Letter from Mr. Horn to USFWS

The U.S. Fish and Wildlife Service (“FWS”), on November 13, 2007, issued a notice of availability of its Draft Environmental Assessment and Management Plan (“DEA”) for the Take of Migrant Peregrine Falcons in the United States for Use in Falconry.  See 72 Fed. Reg. 63921 (Nov. 13, 2007).  The Wild Raptor Take Conservancy (“WRTC”) herein submits its comments on the DEA.  The WRTC is a national organization dedicated to protecting the rights of falconers throughout the United States.

The WRTC applauds the Service’s decision to allow take of migrant peregrine falcons for use in falconry.  The peregrine falcon, with the help of the falconry community, has recovered from the brink of extinction and now exists in healthy, robust populations throughout many parts of the United States.   No reason currently exists for the FWS to prohibit or unduly restrict take of migrant peregrine falcons for falconry purposes.

The DEA examines six alternatives.  These include the status quo (Alternative 1) under which take by falconers of migrant peregrine falcons would be prohibited in the 48 contiguous states, and a proposed alternative (Alternative 3) under which falconers could take migrant peregrine falcons between September 20 and October 20 from areas of the United States south of 31 degrees N latitude and east of 100 degree W longitude and within the State of Alaska.  The alternatives also include an alternative (Alternative 6) that would allow take of migrant peregrine falcons between September 20 and October 20 from anywhere in the United States.

The alternatives presented do not include possible options that would be better tailored to allow maximum possible take of migrant peregrine falcons while still serving FWS’s conservation goals.  In particular, FWS makes a number of unnecessarily conservative assumptions that, while largely arbitrary and scientifically unsupported, result in overly restrictive limits on nationwide take of peregrine falcons for falconry purposes.  In addition, the DEA arbitrarily assumes that take in all geographic areas must be limited to that supportable by populations in the most sensitive areas.  FWS should examine alternatives not based on overly conservative or unnecessarily restrictive arbitrary assumptions about what level of overall nationwide take peregrine falcon populations can support, and should examine alternatives allocating overall nationwide take by geographical area, preferably on a flyway-by-flyway basis, depending on what level  each flyway can support, in order to at least give those falconers in the West and Midwest the opportunity, if they should choose to do so, to attempt to capture a peregrine falcon from the wild for use in falconry.

Throughout the rulemaking and implementation process, FWS should keep in mind that falconers are a very small proportion of the population, and falconers likely to successfully capture peregrine falcons from the wild are an even smaller group.  Given that the recovery of the peregrine falcon is largely due to the efforts of falconers and that falconers have always focused on the health of the bird populations and can be a valuable ally in the effort to regulate take of migratory birds including migrant peregrines, FWS should proceed in a spirit of cooperation with the falconry community.

1.         The falconry community is largely responsible for the recovery of the peregrine falcon and its current healthy numbers.

The recovery of the peregrine falcon to healthy levels is largely due to the actions and support of the falconry community including many of WRTC’s members.  Indeed, falconers have consistently led the way in raptor conservation and recovery of threatened and endangered species.  In 1965, falconers concerned about the plight of the peregrine falcon participated in the International Peregrine Conference in Madison, Wisconsin.  This conference highlighted the disappearance of the peregrine falcon and the need to conserve raptors.  The falconry community itself was the driving force behind Migratory Bird Treaty Act (“MBTA”) regulation of raptors, including the designation of “apprentice,” “general,” and “master” levels of falconry and institution of falconry and raptor propagation permits.  Through a captive breeding program developed by falconers, the peregrine falcon population in the United States was returned to a healthy level, and the breeding principles developed by falconers have since been used to augment other raptor populations as well.  The falconry community, as small as it may be, is a valuable ally in the quest to regulate and conserve raptors.  The peregrine falcon is living proof.  The FWS should work with, rather than against, the falconry community in crafting reasonable, scientifically sound regulations that allow falconers to practice falconry free from unnecessary restriction while meeting the FWS’s conservation goals.  The effort to allow regulated take of migrant peregrines for falconry purposes should be made in that spirit of cooperation.

2.         The DEA relies on overly conservative and largely arbitrary assumptions about overall nationwide peregrine take levels, and should examine alternatives providing for greater nationwide take in accordance with what peregrine populations nationwide can support.

