AFC Response to Eagle Final Rule

Comments regarding 50 CFR Parts 13 and 22, Eagle Permits; Take Necessary To Protect Interests in Particular Localities; Final Rules

On September 11, 2009, the U.S. Fish and Wildlife Service (USFWS) published it's final ruling (FR) on the take of Bald and Golden Eagles in the Federal Register. The Final Environmental Assessment (FEA) was published in April of this year. The FR is 45 pages long. The FEA is 210 pages long. The document to pay close attention to is the FR.

No one is really certain how it will manifest itself in the coming years, or what effect this final ruling addressing the take of Golden Eagles from the wild for falconry purposes will actually have on wild take, but based on the published ruling, getting a permit to trap an eagle in a depredation area for falconry purposes is going to be very low on the priority list of permitted activities, especially when compared with other permitted uses. The model will be based on an annual harvest cap. Also, it just may preclude or justifiably cause any western state to refrain from administering and incorporating eagle depredation take permits into their falconry programs because of the conditions and restrictions that the USFWS will place on their program.  The USFWS may not have made the take of passage Golden Eagles out of the wild for falconry illegal but, for all practical purposes, they just might have regulated it out of existence.

Both the FEA and FR on eagles are ludicrous, as well as intellectually and scientifically dishonest. The data is conflicting, has been arbitrarily gathered and interpreted as a means to an end, and the conclusions in the documents are biologically absurd. Yet, this will be the scientific study and data that the USFWS will depend upon to determine the number of eagles to be taken from the wild. Taking these facts into consideration, it would appear that the USFWS does not have the best interests of American falconers in mind when considering the take of Golden Eagles from the wild.  The irrefutable fact is that the USFWS was working on two federal mandates to harvest Golden Eagles at the same time. The first was the new falconry regulations outlining how falconers could obtain Golden Eagles out of the wild, and the other mandate drops falconers into a low priority position for taking live eagles from the wild that is in direct conflict and competition with the long standing permitted take and use of raptors by Native Americans. As a result, the USFWS mandate gives, but inevitably takes away the opportunity for the take of Golden Eagles from the wild by falconers simultaneously.  Falconers, a primary stakeholder, had little input into the process of the resulting findings and ruling.

Some Givens and Important Questions That Deserve Answers:

        *  Given that official environmental impact statements conclude that falconry has no impact on the raptor resource whatsoever, how can the USFWS undertake implementing and administering any of the procedures as outlined in the recent FR regarding Golden Eagles, without knowing how human caused mortality relates to the overall mortality of Golden Eagles and showing how falconry would have an impact?

        *  Given that falconry is a legal, and legitimate, federally recognized and licensed field sport, how will the take of golden eagles from the wild for falconry purposes be consistently and fairly administered in the future in relation to the take from the wild of any species for falconry?

        *  Given that the Golden Eagle has never been federally listed as either threatened or endangered in any part of its U.S. range, at any time, and is currently federally listed as common, why has the USFWS wasted so much time and effort?

        *  Given the Eagle Act has provided for falconers to trap Golden Eagles from the wild in depredation areas since 1972, how can the USFWS show how falconry has had a negative impact on the Golden Eagle population the past 37 years justifying this new, arbitrary and overly restrictive final ruling?

        *  Given that the Eagle Act does not favor or prioritize the disposition of Golden Eagles among authorized permitted groups, how can, and why should the USFWS prioritize use now?

        *  Given that there has always been a distinct and separate, promulgated set of federal regulations permitting the acquisition of Golden Eagles by Native Americans and a separate set of promulgated federal regulations permitting the acquisition of Golden Eagles for falconry purposes why has the USFWS lumped all take together?  What part of the Eagle Act prompted the USFWS to take that approach?

        *  Given that there is a conservative, estimated population of 80,000 Golden Eagles in North America, is the North American population estimate going to be used, especially since the chances of trapping Golden Eagles during the depredation season are likely to be migrants?

        *  Given that the take of Golden Eagles out of a federal depredating area is not a managed harvest of the resource, is the take of depredating Golden Eagles for falconry purposes under the 1972 amendment being considered in this case, as an alternative to killing eagles?

        *  Given that many U.S. states have regulations that specifically provide for the possession and use of Golden Eagles for falconry purposes, is the need for USFWS regulation necessary for population protection as only immature birds, not yet part of the breeding population, may be legally taken for falconry purposes?

        *  Given that Golden Eagle take permits for falconry are limited to the take of immature Golden Eagles by state falconry regulations, doesn’t the take of younger, non-breeding Golden Eagle age classes have even less of a biological impact, after the mortality risk to immature eagles is calculated?

       *   Given that the USFWS concludes that the number of injured eagles taken out of the wild, put into rehabilitation programs, and released back into the wild in the United States has no impact on the breeding population of Golden Eagles, how can the finding in the harvest proposal of the FR imply that capturing a small number of Golden Eagles for falconry has any negative effect on the wild eagle population in any way? 


