How Many Joules is an Eagle’s Life Worth?

I normally do not like to wade into controversial issues. It is not because I am indifferent or without my own opinions, but because I like to write for enjoyment and for the enjoyment of whomever reads my work. However, sometimes issues pop up that I can’t keep quiet about. I read today that the current administration and the EPA are trying to remove all restraints from rapid expansion of renewable energy. I am not against clean energy renewables, but there is one part I cannot abide, and that is wind farms and the damage they do to bird of prey populations, particularly the Bald and Golden Eagle species.

The Bald and Golden Eagle Protection Act

On June 20^th, 1782, the Continental Congress officially adopted the American Bald Eagle with its outstretched wings as the Great Seal of the United States. Even with such an esteemed title, laws protecting the national bird were not enacted until 1918 with the passage of the Migratory Bird Treaty Act of 1918, and more specific laws concerning eagles were passed with the Bald Eagle Act in 1940 that would expand into the Bald and Golden Eagle Protection Act (BGEPA) amended in 1962. The original Migratory Bird Treaty Act covered protections of all migratory bird species between the U.S., Canada, and Mexico. Then in the 1930s, bald eagle populations sharply declined and prompted congress to add additional protections specifically for the Bald Eagle (Haliaeetus leucocephalus) species. Fines or jail time or both would await those who intentionally killed or took a bald eagle, and when the decline of the Golden Eagle (Aquila chrysaetos) species came to congress’ attention, protections for them were adopted to the standing protections for bald eagles and under the same legal framework. The last major revision came in 2007 when the Bald Eagle was removed from the endangered species list.

The Purpose of the BGEPA

            The initial purpose of the Bald and Golden Eagle Protection Act was just that: protection of the species. With populations of both eagles on the decline across North America and with the bald eagle being high on the endangered species list, congress acted based on the words of the preamble of the original 1782 act, which stated the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom. While the laws were enacted to protect the birds from unlawful take (deaths), they were not enacted to infringe on the rights of other individuals concerning eagles, yet the act does just that. As the act grew in scope, other purposes such as possession of an eagle or its parts, depredation, take requirements, and the use of eagles and their parts in tribal religious ceremony were addressed. In some more modern revisions, the act was petitioned to change for a certain number of incidental takes by the wind energy sector. While this is very controversial, it was not the first controversial issue with the BGEPA.

Non-native practitioners of native Indian religions have challenged the law citing a violation of free exercise of religious rights and the establishment clause of the first amendment. The act defines permittees entitled to possess eagles and/or parts to researchers, museums, permitted exhibitors (zoos), and native Indians. Under the BGEPA, a special office called the National Eagle Repository was formed in Commerce City, Colorado under the jurisdiction of the Fish and Wildlife Service. This office has one purpose, and that is to collect and distribute bald and golden eagle parts to registered Indian tribes for religious ceremony and permitted users for education and exhibition. Even to possess a single feather from an eagle, a permit is required.  

The Regulatory Goal to Bring Eagles Back from the Edge of Extinction

          From the first alarm bells on bald eagle populations in the 1930s to the removal of the species from the endangered list in 2007, bald eagle numbers have roared back from the brink. In the lower 48 states, bald eagles hit a low of 487 breeding pairs in 1963. Arguments could be made that the BGEPA was not working too well. However, by 2007, the count increased to 9,789 breeding pairs. Many actions contributed to the success of the bald eagle comeback, but the golden eagle was not so lucky.

In the first five years of life, bald and golden eagles are physically nearly indistinguishable. The measures taken to preserve bald eagles benefited golden eagles as well. Protection for one spilled over into protection for all because the average person could not tell the eagles apart form a distance. However, when golden eagles were given added protections in 1962, their differentiated use in Native American religious rites was challenged. Exceptions were made for Indian tribes to also conserve their cultural practices regardless of conservation efforts. This differentiation has been hard on golden eagles. Where bald eagle populations are now around 350,000, golden eagle populations are estimated around 40,000. The goal of the law was aimed toward saving bald eagles, and it accomplished that in a little over four decades. Golden eagles may have been added to BGEPA too late. Laws should be revised for protection of the species over religious rites, regardless of Native American cultural preservation.