All the alternatives discussed in the DEA are based on the assumption that overall peregrine take by falconers must be limited to no more than 5 percent of estimated annual peregrine production.  FWS bases this limit on a Millsap and Allen study, which recommends that actual harvest rate not exceed 50 percent of calculated maximum sustained yield or 5 percent, whichever is less.  Millsap and Allen based their own conclusion on observed survival rate data from a long-term mark-recapture study of Western F. p. anatum (i.e., “Anatum”) peregrines in Colorado.  FWS, in the DEA, assumes that these survival rates apply equally to other subspecies including F.p. tundrius (i.e., “Northern” or “Tundra”) peregrines, while simultaneously acknowledging that no similar study has been performed for Tundra peregrines, and that higher survival rates have been observed among certain Tundra peregrine populations and that other contrary observations and/or predictions have been reported.

The DEA goes on to conclude, based on modeling based, in turn, on Millsap and Allen’s analysis, that maximum sustained yield occurs at a harvest rate of about 13 percent of fledged young.  Since 50 percent of the maximum sustained yield is 6.5 percent, the DEA, assumes, as Millsap and Allen assume, that the maximum harvest rate under all alternatives should be limited to 5 percent (the lesser of 50 percent of maximum sustained yield or 5 percent) for all peregrine species and populations.

The DEA does not, however, critically examine or explain why it should adopt Millsap and Allen’s assumption that overall take be limited to the greater of half of maximum sustained yield or 5 percent.  Moreover, it appears that Millsap and Allen’s recommendation is somewhat arbitrary and overly conservative due to uncertainties in calculation of maximum sustained yield, unaccounted-for stochasticity (i.e, randomness), and the inadequacy of actual monitoring of the effects of the peregrine harvest.  However, observations by WRTC’s membership indicate that many peregrine populations throughout most of the United States are healthy and nationwide peregrine populations could likely support a harvest level significantly greater than 5 percent.  Indeed, even if the DEA is correct that Millsap and Allen’s 5 percent harvest limit, based on a much smaller sample size, was appropriate for Anatum peregrines, there is no apparent reason why FWS cannot examine alternatives allowing harvest of greater than 5 percent of other subspecies.

WRTC encourages the FWS to examine alternatives providing for a larger overall peregrine harvest than the 5 percent of maximum sustainable yield assumed in the current DEA.  That assumption is overly conservative and based on information of questionable applicability to nationwide cross-species migrant peregrine take limits.

3.         The DEA should consider alternatives that limit migrant peregrine take from each flyway based on what each flyway can support.

The DEA divides the North American and Greenland peregrine population into 3 “management populations”:  (1) the Northern population, consisting of Anatum and Tundra peregrines originating at natal sites at or north of 54 degrees N latitude; (2) the Western population, consisting of all peregrines originating from natal sites at or west of 100 degrees W longitude and south of 54 degrees N latitude; and (3) the Eastern population, consisting of all peregrines originating from natal sites east of 100 degrees W longitude and south of 54 degrees N latitude.  It then sets take limits for each “management population.”  Those limits for each population are capped at the maximum number of birds the FWS has determined that the most sensitive population, the Eastern population, can support.

As noted above, the Millsap and Allen study is questionable as a basis for FWS’s entire analysis of nationwide and regional migrant peregrine take.  The Millsap and Allen study involved only a single Colorado population of Anatum peregrines; its applicability to all peregrine subspecies across North America and Greenland is questionable at best.  Even aside from that, however, the DEA fails to offer any reasons why FWS cannot examine region-by-region or, more appropriately, flyway-by-flyway regulation, including limits for each geographical area or flyway based on what the peregrine population of that area or flyway can support.

First, there is no reason to identify separate “management populations” when migratory birds including raptors are already regulated on a flyway basis.  The FWS should regulate peregrine take on a flyway basis and establish take limits for each flyway based on what the populations in that particular flyway can support.  The flyway management system is already in place, complete with a flyway council for each flyway.  There is no reason to create an entirely new system of allocating geographical management responsibility for the peregrine falcon.  At the very least, the DEA should consider alternatives utilizing the existing flyway management infrastructure.

Moreover, there is no reason why the FWS must limit take throughout all geographical areas to what the most sensitive populations in the Eastern U.S. can support.  FWS can establish a separate take limit for each flyway based on the level of harvest that particular flyway can support.  If the Atlantic Flyway is particularly sensitive to peregrine take, it can be managed with specific regulatory measures including lower take limits if necessary.  But the DEA offers no reason why other areas of the country should be unnecessarily restricted simply because one flyway may require a lower limit.  For example, WRTC members report an abundance of migrant peregrines in the Mississippi and Central flyways, as opposed to what might be present in the Atlantic flyway.  Furthermore, populations in Michigan and around the Great Lakes have been reported as very healthy and likely able to support a significantly higher take limit than what the DEA’s limited alternatives would provide.  There is no reason to unnecessarily restrict falconers to low limits on take of peregrines from robust populations, based on the greater sensitivity of a few populations in one particular flyway.  Indeed, such flyway-by-flyway regulation would provide the falconry community the flexibility needed, due to the distribution of migratory concentrations of peregrines, to allow falconers in many parts of the country (not just the southeastern United States, as the proposed alternative provides)  the opportunity to capture peregrines for falconry purposes even if most are unlikely to actually do so.

