HOPI - GOLDEN EAGLE UPDATE FOR 2010-201

November 14, 2012

On November 5, 2012, after a protracted delay, the U.S. Fish and Wildlife Service (USFWS) released to Public Employees for Environmental Responsibility (PEER) the 2010 and 2011 Hopi Tribe eagle and hawk collecting reports. PEER originally requested these reports on August 3, 2011. The USFWS issues the permits under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act (for hawks).

In 2010 the Hopi Tribe collected 11 golden eagles and 1 unspecified (red-tailed) hawk in northeastern Arizona. In 2011 the Hopi Tribe collected 18 golden eagles and 8 unspecified (red-tailed) hawks in northeastern Arizona. The Hopi’s reported cumulative take from 1986 to 2011 is now 495 golden eagles, 175 red-tailed and other hawks. The 2010 and 2011 reports show that the large majority of the take was from Navajo Nation lands, with Navajo permission.

On April 20, 2011, the USFWS Regional Office in Albuquerque, New Mexico issued a new permit to the Hopi Tribe for collecting during 2011. On April 3, 2012, the USFWS issued a new permit to the Hopi Tribe for 2012. The 2012 permit specifies the Hopi annual collecting report due on September 10, 2012. This is a change from the previous requirement that the report be presented to the USFWS by January 31 of each calendar year.

The 2011 and 2012 permits authorize the take of the same numbers as the 2009 permit – 40 golden eagle eaglets and 50 red-tailed hawks. The 2011 permit continued a limitation first imposed in the 2007 permit that the take of 40 eagles by the Hopi may include no more than 18 from Navajo lands. However, the 2012 permit does not contain this limit.

A USFWS letter of April 9, 2012 transmitted the 2012 permit to Hopi Tribal Chairman Singoitewa. The letter notes “We have also received Tribal Wildlife Grant reports from the Hopi Tribe as well as from the Navajo Nation on Golden Eagle nesting success on their respective lands. Based on results from these sources, all of which suggest measurable declines in nesting attempts and productivity of Golden Eagles in the areas of consideration in the southwestern U.S., we believe that if these downward trends continue, we may re-examine the authorization for 40 birds to the Hopi Tribe in the future.”

OTHER TRIBES

The USFWS reports that the agency issued a 2011 permit to take one golden eagle to the Jemez Eagle Watching Society of Jemez Pueblo, New Mexico dated September 22, 2011. The collecting report was due on December 10, 2011. PEER has not yet obtained that report.

During 2012 the USFWS received two applications to take eagles, other than from the Hopi Tribe. On March 15, 2012 Jemez Pueblo applied to take 15 bald eagles (immature and adults) and 25 golden eagles (nestlings, immature and adults) within the New Mexico counties of Sandoval, Rio Arriba, Los Alamos, Santa Fe and San Miguel. The USFWS also received an application (dated April 30, 2012) from a member of the Jicarilla Apache Nation, New Mexico to kill in the wild 4 immature golden eagles.

PEER hopes to receive any USFWS permits in response to the two applications in the near future and will prepare a new report early in 2013.

This report does not yet cover the controversy with the Eastern Shoshone sparked by Secretary Salazar’s decision to issue a permit to the Northern Arapaho Tribe in March 2012 to take 2 bald eagles.

PEER’S INVOLVEMENT

PEER began its scrutiny of eagle collecting in the southwest as a result of the 1999 Hopi attempt to take eagle nestlings from Wupatki National Monument in Arizona. The USFWS permits may not legally be used to take eagles or hawks within any area of the national park system except under 36 CFR 2.1(d) where such take is specifically provided for in law or as a treaty right.

WUPATKI NATIONAL MONUMENT

There is nothing new to report about the rule proposed by the Interior Department in January 2001 that requires that the superintendent of Wupatki National Monument, Arizona allow members of the Hopi Tribe, in possession of a USFWS permit, to take golden eaglets in the park. PEER opposed the rule in written comments (as did the National Parks Conservation Association and The Wilderness Society). The rule has not been made final. The National Park Service (NPS) last wrote to PEER on March 27, 2003, stating that “…there continues to be no planned action related to this issue at anytime in either the near or far distant future.” PEER opposes opening national parks to the traditional, religious or ceremonial take of wildlife, natural or cultural resources by any religious or culturally-affiliated group, except as a park enabling act provides for it.

THE DELAY IN USFWS RESPONSE

PEER persisted for 15 months in seeking the documents despite the USFWS lack of response. The USFWS conduct is all the more puzzling given the history of this issue. On June 9, 2000 PEER first submitted a FOIA to the USFWS seeking “the annual (1986-1999) permit reports by the Hopi to FWS detailing eagle collection locations” in northeastern Arizona. The Hopi are required to submit such a report as part of their application for a new annual permit. PEER sought this information to help determine the nature and extent of Hopi take of golden eagles in the vicinity of Wupatki National Monument.

On August 16, 2000, the USFWS withheld the annual permit reports under FOIA exception #4 – “confidential business information” and the USFWS Native American Relationships Policy. On September 5, 2000 PEER appealed the withholding of the annual reports of the permittee, explaining why the annual reports are not protected by FOIA exception #4 - “trade secrets and commercial or financial information,” and why the USFWS Native American Relationships Policy is not a basis for withholding information found in FOIA.

On October 22, 2001, the Solicitor advised, and the Department of the Interior overruled, the USFWS Regional Office in Albuquerque, New Mexico and released the information sought under the Freedom of Information Act (FOIA) regarding Hopi collection of golden eagles in northeastern Arizona.

The Department rejected the USFWS rationale, holding that the annual report submitted by the Hopi “…is neither commercial nor financial in nature” and therefore may not be withheld. The Department sent to PEER copies of all annual reports submitted by the Hopi from 1986 to 2000.

For nearly a decade, the USFWS responded professionally and promptly to PEER’s requests for the Hopi Tribal annual eagle and hawk collecting reports.

Then, the USFWS ignored the PEER request of August 2011. In May 2012, PEER resubmitted the request. Finally, in October 2012, PEER threatened a lawsuit. On November 5, 2012, the USFWS released the documents to PEER.

The USFWS explained the delay because they had undertaken consultation with the affected Indian Tribes under Secretarial Order 3206. PEER approves of such consultation but pointed out that the USFWS must nonetheless respond to a FOIA request within the timeframes specified in law and regulation. A Secretarial Order does not suspend either.