Court and Legislative Events Concerning Eagles: Religious Challenges

            One of the BGEPA challenges that occurs frequently is the exercise of religious freedom. Non-native practitioners of native religions have petitioned numerous times to be allowed to possess eagle parts. In United States v. Lundquist in 1996, an Oregon man claimed that he should be entitled to possess eagle parts through his lineage. He claimed to be descended from Cherokee and Lakota Sioux tribes yet was not registered as a member of either tribe with the Bureau of Indian Affairs. The court only sided with the government in this case due to the high demand of eagle parts from registered Native Americans, and essentially denied the defendants claim because he was cutting the established line for ceremonial need. Had the demand been less, the court may have decided differently.

            In another case, Rupert v. Director of the United States Fish and Wildlife Service, a similar claim was made by a non-Native defendant that his religious rights were infringed, but that it is due to a violation the establishment clause in the first amendment. The defendant claimed the permitting process was not administered evenly among natives and non-natives, and that claims for eagle parts could be arbitrarily denied based on discriminatory practices. The process was accused of discriminating against certain religious practitioners, namely favoring Natives over non-Natives. Native Americans occupy a special niche in United States Law, and in this case, the defendant was denied based on two findings. First, that the BGEPA does not infringe religious beliefs but does exempt a denominational group (Native Americans) from certain clauses. Second, the court decided that it is inherent on the United States to preserve Native culture and religion through special exemptions for actual Native Americans.

Non-Religious Cases

Outside of religious challenge, incidental take and unlawful depredation are regular in the news cycle. Under these circumstances, a unique challenge emerges that environmental law stands in the way of the very thing it was meant to expedite, namely in wind farms. Climate change advocates press for an immediate stop to the use of fossil fuels while developing “green” or “clean” energy, which usually means solar or wind. Under NEPA, environmental studies are required by law for projects big and small, such as wind and solar farms, unless circumstances allow for categorical exclusions. Environmental laws that were established to preserve clean water and air are now standing in the way of rapid expansion of these energy ventures much to the chagrin of those who champion an end of fossil fuels. That does not mean administrations are without redress, and they are certainly not afraid to use it.

            In September of 2022, The Biden Administration sought to fast track the permitting process and bypass NEPA requirements for environmental assessments and environmental impact statements to bring more wind energy projects online faster. Multiple companies have found themselves under prosecution for eagle deaths related to wind turbines in the last decade and fear of prosecution and fines has stalled growth. One such company, NextEra Energy, pleaded guilty to 150 eagle deaths in eight states due to wind farm collisions. NextEra did not obtain proper permitting and will pay $8 million in fines and spend $27 million over five years of mandated probation on preventative measures to stop eagle collisions in the future. However, even with restitution, allowing wind facilities to be exempt from prosecution is in breach of eagle conservation standards set forth by the USFWS in its revised 2016 Eagle Rule and Eagle Conservation Plan Guidance, especially the golden eagle. This is particularly troubling under guidance set forth under the Trump Administration that suspended prosecutions across the board for eagle deaths related to energy projects.

            Political interference in Native American issues is not a new concern. A petition from the Hopi tribe to the National Parks Service requested taking eaglets from the nest for religious reasons at Wupatki National Monument. The eaglets would be raised to fledge and then sacrificed as part of a religious rite. Far be it from me to impede someone else’s religious practice, but sacrificing an animal brings you no closer to any God, no matter which ones you believe in. After National Parks refused the Hopi request, the Clinton Administration issued an executive order in response for all federal agencies to make reasonable accommodation to reduce burdens on Native American religious ceremonies and to expedite the Native American applications for eagle parts submitted to the National Eagle Repository. This political interference proved that protection only extends while those in office allow it. In this case, the Hopi tribe was granted their request and more golden eagles will die legally yet unnecessarily.