Furthermore, flyway-level regulation would impose minimal additional administrative burden.  Information-sharing mechanisms are already either in place, or contemplated by the DEA, such that a coordinated flyway-by-flyway approach would not impose undue additional information gathering or sharing burdens.   In addition, federal regulations already require falconers taking any raptor from the wild to report them to the office that issued their permit, thus minimizing information-collecting burdens.  At the very least, the DEA should consider alternatives utilizing a flyway-specific management approach (or a “management population”-specific approach, if the FWS should still decide not to use the existing flyway management infrastructure), complete with individual limits on migrant peregrine take for each flyway based on what that flyway can sustain.

4.         The Draft EA should consider whether to implement different take restrictions for different subspecies of peregrine falcons.

The DEA examines only take limits applicable to all subspecies of peregrine falcons.  However, the DEA does not address whether take limits for each subspecies of peregrine falcon would be feasible and/or beneficial.  The FWS should consider whether such limits, which could be narrowly tailored to address concerns related to each subspecies, could or should be implemented.  For example, to the extent the FWS is more concerned about the take of Anatum peregrines than other subspecies, the DEA should at least consider whether it can examine alternatives that provide separate take limits for Anatum and other subspecies.  Similarly, the Peale’s peregrine falcon currently exists in particularly healthy numbers and has never been threatened or endangered anywhere in the United States.  Therefore FWS should consider whether any restriction is justified with regard to Peale’s peregrines and, if so, how restrictive those regulations really need to be to maintain healthy populations of Peale’s peregrines.

Subspecies-specific measures should be considered in combination with flyway-specific regulation to implement even more narrowly-tailored regulations that would address each species within each particular flyway.  Such specific regulatory measures could still be tailored to address the FWS’s conservation concerns while allowing for maximum sustainable take for each species within each flyway.

5.         Strict limits on peregrine take are generally unnecessary because falconers are a small group not likely to threaten peregrine populations.

As a general matter, falconers are a very small group and are not likely to take peregrine falcons from the wild in large enough numbers to materially impact any of the management populations.  Of the approximately four thousand falconers in the United States with FWS-issued permits, many have no intention to take peregrine falcons from the wild regardless of what rules the FWS promulgates.  As a result, the true level of take by falconers in the United States is likely to be much lower than even the low number of practicing falconers in the United States would indicate.

6.            Alternative 6 is preferable to the extent it allows take from anywhere in the United States between September 20 and October 20, but the numerical limits under Alternative 6 (and all alternatives discussed in the DEA) are too restrictive.

As discussed above, WRTC objects to the arbitrary assumptions and unduly restrictive limitations present in all of the alternatives discussed in the DEA.  Of the alternatives presented, Alternative 6 is the only one that would allow take throughout the continental United States.  WRTC supports Alternative 6’s allowance for take throughout the continental United States between September 20 and October 20.  However, the numerical limits examined as part of Alternative 6 are far below what peregrine populations in many parts of the United States can support and are, as a result, unduly restrictive.

Alternative 6 is preferable to Alternative 3 (the proposed alternative), which unnecessarily prohibits take throughout all of the United States with the exception of a sliver of territory in the southeastern U.S.  Alternative 3 would unnecessarily deprive falconers throughout the Western and Midwestern states of the opportunity to even attempt to capture wild migrant peregrines for use in falconry.  This makes little sense, given that many western and midwestern states are home to or in the migration path of some of the most healthy and numerous peregrine populations anywhere, and also have strong falconry communities that would benefit from the opportunity to capture peregrines for use in falconry.  As the DEA notes, all alternatives presented (including Alternative 6) are consistent with the FWS’s stated conservation objectives which, as noted above, are themselves arbitrary and far too restrictive.  However, there is no reason to believe that Alternative 6’s allowance for take anywhere in the continental United States is inherently inconsistent with reasonable conservation objectives designed to ensure sustainability, including flyway-specific allocation of overall national take limits.

