Will bald eagles remain compelling enough to validate the Bald and Golden Eagle Protection Act after ESA delisting?

THE NINTH CIRCUIT'S ANALYSIS IN UNITED STATES V. ANTOINE

  I. INTRODUCTION
 II. HISTORY AND REUGIOUS SIGNIFICANCE OF BALD EAGLES
     A. Ups and Downs of Bald Eagles
     B. Religious Significance of Eagles
III. PROTECTIONS FOR BALD EAGLES
     A. The Bald and Golden Eagle Protection Act (BGEPA)
        1. Protections and Prohibitions
        2. Permitting Procedures to Use Bald Eagles
     B. The Migratory Bird Treaty Act (MBTA)
     C. The Endangered Species Act (ESA)
 IV. THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA)
  V. INTERPRETATIONS OF THE BGEPA IN RFRA CLAIMS
     A. Analyzing the Government's Compelling interests
        1. Finding Compelling interests
        2. Finding No Compelling interest
     B. Analyzing the Means Used to Reach a Compelling interest
 VI. DELISTING IS NOT A LEGITIMATE BASIS FOR INVALIDATING
     THE BGEPA UNDER RFRA
     A. Bald Eagles Will Need the Protection of the BGEPA if They Are
        Delisted Under the ESA
     B. The Delisting Proposal Relies upon Continued BGEPA
        Coverage of Bald Eagles
     C. A Bald Eagle Delisting Decision May Not Be Reasonable
        1. Best Scientific Data Available
        2. Threat of Habitat Degradation
        3. Adequacy of Other Regulatory Mechanisms
VII. CONCLUSION

I. INTRODUCTION

In 2001, Leonard Fridall Terry Antoine was convicted of violating the Bald and Golden Eagle Protection Act (BGEPA) (1) and was sentenced to two years in prison. (2) Antoine violated the BGEPA by selling and trading bald eagle wings and feathers, and an eagle bone whistle. (3) He claimed that these transactions were not commercial transactions, but rather expressions of his religious beliefs that should not be prohibited by the BGEPA. (4) Although members of federally recognized Indian tribes are eligible to obtain permits to possess and transport eagles because of the significance of eagles in some Native American religions, (5) selling or buying eagles is prohibited. (6) Antoine did not have a permit to possess or transport eagles (7) and was not eligible for a permit because he is a member of the Salish Indian Tribe in British Columbia, Canada--a tribe that is not recognized by the United States Government. (8)

The BGEPA has been protecting bald eagles (Haliaeetus leucocephalus) since 1940. (9) Congress passed the BGEPA primarily to keep bald eagles, currently listed as threatened under the Endangered Species Act (ESA), (10) from becoming endangered or extinct. (11) In 1999, the United States Fish and Wildlife Service (FWS) proposed removing ESA protections from the bald eagle by taking it off the list of threatened species. (12) In his conviction appeal, Antoine used the 1999 FWS delisting proposal to argue that eagles were plentiful enough that the government could no longer restrict his religious use of eagle part. (13) When challenging the validity of a statute restricting a person's religions exercise, defendants can bring their claim under the Religious Freedom Restoration Act (RFRA). (14) If a statute burdens a person's free exercise of religion, RFRA forces the government to show that it has a compelling interest behind the statute, and that the statute employs the least restrictive means to further that interest. (15) Antoine argued that the government's interest in bald eagle conservation was no longer compelling considering the potential delisting. (16) The Ninth Circuit disagreed, noting that the government has no duty to relitigate the BGEPA every time the eagle population increases, and that a defendant must show "a substantial change in relevant circumstances" to prove that the BGEPA is no longer valid. (17) The FWS proposal to delist bald eagles was not the substantial change envisioned by the Ninth Circuit, but the court conceded that the proposal to delist bald eagles weakened the government's conservation interest in eagles. (18) Although the court did not discuss what effect actual delisting would have on its analysis of the BGEPA or whether delisting would be the "substantial change" it mentioned, it is reasonable to assume that if a proposal to delist weakens the government's interest in protecting a species, actual delisting could remove that interest completely. Courts should not consider decisions to delist eagles under the ESA when analyzing the continued validity of the BGEPA.

This Chapter examines Antoine's argument that, by virtue of the FWS delisting proposal, the government's interest in protecting the bald eagle has weakened to the point of invalidating the BGEPA when a defendant challenges the statute under RFRA. Part II explains historical trends in eagle populations, threats to their survival, and their sacred significance in some Native American religions. Part III outlines the three primary statutes protecting bald eagles--the BGEPA, the Migratory Bird Treaty Act (MBTA), (19) and the ESA. Part IV discusses RFRA's compelling interest test for statutes that burden the exercise of religion. Part V summarizes the analyses the Ninth Circuit and other circuits have used to evaluate the BGEPA under RFRA. Finally, Part VI explains why courts should not use the delisting of bald eagles as a factor in their analyses of the BGEPA.

II. HISTORY AND RELIGIOUS SIGNIFICANCE OF BALD EAGLES

A. Ups and Downs of Bald Eagles

Eagles are enveloped in a rich symbolic history that stretches from ancient Babylonia to the modern United States. (20) As the official symbol of the United States, the bald eagle is a part of "the fabric of American life." (21) Its image graces a wide variety of objects, from public buildings and police badges, to Harley-Davidson motorcycle t-shirts. (22) The bald eagle has been one of the most recognizable and popular threatened or endangered species-one that the public has rallied behind as the species has been threatened with extinction. (23)

Prior to European settlement of North America, bald eagles were distributed widely across the continent and were one of its most common birds. (24) Their numbers began to decline after settlement, as a result of people who hunted them for sport and for protection of both livestock and hunted game from eagle depredation. (25) Bald eagles were also killed unintentionally by ranchers and trappers who set out poisoned meat as bait for coyotes and other animals that was eaten by bald eagles instead. (26) Collection of bald eagle eggs also contributed to the bald eagle's decline. (27)

The most devastating impact on bald eagle populations was the introduction of dichloro-diphenyl-trichloroethane (DDT), a toxic chemical used to kill insects, in the 1940s. (28) DDT was absorbed by insect-eating fish, and then by the fish-eating bald eagles. (29) The poisoned bald eagles had difficulty reproducing--DDT weakened their eggs' shells (30)--which helped to push bald eagles to a population low of less than 1,000 breeding pairs in the continental United States in the 1960s and 1970s. (31) The ban of DDT in the United States in 1972 has resulted in a significant increase in the bald eagle population in the years since. (32)

Although these various threats have waxed and waned over time, habitat destruction has been a constant threat to bald eagles since European settlement of North America. (33) Bald eagles are large animals that require large trees to support their nests. (34) They also generally need to be isolated from human development to thrive. (35) As human population increases in an area, the habitat and nesting area available for eagles is reduced, and the area loses its ability to support eagles. (36) Habitat loss is a more difficult problem to solve than, for example, the problem of DDT poisoning. (37) The government can more easily ban DDT than it can regulate land use and population settlement. (38) In addition, once people take over bald eagle habitat, that habitat is usually lost to the eagles forever, whereas the DDT problem began to subside once the substance was banned. (39) Habitat destruction has replaced DDT as the biggest threat to bald eagle survival. (40)

Reacting to the precipitous decline in the bald eagle's numbers and fearing that the species could become extinct, in 1967 FWS listed the bald eagle as "endangered" (41) in the United States below the 40th parallel. (42) In 1978, following surveys showing a decline in the bald eagle population throughout the United States, FWS expanded the endangered listing to include populations throughout the continental United States except Oregon, Washington, Michigan, Minnesota, and Wisconsin. (43) The bald eagle was listed as "threatened" in those five states excepted from the endangered listing. (44) The bald eagle was reclassified in 1995 once it began to rebound (45) and is currently listed as threatened throughout the continental United States. (46) The threatened classification means that it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (47) The bald eagle population has increased approximately ten fold from its population in 1963, and its nesting sites are more widely distributed throughout its range than they were in past decades. (48)

FWS proposed removing the bald eagle from the list of threatened species on July 6, 1999. (49) FWS stated that delisting was appropriate because the bald eagle had recovered sufficiently, thanks to recovery programs and habitat protection under the ESA and the reduction of DDT in the environment. (50) Removing the bald eagle from the threatened species list would remove all of its ESA protections. (51) In the proposed rule, FWS emphasized that delisting the bald eagle would not reduce or eliminate its protection under the BGEPA or the MBTA. (52) FWS also stated that the bald eagle could be relisted as endangered or threatened if an "unexpected decline" in its population were to occur after delisting. (53)

B. Religious Significance of Eagles

Eagles are sacred and, as such, are fundamentally important to many Native American religions. (54) The Sioux creation story, for example, recounts how the Sioux Nation was founded by the offspring of a woman and an eagle; and the Anishinabe revere the eagle as a messenger to the Creator. (55) Eagles and eagle parts are indispensable elements of ceremonies in the religions that revere the eagle. (56) The importance of eagle feathers in some Native American religions can be compared to the importance of the cross or the Bible in Christianity. (57) The feathers, symbols of courage and respect, (58) are used in significant events such as healing ceremonies, burials, ceremonial dances, and prayers. (59) Eagle bones also have religious uses as ceremonial whistles, and eagle talons are used as amulets. (60) Although parts from eagles are necessary elements of some Native American religions, these religions generally do not permit killing eagles. (61) Most practitioners who use eagles or eagle parts in their ceremonies obtain these parts from dead eagles (62) and object to killing eagles for use in religious ceremonies. (63) Because eagles and eagle parts are "essential to the practice of Native American religion," (64) any restriction on the use of eagle parts affects the religious practice of people who view eagles as sacred. (65)

