CHAPTER 10 THE RESURGENCE OF THE BALD AND GOLDEN EAGLE PROTECTION ACT: EAGLE CONSERVATION, COMPLIANCE, AND PERMITTING FOLLOWING THE 2007 DE-LISTING OF THE BALD EAGLE UNDER THE ENDANGERED SPECIES ACT AND THE ISSUANCE OF THE 2009 EAGLE INCIDENTAL TAKE PERMIT REGULATIONS

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 10
THE RESURGENCE OF THE BALD AND GOLDEN EAGLE PROTECTION ACT: EAGLE CONSERVATION, COMPLIANCE, AND PERMITTING FOLLOWING THE 2007 DE-LISTING OF THE BALD EAGLE UNDER THE ENDANGERED SPECIES ACT AND THE ISSUANCE OF THE 2009 EAGLE INCIDENTAL TAKE PERMIT REGULATIONS
Sarah Stauffer Curtiss
Ariel Stavitsky
Stoel Rives LLP
Portland, OR

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SARAH STAUFFER CURTISS is a partner in the Portland, Oregon office of Stoel Rives LLP, where she maintains an environmental regulatory and permitting practice, with an emphasis on protected species and major project permitting. She joined Stoel Rives after graduating with honors from Lewis and Clark Law School in 2007, where she was an associate editor for Environmental Law. Sarah has significant experience representing clients in matters involving the Endangered Species Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act. She regularly represents clients in the mining, forest products, wind, solar, utility, and oil and gas sectors. She received her BA from Pacific Lutheran University and MA from the University of Chicago. A Montana native, Sarah is an avid outdoorsperson and enjoys floating the rivers of the west with her husband and children.

ARIEL STAVITSKY is an associate in the Portland office of Stoel Rives LLP. Ariel's practice spans environmental compliance, risk management, and litigation, along with natural resource and land use permitting. She represents clients in mining, fishing, farming, manufacturing, transportation, utility, and oil and gas industries. Ariel worked as an environmental consultant in Atlanta, GA before attending law school at the University of Oregon, where she was executive editor for the Oregon Law Review and completed consecutive Bowerman Fellowships in Energy Law and Policy. She has served as a law clerk for the Oregon Department of Justice, General Counsel Division, Natural Resources Section; judicial extern for the Honorable Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit; and law clerk to the Honorable Magistrate Judge John V. Acosta of the U. S. District Court, District of Oregon. Ariel volunteers on the mentoring committee for Women in Environment and spends her free time training her stubborn rescue boxer, Duke.

I. INTRODUCTION

With the de-listing of the bald eagle under the Endangered Species Act ("ESA") in 2007,¹ the promulgation of eagle incidental take permitting regulations in 2009,² and the rapid expansion of the wind energy industry in the last two decades,³ the Bald and Golden Eagle Protection Act ("BGEPA") may be experiencing a sort of renaissance. Not only has there been increased scrutiny on the potential effects of certain industrial applications, like wind energy, on eagle populations,⁴ but the U.S. Fish and Wildlife Service ("Service") has made substantial investments in its BGEPA compliance programs, including the eagle incidental take permitting program.

Long overshadowed by its wildlife protection counterparts, the ESA and the Migratory Bird Treaty Act ("MBTA"), BGEPA has emerged in the last decade as a powerful conservation tool. The Service, through its Office of Law Enforcement and in cooperation with the U.S. Department of Justice, has actively enforced the BGEPA and MBTA "take" prohibitions for eagle fatalities at wind energy facilities, resulting in a number of criminal plea agreements⁵ and

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civil settlements.⁶ The result is that the wind energy industry now considers BGEPA compliance at the earliest conceptual project planning phases.

And although regulated parties continue to be frustrated by lengthy eagle incidental take permitting timelines, the Service has recently started to move applicants through the process more quickly, issuing several programmatic permits for direct take in the last two years. Further, regulated parties are encouraged by the prospect of an expedited permitting process for "low effect" projects, which has the potential to reduce the permitting backlog and, at the same time, provide increased species protection and certainty for regulated parties.

