Will bald eagles remain compelling enough to validate the Bald and Golden Eagle Protection Act after ESA delisting?

• Author: Jamieson, Amie
• Position: Endangered Species Act

THE NINTH CIRCUIT'S ANALYSIS IN UNITED STATES V. ANTOINE

1. INTRODUCTION II. HISTORY AND REUGIOUS SIGNIFICANCE OF BALD EAGLES A. Ups and Downs of Bald Eagles B. Religious Significance of Eagles III. PROTECTIONS FOR BALD EAGLES A. The Bald and Golden Eagle Protection Act (BGEPA) 1. Protections and Prohibitions 2. Permitting Procedures to Use Bald Eagles B. The Migratory Bird Treaty Act (MBTA) C. The Endangered Species Act (ESA) IV. THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA) V. INTERPRETATIONS OF THE BGEPA IN RFRA CLAIMS A. Analyzing the Government's Compelling interests 1. Finding Compelling interests 2. Finding No Compelling interest B. Analyzing the Means Used to Reach a Compelling interest VI. DELISTING IS NOT A LEGITIMATE BASIS FOR INVALIDATING THE BGEPA UNDER RFRA A. Bald Eagles Will Need the Protection of the BGEPA if They Are Delisted Under the ESA B. The Delisting Proposal Relies upon Continued BGEPA Coverage of Bald Eagles C. A Bald Eagle Delisting Decision May Not Be Reasonable 1. Best Scientific Data Available 2. Threat of Habitat Degradation 3. Adequacy of Other Regulatory Mechanisms VII. CONCLUSION I. INTRODUCTION

   In 2001, Leonard Fridall Terry Antoine was convicted of violating the Bald and Golden Eagle Protection Act (BGEPA) (1) and was sentenced to two years in prison. (2) Antoine violated the BGEPA by selling and trading bald eagle wings and feathers, and an eagle bone whistle. (3) He claimed that these transactions were not commercial transactions, but rather expressions of his religious beliefs that should not be prohibited by the BGEPA. (4) Although members of federally recognized Indian tribes are eligible to obtain permits to possess and transport eagles because of the significance of eagles in some Native American religions, (5) selling or buying eagles is prohibited. (6) Antoine did not have a permit to possess or transport eagles (7) and was not eligible for a permit because he is a member of the Salish Indian Tribe in British Columbia, Canada--a tribe that is not recognized by the United States Government. (8)

   The BGEPA has been protecting bald eagles (Haliaeetus leucocephalus) since 1940. (9) Congress passed the BGEPA primarily to keep bald eagles, currently listed as threatened under the Endangered Species Act (ESA), (10) from becoming endangered or extinct. (11) In 1999, the United States Fish and Wildlife Service (FWS) proposed removing ESA protections from the bald eagle by taking it off the list of threatened species. (12) In his conviction appeal, Antoine used the 1999 FWS delisting proposal to argue that eagles were plentiful enough that the government could no longer restrict his religious use of eagle part. (13) When challenging the validity of a statute restricting a person's religions exercise, defendants can bring their claim under the Religious Freedom Restoration Act (RFRA). (14) If a statute burdens a person's free exercise of religion, RFRA forces the government to show that it has a compelling interest behind the statute, and that the statute employs the least restrictive means to further that interest. (15) Antoine argued that the government's interest in bald eagle conservation was no longer compelling considering the potential delisting. (16) The Ninth Circuit disagreed, noting that the government has no duty to relitigate the BGEPA every time the eagle population increases, and that a defendant must show "a substantial change in relevant circumstances" to prove that the BGEPA is no longer valid. (17) The FWS proposal to delist bald eagles was not the substantial change envisioned by the Ninth Circuit, but the court conceded that the proposal to delist bald eagles weakened the government's conservation interest in eagles. (18) Although the court did not discuss what effect actual delisting would have on its analysis of the BGEPA or whether delisting would be the "substantial change" it mentioned, it is reasonable to assume that if a proposal to delist weakens the government's interest in protecting a species, actual delisting could remove that interest completely. Courts should not consider decisions to delist eagles under the ESA when analyzing the continued validity of the BGEPA.

