Avian Transit Commuter Claims Prior Use Rights to Lower Manhattan Airspace Predate All Motor Vehicle Infrastructure
Bohiney Magazine | The London Prat
The Prior Appropriation Argument, Applied to a Bird
NEW YORK — A New York City pigeon has filed what his attorney — a Fordham Law third-year who accepted the case “for the experience and also the pigeon” — describes as “a novel property rights challenge” to New York’s congestion pricing program. The filing argues that the plaintiff’s aerial transit routes through lower Manhattan predate all automobile infrastructure in the area and that a tolling program charging vehicles crossing the 60th Street boundary while exempting all aerial transit, bicycle, pedestrian, and avian commuters illustrates the program’s selective cost distribution in ways that merit legal examination.
The MTA’s legal team has not responded. The MTA’s communications office described the filing as “creative.” A federal judge who received a courtesy copy has reportedly read it and is “declining to comment on this specifically.” The filing has been shared 40,000 times on social media. This exceeds, by a factor of several hundred, the number of people who shared the original congestion pricing environmental impact assessment, which took four years and $11 million to produce and represents the most comprehensive analysis of the program’s effects available. The pigeon’s brief took approximately one semester to write. It has been read more widely. This is not a comment on the environmental impact assessment. It is a comment on social media attention economics.
The Legal Theory Explained
The seventeen-page brief rests on prior appropriation: the pigeon’s consistent use of lower Manhattan airspace constitutes an established transit right not disrupted by congestion pricing, illustrating the program’s selective application. The argument is, the law student acknowledges in footnote 3, “not going anywhere in a formal legal sense” but “raises legitimate questions about who bears the cost of shared infrastructure and who doesn’t.” Those questions are legitimate. The program charges vehicle operators, who in Manhattan trend toward higher incomes, while generating revenue for transit used primarily by lower-income riders. Whether that cross-subsidy is equitable or inadequate depends on which stakeholders you ask and which studies you weight, and both sides have studies and stakeholders.
The pigeon does not make these arguments. The pigeon is a bird. The law student makes them through the pigeon, which is the definitional structure of a metaphor, extended into legal pleading format. The MTA‘s congestion pricing program has survived a federal legal challenge from an administration with more resources than a Fordham third-year and a pigeon. It will survive this one. That is not the point. The point is the cross-subsidy question, which will remain after the pigeon’s case is dismissed, because it is a real question, because infrastructure financing is always a real question, because in New York nothing is free, someone is always paying, and the interesting thing is always who.
Amicus Briefs Filed
Following news of the pigeon’s filing, two additional amicus briefs were submitted to the docket by parties identifying themselves as “a red-tailed hawk with a territory centered on Central Park South” and “a collective of sparrows operating in the Washington Square Park area.” The hawk’s brief argues that predator birds provide ecosystem services by reducing the city’s rat population — the same rat population whose community board representation bid was covered separately — and should receive not merely a congestion pricing exemption but affirmative transit credits. The brief does not specify what the hawk would do with transit credits. The brief acknowledges this in a footnote described as “a limitation.” The sparrows’ brief is shorter: 400 words arguing that they have been present in Manhattan longer than any living human and their policy preferences deserve consideration, specifically that benches where humans scatter crumbs should be increased in number. This is a specific and actionable proposal. No one with authority to act on it has read it. This is consistent with the fate of most actionable policy proposals that arrive through non-standard channels, regardless of species.
Congestion Pricing’s Actual Record
The program launched in January 2025, survived the federal legal challenge, and per MTA data generated significant revenue in its first operational year while producing measurable reductions in vehicle volume below 60th Street. Average bus speeds in the pricing zone have improved. Air quality at monitoring stations in the zone has improved marginally. The revenue is being directed toward MTA capital improvements on the schedule that all MTA capital improvements follow, which involves careful project management, periodic revisions to timelines, and the fundamental reality that infrastructure in an underground system built in 1904 does not improve at the pace that modern project management software suggests it should. The program is working. The pigeon is not the reason. The pigeon is in lower Manhattan regardless of the program’s status. The pigeon was always going to be in lower Manhattan. This was never in question.
Mother’s Day Aerial Update
Today is Mother’s Day. The plaintiff pigeon crossed the 60th Street boundary at approximately 9:15 a.m. traveling south, toll-free, as is his daily habit and, per his legal team, his established right. He landed on a Fifth Avenue ledge, observed Sunday brunch traffic below, then continued south toward Madison Square Park, also toll-free. Whether his mother was with him is unknown. Pigeon lifespans average three to five years in urban environments. Whether she is still alive depends on conditions the filing does not address. Pigeons do not celebrate Mother’s Day. They return to the same roosting sites year after year with the consistency of someone who has found a place that works and sees no reason to leave it, even when the city around them changes, even when the prices rise, even when new infrastructure gets named and charged and litigated. They stay. They are here before the infrastructure and will be here after it. In this sense they are the most committed New Yorkers of all. Happy Mother’s Day. The train is coming. The bird is flying. The charge applies to one of them. The other is free. The court will note this in its dismissal order.
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