The Bald and Golden Eagle Protection Act.

• Author: Iraola, Roberto

1. INTRODUCTION

   In 1782, the Continental Congress adopted the bald eagle as the symbol of our emerging nation. (1) In 1940, to protect this national symbol from extinction, Congress enacted legislation popularly known as the Bald Eagle Protection Act. (2) Over two decades later, in 1962, the act was amended to include protection for the golden eagle and became known as the Bald and Golden Eagle Protection Act ("BGEPA" or "the Act"). (3) The amendments also provided that if "compatible with [their] preservation," the Secretary of the Interior, under duly promulgated regulations, could issue permits authorizing "the taking, possession, and transportation of [eagle] specimens ... for the religious purposes of Indian tribes." (4) In 1972, the BGEPA, which only had a criminal misdemeanor prohibition, (5) was amended by the addition of a civil penalty provision, (6) as well as a provision allowing the cancellation of grazing agreements for those convicted of violating the Act, or failing to comply with any permit or regulation issued under it. (7) The criminal penalties for violating the Act also were increased. (8)

   This article, which is divided into three parts, examines the criminal and civil penalty provisions of the BGEPA. First, and by way of background, the article provides an overview of the evolution of the BGEPA and its key provisions. The article then analyzes the evolving case law interpreting the criminal penalty provision of the Act and the regulations governing the civil penalty provision.

2. OVERVIEW

   In 1940, Congress passed the Bald Eagle Protection Act to protect the bald eagle from extinction. (9) At the time of its enactment, the Act provided a maximum criminal penalty in the form of a $500 fine and six months' imprisonment for anyone who took, possessed, transported, or otherwise engaged in commerce with dead or living eagles or their parts, including their nests and eggs. (10) The act incorporated, in haec verba, section 5 of the Migratory Bird Treaty Act granting authorized Department of the Interior employees the power to arrest persons and execute warrants relating to the migratory bird laws, as well as the forfeiture of said birds or their parts, eggs, or nests. (11) The act created an exemption to the possession or transportation of any live or dead eagle or its parts, nest, or eggs lawfully taken prior to its enactment. (12) Additional exemptions, evidenced by the issuance of a permit under duly promulgated regulations, were established for the taking, possession, and transportation of eagle specimens for scientific or exhibition purposes, and the taking of eagles to protect wildlife and agriculture. (13)

   In 1962, Congress amended the act, extending the ban to golden eagles. (14) Congress also provided that the Secretary of the Interior could exempt, under regulations, takings of golden and bald eagles "for the religious purposes of Indian tribes." (15) The amendments further provided for the taking of golden eagles to protect livestock. (16)

   In 1972, the then popularly known Bald and Golden Eagle Protection Act was amended again in several important respects. (17) First, the mens rea required for a criminal conviction under section 668 was changed from "willfully" to "knowingly, or with wanton disregard for the consequences of [one's] act." (18)

   Second, the criminal penalty provision was increased from a maximum of a $500 fine and six months' imprisonment to a maximum $5,000 fine and one year's imprisonment. (19) Furthermore, "in the case of a second or subsequent conviction" under the Act, the maximum penalty was increased to a $10,000 fine and two years' imprisonment. (20) Under the Criminal Fines and Improvement Act of 1987, the maximum amount of a fine in the case of a misdemeanor offense was increased to $100,000 and $250,000 in the case of an individual for a misdemeanor and a felony conviction, respectively, and $200,000 and $500,000 in the case of an organization for a misdemeanor and a felony conviction, respectively. (21)

   Third, a civil penalty provision was added. (22) Under this provision, anyone, (23) who without authority as provided under the Act, takes, possesses, transports, purchases, sells, barters, or offers to do any of these acts, or imports or exports any dead or live golden or bald eagle, any part thereof, or any egg or nest, or violates any permit or regulation is subject to a $5,000 penalty for each violation. (24) If the person or entity neglects to pay the assessed penalty, the Secretary may request that the Attorney General institute a civil action to collect the penalty. (25)