When the BGEPA was originally passed in 1940, Congress did not address the religious interest of Native Americans in bald eagles. (66) Congress amended the Act in 1962, adding protections for the golden eagle (Aquila chrysaetos) and recognizing that golden eagles played an important role in Native American religions in the Southwest. (67) As a result of that recognition, Congress authorized a permit program to allow taking bald and golden eagles for Native American religious use. (68) Under the current permit scheme, a person must be a member of a tribe recognized under the Federally Recognized Tribal List Act of 1994, (69) and intend to use the eagle or eagle parts in religious ceremonies in order to be eligible for a permit to possess or transport eagles or eagle parts. (70)

III. PROTECTIONS FOR BALD EAGLES

A. The Bald and Golden Eagle Protection Act (BGEPA)

1. Protections and Prohibitions

Bald eagles are protected primarily by three statutes: the BGEPA, the MBTA, and the ESA. (71) The predecessor to the present BGEPA was the Bald Eagle Protection Act, (72) enacted by Congress in 1940. Congress's protection of the bald eagle was based on the symbolic importance of the bald eagle and the fact that it was threatened with extinction. (73) Congress described the bald eagle as "no longer a mere bird of biological interest but a symbol of the American ideals of freedom." (74) The aesthetic value of the bald eagle was also cited as a reason for its protection. (75) This legislative history is notable because in cases such as Antoine where a defendant questions the validity of the BGEPA on the basis of religious freedom, the courts focus on the threatened status of the bald eagle as the compelling government interest behind the statute. (76) The presence of symbolic and aesthetic motivations behind the BGEPA, however, enhances the claim of a compelling government interest in eagle conservation. (77)

The BGEPA states that people can be punished if they "knowingly ... take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import ... any bald eagle ... or any golden eagle." (78) The definition of "take" in the BGEPA is to "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or disturb" individual eagles. (79) The BGEPA also prohibits people from taking any eagle part, egg, or nest. (80) A violation of this statute can result in a $5,000 fine and one year of imprisonment. (81) A second violation of this statute can result in a fine of $10,000 and two years of imprisonment. (82) The BGEPA also provides civil penalties for those who "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import ... any bald eagle." (83) In contrast to criminal violations, however, civil violations need not be committed intentionally or with wanton disregard for the consequences. (84) A person can be fined $5,000 for each civil offense he has committed. (85) Under the BGEPA, the government may also require a person to forfeit the eagles, eagle parts, eggs, or the nests he possesses unlawfully, as well as the instrumentalities used to transport or take these objects. (86)

2. Permitting Procedures to Use Bald Eagles

In an exception to the BGEPA's general prohibitions, members of Native American tribes are eligible for permits to take, possess, or transport eagles or their parts. (87) FWS grants permits to members of recognized tribes in the United States who are engaged in religious activities and need eagle parts for those activities. (88) The permit system does not, however, allow a member to sell, purchase, or trade eagles. (89) FWS processes BGEPA permits at its migratory bird permit offices and then forwards the approved permits to the National Eagle Repository in Colorado (90) Government wildlife agents bring dead eagles they collect to the Repository. (91) The eagles collected at the Repository died from a variety of causes, including collisions with cars, electrocution, unlawful killing, or simply natural causes. (92) Once at the Repository, FWS staff members assign each eagle a number and record its species, age, and condition into a database. (98) Staff members also may add replacement parts to an eagle if its parts or feathers are damaged or missing. (94) The eagles are then used to fill permits in the order in which the permits were received. (95) FWS may make an exception to the first-come, first-served system for an immediate need, such as a burial ceremony. (96)

The BGEPA permitting system is far from perfect. (97) Possibly the biggest problem with the system is the long delay in receiving eagle parts. (98) FWS warns permit applicants that they can expect to wait three-and-a-half years if they are applying for an entire eagle. (99) Applicants seeking loose feathers have a shorter, but still significant, wait of six to nine months. (100) The National Eagle Repository receives about 1,000 eagles every year and there are approximately 5,000 people on the waiting list to receive eagles. (101)

Other problems plague the permit system, including the condition of the eagles sent from the Repository. (102) Recipients of eagles complain that the birds or parts are often in unacceptable condition once they are received, or that the Repository delivered the wrong type of eagle. (103) Some also view the permitting system as intrusive to religious privacy. (104) A permit applicant must answer questions about herself and the religious ceremony in which she will use the eagle (105) and must provide certification of membership in a federally recognized tribe. (106) In addition to answering questions about her religions beliefs, the applicant must also agree to allow government agents to monitor the permitted activity by granting them reasonable entry into the premises where she will use the eagle. (107) Because of these problems, the permit system unquestionably places a burden on Native Americans who must use this system to obtain eagles or eagle parts for religious uses. (108)

B. The Migratory Bird Treaty Act (MBTA)

As a migratory bird, (109) the bald eagle is also protected under the MBTA. Congress enacted the MBTA in 1918 to execute the migratory bird protection treaty between the United States and Great Britain, on behalf of Canada. (110) The MBTA prohibits actions, such as capturing or taking migratory birds, which threaten the survival of individual migratory birds and their nests or eggs. (111) Knowingly taking a migratory bird with the intent to sell it, or actually selling it, may result in a $2,000 fine and up to two years in prison. (112) Other violations of the MBTA are misdemeanors and may result in a fine of $15,000 and a prison sentence of six months. (113) As is the case under the BGEPA, people may apply for permits to take migratory birds. (114) The MBTA regulations contain permit procedures to take most migratory birds, (115) but bald and golden eagles have a separate permitting system that applies to both the BGEPA and the MBTA. (116)

C. The Endangered Species Act (ESA)

As a threatened species under the ESA, (117) the bald eagle receives the ESA's protections. These protections are broader than those found in the BGEPA or the MBTA. One protection provided by the ESA that is not found in the other two statutes is a federal government consultation requirement. (118) Federal agencies must consult with FWS before taking actions that may harm bald eagles. (119) The goal of this consultation is to ensure that the agency's actions will not jeopardize any bald eagles or destroy bald eagle habitat. (120) Neither the BGEPA nor the MBTA have this consultation requirement.

The ESA also has habitat protections that the other two statutes lack. One of the most important provisions of the ESA prohibits people from "taking" bald eagles. (121) "Take" is defined more broadly in the ESA than in the BGEPA or the MBTA. (122) The ESA's definition of take includes not only hunting and killing an eagle, but also harming it. (123) The FWS regulations include "significant habitat modification or degradation" in the definition of "harm" if those actions actually kill or injure wildlife. (124) The broad definition of take in the ESA gives species a great deal of protection, reaching not only individual animals, but also their habitat. This protection is important because habitat degradation is a major threat to endangered and threatened species. (125) The ESA protects habitat on private as well as government land--an important safeguard considering that "[n]early 80% of listed species occur on private land." (126) The definitions of take in the BGEPA and the MBTA, on the other hand, are more limited because they do not include "harm," and thus do not protect habitat. (127) The protections of those two statutes are limited to individual animals.

Another way in which the ESA's protections are broader than those in the BGEPA and the MBTA is that the ESA provides for a private right of action. (128) This means that "any person" can sue to stop a person, corporation, or government from violating the ESA. (129) Neither the BGEPA nor the MBTA allows private citizens to sue to enforce those statutes. (130) As a result, only the federal government may bring a claim to enforce them. If the government chooses not to enforce the BGEPA or the MBTA in a particular situation, members of the public have no ability to force the government to do so, but may bring a suit under the ESA if a listed species will be affected. (131)

As listing confers the protections of the ESA on the bald eagle, delisting strips those protections away. (132) FWS must use the following five factors in its determination of whether a species should be delisted: 1) destruction, curtailment, or modification of the species's habitat, or the possibility of these activities in the future; 2) excessive use of the species for scientific, commercial, recreational, or educational uses; 3) predation or disease; 4) the shortcomings of regulations other than the ESA that protect the species; and 5) other facts threatening the species's future existence. (133) FWS must use the "best scientific and commercial data available" to make its delisting determination. (134) For a species to be delisted, these data must establish that the species is not endangered or threatened, has recovered, or was listed incorrectly in the first place. (135) Once a species has been delisted, FWS must monitor the species for at least five years to ensure that delisting does not result in the species becoming endangered or threatened again. (136)

The ESA provides the broadest protection for eagles and their habitat of any conservation law. (137) The ESA provides a federal agency consultation requirement, habitat protections, and a citizen suit provision that neither the BGEPA nor the MBTA contain. Because delisting takes these important protections away, the protections that remain in the BGEPA and the MBTA will be even more important to the survival of bald eagles after delisting than they are now. (138) The increasing importance of the BGEPA in light of the proposed delisting should affect courts' analyses of whether the government's interest in protecting eagles is compelling under the Religious Freedom Restoration Act.

