USFWS Rule Extending Eagle Permits to 30 Years

The rule extending eagle permits for up to 30 years is available for public inspection today (PDF).  Will publish on Monday.

The summary:

We revise the regulations for permits for take of golden eagles (Aquila chrysaetos) and bald eagles (Haliaeetus leucocephalus) that is associated with, but not the purpose of, an  activity. We extend the maximum term for programmatic permits to 30 years, while maintaining discretion to issue permits of shorter duration as appropriate. The permits must incorporate conditions specifying additional measures that may be necessary to ensure the preservation of eagles, should monitoring data indicate the need for the measures. This change will facilitate the responsible development of renewable energy and other projects designed to operate for decades, while continuing to protect eagles consistent with our statutory mandates. For a permit valid for 5 years or more, we will assess an application processing fee sufficient to offset the estimated costs associated with working with the applicants to develop site plans and conservation measures, and prepare applications, and for us to review applications. We also will collect an administration fee when we issue a permit and at 5-year intervals.

Interesting Tenth Circuit Appeal on Confessions at Kewa Pueblo

Here are the materials in United States v. Aguilar:

Unpublished opinion

Aguilar Opening Brief

US Appellee Brief

Aguilar Reply

From the opinion, which in part dealt with a motion to suppress under the Fourth Amendment’s voluntariness requirement:

Aguilar argues his consent to the agents to enter his home and view the eagle feathers was involuntary when considering the totality of the circumstances. In particular, Aguilar argues the district court understated the significance of his belief that the agents were acting under the authority of the Pueblo Governor, whom, he argues, he was bound to obey according to Pueblo custom and tradition. In response, the government argues Aguilar’s subjective beliefs are irrelevant to the issue of voluntariness of consent insofar as there is no indication the agents were aware of or took advantage of them.

***

The district court arrived at this finding by noting that, prior to the agents’ arrival, Aguilar had already spoken with the Governor about his having killed eagles on tribal land. From this, the court found it was possible Aguilar thought the Governor informed the USFWS about his killing of eagles, but that it was equally likely Aguilar considered the matter to have been resolved to the Governor’s satisfaction during their meeting.

New Scholarship (In Progress) on the Eagle Act and Religious Freedom

Kathryn Kovacs has posted her draft paper, “Alleviating the Tension between Species Preservation and Religious Freedom,” on SSRN.

Here is the abstract:

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for a whole golden eagle is now more than four years. A growing number of people in the United States are practicing other religions, like Santeria, that require the use of bird feathers and cannot legally possess the eagle feathers they need for their religion. Frustration with the current system is feeding a burgeoning black market that threatens the viability of eagle populations. Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied.

Scholarship in this area has neither fully elucidated the cross-cutting tensions in the administration of the Eagle Act, nor prescribed a concrete solution. This article fills that gap. First, the article examines the tension between species preservation and religious freedom; the tension between accommodating the religious needs of tribal members, but not others with the same religious needs; the tension within the case law itself; and the tension between the government’s effort to accommodate tribal religion and the deep dissatisfaction of the tribal community. This article then proposes a solution: changing the Fish and Wildlife Service’s administration of the exception from permitting individuals to permitting tribes and ultimately turning over much of the administration of the Indian tribes exception to the tribes acting collectively. The article explains how scholarship on indigenous cultural property, community property solutions to the tragedy of the commons, and tribal self-determination support this proposal. Finally, the article shows how this proposal will alleviate some of the tension in the administration of the Eagle Act’s Indian tribes exception.

Update in Northern Arapaho Suit re: Eagle Act and RFRA

Northern Arapaho has moved for judgment on the pleadings in its suit challenging the Fish and Wildlife Service’s administration of the Eagle Acts:

Northern Arapaho Motion for Judgment on Pleadings

Their complaint is here.

Eastern Shoshone Moves to Enter N. Arapaho Eagle Suit against FWS as Amicus in Opposition

Here:

Eastern Shoshone Motion for Amicus Status

Northern Arapaho Tribe’s Amended Complaint Regarding Eagle Permit

This Amended Complaint (from March 30th) is related to the previous post here. An excerpt from the complaint’s Preliminary Statement reads:

This action seeks to protect the traditional religious rights and freedoms of the Tribe and its members. Those rights include the limited taking of an eagle for traditional religious purposes of the Tribe. For two and a half years, Defendants failed or refused to issue a federal permit to allow the taking of an eagle by members of the Northern Arapaho Tribe for traditional Native American religious purposes. The denial placed members of the Tribe at risk of criminal prosecution for the taking of an eagle pursuant to their rights under the First Amendment of the United States Constitution, the Religious Freedom Restoration Act (“RFRA”), other federal laws, and the laws of the Tribe.

Northern Arapaho Code Title 13 Freedom of Religion can be found here.

As of last week, the Wyoming Game and Fish Department was reviewing whether or not the Northern Arapaho Tribe would require state permission under the permit. That article is here.

US v. Friday — Constitutional Challenge to National Eagle Repository Rejected

Here is the Tenth Circuit’s decision in United States v. Friday — us-v-friday-ca10 (thanks to Sarah Krakoff for the heads-up).

Judge McConnell wrote the decision. Here is our previous commentary on the case (here). Guess no circuit split….