Court: Bird count not required to enforce logging moratorium in avian-rich forests

TALLINN - In a ruling on Monday, the Supreme Court of Estonia rejected the appeals of two companies regarding logging restrictions imposed to protect nesting birds, stating that a bird count is not required to enforce a logging moratorium in avian-rich forests.

The Nature Conservation Act prohibits the deliberate killing or disturbance of birds and the destruction of their nests, with these rules being especially pertinent during the peak nesting season. OÜ Voore Mets and AS Lemeks Põlva were in a legal dispute with the Environmental Board over the conditions under which clear-cutting and thinning operations can be temporarily suspended to protect nesting birds.

Both companies had received logging permits from the Environmental Board and began forestry work in the spring of 2021. However, in May, the board ordered the work to be halted until mid-summer to protect nesting birds. Subsequently, the companies filed legal complaints, asking the court to declare the board's orders unlawful and to compensate them for damages incurred due to the work stoppage.

In December 2023, to resolve the case, the Supreme Court sought a preliminary ruling from the Court of Justice of the European Union, as the bird protection provisions in Estonia's Nature Conservation Act are based on the EU Birds Directive.

Last August, the Court of Justice of the European Union issued a preliminary ruling stating that endangering birds through logging activities is considered deliberate if a nesting density of approximately ten pairs per hectare is established, or if such a density can be presumed based on scientific data and individual bird sightings. The ruling clarified that the nesting birds need not be rare or endangered species.

In its ruling on Monday, the Supreme Court dismissed the companies' appeals. The court emphasized that the restrictions under the Nature Conservation Act apply directly to everyone, particularly those conducting logging operations. These prohibitions must be adhered to, regardless of whether the Environmental Board has issued prior warnings or carried out inspections.

A forest manager has no right to demand compensation from the state for losses they would incur by complying with prohibitions set forth in the law. Furthermore, a general prohibition applicable throughout the entire European Union cannot be considered an exceptional restriction that would necessitate compensation for damages.

While the nesting density of birds can be a significant factor in establishing intent on the part of the logger, the Environmental Board is not required to count birds or their nests to enforce a logging ban. The Supreme Court clarified that forest managers must be especially cautious and diligent when the type and age of the forest slated for logging suggest a high probability of dense bird nesting.

During the nesting season, clear-cutting and thinning must be avoided in a bird-rich forest unless the forest manager has convincing evidence of a nesting density significantly lower than presumed. Simply counting fewer birds than expected based on the forest type and age is insufficient, as it is impossible to spot all birds during an observation. For the same reason, preserving only nest trees is not an effective protective measure if the surrounding forest is cleared. Furthermore, a forest manager's liability is not absolved by clearing the undergrowth before the nesting season begins.

In its preliminary ruling, the Court of Justice of the European Union did not define a general threshold at which a forest is to be considered avian-rich or when the killing of birds and destruction of nests becomes deliberate. The court merely affirmed the Supreme Court's query, confirming that a density of ten bird pairs per hectare is sufficient to constitute endangerment.

The Supreme Court noted that deliberate unlawful conduct may also be established even if the forest type does not inherently suggest a high nesting density, but other factors-especially on-site observations-point to a high probability of bird deaths or nest destruction.

Defining the specific limits of a forest manager's liability in implementing the Birds Directive is outside the Supreme Court's jurisdiction. EU directives grant member states the discretion to choose the methods for achieving the required outcomes. To ensure legal clarity, the state should explore establishing more precise, science-based criteria in legislation or regulations, consistent with the rulings of the Court of Justice.