Alternative 6, as presented, would allow for an annual U.S. harvest of approximately 34 migrant peregrine falcons per year.  The Proposed Alternative, as presented, would allow a maximum U.S. harvest of approximately 105 migrant peregrine falcons per year under the FWS’s assumptions.  Neither of these numbers approaches the levels of take the current peregrine falcon populations throughout the United States can support, even given the conservative assumptions underlying the DEA.  The DEA estimates annual production of peregrines in North America and Greenland for management purposes to be between 5,912 and 13,618 young fledged annually.  Millsap and Allen estimate maximum sustainable yield under assumed vital rates to be 13 percent of fledged young.  Therefore, even assuming the low end of the DEA downward-adjusted range for annual production, this would support an overall annual take of approximately 768 peregrine falcons.  Even adjusting for FWS’s estimated take in Canada and Mexico of 27 total peregrines, therefore, a yield of up to 741 peregrines would be sustainable under the FWS’s conservative estimates and assumptions.

Given that a maximum sustainable yield in the U.S. of approximately 741 peregrines, an overall U.S. take limit for falconry purposes of 500 peregrines is reasonable.  This overall limit, combined with flyway-specific limits on how many of each species of peregrine may be taken in that flyway, would allow falconers throughout the U.S. (not just in a small sliver of the southeastern U.S.) who wish to attempt to capture peregrines for falconry purposes to do so, while still providing more than adequate room for FWS to meet its conservation objectives.

As noted above, relatively few members of the falconry community are likely to even attempt to capture a wild peregrine for falconry purposes.  However, falconers throughout the United States should have the opportunity to do so as long as they comply with their permits and other governing law.  A 500-peregrine limit divided throughout all flyways based on the population characteristics within each flyway would provide the falconry community flexibility needed to trap where migratory concentrations of peregrines exist, while still ensuring sustainability.  At the very least, FWS should examine alternatives providing for greater overall numbers of peregrines to be taken for falconry purposes, rather than examining only alternatives based on the arbitrary and overly-conservative assumptions presently in the DEA.

7.            Regardless of what regulatory measures FWS implements, FWS should make it a priority to continue to collect scientifically sound information on peregrine populations, and should revisit its migrant peregrine take regulations within the next five years.

Regardless of what regulations FWS eventually promulgates, FWS must continue to collect sound scientific information regarding peregrine falcon behavior, biology, and populations.  As noted above, the DEA relies almost entirely on a study by Millsap and Allen regarding a single population of a single subspecies in Colorado.  The DEA does not even acknowledge two of the most important peregrine studies in existence, those at Assateague Island off Maryland and Virginia, and Padre Island in Texas.  These two studies have the potential to provide significant reliable scientific information regarding the current status and future of the peregrine falcon, and FWS must use that information to improve its regulations over time.

Furthermore, FWS must encourage and foster greater study and understanding of peregrine falcons, and learn from its own experiences regulating peregrine take.  WRTC supports the FWS’s revisiting its regulations governing take of migrant peregrine falcons for falconry purposes within the next five years, based on the best scientific information available at that time.  During the intervening five years, FWS should examine the Assateague and Padre Island studies to ensure that they are properly funded and supported and methodologically sound.  Furthermore, FWS must continue to promote peregrine research so that its own knowledge, and its ability to regulate in a well-informed and scientifically sound manner, improves.

WRTC supports the FWS’s steps to make migrant peregrine falcons available for take in the United States for falconry purposes.  With the help of the falconry community, peregrine falcons have been brought back from the brink of extinction and now exist in healthy, robust numbers throughout many parts of the country.  With the further help of the falconry community, FWS can continue to learn about and monitor peregrine populations and ensure that they remain healthy and sustainable while allowing adequate take for falconry purposes.

The DEA as presented, however, makes largely arbitrary, overly-conservative, and unsupported assumptions leading to unnecessary geographical restrictions and unnecessarily low limits on the number of peregrines that can be taken overall throughout the United States.  As a result, the DEA considers an inadequate range of alternatives.  The DEA should consider alternatives that allow for greater capture numbers and more widespread ability to take peregrines.  Such alternatives would be entirely consistent with the FWS’s conservation needs, but would also allow falconers greater flexibility to attempt to capture peregrines in areas where they are located and where peregrine populations are healthy.  In doing so, FWS would better acknowledge the falconry community’s vital role in the recovery and modern-day health of peregrine falcon populations in the United States.

WRTC looks forward to working with FWS as FWS moves toward a set of regulations for take of migrant peregrine falcons for falconry purposes.  Please feel free to contact me if you have any questions.

Very truly yours,

William P. Horn
Counsel for WRTC