HOPI - GOLDEN EAGLE UPDATE FOR 2013 July 10, 2014

On May 30, 2014 the U.S. Fish and Wildlife Service (USFWS) released to Public Employees for Environmental Responsibility (PEER) the 2013 Hopi Tribe eagle and hawk collecting reports. In April 2013 the USFWS issued a permit to the Tribe to take the raptors under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act (for hawks).

During 2013 the Hopi Tribe collected 28 golden eagles and 17 unspecified hawks (presumably “red-tailed”) in northeastern Arizona. The Hopi’s reported cumulative take from 1986 to 2013 is now 540 golden eagles and 201 red-tailed and other hawks. In contrast to the 2010-2012 when the large majority of the take was from Navajo Nation lands, with Navajo permission, the report for 2013 shows that the Hopi took 16 of the 28 golden eagles, and 16 of the 17 hawks from Hopi lands.

On April 21, 2014 the USFWS Regional Office in Albuquerque, New Mexico issued a new permit to the Hopi Tribe to collect up to 40 golden eagle nestlings in northeastern Arizona during 2014. The permit requires the Hopi to submit a 2014 collecting report with their request for permit renewal for 2015. PEER will seek that report when the Hopi submit it.

JEMEZ PUEBLO

On January 4 2013 attorneys for Jemez Pueblo, New Mexico applied to the USFWS to take 6 golden eagles (2 nestlings, 2 adults, 2 immature) on Jemez lands, the Trust-administered Valles Caldera National Preserve and the Santa Fe National Forest – all in Northern New Mexico. Documents provided to PEER by the USFWS contained no permit issued to Jemez for 2013 or any collecting report that was due for the 2012 permit. PEER is seeking to confirm if such documents exist.

JICARILLA APACHE

On April 3, 2014, the Jicarilla Apache Tribe applied to take 2 golden eagles in Rio Arriba and Sandoval Counties and the Jicarilla Apache Reservation in New Mexico. The USFWS did not provide PEER with a copy of a permit indicating that none has been issued.

PEER’S INVOLVEMENT

PEER began its scrutiny of eagle collecting in the U.S. 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. Neither is the case at Wupatki.

A NOTE ON RFRA

The Supreme Court’s decision in Burwell v. Hobby Lobby (June 30, 2014) prompts us to reflect on a 1993 law called the Religious Freedom Restoration Act (RFRA). That 1993 law applies to all Federal statutes, not only the Affordable Health Care Act. RFRA bears on laws that protect national parks.

In 1983 the NPS adopted its current general regulations under the authority of the Act of August 25, 1916 – the Organic Act. Those regulations, among other things, forbid the killing, capturing, wounding or disturbing from its natural state plants and wildlife, cultural resources and minerals. (36 CFR 2.1(a)).

In January 2001 the NPS proposed a special regulation for Wupatki National Monument that would have mandated that the park superintendent allow Hopi members with a USFWS Bald and Golden Eagle Act permit to take eagles in that park. (The NPS never made the rule final.) The special rule was dangerously unique. In it, NPS officials concluded that RFRA either authorizes or mandates that the NPS suspend 36 CFR 2.1(a) if members of the Hopi Tribe with a USFWS permit, demanded to take golden eaglets in Wupatki.

No other Federal land-managing or wildlife agency, then or since, has ever proposed or adopted a regulation based upon RFRA, let alone a rule that strikes at an agency’s fundamental authority. Make no mistake, the Organic Act and its rules ARE subject precisely to the kind of judicial review that RFRA mandates. No one disputes that NPS rules prohibit conduct that the Hopi and other Indian religions prescribe. No one disputes that the rules that protect animals and other park resources incidentally interfere with the Hopi’s take of the eagles at Wupatki. RFRA does NOT mean however that Federal agencies must suspend all general regulations that incidentally interfere with someone’s religious conduct. If that were RFRA’s outcome, society could hardly function.

Instead, RFRA lays out a test of whether rules like 36 CFR 2.1(a) may legally and constitutionally burden free exercise rights.

If, as assumed in the NPS’ proposed Wupatki special rule of January 2011, RFRA overrides 36 CFR 2.1(a) in Wupatki, it would soon have the same effect throughout the national park system. By using RFRA as the authority for the proposed Wupatki special rule, the NPS implied that the prohibition on the take of wildlife in Wupatki does not serve a compelling governmental interest or fails to meet the other tests of RFRA, and is thus insufficient to override the Hopi’s religious free exercise. If that were so, then 36 CFR 2.1(a) would violate RFRA at Grand Canyon, Yellowstone and every other park in the nation. Note too that RFRA is not a law that applies only to Indians. RFRA applies to any and all sincere practitioners of any religion.

The officials at Interior who ginned up the RFRA rationale in 2001 were clearly “playing with matches.” By using a RFRA rationale, the officials were in zealous pursuit of a narrow goal at Wupatki, but like most zealots, they failed to grasp the underlying assumption and startling breadth of their own arguments. Fortunately, the Bush Administration did not make the proposed special rule at Wupatki final. It was one of the more protective actions of the Bush Administration towards the national park system.

--PEER

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