   This Chapter examines Antoine's argument that, by virtue of the FWS delisting proposal, the government's interest in protecting the bald eagle has weakened to the point of invalidating the BGEPA when a defendant challenges the statute under RFRA. Part II explains historical trends in eagle populations, threats to their survival, and their sacred significance in some Native American religions. Part III outlines the three primary statutes protecting bald eagles--the BGEPA, the Migratory Bird Treaty Act (MBTA), (19) and the ESA. Part IV discusses RFRA's compelling interest test for statutes that burden the exercise of religion. Part V summarizes the analyses the Ninth Circuit and other circuits have used to evaluate the BGEPA under RFRA. Finally, Part VI explains why courts should not use the delisting of bald eagles as a factor in their analyses of the BGEPA.

2. HISTORY AND RELIGIOUS SIGNIFICANCE OF BALD EAGLES

   1. Ups and Downs of Bald Eagles

      Eagles are enveloped in a rich symbolic history that stretches from ancient Babylonia to the modern United States. (20) As the official symbol of the United States, the bald eagle is a part of "the fabric of American life." (21) Its image graces a wide variety of objects, from public buildings and police badges, to Harley-Davidson motorcycle t-shirts. (22) The bald eagle has been one of the most recognizable and popular threatened or endangered species-one that the public has rallied behind as the species has been threatened with extinction. (23)

      Prior to European settlement of North America, bald eagles were distributed widely across the continent and were one of its most common birds. (24) Their numbers began to decline after settlement, as a result of people who hunted them for sport and for protection of both livestock and hunted game from eagle depredation. (25) Bald eagles were also killed unintentionally by ranchers and trappers who set out poisoned meat as bait for coyotes and other animals that was eaten by bald eagles instead. (26) Collection of bald eagle eggs also contributed to the bald eagle's decline. (27)

      The most devastating impact on bald eagle populations was the introduction of dichloro-diphenyl-trichloroethane (DDT), a toxic chemical used to kill insects, in the 1940s. (28) DDT was absorbed by insect-eating fish, and then by the fish-eating bald eagles. (29) The poisoned bald eagles had difficulty reproducing--DDT weakened their eggs' shells (30)--which helped to push bald eagles to a population low of less than 1,000 breeding pairs in the continental United States in the 1960s and 1970s. (31) The ban of DDT in the United States in 1972 has resulted in a significant increase in the bald eagle population in the years since. (32)

      Although these various threats have waxed and waned over time, habitat destruction has been a constant threat to bald eagles since European settlement of North America. (33) Bald eagles are large animals that require large trees to support their nests. (34) They also generally need to be isolated from human development to thrive. (35) As human population increases in an area, the habitat and nesting area available for eagles is reduced, and the area loses its ability to support eagles. (36) Habitat loss is a more difficult problem to solve than, for example, the problem of DDT poisoning. (37) The government can more easily ban DDT than it can regulate land use and population settlement. (38) In addition, once people take over bald eagle habitat, that habitat is usually lost to the eagles forever, whereas the DDT problem began to subside once the substance was banned. (39) Habitat destruction has replaced DDT as the biggest threat to bald eagle survival. (40)

      Reacting to the precipitous decline in the bald eagle's numbers and fearing that the species could become extinct, in 1967 FWS listed the bald eagle as "endangered" (41) in the United States below the 40th parallel. (42) In 1978, following surveys showing a decline in the bald eagle population throughout the United States, FWS expanded the endangered listing to include populations throughout the continental United States except Oregon, Washington, Michigan, Minnesota, and Wisconsin. (43) The bald eagle was listed as "threatened" in those five states excepted from the endangered listing. (44) The bald eagle was reclassified in 1995 once it began to rebound (45) and is currently listed as threatened throughout the continental United States. (46) The threatened classification means that it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (47) The bald eagle population has increased approximately ten fold from its population in 1963, and its nesting sites are more widely distributed throughout its range than they were in past decades. (48)

      FWS proposed removing the bald eagle from the list of threatened species on July 6, 1999. (49) FWS stated that delisting was appropriate because the bald eagle had recovered sufficiently, thanks to recovery programs and habitat protection under the ESA and the reduction of DDT in the environment. (50) Removing the bald eagle from the threatened species list would remove all of its ESA protections. (51) In the proposed rule, FWS emphasized that delisting the bald eagle would not reduce or eliminate its protection under the BGEPA or the MBTA. (52) FWS also stated that the bald eagle could be relisted as endangered or threatened if an "unexpected decline" in its population were to occur after delisting. (53)

   2. Religious Significance of Eagles

      Eagles are sacred and, as such, are fundamentally important to many Native American religions. (54) The Sioux creation story, for example, recounts how the Sioux Nation was founded by the...