September 12, 2014
Public Comments Processing, Attn: FWS-R9-MB-2011-0094
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
RE: Comments on Eagle Management and Permitting
Thank you for the opportunity to participate and comment in the Eagle Scoping process. The American Falconry Conservancy (AFC) was established in 2002 for the purpose of protecting and preserving the art and practice of falconry for future generations and to protect falconers' rights. We are a non-profit organization dedicated to the art of hunting with trained raptors and it is our intention to pursue the broadest liberties possible that are not in conflict with legitimate conservation efforts. In addition, our purpose is to help promote knowledge of quality falconry, as well as to instill pride in falconers for the recognized cultural heritage of the sport and its place in world history. We also support and recognize falconry's continued contributions to raptor/avian science, education and ecology.
Wind Farm Permitting
AFC supports the responsible development of alternative energy sources, such as wind power, but with minimal impacts to our nation’s wildlife resources. We are particularly concerned about the wind farm industry’s potential impacts on birds, especially eagles, condors and other wildlife, including bats. Bald and Golden Eagles are protected under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (Eagle Act). Any purposeful or incidental take of a Bald or Golden Eagle requires a permit as mandated in the Eagle Act.
AFC is strongly opposed to extending the maximum duration for programmatic eagle nonpurposeful take permits from five years to 30 years. AFC supports the U.S. Fish and Wildlife Service (FWS) issuing short-term programmatic take permits. However, these permits should include conditions relative to periodic renewals and should be compatible with the preservation of the Bald and Golden Eagle.
AFC makes the following suggestions when issuing wind farm programmatic eagle nonpurposeful take permits:
- That the five-year period permit re-application schedule be maintained.
- That FWS permitting guidelines for wind energy development be mandatory, not voluntary. This will help FWS do its job in protecting our nation’s wildlife resources.
- Require and implement a third party, independent monitoring and reporting system for eagle, other raptor and protected wildlife mortality at wind farms paid by the industry. This would avoid a conflict of interest when wind farms are left to do their own monitoring and self-reporting.
- All information on bird and other wildlife mortality at specific wind farm sites be made available to the public. A good deal of public tax dollars are being used to subsidize large-scale wind energy projects. Current wind farm bird mortality data is being treated as “proprietary information”. The information regarding the impacts wind farms have on eagles and other wildlife needs to be transparent and made available to interested members of the public.
- Identify areas where wind energy should not be developed due to the potential and unacceptable risk to eagles, other raptors and other federally and state protected wildlife.
AFC would also like to comment on eagle permitting as it relates to the take of Golden Eagles for falconry purposes. As a permitted use under the Eagle Act, AFC feels that the legitimate take and possession of eagles for falconry has been marginalized and left out of the public scoping meetings and the general scoping process. We would like to briefly critique the history involving the legal acquisition of eagles in the U.S. for falconry, address several issues and offer some suggestions that may help FWS with their management decisions concerning eagle permitting and falconry.
On October 23, 1972, Congress amended the Eagle Act, allowing the take of Golden Eagles from the wild for falconry purposes (P.L. 92-535, 2, 86 Stat. 1065). Congress stated, however, that only Golden Eagles taken because of depredation on livestock or wildlife could be removed from the wild for falconry (16 U.S.C. 668a). Bald Eagles are not legally available to U.S. falconers and may not be possessed for falconry.
It was not until 12 years later, in January 1984, that FWS promulgated written regulations administering the possession and take of eagles for falconry (50 CFR 22.24, 1984). The regulations ensured full federal protection of the Golden Eagle resource by allowing only the most qualified and dedicated falconers to possess and hunt with an eagle. It is unclear why FWS took 12 years to write and implement the final administrative regulations after the 1972 congressional amendment to the Eagle Act. However, even with the 1984 regulations, U.S. falconers were not actually able to obtain eagles from the wild in depredation areas until the mid 1990s. This represents a span of more than 20 years from the 1972 congressional amendment. In addition, it took the efforts of individual falconers from several states soliciting help from their congressmen to pressure FWS into allowing falconers to obtain eagles from the wild.
