to shoot pigeons at the owner's request. Under section 11-0513, the operative issue is whether the birds pose a menace to public health, not whether the property owner requests eradication. See, generally,Matter of Joyce Properties, Inc. v Rubi, 52 Misc.2d 825 (NYC Civil Ct),affd, 54 Misc.2d 360 (App Term 1st Dept 1967). A village would be able to take pigeons at a property owner's request only if the requirements of section 11-0513 were met.
We note that if the village is not inclined to use public employees to take the pigeons, a permit may be issued to allow the property owner to take the pigeons. ECL § 11-0513; see also, ECL § 11-0523.
We conclude that section 11-0513 of the Environmental Conservation Law authorizes a village to destroy pigeons which are a menace to public health.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.
* Subdivision 1 of section 11-0513 provides that Antwerp or homing piegons wearing rings or seamless leg bands with registered numbers cannot be taken under any circumstances. ECL § 11-0513(1).