IV. THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA)

The Free Exercise Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (139) Under the Free Exercise Clause, a person must comply with an otherwise "valid and neutral law," even if that law impinges upon her religious beliefs. (140) In a challenge to a law under RFRA, however, a court will apply a more stringent test to a law that burdens a person's exercise of religion than it would under the Free Establishment Clause. (141) Congress passed RFRA primarily in response to the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, (142) where the Court held that a state could prohibit the use of peyote, even ff a person used it in religious ceremonies. (143) Congress was unhappy with this restriction on religion and passed RFRA to reinstate the "compelling interest" test from Sherbert v. Verner, (144) which courts had applied prior to Smith. (145) RFRA ensures that when a person claims that her religious freedom is substantially burdened by a law, even if the law is facially neutral, the government is required to show that a compelling government interest supports the law. (146) RFRA's compelling interest test has three parts: 1) the defendant must prove that the statute "substantially interferes with his free exercise of religious beliefs," 2) the government must prove that there is at least one compelling interest behind the statute, and 3) the government must prove that the statute is the least restrictive means to achieve this compelling interest. (147) The Supreme Court has described the compelling interest test as the most challenging to meet in constitutional law. (148) If the government cannot meet this test, the law is invalid as applied to those for whom the statute is a substantial burden on their religious freedom. (149)

The first element of the compelling interest test is that the defendant has a religious practice essential to his religions beliefs that is substantially burdened by the statute. (150) "Mere inconvenience" to the defendant's religions practice is not enough to satisfy the substantial burden requirement. (151) In addition, the defendant must have a genuine religious belief. (152) Therefore, a defendant cannot use RFRA to challenge the BGEPA ff he has unlawfully taken the eagles for commercial, rather than religious, use. (153) The Ninth Circuit has found that because eagles are sacred religious objects, religious practitioners do not buy and sell eagle parts. (154) In the Ninth Circuit, this limitation applies to defendants who take eagles "purely" for commercial use. (155) If the defendant genuinely believes, as Antoine did, that exchanging eagle parts for goods has religious significance, however, the Ninth Circuit will allow the RFRA challenge. (156)

The second element of RFRA requires that the government prove it has a compelling interest behind the statute, and the third element requires that the government prove that the statute is the least restrictive way to achieve that compelling interest. (157) In the context of the BGEPA, the government must prove that it has at least one compelling interest in restricting the taking, possessing, and transporting of eagles, and that the permit system is the least restrictive means of pursuing that interest. In Antoine, the court found a compelling interest in protecting bald eagles (158) and found the permitting system to be the least restrictive means of achieving this interest. (159)

V. INTERPRETATIONS OF THE BGEPA IN RFRA CLAIMS

A. Analyzing the Government's Compelling Interests

1. Finding Compelling Interests

When evaluating the protection of eagles in the context of RFRA, courts have generally found a compelling government interest in conserving the birds under the BGEPA, as the Ninth Circuit did in Antoine. (160) In balancing this interest against the defendants' religions interests, courts have also found that the permit system was the best way to strike a balance between the two. (161) Prior to the FWS delisting proposal, these courts considered the government's conservation interest to be clear. (162) Some of these courts explicitly tied the government's interest to the listed status of the bald eagle under the ESA. (163) The delisting proposal, however, has given defendants a reasonable argument that the compelling interest in conserving bald eagles has weakened as a result of population increases. (164)

Thus far, no defendant has successfully used the FWS delisting proposal to convince a court that the government is unable to fulfill the compelling interest requirement of RFRA. (165) Both the Eighth and Ninth Circuits, however, have found merit in the argument that the delisting proposal affects the government's Interest in bald eagles. (166) Both courts noted that the delisting proposal reduced the government's interest in protecting eagles and implied that a final rule could abrogate the compelling government interest. (167) While the courts did not explicitly conclude that a final rule to delist the bald eagle would dilute the government's interest to the degree that it would no longer be compelling under RFRA, they emphasized the need for the defendants to show a "substantial change in relevant circumstances," and discussed the difference between a proposal to delist and a final rule. (168) The defendants failed to present enough evidence that the compelling government interest had been removed, because the bald eagle had not actually been delisted. (169) The reasoning of the Eighth and Ninth Circuits implies that the courts could be convinced that, once the bald eagle is delisted by a final rule, the compelling government interest in its conservation will be eliminated.

While the analysis of both courts recognized conservation of a listed species as a compelling interest, their analyses were incomplete because they failed to consider whether other compelling government interests could account for the BGEPA's validation in a RFRA claim. Another court took a broader view of the government's interests in bald eagles and found that the government presented compelling interests under the BGEPA beyond protecting eagles from extinction. (170) In Gibson v. Babbitt (Gibson II), (171) the government presented three compelling interests supporting the BGEPA: 1) protecting eagles from extinction, 2) protecting Native American religions, and 3) fulfilling the government's treaty obligations to Native American tribes. (172) The district court acknowledged but did not discuss the "obvious and compelling" interest in protecting eagles from extinction, (173) but found a compelling interest in both protecting Native American religions and preserving treaty rights. (174) The BGEPA works to preserve Native American religious by ensuring eagles and eagle feathers are available for practitioners to use in religious ceremonies. (175) If eagles were not protected and became extinct, religious practitioners would have no source for eagle parts. The BGEPA supports treaty rights because the BGEPA abrogated Native Americans' pre-existing treaty rights to hunt and fish in particular areas. (176) The BGEPA permit system allows Native Americans access to eagle parts, even though Congress abrogated eagle hunting rights when it enacted the BGEPA. (177) Because the BGEPA gives tribes access to eagles and eagle feathers, the district court found that the government had a compelling interest in demonstrating "its fidelity to the rule of law among nations." (178) On appeal, the Eleventh Circuit affirmed the government's compelling interest in protecting the tribes' treaty rights, but found no need to consider the district court's findings that the government proved a compelling interest in protecting eagles from extinction and in protecting Native American religions. (179) The possibility of two compelling government interests supporting the BGEPA apart from conservation makes the statute's validity under RFRA more reasonable, regardless of the bald eagle's ESA listing status. (180) In future RFRA challenges to the BGEPA in the Ninth Circuit, the government's claim of a compelling interest in bald eagles could be strengthened if it presented the court with compelling interests apart from its interest in conservation.

In addition to the courts' findings in Gibson v. Babbitt (Gibson I) (181) and Gibson II, legislative history supports the proposition that the government has interests in protecting bald eagles that are not eliminated by delisting. In enacting the BGEPA, Congress cited the symbolic and aesthetic interests in bald eagles as foundations of the statute. (182) The legislative history indicates Congress's desire to protect bald eagles for reasons other than conservation and implies that Congress would want bald eagles to he protected regardless of their status under the ESA. (183) The Ninth Circuit should consider the effect of this legislative history on the government's interest in bald eagles before using the FWS delisting decision as the sole indication of the government's interest.

Although delisting has the strongest influence on the government's interest in eagle conservation, delisting may also have an influence on these additional government interests. For example, if a defendant could show that delisting meant that bald eagles were plentiful enough to allow Native Americans free access to eagles for religious use and to support treaty rights, a court may find that those interests are no longer compelling and that the BGEPA was invalid as applied to religious practitioners. If, however, the court found that the symbolic interest in bald eagles was compelling, delisting would have no effect on that interest. The Ninth Circuit has not declared whether these compelling interests exist, and should consider these possibilities before removing BGEPA protections based solely on delisting.

2. Finding No Compelling Interest

Unlike courts in the bald eagle cases, the New Mexico district court in United States v. Abeyt (184) declared that the government interest that supports the BGEPA's protection of golden eagles was not compelling, because golden eagles are not listed under the ESA. (185) The Abeyta court found that the BGEPA was invalid as an unconstitutional burden on Native American religion in the context of golden eagles both because the government had no compelling interest in protecting golden eagles, and because the permit system failed to satisfy the needs of religious practitioners. (186) The government's conservation interest in golden eagles was weak because the golden eagle was not an endangered species and its population was not declining in New Mexico. (187) The court also heard testimony from a biologist that some golden eagles could be taken without harming the population. (188) The court concluded that the government's interest in conserving golden eagles was "commendable and important," but not compelling. (189) This conclusion rested primarily on the golden eagle's status as an unlisted species. (190)

The court added that even if it had found a compelling government interest the permitting system was still an overly-burdensome limit on Native American religions. (191) Although the defendant did not attempt to get a permit, the court found that it would have been worthless for him to get a permit because the permit scheme "does not effectively fulfill [Native Americans'] need for eagle feathers for ceremonial use." (192) Not only did the permit scheme have too few eagles for all the practitioners who wanted them, but the government had never issued a permit to kill a golden eagle for religious use. (193) In addition to being ineffective, the court found that the permit scheme was unreasonably probing and hostile to the privacy of applicants when balanced against the conservation goals of the BGEPA. (194) Abeyta and contrary cases, such as Antoine, finding that the government does in fact have a compelling interest in protecting bald and golden eagles, rely on the ESA listing status of the eagles to analyze the validity of the BGEPA. This widespread reliance (195) strongly suggests that a change in the status of the bald eagle from listed to unlisted will affect courts' analyses of the government interest in protecting the eagles under the BGEPA. The effect of this change, according to current analyses, will be that courts will find no compelling government interest in conserving eagles.

B. Analyzing the Means Used to Reach a Compelling Interest

While most courts have analyzed whether the government interest in protecting bald eagles is compelling, another analysis focuses on the second RFRA factor--whether the BGEPA permitting system is the least restrictive means to achieve the goal of protecting eagles. (196) In United States v. Hardman, (197) the court found that the increased population of bald eagles was irrelevant to the strength of the government's interest in protecting them. (198) The court stated that the government always has a compelling interest in protecting eagles because "[t]he bald eagle would remain our national symbol whether there were 100 eagles or 100,000 eagles." (199) The court also found compelling interests in protecting eagles beyond conservation (200)--protecting Native American cultures and religions, and satisfying trust obligations to tribes. (201) According to the Tenth Circuit, an increase in the number of eagles would not undermine the government's compelling interests, (202) but could affect whether the BGEPA permitting system is the least restrictive means to achieve the government's goals. (203) The Hardman court declared that it did not have a sufficient record to determine whether the government proved that the permit system was the least restrictive means and remanded the case for the district court to answer this question. (204) Although the Tenth Circuit explicitly stated that the government's interest in eagles would still be compelling even if the species were delisted, other courts have not made the same finding. (205)

VI. DELISTING IS NOT A LEGITIMATE BASIS FOR INVALIDATING THE BGEPA UNDER RFRA

In reviewing the applicability of the BGEPA to defendants who are protected by RFRA, the Ninth Circuit and a majority of other courts stress the listed status of the eagle under the ESA as the force behind the government's compelling interest. This emphasis implies that delisting the bald eagles will remove the compelling interest. (206) This logic presents a serious threat to the viability of bald eagles if they are no longer listed under the ESA. The Ninth Circuit should not rely on delisting in analyzing the BGEPA under RFRA for three reasons. First, unregulated taking of bald eagles--even for only religious use--would threaten the species's survival. Second, the delisting proposal for the bald eagle and the FWS analysis supporting the proposal explicitly rely on protections of the BGEPA as a reason why the eagles do not need protection under the ESA. The proposal also states that the permit system will continue to be the means by which Native Americans will obtain bald eagle parts for religious uses after delisting. Removing BGEPA protections because ESA protections are removed--even if only when RFRA applies--would illogically jeopardize the survival of the bald eagle. (207) Finally, the Ninth Circuit should consider the vulnerability of the final rule to challenge under the Administrative Procedure Act (APA). (208) Because the final rule to delist likely will have flaws that will render it invalid, the court should exclude the delisting from its RFRA analysis.