        *  Given that there has been a 15 year history of trapping Golden Eagles in depredation areas in Utah, South Dakota, and Wyoming, with many of these eagles going to licensed falconers and that these activities were permitted and administered by the USFWS, are we to assume that falconers may no longer trap eagles in these known and established depredation areas?

        *  Given that the USFWS has just recently published their final ruling regarding the administration of falconry (2008) to be taken over by the states and that the specific rules outlining the acquisition of Golden Eagles from the wild and their possession are already specifically outlined in that final rule, how will the USFWS expect the states to administer the section dealing with Golden Eagles in light of this new ruling and the conflicts that it poses within the regulations?

        *  Given that the final ruling regarding eagles published on 9-11-09 in the Federal Register is administered, and that these new rules will be inconsistent with the current federal falconry regulations regarding Golden Eagles that the states are currently expected to adopt, which will be used or adopted by the states and incorporated into their new state falconry regulations?


This politically motivated 2009 FR states that newborn lambs are the only domestic animal taken by Golden Eagles.  The document simply ignores the life history of Golden Eagles and also ignores, or minimizes at best, the well-documented diet of the Golden Eagle and witnessed predation of Golden Eagles on domestic livestock.  Not consulting USDA/APHIS/ Wildlife Services, their sister agency, directly responsible for eagle depredation, proves the USFWS was not concerned about the science of the Golden Eagle, or the federally managed eagle depredation problem, but rather seeking to establish arbitrary repressive regulation directed toward the take of Golden Eagles for falconry purposes.  Eagle predation on domestic livestock has not only been witnessed, but also well documented in scientific field notes, journals, and on film.

The unscientific nature of the poorly prepared and written 2009 FEA and FR will generate different interpretations between the different USFWS regional offices themselves, let alone the different regional offices of USDA/Wildlife Services, U.S. Forest Service, BLM and state game and fish departments.  This will leave each USFWS region to operate and administer the FR, independently, as if it were a separate country.

The Golden Eagle was amended to the Bald Eagle Protection Act in 1962, due to the similarity of appearance to immature Bald Eagles and because of intense persecution of the Golden eagle in the west.  Today, the Act is simply referred as the Eagle Act.  Ten years later, in 1972, the Eagle Act was amended to allow the USFWS to deal with the depredation of the Golden Eagle on domestic livestock.  The intent of the Congressional amendment was to provide for tools to be put in place for the USFWS to manage depredation problems caused by Golden Eagles.  The amendment served primarily for the USFWS to kill depredating Golden Eagles as needed.   Under the amendment, Congress also provided a means for Native Americans and falconers to obtain live Golden Eagles.  Under the provisions of the Act’s amendment, however, if taken from the wild, falconers are only permitted to obtain Golden Eagles in depredation situations.

In the 1972 amendment to the Eagle Act allowing the use of Golden Eagles for falconry purposes, actual regulations were not promulgated by the USFWS until January 1984.  It is unclear why the USFWS took 12 years to promulgate regulations to administer the use golden eagles for falconry purposes after the congressional provision in the Eagle Act's 1972 amendment.  To date, this question has never been formally answered by anyone with the USFWS.  The USFWS acts as though the 12-year gap never occurred.

Nowhere in the Eagle Act is there any language that prioritizes one use of the Golden Eagle over another.  In the 2009 FEA and FR, however, the USFWS has prioritized Native American uses of eagles over that of falconers and has clearly pitted one legal use against another.  Again, this was never the intent of the Eagle Act.  Each use is permitted under the Act, have no bearing on each other, or effect on the breeding population of Golden Eagles. It is clear that some southwestern Native American tribes have been harvesting Golden Eagles in non-depredating areas for over 40 years under these rules, and probably will continue to do so.

Depredation areas are not identified, declared, or managed by the USFWS, but by USDA/APHIS/Wildlife Services.  That is how the new 2008 federal falconry regulations, that the states are required to adopt, are written. In this FR, the USFWS bestows upon itself the ability and authority to determine the number of Golden Eagles that can be harvested from an unknown number of future depredation areas in the west with an unknown number of Golden Eagles involved in those areas. Although falconry was considered equal in the past, Native Americans now would have priority over live take of eagles for falconry in depredation areas.

The combined 255 pages of the 2009 FEA and the FR have demonstrated just how arbitrarily the USFWS has managed the golden eagle resource.  In essence, it is clear that the USFWS has never truly managed the Golden Eagle resource, and is now rewriting the 1972 amendment to the Eagle Act by enacting some type of a quota system on the take of depredating Golden Eagles and pitting the use of eagles by falconers against that of Native Americans.

If my predictions, based on my interpretation of the 2009 FR, come to fruition, falconers may not ever again be able to trap a golden eagle from the wild in a depredation area no matter where it is located.  If the USFWS is so concerned about the North American Golden Eagle population, how can it show or even suggest that the individual take of immature, non-breeding birds by falconers has any effect or is damaging to the breeding Golden Eagle population?  The USFWS needs to reassess the need for their final rule or do a complete rewrite.  From a biological standpoint, the USFWS could do a Categorical Exclusion for both a falconry take and a Native American take.