When the Law Fails to Protect Eagles

In 1972, Congress determined that the incentivized demand for eagle parts outpaced the punishments for violating the BGEPA. Illicit commerce in eagle parts ended with stiffened financial penalties and easier prosecution. The laws to protect bald eagles were stacking.  When an eagle is unlawfully killed, multiple statutes decree punishment, and a suspension of one must be a suspension of all, much like the bald eagle no longer being protected by the Endangered Species Act but is still protected under the MBTA of 1918 and the BGEPA. These overlapping layers of protection are meant to stop unlawful take of eagles regardless of which administration is in power, and for good reason. Golden eagles are only afforded protection under the BGEPA, as they are not migratory nor the national symbol. With only one law standing between them and destruction, those who wield power should consider thin veil more carefully.

Conflicting mandates between fast track take permits for wind companies to avoid prosecution and then adhering to conservation plans and environmental directives that protect eagles are causing legal confusion, and the only one who suffers is the eagle. The USFWS is operating under opposing regulation to both support permits for renewables and to protect eagles. They are not mutually exclusive ideas, but they overlap often enough that the laws, acts, and plans that govern eagle protection should be considered with more weight. Ironically enough, one of the biggest opponents of expanded take permits for energy companies is Indian tribes.

Though they would stand to benefit the most from the aftermath of additional eagle deaths, objections from the Colorado River Tribes, Grand Portage Band of Lake Superior Chippewa, and the Gun Lake Tribe, along with multiple environmental groups have been raised against wind farm expansion and take permits. They would rather see eagles protected in the same way other Native American sacred sites and objects are protected. However, some environmental groups actually support the expedited permitting, believing that immunity from prosecution will bring accurate eagle take reporting from companies who might otherwise not self-report for fear of fines or penalties. They also believe that proper permitting may incentivize companies to allow sites that were solely for energy production to expand and also allow on-site research that may help reduce accidental take.

Eagles in the wild face many threats. Wind turbines, shooting, poison, electrocution, car strikes, other predators, and capture, among others. Perhaps the greatest threat they face is an indifference towards their right to exist. Political whim has the ability to enforce the laws as written for eagle protection or disregard law by executive fiat when politically necessary. The anthropocentric approach to reducing greenhouse gas emissions by imposing a different type of destruction of the environment is a poor answer to a global problem. I believe the ends and the means to solving a problem are the same. Justifying eagle deaths for the greater good of the planet is archaic and short-sighted. Arguments can be made for which is the greater good, but the golden eagle cannot survive at the current mortality rate it suffers and must be offset to a minimum of no net loss. However, as of September of 2022, the permit process is streamlined, and as of today, the rhetoric went to warp speed on the fast track to wind energy projects. Energy corporations are given 10-year exemptions from prosecution by self-reporting incidental eagle take and paying permit fees and penalties by the eagle.

If positive solutions to environmental problems are to be found, it all starts with holding violators to the fair and just rule of law. Not every environmental problem can be solved with a net-zero result and not all environmental laws are perfect. Many are in dire need of updating and modernization. However, what is written is still the law and regardless of political expedience or a rush to clean energy. The law must be followed. Just as polluters must follow the NEPA processes, clean energy projects must do the same.

So, what is the value on an eagle’s life? Since 1782, the countenance of the bald eagle has represented our nation in matter of every kind. In war and peace, in victory and defeat, and in tragedy and triumph. The original drawing of the eagle given to congress represented “supreme power and authority” according to the artist that created it. It does our tarnished nation no favors to usher in the destruction of our national symbol in the name of renewable energy when other countries are laughing in our faces as they pollute without remorse. Conflict between the built and natural environment will always be a concern in modern society. Accelerating permits for incidental eagle take and arbitrarily enforcing environmental law when it is politically expedient is not the answer to fixing the issue. We’re smarter than this. We can do better.

Cover photo: Golden eagle (Aquila chrysaetos) in flight, Cairngorms National Park, Scotland. Credit: Peter Cairns / naturepl.com