A. Bald Eagles Will Need the Protection of the BGEPA if They Are Delisted Under the ESA

In analyzing the compelling interest supporting protection of the bald eagle, the Ninth Circuit failed to discuss whether eagle populations may still need protection from unregulated religions takings even if they are delisted. (209) Despite FWS's belief that bald eagles have recovered, (210) evidence shows that bald eagles have not completely recovered and still need statutory protection. (211) While the bald eagle population has increased dramatically from its low in the 1960s, not all of the FWS goals for full recovery of the bald eagle have been met. (212) For example, in the Chesapeake Bay area in Maryland and Virginia, the long-term success of bald eagles depends on permanently protecting bald eagle habitat. (213) The bald eagle delisting proposal itself emphasizes the need for habitat protection in this area and notes that the ESA is a "key factor in protecting eagle habitat." (214) Bald eagles in this area face "an unprecedented rate of habitat loss" that will accelerate if habitat is no longer protected under the ESA. (215) Habitat loss has replaced DDT poisoning as the primary threat to bald eagles. (216) Losing the habitat protection of the ESA is a threat to bald eagles generally, but is even more dangerous for eagles in areas where much of their habitat is privately owned, such as the Chesapeake Bay area and Florida. (217) The delisting proposal fails to discuss how bald eagle habitat will be protected after delisting, and it is "highly unlikely" that habitat on private land will be protected without the ESA. (218)

Bald eagle recovery in the Southwest is also questionable. (219) The Southwest supports approximately 40 breeding pairs of bald eagles. (220) The delisting proposal neither presents the delisting goals nor addresses the low reproductive rates of bald eagles in this area. (221) In a national survey of bald eagles conducted between 1986 and 2000, the United States Geological Survey (USGS) found that, while the bald eagle population increased in all other areas of the country, the population declined slightly in the Southwest. (222) This finding prompted concern in USGS about the future of bald eagles in the Southwest. (223) An incorrect or hasty delisting decision could have disastrous consequences on bald eagles in the Southwest that already have questionable futures. (224)

Bald eagles will be in a more tenuous position than they are currently if they are delisted and stripped of ESA protection. If the BGEPA is invalidated under RFRA as a result of delisting, the impact on bald eagles is likely to be significant. Even if the only people allowed to take bald eagles are members of federally-recognized tribes with religious interests in bald eagles, those takings will still harm eagle populations. (225) For example, in the Southwest where there are only 40 breeding pairs of bald eagles, even a handful of people taking eagles for religious use could have a major impact on the eagles in that area. (226) In addition, the long waiting list for permits to obtain eagle parts under the current permit system shows the degree to which the demand for eagles outstrips their availability. (227) Currently the wait is about three and a haft years for a whole eagle, and more than 5,000 people are waiting for whole eagles. (228) The National Eagle Repository receives only 1,000 eagles per year, so FWS will not be able to alleviate this backlog without a drastic increase in the number of eagles it obtains. (229) Also, these numbers may not represent the full demand for eagle parts, because religious practitioners are only allowed to request one eagle at a time through the permit system. (230) If the 5,000 people currently waiting for whole eagles from FWS (231) were able to take bald eagles freely, the approximately 13,000 (232) bald eagles remaining in the continental United States would be depleted rapidly. Removing BGEPA protection, in addition to ESA protection, for people who have a religious interest in bald eagles may lead to the demise of bald eagles in areas where they are not thriving and push more stable populations to being endangered.

Before using the FWS delisting decision to invalidate the BGEPA as applied to religious practitioners, the court should examine the impact that unregulated takings would have on the future viability of bald eagles. To find that the BGEPA is no longer necessary to protect eagles, the court must find both that eagles are plentiful enough to be delisted, and that they no longer need protection from unregulated takings for religious use. FWS did not present this evidence in its delisting proposal, and the Ninth Circuit did not have this evidence before it in Antoine.

B. The Delisting Proposal Relies upon Continued BGEPA Coverage of Bald Eagles

In delisting proposals, including the bald eagle proposal, FWS buttresses its position on delisting by pointing to other federal statutes or programs that will protect the species once it is taken off the endangered species list. (233) The ESA requires that FWS's listing determination be based in part on "the inadequacy of existing regulatory mechanisms," (234) such as the BGEPA. This inquiry ensures that a species is adequately protected by mandatory and operational programs if ESA protection is eliminated. (235) In the bald eagle's case, because the delisting decision and the analysis supporting it rely in part on continued protection under the BGEPA, it would be irrational to use delisting as a reason to take away BGEPA protections.

The FWS delisting proposal explicitly relies on the presence of the BGEPA and its permit system to justify a final decision to delist. (236) FWS stated in its proposal that bald eagles would remain "fully protected" by the BGEPA and other laws. (237) FWS also cited the "very strict control" it exercises "over the use of bald eagles or their parts for ... Native American religious activities" to support its delisting proposal. (238) If the Ninth Circuit uses delisting as the basis for finding no compelling interest in the conservation of eagles, it will employ a risky circular argument: The BGEPA provides enough protection for eagles to support delisting, but once eagles are delisted, the compelling interest in providing protection under the BGEPA and the MBTA no longer exists. (239) In addition, the Ninth Circuit should not discount the fact that FWS explicitly stated that the BGEPA permit system would still be the means by which Native Americans could obtain bald eagles for religious use after ESA delisting. (240) If FWS had factored unregulated takings for religious use into its delisting determination, it could have determined that bald eagles would not be protected adequately after delisting and thus decided against delisting.

C. A Bald Eagle Delisting Decision May Not Be Reasonable

Antoine's argument that the government's interest in bald eagles is no longer compelling is only persuasive if the FWS delisting rule is valid. The proposed rule to delist the bald eagle has flaws that make it likely for a court challenge to be successful. Unless FWS fixes these problems in the final rule, a final rule to delist the bald eagle will probably be invalid.

When Congress passed the ESA in 1973, it paid little attention to delisting, but it devoted more time to discussing delisting in subsequent amendments to the statute. (241) Currently, delisting is the primary goal of the ESA. (242) The government has a strong incentive to delist species as a way of proving that the ESA is working and to reduce regulatory consequences on vocal constituents. (243) Regulated parties also have an interest in avoiding the burdens of the ESA whenever possible. (244) Even advocates of the ESA have a stake in seeing species delisted because the public and politicians may find the ESA more worthwhile if they see what they perceive as concrete evidence of the Act's effectiveness. (245) In its effort to prove that the ESA can protect species to the point of recovery, FWS has focused on delisting "big name" species, such as the bald eagle, in order to have a strong impact on public perception. (246) The potential delisting of the bald eagle has proven to be a compelling story, and the media generally have publicized positive reports of the bald eagle's recovery. (247)

Courts reviewing ESA listing determinations do so under the "arbitrary [and] capricious" standard of section 706 of the APA. (248) Under this standard of review, the court thoroughly examines the agency's action to ensure that the action is supported by the record. (249) Despite this thorough review, the court will defer to the agency's decision unless the agency has committed "a clear error of judgment." (250) The court will be especially deferential to the agency's scientific findings, unless the agency fails to state a rational basis for its decision and a logical connection between the scientific evidence it used and its decision. (251) The administrative record forms the basis of the court's review. (252)

The ESA contains two important mandates FWS must follow to delist the bald eagle. First, FWS must use the "best scientific and commercial data available" in making its delisting determination. (250) Second, FWS must consider five specific factors in its delisting determination: 1) possible destruction of the species's habitat, 2) overuse of the species for scientific, commercial, recreational, or educational reasons, 3) disease, 4) the adequacy of other regulatory devices, or 5) other factors that may endanger the species. (254) FWS can refuse to delist a species even if only one of those five factors is present (255) and must consider the five factors in combination with each other. (256) If FWS fails to consider all of these factors, (257) or presents a conclusion that is contrary to its factual findings, FWS's decision is arbitrary and capricious. (258) The two most important of these factors in relation to the bald eagle are the destruction of its habitat and the sufficiency of other regulatory devices. Therefore, a court reviewing the bald eagle delisting must first consider whether FWS used the best scientific evidence in deciding to delist the bald eagle. When considering the five delisting factors, the court should focus on whether FWS sufficiently considered the possible destruction of bald eagle habitat and the inadequacy of other regulatory devices in making its delisting decision, and whether it properly applied its findings on these factors to its decision. (259) FWS's fulfillment of these requirements in the proposal is questionable. The questionability of these essential elements of the proposal undermines the validity of the proposal and makes the Ninth Circuit's reliance on it unreasonable.

1. Best Scientific Data Available

One question the court must answer for this analysis is whether FWS used the best scientific data available to make its decision. (260) The ESA requires that delisting decisions be made "solely on the basis of the best available scientific and commercial data available." (261) Additionally, the agency must "give the benefit of the doubt to the species" when reviewing these scientific data. (262) Although the best scientific data standard suggests that FWS's delisting decisions will be objective and rational, the process of interpreting scientific data is inherently subjective. (263) FWS often confronts contradictory or incomplete scientific data and must make an ESA listing determination using those data, leaving much room for subjectivity. (264) As a result, delisting decisions are often based on economic, political, and public opinion considerations that are irrelevant to whether the listing or delisting of a species is warranted. (265) Rather than openly weighing and discussing the values behind these decisions, FWS must convince courts that its decisions are based solely on scientific data. (266) In determining whether FWS reasonably interpreted the ESA and used the best scientific data available to make its decision, a reviewing court should keep these possible complications in mind. The court should also consider whether FWS gave bald eagles the benefit of any doubt in reviewing the scientific data.