This Paper provides an overview of BGEPA, discusses the seminal BGEPA case United States v. Moon Lake Electric Association, Inc., chronicles the promulgation and revision of the BGEPA eagle incidental take permitting regulations, and discusses the applicability and implementation of those regulations. This Paper posits that BGEPA has become an effective conservation tool and that recent eagle permitting actions suggest that the eagle incidental take permitting program may finally be functioning effectively to conserve eagles and provide the desired regulatory certainty to permittees.

II. DISCUSSION

A. BGEPA Overview

1. Background

Seeking to protect the "national symbol . . . of the American ideals of freedom,"⁷ Congress in 1940 enacted the precursor to the BGEPA, the Bald Eagle Protection Act ("BEPA"), after bald eagle populations declined in the 1930s due to habitat loss, illegal hunting, pesticide use, and electrocution from high-voltage lines.⁸ The BEPA became the BGEPA in 1962 when Congress extended the same protections to the golden eagle, when its numbers, too, dwindled in the wake of anthropogenic disturbances.⁹

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Still, eagle populations continued to decline. With only 10,000 to 20,000 golden eagles and 20,000 to 30,000 bald eagles left in North America,¹⁰ in 1972, a Congress "aroused by the useless destruction and possible extinction of these great birds"¹¹ amended the Act to increase the stringency of its penalties and reduce the requisite mens rea to convict violators.¹² Thanks in part to these amendments, along with increased BGEPA enforcement, additional protections granted under the MBTA and formerly under the ESA, and the banning of the pesticide DDT, eagle populations have risen over the past decades. The bald eagle was delisted from the ESA in 2007.¹³

2. Key Terms

a. General Applicability

In its current iteration, BGEPA prohibits the "take" of eagles, and their parts, nests, or eggs, unless allowed by permit.¹⁴ BGEPA's implementing regulations define "take" to include "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb."¹⁵ "Disturb" means to agitate or bother an eagle "to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."¹⁶

Under BGEPA regulations, the prohibition on taking a bald or golden eagle applies to "an individual, corporation, partnership, trust, association, or any other private entity."¹⁷ The BGEPA does not apply to federal agencies "acting in a regulatory capacity to authorize activity,

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such as development of a wind-energy facility, that may incidentally harm protected birds."¹⁸ However, federal agencies "must obtain permits for take that would result from agency actions that are implemented by the agency itself (including staff and contractors responsible for carrying out those actions on behalf of the agency)."¹⁹

BGEPA, unlike the ESA, contains no citizen suit provision. Thus, third parties cannot directly enforce the Act.

Finally, BGEPA contains limited exceptions for the take and use of eagles for "scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes."²⁰ Though not discussed in this Paper, the contours of the tribal religion exception have been a source of contention in BGEPA implementation and enforcement over the years.²¹

b. Criminal Liability

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Criminal liability under BGEPA for taking an eagle carries a maximum fine of $250,000 for the first eagle and $500,000 for subsequent eagles, and imprisonment for up to two years for a second or subsequent violation.²²

BGEPA does not impose strict criminal liability. A criminal conviction under the BGEPA requires that the violation be committed "knowingly, or with wanton disregard for the consequences of [the person's] act."²³ The 1972 committee report announcing this requirement explained: "[t]he word 'knowingly' means that the offender knew what he was about to do and, with such knowledge, proceeded to do the act."²⁴ Accordingly, at least one district court has interpreted that "'knowingly' . . . require[s] no more than that the defendant know he was engaging in the prohibited conduct."²⁵ Thus, "'knowingly' only refers to Defendant's behavior in deliberately retrieving his rifle and intentionally aiming and shooting, not to his state of awareness as to the specific identity of the bird he shot."²⁶

To prove "wanton disregard," the 1972 committee report stated "[t]he evidence would have to show more than mere negligence; while there is no intent to injure, the person must be conscious from his knowledge of surrounding circumstances and conditions that his conduct will naturally and probably result in injury."²⁷ During hearings on the amendment, a Senate subcommittee heard testimony on the problem of eagles being electrocuted by electric power lines.²⁸ An opinion letter from the U.S. Department of the Interior commenting on an earlier version of the amendment, one that required merely "negligent disregard," explained:

"[Power] lines erected after the date of enactment should provide such safeguards as are available in order for the power companies to avoid the charge of acting with 'negligent disregard for the consequences' of their acts. This obligation would be no more of a burden upon power companies than upon any other person or organization performing operations which had a tendency to destroy wildlife.

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In

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