The Wind Beneath My Wings: An Eagle Feather’s Tale

Posted on June 26, 2015 by LeAnne Burnett

Storms, strong winds and tornados usher in spring in Oklahoma.  Home to 38 federally recognized Indian Tribes, feathers often fly at Oklahoma graduations.  A few high schools each spring face off with Native American students, families, or tribal leaders over  a graduating Native American student’s request to wear her sacred eagle feather on her graduation cap during commencement.

The eagle feather symbolizes strength, nobility, courage, perseverance, respect and wisdom.  Leaders and elders only gift eagle fathers in times of great achievement.  For Native American students, receiving an eagle feather or plume in honor of graduation can be as important as the diploma.  Native American students incorporate the eagle feather or plume into their graduation regalia by attaching it to their graduation cap or tassel, thereby expressing both religious and cultural beliefs and honoring their Native American heritage.

What has this got to do with environmental law?  Well, as this Oklahoma spring blew in with two lawsuits about eagle feathers at graduation, I began to wonder -- where do these eagle feathers awarded to students come from?  After all, the Bald and Golden Eagle Protection Act forbids anyone from "taking" bald or golden eagles or their parts.  The Act punishes anyone who takes, possesses, sells, purchases, barters, offers to sell, purchase or barter, transports, exports or imports a bald or golden eagle.  Punishment includes large fines and imprisonment and applies whether the eagle is alive or dead, or the collector is absconding with an entire bird, part of the bird, an egg or a nest.  

So what is a tribal leader in need of eagle feathers to do?  In recognition of the significance of eagle feathers to Native Americans, the U.S. Fish and Wildlife Service (USFWS) established the National Eagle Repository at the Rocky Mountain Arsenal National Wildlife Refuge in Denver, Colorado.  The Repository provides Native Americans with the feathers of golden and bald eagles for ceremonial purposes. 

But wait, it’s not as easy as that.  The Repository collects, processes, and ships about 1,000 dead bald and golden eagles each year.  Electrocution, vehicle collisions, unlawful shooting and trapping, and natural causes are the usual culprits in eagle deaths, so the condition of the eagle feathers is not always perfect.  Only enrolled members of federally recognized tribes can obtain a permit to obtain eagles or eagle parts for religious purposes.  Approximately 95% of the orders are for whole eagles.  With 566 Federally recognized tribes nationally, the large demand and the limited supply force applicants to wait more than 3 years for a whole bird eagle order to be filled.  Currently, there are over 5,000 people on the waiting list for the approximately 1000 eagles the Repository receives each year.

Not everyone settles for eagle feathers from the Repository.  In 2005, a fellow named Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming shot a bald eagle within the Wind River Reservation for use in the tribe’s traditional religious Sun Dance ceremony.  Unfortunately, Mr. Friday had no permit and was ultimately fined after losing a challenge to his penalty under the Religious Freedom Restoration Act.  

The story doesn’t stop there.  The Wind River Reservation, created in 1968, is home to both the Northern Arapaho Tribe and the Eastern Shoshone Tribe.  Mr. Friday’s self-help effort having failed, the Northern Arapaho Tribe still needed eagles for use in their Sun Dance ceremony.  So the Tribe applied for a permit to take two eagles each year on the Wind River Reservation.    

But it’s a long road to an eagle take permit.  Two years after the Arapahos applied for the permit, their co-habitants of the Wind River Reservation opposed the take of eagles on the reservation, claiming that allowing an enemy of the tribe to kill sacred eagles goes against Shoshone traditions, values, morals, heritage, and freedoms.  Ultimately, however,  the USFWS awarded the first federal eagle take permit to the Arapaho Tribe on condition that the take not occur on the Wind River Reservation.  The Arapaho Tribe filed suit challenging that permit restriction.  Judge Alan Johnson, of the United States District Court of the District of Wyoming issued an order on March 12, 2015 granting in part the Arapaho Tribe’s motion for summary judgment on Free Exercise grounds, and remanding the matter for reconsideration by the USFWS in light of the Court’s Order.  See Northern Arapaho Tribe v. Daniel M. Ashe, Director, United States Fish and Wildlife Service, Case No. 2:11-CV-00347 Document 93 Opinion and Order Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment on Remaining Claims and Opinion and Order Granting in Part and Denying in Part Defendants’ Cross-Motion for Summary Judgment on Plaintiffs’ Remaining Claims (March 12, 2015).  The Northern Arapaho Tribe’s religious quest through an eagle take permit continues.