2. Threat of Habitat Degradation

FWS must consider the potential destruction of the bald eagle's habitat in its delisting decision. (267) If FWS finds that habitat destruction threatens a species's survival and no regulatory mechanisms other than the ESA adequately protect that habitat, FWS has a duty not to delist the species. (268) In the bald eagle delisting proposal, FWS's discussion of this factor is brief and consists only of unsupported conclusions. (269) First, FWS states that the availability of wintering and nesting habitats for bald eagles will not "limit the bald eagle population in the near future." (270) While this may be true for the near future, a threatened species is one that may become endangered in the "foreseeable future." (271) If FWS's final rule only considers the effect of habitat destruction on bald eagles in the "near future," rather than the "foreseeable future," the court may find the decision to delist the bald eagle to be arbitrary and capricious. (272) Second, the delisting proposal states that bald eagle habitat on federal lands will be protected by federal statutes other than the ESA after delisting. (273) The only statute cited in the proposal that protects against habitat loss on federal lands, however, is the Federal Land Policy and Management Act. (274) The habitat protections in this statute are limited to land managed by the Bureau of Land Management, and even those protections are weak. (275) The habitat protections on federal lands cited by FWS fall far short of those in the ESA. (276) Finally, the delisting proposal fails to cite any laws that will protect bald eagle habitat on private land. (277) The proposal states that federal activity on private lands will be subject to regulation after delisting. (278) but other activity on private lands will not be regulated. (279) The delisting proposal fails to state how FWS expects to protect bald eagles from their biggest threat, habitat degradation, after delisting. (280) The delisting proposal fails to articulate a rational connection between the facts and its conclusion that bald eagles no longer need ESA protection. Unless the final rule presents additional evidence about bald eagle habitat, a court is likely to find a delisting decision arbitrary and capricious.

3. Adequacy of Other Regulatory Mechanisms

The ESA also requires FWS to consider the adequacy of regulatory mechanisms other than the ESA in its delisting determination. (281) The other regulatory mechanisms must be sufficient to prevent a species from becoming threatened or endangered. (282) If a listed species is not protected by another plan or statute, FWS has a duty not to delist that species. (283)

In the bald eagle's case, the other statutes cited by FWS in the delisting proposal fail to provide the degree of protection that the bald eagle needs to avoid becoming endangered. As discussed above, the statutes cited fail to protect bald eagle habitat adequately. (284) The ESA provides broad protection against the degradation of bald eagle habitat, whereas both the BGEPA and the MBTA, the two main statutes protecting bald eagles in the absence of the ESA, protect only individual eagles. (285) In addition, without ESA protection, federal agencies will not be required to consult with FWS before beginning projects that may have a negative impact on bald eagles. (286) The government is also more likely to enforce the ESA's provisions than those of other statutes because citizens are allowed to sue the government to enforce the ESA. (287) In contrast, neither the BGEPA nor the MBTA have a citizen suit provision. The proposal also cites state regulations as protections for bald eagles in the absence of the ESA. (288) Although states may have their own protections for bald eagles, these state statutes also cannot substitute for the broad protections of the ESA. (289) Like the BGEPA and the MBTA, most states neither restrict private landowners' actions on private land, nor offer citizen suit provisions. (290) FWS may not be able to defend its decision to delist in light of the inability of regulatory devices to meet delisting standards.

Combined with the questions about whether FWS used the best scientific data available to make its delisting decision and whether FWS adequately considered the possible destruction of bald eagle habitat, the inadequacy of other protections indicates that a final delisting rule would not be reasonable unless FWS can present more evidence than it did in the delisting proposal.

VII. CONCLUSION

The Ninth Circuit's discussion of the bald eagle delisting proposal and the government's interest in conservation was a small portion of its Antoine decision, but may have major implications for the future of bald eagles. While delisting is applicable to the analysis of the BGEPA under RFRA, the Ninth Circuit incorrectly relied on the delisting proposal. Rather than weakening the government's interest in protecting eagles as the court implied, delisting actually makes the case for BGEPA protection even stronger. While state and federal conservation plans or statutes may provide some protection for bald eagles, those plans or statutes are not as comprehensive as the ESA and do not provide the same degree of protection. (291) Once bald eagles are left without ESA protection, they need the BGEPA to avoid devastating effects that would require relisting under the ESA_ Rather than diminishing the government's interest in protecting eagles, delisting would increase the importance of the BGEPA as one of the only remaining protections for bald eagles. Unregulated taking, even if only for religious use, could undo the gains bald eagles have made since the 1960s.

Antoine is also a reminder of the care that FWS must use in making delisting decisions. Although the desire to measure the ESA's success by the number of species that have recovered is understandable, that desire may put species at an unnecessary risk for extinction when it causes FWS to make premature delisting decisions. Additionally, both ESA delisting and removing BGEPA protections may give the public the impression that bald eagles no longer need protection when in fact they do. Threatened and endangered species and their habitats would be better served by delisting decisions motivated solely by the needs of those species. As shown by the Ninth Circuit's consideration of the delisting proposal in Antoine, FWS delisting decisions may have ramifications beyond the ESA context. FWS should consider these potential ramifications when making delisting decisions. In addition, individuals and groups seeking to protect bald eagles should be aware of the threat such a delisting presents to the species and consider that threat when deciding whether to challenge a final delisting rule.

Even if FWS presents a final delisting rule for the bald eagle that is thoroughly researched and based on sound scientific data, courts should not consider that rule in analyzing the BGEPA under RFRA. Bald eagles have symbolic and aesthetic benefits that exist regardless of the size of their population. In addition, the BGEPA ensures that bald eagles will be available for future generations of religious practitioners. The Ninth Circuit may find that these interests are not compelling, or that the permit system is too burdensome to survive a RFRA challenge. An ESA delisting is irrelevant to these considerations, however, and the court should disregard it in its RFRA analyses of the BGEPA.

(1) 16 U.S.C. [subsection] 668-668d (2000).

(2) Brief of Appellee at 3, United States v. Antoine, 318 F.3d 919 (9th Cir. 2003) (No. 02-30008), 2002 WL 32102100.

(3) Id. at 7-14.

(4) United States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003).

(5) Eagle Permits, 50 C.F.R. [section] 22.2 (2003).

(6) 10 U.S.C. [section] 668(a) (2000).

(7) Antoine, 318 F.3d at 920.

(8) Id.

(9) 16 U.S.C. [section] 668(a) (2000). Congress extended the BGEPA's protections to golden eagles (Aquila chrysaetos) in 1962. H.R.J. Res. 489, 87th Cong., 76 Stat. 1246 (1962). Golden eagles were included in the statute because, although golden eagles are not threatened or endangered, their numbers are declining. United States v. Jim, 888 F. Supp. 1058, 1063 (D. Or. 1995). Further, golden eagles are difficult to distinguish from immature bald eagles, so if golden eagles were not protected under the BGEPA, hunters could unintentionally kill bald eagles while hunting golden eagles. Id Congress also considered the golden eagle's importance to agriculture as a check on rodents. H.R.J. Res. 489.

(10) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(11) Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (enacting clause). Congress did not pass the ESA until 1973, so the term "threatened" in the enacting clause does not reflect the official listed status of bald eagles under the ESA.

(12) Proposed Rule to Remove the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454, 36,454 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17) [hereinafter Proposed Rule].

(13) United States v. Antoine, 318 F.3d 919, 921 (9th Cir. 2003). Antoine also argued that because his tribe is not recognized by the United States government, he was denied access to a permit under the BGEPA. Id. at 922. As a result, he could only practice his religion in this country by violating the BGEPA. Id. The Ninth Circuit responded that the permit procedure under the BGEPA does not violate the Religious Freedom Restoration Act (RFRA), 42 U.S.C. [subsection] 2000bb-2000bb-4 (2000), because excluding nonmember Indians is the least restrictive way the government can protect eagles and does not discriminate on the basis of religion. Antoine, 318 F.3d at 924.

(14) 42 U.S.C. [subsection] 2000bb-2000bb-4 (2000).

(15) Id. [section] 2000bb-1(b).

(16) Antoine, 318 F.3d at 920.

(17) Id. at 922 (emphasis in original).

(18) Id at 921-22.

(19) 16 U.S.C. [subsection] 703-712 (2000).

(20) See BRUCE E. BEANS, EAGLE'S PLUME: PRESERVING THE LIFE AND HABITAT OF AMERICA'S BALD EAGLE 54-71 (1996) (discussing the cultural significance of eagles throughout history and the world).

(21) BRYAN D. WATTS, REMOVAL OF THE CHESAPEAKE BAY BALD EAGLE FROM THE FEDERAL LIST OF THREATENED AND ENDANGERED SPECIES 3 (1999), available at http://fsweb.wm.edu/ccb/ publications/publications_educational.cfm#.

(22) BEANS, supra note 20, at 55-56. Benjamin Franklin objected to the decision to use the bald eagle for the Great Seal of the United States because "[h]e is a Bird of bad moral Character." Id. at 62. Franklin preferred the turkey--"a much more respectable Bird." Id at 63.

(23) See CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES 168 (1995) (citing the bald eagle as an example of a species the public is willing to work to save); Jason Scott Johnston, The Tragedy of Centralization: The Political Economics of American Natural Resource Federalism, 74 U. COLO. L. REV. 487, 565-66 (2002) (discussing the "mass market appeal" of "charismatic megafauna" such as the bald eagle).

(24) PRICILLA TUCKER, THE RETURN OF THE BALD EAGLE 57, 61 (1994).