From approximately 1995 to 2008, falconers were able to acquire eagles from the wild in livestock depredation areas documented by the U. S. Department of Agriculture/Wildlife Services (WS). The program was, however, sporadically and inconsistently administered by FWS. Administration of the 1984 regulations was plagued with problems ranging from FWS’s overly harsh interpretation of the regulations to philosophical differences between FWS offices acting on independent policy and included even blocking falconers from obtaining eagles.
On October 8, 2008, FWS published its final rule in the Federal Register to revise the federal regulations governing falconry in the U.S. and turn the administration of falconry over to the states (Migratory Bird Permits; Changes in the Regulations Governing Falconry, 50 CFR 21.29 and 22.24, 2008). The new ruling provided the mechanism for falconry permitting to be delegated to a state if that state met the requirements to operate under the federal regulations. The 2008 administrative falconry revision also included permitting criteria for the possession and take of eagles from the wild.
In the 2008 final ruling, FWS stated: “Only the Federal falconry permit is eliminated - not Federal oversight of falconry or Federal databases. These regulations will simply transfer all falconry permitting to the States.”
FWS further stated: “We have implemented electronic reporting that will allow assessment of take of all raptor species taken from the wild for use in falconry. We will be able to assess take at the regional or State level. With this system, we will track the number of permits issued and the number of each species taken, and will evaluate the effects of take for falconry on raptor populations (see U.S.F.W.S. 2007). We expect that electronic reporting will facilitate summarizing and analyzing the effects of take of raptors for use in falconry.”
These statements made by FWS indicate that the federal and state administrative oversight of falconry including the take of raptors from the wild had been and would continue to be carefully and closely monitored. This close oversight was also intended to include the take of eagles for falconry in documented livestock depredation areas. It is AFC’s opinion that the 2008 final ruling provided a smooth and efficient management system for the take of eagles for falconry. Sadly, the 2008 final ruling was never implemented.
Despite the administrative changes of the 2008 final rule, FWS, on January 10, 2010, published a revised final ruling governing falconry. States were once again required to adopt (or amend) the regulations in order to have permitting authority over falconry (Migratory Bird Permits; Changes in the Regulations Governing Falconry, 50 CFR 21.29 and 22.24, 2010). These changes in 50 CFR 21.29 and 22.24 drastically reduced access to wild eagles for falconry, making them virtually unavailable. Under the new regulatory language, a state or federal agency such as WS must first obtain a “depredation permit or depredation control order” under the authority of 50 CFR 22.23 before falconers may trap eagles. The regulations found at 22.23 were designed to address the permitting of hazing activities and/or the lethal control of depredating eagles, not trapping them for falconry purposes.
In the 2008 final ruling, FWS stated: “Under the Eagle Act, take of golden eagles for use in falconry can only occur in depredation areas (not with depredation permits).” If this was FWS’s official position in the 2008 final ruling, why did they impose the 22.23 depredation permit or control order restriction in the 2010 revised final ruling?
In addition to the requirement for a depredation permit or control order, FWS has established a policy outside of the falconry regulations that eagles in declared depredation areas must first be hazed, trapped, removed and relocated. Only if a removed/relocated golden eagle returns to a depredation area may falconers be given permission to capture eagles in that area for falconry.
The language in the Eagle Act enabling falconers to capture eagles for falconry states: “Provided further, that the Secretary of the Interior, pursuant to such regulations as he may prescribe, may permit the taking, possession, and transportation of golden eagles for the purposes of falconry, except that only golden eagles which would be taken because of depredations on livestock or wildlife may be taken for purposes of falconry” (16 U.S.C. 668a). It is AFC’s opinion that falconers may take eagles out of the wild for falconry purposes simply because depredation exists, not to solve depredation. Our position is that the requirement to haze, trap, remove and relocate eagles prior to FWS authorizing eagle trapping for falconry is both burdensome, and an overreaching interpretation of the federal regulations.