My Oklahoma-spring curiosity led me to the conclusion that eagle feathers aren’t just blown in on the wind – eagles and eagle feathers are hard to come by even for those who lawfully possess them.  Any student fortunate enough to be awarded a sacred eagle feather for graduation is truly graced.

Adjusting for Wind: USFW Extends Term for Eagle Take Permits

Posted on August 7, 2014 by LeAnne Burnett

Developing wind energy is a good thing, right?  Protecting eagles is too, isn’t it?  Both may not  be true given recent developments that highlight the tension between wind projects and the Bald and Golden Eagle Protection Act. 

First, it is official.  The U.S. Fish and Wildlife Service (“FWS”) issued a final rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) from five to thirty years.  [50 C.F.R. § 22.26.The rule took effect on January 8, 2014.  

With the removal in 2007 of the bald eagle from the list of species protected under the Endangered Species Act, the FWS issued new regulations to authorize the limited take of bald eagles and golden eagles under the Eagle Act.  In 2009 the FWS provided for eagle take permits for a maximum of five years.  [50 C.F.R. 22.26 and 22.27.]  The rule change to allow a 30-year permit is designed to facilitate development of renewable energy projects planned to operate for decades.  Generally the life of a project will coincide with the life of a 30-year permit, satisfying risk-averse financiers that their collateral is protected, at least with regard to eagle takes. 

The FWS committed to 5-year reviews of the 30-year permit, hoping to satisfy those concerned with eagle conservation. In addition, a permit applicant must implement measures to avoid, minimize, and mitigate threats to eagles over the life of the project. Compensatory mitigation that offsets eagle mortality may also be required. Under programmatic eagle take permits, permittees are required to implement advanced conservation practices -- scientifically supportable measures that represent the best available techniques to reduce eagle disturbance and ongoing mortalities. 

There is no legal requirement for project developers or operators to obtain a programmatic eagle take permit under the Eagle Act.  However, the risk of proceeding without such a permit can be significant given the civil and criminal penalties that include fines and incarceration for an unpermitted take.  [16 U.S.C. § 668(a).] 

Second, it is official.  The American Bird Conservancy made good on its threat [April 30, 2014 Letter] to litigate the issue of the 30-year rule with the FWS [June 19, 2014 Complaint].  The claims are procedural -- that the FWS deemed the rule to be excluded from any National Environmental Policy Act review, and that the FWS privileged the interests of wind developers over protection of eagles, thereby violating the Eagle Act.  The FWS has strong defenses, including its conclusion in 2009 that the eagle take permitting rule as a whole would not have any impact on endangered species.  That conclusion will likely be approved under the deferential standard of review applicable in this type of lawsuit.

Third, it is official.  The FWS issued its first golden eagle take permit to a wind developer, EDF Renewable Energy for the 102.5MW Shiloh 4 wind farm in Montezuma Hills Wind Resource Area within Solano County, California. The EDF eagle take permit is the first of its kind, allows for the take of up to five golden eagles over five years, and requires the company to implement conservation measures to reduce impacts to eagles.  EDF’s application process for its eagle take permit began in 2011, when the five-year permit was the only available option.  The application included an Eagle Conservation Plan, as well as a Bird and Bat Conservation Strategy, both of which describe current and proposed future actions to avoid, minimize, and mitigate adverse effects on eagles, birds, and bats.  The wind farm repowered at the end of 2012, and was able to incorporate some of those strategies, including compensatory retrofitting of 133 power poles in southern Monterey County formerly considered high risk to both bald and golden eagles. 

The first-issued five-year permit notwithstanding, a longer permit timeframe for wind developers may be important to long-term success, providing certainty as to regulations and permit requirements.  And take permits that call for affirmative conservation practices allow the FWS to ensure adequate species protection over the lifetime of the permit.  It’s a good thing, right?