(25) Id. at 58-59.

(26) Id at 61.

(27) Id.

(28) Id at 70; Fredrick Kunkle, Rise in Eagle Sightings Breeds Worry: Biologists Fear Land Development Will Jeopardize Habitats, WASH. POST, Feb. 11, 2002, at B1; see BEANS, supra note 20, at 85-108 (discussing DDT use and its effect on bald eagles).

(29) TUCKER, supra note 24, at 70-71.

(30) Id at 71.

(31) Final Rule to Reclassify the Bald Eagle from Endangered to Threatened in All of the Lower 48 States, 60 Fed. Reg. 36,000, 36,001 (July 12, 1995) (codified at 50 C.F.R. pt. 17); U.S. FISH & WILDLIFE SERV., BALD EAGLE PAIRS, at http://midwest.fws.gov/ eagle/population/2000chtofprs.html (last visited July 11, 2004).

(32) Proposed Rule, 64 Fed. Reg. 36,454, 36,455-56 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17).

(33) See TUCKER, supra note 24, at 62-65 (discussing bald eagle habitat destruction from the Revolutionary War to the early twentieth century).

(34) DAVID G. GORDON, THE AUDUBON SOCIETY FIELD GUIDE TO THE BALD EAGLE 24 (1994); WATTS, supra note 21, at 5.

(35) TUCKER, supra note 24, at 75; WATTS, supra note 21, at 5.

(36) See WATTS, supra note 21, at 8 (stating that the increasing human population in the Chesapeake Bay area is reducing the area's bald eagle carrying capacity).

(37) Id at 10.

(38) Id.

(39) Id.

(40) Holly Doremus & Joel E. Pagel, Why Listing May Be Forever." Perspectives on Delisting Under the US Endangered Species Act, 15 CONSERVATION BIOLOGY 1258, 1265 (2001).

(41) An endangered species is one that "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. [section] 1532(6) (2000).

(42) Proposed Rule, 64 Fed. Reg. 36,454, 36,455 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17). This listing was under the Endangered Species Preservation Act of 1966, 16 U.S.C.A. [subsection] 668aa-668cc-6 (2003) (repealed 1973), the precursor to the ESA.

(43) Proposed Rule, 64 Fed. Reg. at 36,455.

(44) Id.

(45) Id at 36,456.

(46) 50 C.F.R. [section] 17.11 (2002).

(47) 16 U.S.C. [section] 1532(20) (2000).

(48) Proposed Rule, 64 Fed. Reg. at 36,456.

(49) Id. at 36,454.

(50) Id The most common reason given for a delisting is that the species has recovered. U.S. FISH & WILDLIFE SERV., THREATENED AND ENDANGERED SPECIES SYSTEM: DELISTED SPECIES REPORT, at http://ecos.fws.gov/ tess_public/TESSWebpageDelisted?listings=0 (last visited July 11, 2004).

(51) See Section III.C, infra, for a discussion of the ESA provisions that protect bald eagles.

(52) Proposed Rule, 64 Fed. Reg. at 36,454.

(53) Id at 36,459.

(54) E.g., Antonia M. DeMeo, Access to Eagles and Eagle Parts: Environmental Protection v. Native American Free Exercise of Religion, 22 HASTINGS CONST. L.Q. 771, 775-79 (1995) (discussing the importance of eagles in some Native American religions). Native American religions are diverse and the eagle is not sacred in all Native American religions. United States v. Hardman, 297 F.3d 1116, 1127 n.17 (10th Cir. 2002) (en banc).

(55) BEANS, supra note 20, at 168-70.

(56) DeMeo, supra note 54, at 774.

(57) Id.

(58) BEANS, supra note 20, at 170.

(59) Id at 163.

(60) Id. at 170.

(61) DeMeo, supra note 54, at 775. See BEANS, supra note 20, at 173 (quoting Larry Aitken, administrator of a tribal college in Minnesota, as saying, "You might steal from your mother or brother, but you wouldn't kill an eagle. It would be like killing God, or a messenger from God."). Not all practitioners of Native American religions follow this edict, and defendants charged with violations of the BGEPA often are charged with taking eagles. See, e.g., United States v. Dion, 476 U.S. 734, 735 (1986) (shooting bald eagles); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (taking a bald eagle); United States v. Sandia, 188 F.3d 1215, 1215-17 (10th Cir. 1999) (taking a golden eagle); United States v. Hugs, 109 F.3d 1375, 1377 (9th Cir. 1997) (shooting bald and golden eagles); United States v. Fryberg, 522 F.2d 1010, 1010-11 (9th Cir. 1980) (shooting a bald eagle); United States v. White, 508 F.2d 453, 454 (8th Cir. 1974) (taking a bald eagle); United States v. Jim, 888 F. Supp. 1058, 1060 (D. Or. 1995) (killing golden eagles).

(62) DeMeo, supra note 54, at 778.

(63) See Jim, 888 F. Supp. at 1060 (finding that the defendant believed that he needed to kill golden eagles, even in light of testimony from another practitioner of Native American religion claiming that killing eagles is contradictory to Native American religions beliefs).

(64) DeMeo, supra note 54, at 777.

(65) Id at 777-78.

(66) Dion, 476 U.S. at 740.

(67) Id at 743.

(68) Id. at 743 44.

(69) 25 U.S.C. [section] 479a-1 (2000).

(70) 50 C.F.R. [section] 22.22 (2003).

(71) Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1427 (10th Cir. 1986). The Lacey Act also criminalizes dealing in fish or wildlife that was illegally taken. Lacey Act Amendments of 1981, 16 U.S.C. [section] 3372(a) (2000). The Lacey Act is not included in this discussion because the provisions criminalizing the actual taking of bald eagles are encompassed in the three statutes discussed in this section.

(72) Ch. 278, 54 Stat. 250 (1940).

(73) Id.

(74) Id.

(75) H.R. REP. NO. 76-2104, at 1 (1940).

(76) See United States v. Antoine, 318 F.3d 919, 921 (9th Cir. 2003) (noting the balance between conservation interests and religion); United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997) (balancing the government's conservation interest in bald eagles as a threatened species against the defendant's religions freedom).

(77) See United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc) (stating that the government's symbolic interest in the bald eagle would be compelling regardless of how plentiful the bird may be).

(78) 16 U.S.C. [section] 668(a) (2000).

(79) Id. [section] 668c.

(80) Id. [section] 668(a).

(81) Id.

(82) Id.

(83) Id. [section] 668(b).

(84) Compare id. (civil violations), with id. [section] 668(a) (criminal violations).

(85) 16 U.S.C. [section] 668(b) (2000).

(86) Id. [section] 068b(b).

(87) 50 C.F.R. [subsection] 22.1-.2 (2003). As of 1986, FWS had never issued a permit to allow a person to kill a golden eagle. United States v. Abeyta, 632 F. Supp. 1301, 1304 (D.N.M. 1986). The FWS does not include information about taking eagles in the permit information on its website. See U.S. FISH & WILDLIFE SERV., HOW CAN I OBTAIN EAGLE FEATHERS OR PARTS?, at http://faq.fws.gov/featherfaq.html (last visited July 11, 2004).

(88) 50 C.F.R. [section] 22.22 (2003). People can also obtain permits to obtain bald or golden eagles for scientific or exhibition purposes, or to take depredating eagles. Id. [subsection] 22.21, .23. FWS also grants permits to use golden eagles for falconry. Id. [section] 22.24.

(89) Id. [section] 22.12.

(90) Brief of Appellee at 24, United States v. Antoine, 318 F.3d 919 (9th Cir. 2003) (No. 02-30008), 2002 WL 32102100.

(91) DIV. OF LAW ENFORCEMENT, U.S. FISH & WILDLIFE SERV., QUESTIONS AND ANSWERS ABOUT Tim NATIONAL EAGLE REPOSITORY, at http://mountain-prairie.fws.gov/law/eagle/index.html (last visited July 11, 2004).

(92) Id.

(90) Id.

(94) Id. If an eagle does have replacement parts or feathers, FWS will notify the recipient before the eagle is shipped to them. Id.

(95) United States v. Hardman, 297 F.3d 1116, 1123 (10th Cir. 2002) (en banc).

(96) Id. at 1123 n.12.

(97) See DeMeo, supra note 54, at 788-93 (discussing problems with the BGEPA permit system).

(98) Id. at 789.

(99) DIV. OF LAW ENFORCEMENT, U.S. FISH & WILDLIFE SERV., supra note 91. About 95 % of permit applicants request whole eagles. Id.

(100) Hardman, 297 F.3d at 1123.

(101) DIV. OF LAW ENFORCEMENT, U.S. FISH & WILDLIFE SERV., supra note 91.

(102) DeMeo, supra note 54, at 790-91.

(103) Id.

(104) United States v. Abeyta, 632 F. Supp. 1301, 1304 (D.N.M. 1986). Each permit applicant, prior to the 1999 amendments to the regulations, also had to provide a certification from his or her religions official that the person was allowed to participate in the ceremony listed on the permit application. Compare DeMeo, supra note 54, at 786 (describing that certification requirement), with 50 C.F.R. 22.22(a) (2002) (stating that the regulation had been amended in 1999 and no longer requires the religions certification).

(105) 50 C.F.R. [subsection] 13.12(a), 22.22(a) (2003); Abeyta, 632 F. Supp. at 1304.

(106) 50 C.F.R. [section] 22.22(a) (2003); DeMeo, supra note 54, at 786.

(107) 50 C.F.R. [section] 13.21(e)(2) (2003).

(108) United States v. Antoine, 318 F.3d 919, 923 (9th Cir. 2003); Abeyta, 632 F. Supp. at 1307; DeMeo, supra note 54, at 788-89; Matthew Perkins, The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could Application of the Doctrine Alter the Outcome in U.S. v. Hugs?, 30 ENVTL. L. 701, 704 (2000).