In addition to the strict interpretation related to depredation permitting under 22.23, FWS has overstepped its authority and placed an arbitrary and capricious cap on the number of eagles that may be taken out of the wild by falconers. This cap is set at six birds per year and was established based upon the annual average number of eagles taken by falconers over the six-year period from 2002-2007. This quota does not have a legitimate basis and is not grounded in biology, rule or regulation.
From our perspective, the administration of the take of eagles for falconry in the U.S. has had a rather rocky 42 year history since the 1972 amendment to the Eagle Act. American falconers are legitimate stewards of the Golden Eagle resource. Falconry is a permitted use of the Golden Eagle resource covered
in the Eagle Act. However, qualified falconers who have successfully met the carefully prescribed licensing criteria within the regulatory framework are finding themselves frustrated with a federal agency that has appeared not just insensitive, but even disrespectful toward them.
AFC makes the following recommendations regarding the take of eagles for falconry purposes in depredation areas:
- Revisit and/or reinstate the original FWS final rule published October 8, 2008 governing falconry in the U.S. AFC believes these were sound and workable regulations governing the take of eagles from the wild. They were never given a chance to be applied and administered.
- Reevaluate the six eagle quota and consider a more realistic number or remove the quota altogether. Since there are fewer than 65 licensed eagle falconers in the U.S., the demand for eagles for falconry just isn’t high enough to warrant a quota. It is AFC’s opinion that after two-three years, the number of falconers interested in actually capturing an eagle in a depredation area will drop below the six bird quota FWS has currently set.
- Delegate to those states that have adopted the federal regulations and have legitimate Golden Eagle/domestic livestock conflicts, administrative authority over eagle take for falconry purposes. This was the original intent of FWS when it published its 2008 final ruling on falconry.
- Establish and set a five year pilot program for the above three recommendations to be assessed and adjusted if necessary. The national falconry regulation standards and their administration, including the use of eagles, have been delegated to the states under the authority of the MBTA. However, as mentioned earlier, Golden Eagles are also managed under the authority of the Eagle Act. There are enough safeguards in place under MBTA and the federal falconry regulations to administer the take and use of eagles. With regards to falconry, FWS should use their authority in administering the Eagle Act as a means to establish emergency procedures when warranted. It is the Act itself that enables falconers to obtain eagles from the wild. FWS should not be using the Eagle Act to prevent falconers from obtaining eagles. In the 2008 final rule, FWS stated: “Our 2007 NEPA analysis (U.S.F.W.S. 2007) confirmed the minimal impact of falconry on wild raptor populations.” This included the take of eagles from the wild for falconry. In addition, falconers are only permitted to capture immature birds and would have no impact on the adult, breeding eagle population.
- When promulgating federal regulations and establishing policy to help administer those regulations, ensure that all regional FWS offices operate under the same system of rules. It has been AFC’s observation that there are disparities between FWS regional offices, which makes it appear that each office is a separate and independent federal agency operating under an unpublished set of rules. A unified, national FWS working in good faith portrays a much better image to the public.
It is AFC’s intention to pursue the take of eagles from legitimately declared depredation areas for falconry purposes, as Congress intended. AFC would like to partner with FWS and begin to build and establish bridges to reach that end. It is AFC’s opinion that this will only come about through formal regulations, not policy or yearly verbal agreements. Under the current system, falconers have only been permitted to trap eagles in one of the past six years, despite the fact that depredation has been proven to be an ongoing and consistent issue. It will be through consistently administered rules and regulations that falconry’s position as a legitimate stakeholder in one of our country’s most precious public trust wildlife resources is recognized.
AFC would like to move forward concerning eagle management and permitting, which includes falconry. We believe that is the intent of this important, public scoping process. It is our hope you look favorably upon our comments and suggestions.
Eagle Committee Chairman, American Falconry Conservancy