   Fourth, the Act was amended to allow "the taking, possession, and transportation of golden eagles for the purposes of falconry" in areas where they were engaged in the depredation of wildlife or livestock. (26) In addition, a grazing provision was added. (27) Under this provision, anyone convicted under the Act, or found guilty of violating any regulation or permit issued under it, is subject to having his grazing lease, license, permit, or other agreement cancelled. (28)

   Lastly, in 1978, the BGEPA was amended to authorize "the taking of golden eagle nests which interfere with resource development or recovery operations." (29) In this instance, Congress was concerned with potential conflicts arising from a "stringent construction of the [Act] and future coal mining activities in the Western States, including leasing, mining, and reclamation." (30)

3. THE CRIMINAL PENALTY PROVISION

   Section 668(a) of the BGEPA provides for criminal sanctions against persons or entities who "knowingly, or with wanton disregard for the consequences of [their] act[s] take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import" bald or golden eagles, or their parts, nests, or eggs. (31) For individuals, in the case of a first offense, the maximum penalty is a $100,000 fine and one year's imprisonment. (32) The maximum penalty for a subsequent offense is a $250,000 fine and two years' imprisonment. (33)

   Criminal prosecutions under the BGEPA have come under various challenges. Defendants have argued that the BGEPA infringes on the free exercise of religion 34 unlawfully modifies or abrogates treaty rights respecting the taking and killing of eagles, (35) represents an unlawful exercise of power under the Commerce Clause, (36) effects a taking in violation of the Fifth Amendment, (37) violates the right to privacy, (38) and does not apply to certain takings and possession of eagles. (39) Each of those challenges is analyzed below.

   1. The Free Exercise of Religion

      Challenges to criminal prosecutions under the BGEPA principally have been raised under the Religious Freedom Restoration Act ("RFRA"). (40) Before analyzing the cases, it is instructive to review, generally, the provisions of the RFRA and the regulatory exception against the taking, possession, or transportation of bald or golden eagles for Indian religious ceremonies. (41)

      1. The Religious Freedom Restoration Act and Indian Religious Ceremonies Involving Eagles

         Under the RFRA, a federal law that "substantially burden[s] a person's exercise of religion" (42) will not be enforced unless the government can demonstrate that the law "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (43) The purposes of the RFRA are "to restore the compelling interest test ... and to guarantee its application in all cases where free exercise of religion is substantially burdened" and "to provide a claim or defense to persons whose religious exercise is substantially burdened by government." (44)

         As noted previously, the BGEPA provides that if "compatible with [their] preservation," the Secretary may issue permits authorizing the "taking, possession, and transportation of [eagle] specimens ... for the religious purposes of Indian tribes." (45) Under the governing regulations, which are administered by the U.S. Fish and Wildlife Service (FWS"), the issuance of permits is limited to Indians who are enrolled members of federally recognized tribes under the Federally Recognized Tribal List Act of 1994, (46) and require the carcass or any of its parts for religious purposes. (47) In addition, the FWS will consider the effects which granting the permit will have "upon the wild populations of bald or golden eagles," as well as whether the applicant is "authorized to participate in bona fide tribal religious ceremonies." (48)

         In the 1970s, the FWS established the National Eagle Repository (the "Repository") in Denver, Colorado. (49) It provides a central location for the collection and distribution of dead bald or golden eagles and their parts. (50) Applications for a permit must be submitted to the U.S. Fish and Wildlife Service, Wildlife Permit Office servicing the state where the applicant resides. (51) If approved, the application is then sent to the Repository. (52) Orders are filled on a first-come basis, and given the backlog, the waiting time is approximately two and one-half years. (53)

      2. The Cases

         The RFRA has been raised as a defense to criminal prosecutions under the BGEPA in two types of cases. (54) First are those cases involving members of federally recognized tribes who could have applied for a permit to possess and transport eagles or their parts for religious purposes but failed to do so. The second type is comprised of those who are not members of federally recognized tribes, and, therefore, are ineligible from ever obtaining a permit. In both eases, for a free exercise claim to be considered, the defendant must not have been involved in purely commercial activity. (55)

         With respect to members of federally recognized tribes who did not seek to obtain a permit and where prosecuted under the BGEPA, the United States Courts of Appeal for the Ninth and Eighth Circuits ruled in United States v. Hugs (56) and...