(109) List of Migratory Birds, 50 C.F.R. [section] 10.13 (2003).

(110) United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1079-80 (D. Colo. 1999). In later years, the United States entered into migratory bird treaties with Mexico, Japan, and the Soviet Union. Id. at 1080.

(111) 16 U.S.C. [section] 703 (2000).

(112) Id. [section] 707(b).

(113) Id. [section] 707(a).

(114) 50 C.F.R. [subsection] 21.11-.41 (2003).

(115) Id. [subsection] 21.1-.60.

(116) Id. [section] 21.2(b). See Section III.A.2, supra, for a description of the permit system to take bald and golden eagles.

(117) 50 C.F.R. [section] 17.11 (2008). The FWS has responsibility for listing "terrestrial species and freshwater fish" and promulgating regulations relating to that aspect of the ESA, while the National Oceanic and Atmospheric Association Fisheries (formerly National Marine Fisheries Service) is in charge of marine species. Holly Doremus & A. Dan Tarlock, Fish, Farms and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279, 306 (2003).

(118) 16 U.S.C. [section] 1536(a)(2) (2000).

(119) Id.

(120) Id.

(121) Id. [section] 1538(a)(1)(B). The ESA itself only prohibits takes of "endangered" species. However, a special rule promulgated by FWS under section 4(d) of the ESA affords threatened bald eagles the same protections as an endangered species. See 50 C.F.R. [section] 17.41(a)(1) (2003).

(122) Compare 16 U.S.C. [section] 1532(19) (2000) (defining "take" under the ESA), with id. [section] 668c (defining "take" under the BGEPA), and id. [section] 715n (defining "take" under the MBTA).

(123) Id. [section] 1532(19).

(124) 50 C.F.R. [section] 17.3 (2003). Although extremely controversial when issued, these regulations were upheld by the Supreme Court on a facial challenge in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

(125) Doremus & Pagel, supra note 40, at 1265. See Section VI.A, infra, for a discussion of how habitat degradation threatens bald eagles.

(126) Id. at 1262.

(127) See 16 U.S.C. [section] 668c (2000) (defining "take" under the BGEPA); Id. [section] 715n (defining "take" under the MBTA).

(128) Id. [section] 1540(g)(1).

(129) Id. A "person" is broadly defined as any "individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States." Id. [section] 1532(13). The citizen suit provision of the ESA is limited by the traditional requirements of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 571-73 (1992) (holding that plaint/ffs could not sue under the citizen-suit provision of the ESA without proving that they suffered a "concrete and particularized" injury).

(130) Defenders of Wildlife v. Adm'r, Envtl. Prot. Agency, 882 F.2d 1294, 1298 (8th Cir. 1989).

(131) 16 U.S.C. [section] 1540(g)(1) (2000).

(132) Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,434, 10,436 (2000).

(133) 16 U.S.C. [section] 1533(a)(1) (2000); 50 C.F.R. [section] 424.11(c) (2003).

(134) 50 C.F.R. [section] 424.11(d) (2003).

(135) Id.

(136) 16 U.S.C. [section] 1533(g)(1) (2000).

(137) Doremus & Pagel, supra note 40, at 1261.

(138) See Doremus, supra note 132, at 10,435 ("[D]elisting does not mean that the species no longer requires any protection against human activities.").

(139) U.S. CONST. amend. I.

(140) Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)). Courts will uphold a law that does not implicate a fundamental constitutional right or burden a suspect classification of people ff the law is rationally related to a legitimate government interest. RONALD D. ROTUNDA & JOHN E. NOWAK, 2 TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE [section] 15.4, at 597 (3d ed. 1999).

(141) Guam v. Guerrero, 290 F.3d 1210, 1218 (9th Cir. 2002) ("RFRA ... provides a level of protection to religions exercise beyond that which the First Amendment requires.").

(142) 494 U.S. 872 (1990).

(143) ROTUNDA & NOWAK, supra note 140, [section] 21.6, at 111-12.

(144) 374 U.S. 398 (1963).

(145) United States v. Hardman, 297 F.3d 1116, 1125-26 (10th Cir. 2002) (en banc).

(146) 42 U.S.C. [section] 2000bb-1 (2000).

(147) United States v. Oliver, No. CR99-0010, 2000 WL 34030990, at [sup.*]2 (N.D. Iowa Mar. 9, 2000). In 1997, the Supreme Court held in City of Boerne v. Flores, 521 U.S. 507 (1997), that RFRA was invalid as applied to state laws, id. at 534-35, but has not ruled on the constitutionality of RFRA as applied to federal laws. Some circuit courts have found RFRA constitutional as applied to federal laws and have used it to analyze free exercise of religion claims. See, e.g., In re Young, 141 F.3d 854, 861 (8th Cir. 2001) (holding that RFRA is constitutional as applied to federal bankruptcy laws); Branch Ministries v. Rossetti, 211 F.3d 137, 142 (D.C. Cir. 2000) (using RFRA to analyze a church's claim that the Internal Revenue Service violated its right to the free exercise of religion by revoking its tax-exempt status). Other courts have found that City of Boerne not only invalidated RFRA as applied to state laws, but also invalidated RFRA as applied to federal laws. See, e.g., Waguespack v. Rodriguez, 220 B.R. 31, 36 (W.D. La. 1998) (holding that RFRA "was declared unconstitutional in its totality and for all purposes ... in City of Boerne"); United States v. Sandia, 6 F. Supp. 2d 1278, 1281 (D.N.M. 1997) (reading City of Boerne as striking RFRA down as applied to federal laws in addition to state laws). In Sutton v. Providence SL Joseph Medical Center, 198 F.3d 826 (9th Cir. 1999), the Ninth Circuit assumed, but did not decide, that RFRA is valid as applied to federal law in the wake of City of Boerne. Id. at 833-34. Subsequent Ninth Circuit decisions have used RFRA to analyze the applicability of federal laws. See, e.g., Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir. 2000) (using RFRA to analyze the applicability of the Copyright Act). In Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), the Ninth Circuit explicitly held that "RFRA is constitutional as applied in the federal sphere." Id. at 1221. Presumably, a court could use RFRA to analyze the BGEPA.

(148) City of Boerne, 521 U.S. at 534.

(149) United States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003).

(150) Oliver, 2000 WL 34030990, at [sup.*]2.

(151) United States v. Jim, 888 F. Supp. 1058, 1061 (D. Or. 1995).

(152) United States v. Lundquist, 932 F. Supp. 1237, 1240 (D. Or. 1996).

(153) United States v. Sandia, 188 F.3d 1215, 1218 (10th Cir. 1999); United States v. Hugs, 109 F.3d 1375, 1377-78 (9th Cir. 1997).

(154) United States v. Top Sky, 547 F.2d 486, 487-88 (9th Cir. 1976); accord Sandia, 188 F.3d at 1218.

(155) Hugs, 109 F.3d at 1377-78.

(156) United States v. Antoine, 318 F.3d 919, 921 n.2 (9th Cir. 2003).

(157) 42 U.S.C. [section] 2000bb-1 (2000); Guam v. Guerrero, 290 F.3d 1210, 1213 (9th Cir. 2002).

(158) Antoine, 318 F.3d at 921-22. In United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc), the court found that the government's interest in "preserving Native American culture and religion" was a compelling interest behind the BGEPA. Id. at 1127. In Gibson v. Babbitt (Gibson II), 223 F.3d 1256 (11th Cir. 2000), the court found a compelling government interest in preserving treaty rights. Id. at 1258.

(159) Antoine, 318 F.3d at 924.

(160) Id. at 921-22; Hardman, 297 F.3d at 1128; United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001); Hugs, 109 F.3d at 1378; Gibson v. Babbitt (Gibson/), 72 F. Supp. 2d 1356, 1360 (S.D. Fla. 1999), aff'd per curiam, 223 F.3d 1256 (11th Cir. 2000).

(161) Antoine, 318 F.3d at 924; Oliver, 255 F.3d at 589; Hugs, 109 F.3d at 1378; Gibson II, 223 F.3d at 1258. The Hardman court found that it lacked the factual findings to decide whether the government had no less restrictive means to balance the eagle protection interest against the religious interest in eagles. 297 F.3d at 1135.

(162) Antoine, 318 F.3d at 921-22; Hardman, 297 F.3d at 1128; Oliver, 255 F.3d at 589; Hugs, 109 F.3d at 1378; Gibson I, 72 F. Supp. at 1360.

(163) Antoine, 318 F.3d at 921; Oliver, 255 F.3d at 589; Hugs, 109 F.3d at 1378.

(164) Antoine, 318 F.3d at 921; Oliver, 255 F.3d at 589.

(165) Antoine, 318 F.3d at 921; Oliver, 255 F.3d at 589.

(166) Antoine, 318 F.3d at 921; Oliver 255 F.3d at 589.

(167) See Antoine, 318 F.3d at 921 ("[C]hanged circumstances [such as a final delisting rule] may, in theory, transform a compelling interest into a less than compelling one."); Oliver, 255 F.3d at 589 ("The bald eagle has not been removed from the endangered species lists as of this date, therefore, sufficient evidence demonstrating the removal of the compelling governmental interest has not been presented.").

(168) Antoine, 318 F.3d at 922 (emphasis in original).

(169) Id.; Oliver, 255 F.3d at 589.

(170) Gibson I, 72 F. Supp. 2d 1356, 1357 (S.D. Fla. 1999), aff'd per curiam, 223 F.3d 1256 (11th Cir. 2000). In Gibson I, a Native American man with sincere religions beliefs involving eagles, but who was not a member of a recognized tribe, sought a permit for five eagle feathers. Id. at 1357-58. FWS refused his application because he did not belong to a federally recognized tribe, and Gibson sued. Id. at 1358.

(171) 223 F.3d 1256 (11th Cir. 2000).

(172) Id. at 1258.

(173) Gibson I, 72 F. Supp. 2d at 1360.

(174) Id. at 1360-61.

(175) Id.

(176) Id. at 1360. The Tenth Circuit did not agree that the government had a compelling interest in furthering Native American treaty rights that supports the BGEPA. United States v. Hardman, 297 F.3d 1116, 1129 n.19 (10th Cir. 2002) (en banc).

(177) Gibson I, 72 F. Supp. 2d at 1360.

(178) Id. at 1360-61.

(179) Gibson II, 223 F.3d 1256, 1258 (11th Cir. 2000).

(180) Protection of treaty rights and protection of Native American religions can both be viewed as both buttressing the compelling interest in conservation rather than being separate interests. Unless bald eagles are conserved, both of those interests will be undermined. Either analysis strengthens the government's interest in bald eagle conservation.

(181) 72 F. Supp. 2d 1356 (S.D. Fla. 1999), aff'd per curiam, 223 F.3d 1256 (11th Cir. 2000).

(182) See supra Section III.A.1.

(183) See supra Section III.A.1.

(184) 632 F. Supp. 1301 (D.N.M. 1986).

(185) Id. at 1307.

(186) Id. at 1307. The District Court of the District of New Mexico in the Tenth Circuit examined the application of the BGEPA to Abeyta, who killed a golden eagle for use in religious ceremonies. Id. at 1303. As a member of the recognized Isleta Pueblo tribe, Abeyta was eligible for a permit under the BGEPA, but did not attempt to obtain one. Id. Abeyta was decided before the Supreme Court decision in Smith and the enactment of RFRA. Prior to those developments, the courts used the compelling interest test that was reinstated by RFRA to determine whether "[a] regulation neutral on its face ... offend[s] the constitutional requirement for governmental neutrality [by] unduly burden[ing] the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).

(187) Abeyta, 632 F. Supp. at 1304.

(188) Id.

(189) Id. at 1307.

(190) Id. The court also based its outcome on Abeyta's treaty rights under the Treaty of Guadalupe Hidalgo. Id. at 1305. That treaty specifically afforded Native Americans the free exercise of their religion. Id. The court found that Congress did not specifically repudiate this treaty when it enacted the BGEPA, so the BGEPA cannot apply to Abeyta's religious killing of an eagle. Id. at 1307.

(191) Id. at 1307.

(192) Id. at 1303.

(193) Id. at 1304.

(194) Id.

(195) See Section V.A.1, supra for a discussion of the courts using the FWS delisting proposal to analyze the government's interest in bald eagle conservation. United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc), is a notable exception to this reliance.

(196) Hardman, 297 F.3d at 1131.

(197) 297 F.3d 1116 (10th Cir. 2002) (en banc).

(198) Id. at 1128.

(199) Id.

(200) Id. at 1129.

(201) Id. at 1129 n.19.

(202) Id. at 1128.

(203) Id.

(204) Id. at 1130.

(205) See supra Section V.A.

(206) See supra Section V.A.

(207) Another problem with the Ninth Circuit's approach is that it neglected to consider alternative compelling government interests that other courts have analyzed. See supra Section V.A.1.

(208) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(209) See United States v. Antoine, 318 F.3d 919, 921-22 (9th Cir. 2003) (discussing the FWS proposal to delist the bald eagle without discussing its support).

(210) Proposed Rule, 64 Fed. Reg. 36,454, 36,454 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17).

(211) See WATTS, supra note 21, at 13 (discussing why the bald eagle should not be delisted even if its "specific numerical population recovery goals" for delisting were met).

(212) AMERICAN LANDS, BROKEN PROMISES OF RECOVERY: THE CLINTON ADMINISTRATION'S 10-PRONG ATTACK ON ENDANGERED SPECIES (2000), available at http://www.defenders.org/esa 9.html.

(213) CHESAPEAKE BAY PROGRAM, BALD EAGLES AND THE CHESAPEAKE BAY 1 (2004), http://www.chesapeakebay.net/pubs/eagle_backgrounder_01.pdf.

(214) Proposed Rule, 64 Fed. Reg. at 36,457.

(215) WATTS, supra note 21, at 13.

(216) Doremus & Pagel, supra note 401 at 1265.

(217) Id.

(218) Id.

(219) AMERICAN LANDS, supra note 212.

(220) Id.

(221) Proposed Rule, 64 Fed. Reg. 36,454, 36,458 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17).

(222) CBS News, Bald Eagle Population Soars, at http://www.cbsnews.com/ stories/2003/07/23/tech/main564651.shtml (last visited July 11, 2004).

(223) Id.

(224) See Doremus & Pagel, supra note 40, at 1262 (stating that a "hasty delisting could lead to extinction").

(225) See United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) ("It is clear that unrestricted access to bald eagles would destroy [the] legitimate and conscientious eagle population conservation goal of the BGEPA."). While Native American religious generally prohibit killing eagles to use ceremonially, this prohibition is not followed by all practitioners. See supra note 61.

(226) See AMERICAN LANDS, supra note 212 (discussing the bald eagle population in the Southwest).

(227) See supra Section II.A.2.

(228) DIV. OF LAW ENFORCEMENT, U.S. FISH & WILDLIFE SERV., supra note 91. About 95 % of people request a whole eagle. Id.

(229) Id.

(230) Id.

(231) Id.

(232) See U.S. FISH & WILDLIFE SERV., supra note 31 (stating that in the year 2000 there were 6,471 bald eagle pairs in the continental United States).

(233) Federico Cheever, The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War, 31 Envtl. L. Rep. (Envtl. L. Inst.) 11,302, 11,307 (2001); see Proposed Rule, 64 Fed. Reg. 36,454, 36,459 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17); see also Final Rule to Remove the Aleutian Canada Goose From the Federal List of Endangered and Threatened Wildlife, 66 Fed. Reg. 15,643, 15,650 (Mar. 20, 2001) (codified at 50 C.F.R. pt. 17) (responding to concerns about delisting the Aleutian Canada Goose (Branta Canadensis leueoparia) by citing the protections the species will retain under the MBTA); Final Rule to Remove the Peregrine Falcon in North America From the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 46,542, 46,552 (Aug. 25, 1999) (codified at 50 C.F.R. pt. 17) (responding similarly to concerns about delisting the American peregrine falcon (Falco peregrinus anatum) by citing the protections the species will retain under the MBTA).

(234) 16 U.S.C. [section] 1533(a)(1)(D) (2000); 50 C.F.R. [section] 424.11(c)(4) (2003).

(235) Fed'n of Fly Fishers v. Daley, 200 F. Supp. 2d 1181, 1187 (N.D. Cal. 2002).

(236) Proposed Rule, 64 Fed. Reg. at 36,459.

(237) Id.

(238) Id. at 36,458.

(239) The Ninth Circuit's view that delisting removes the government's compelling interest is a dangerous one that could leave bald eagles with only the protection of the MBTA from religions takings. The MBTA shares the permit system of the BGEPA, however, and the same restriction on religions use of eagles applies to both the MBTA and the BGEPA. Migratory Bird Permits, 50 C.F.R. [section] 21.2(b) (2002). The MBTA, therefore, is vulnerable to invalidation in the same way the BGEPA is if the courts find that delisting removes the government's interest in protecting eagles.

(240) See Proposed Rule, 64 Fed. Reg. at 36,458 (requiring permits for education, etc., but not religious matters).

(241) Doremus, supra note 132, at 10,444.

(242) The Department of Interior made delisting its priority in 1998. News Release, U.S. Dept. of the Interior, Babbitt Announces New Policy, Plans to "Delist" Endangered Species (May 6, 1998) ("Our new policy, to emphasize delisting, could alter the terms of debate over the future of the [ESA]."), http://www.doi.gov/news/archives/delist.html; Cheever, supra note 233, at 11,306; Doremus, supra note 132, at 10,434.

(243) Doremus, supra note 132, at 10,436.

(244) See J. Madeline Nash & James Willwerth, The $25 Million Bird." As Endangered California Condors Return to the Wild, the Law That Saved Them Is Under Attack, TIME MAG., Jan. 27, 1992, at 56 (discussing criticisms of the ESA, including the belief that it "is an inflexible barrier to economic progress").

(245) Doremus & Pagel, supra note 40, at 1266-67.

(246) Philip Kline, Comment, Grizzly Bear Blues: A Case Study of the Endangered Species Act's Delisting Process and Recovery Plan Requirements, 31 ENVTL. L. 371,390-91 (2001); see Nash & Winwerth, supra note 244 ("The [ESA] has focused far too much effort, though, on rescuing glamorous species.").

(247) See, e.g., CBS News, supra note 222 (quoting Tom France of the National Wildlife Federation as stating, "Eagles are one of the great success stories of the [ESA] ... [T]hey'll soon be ready for delisting."); Robert Winkler, Bald Eagle Bounces Back After Decades of Persecution, NAT'L GEOGRAPHIC, July 2002, http://news.nationalgeographic.com/ news/2002/06/0620_020620_baldeagle.html (last visited July 11, 2004) (calling the bald eagle's recovery "A Great Conservation Story").

(248) 5 U.S.C. [section] 706(2)(A) (2000). See Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 678 (D.D.C. 1997) (using 5 U.S.C. [section] 706(2)(A) to determine whether FWS's decision not to list the Canada Lynx (Felix lynx canadensis) as endangered or threatened was arbitrary and capricious).

(249) Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995).

(250) Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

(251) Defenders of Wildlife, 958 F. Supp at 679.

(252) Id. at 678.

(253) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(254) Id. [section] 1533(a)(1); 50 C.F.R. [section] 424.11(c) (2003).

(255) See Defenders of Wildlife, 958 F. Supp. at 683 (stating that FWS is justified in listing a species when only one of these factors is present).

(256) Carlton v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. 1995).

(257) Id. at 531,534.

(258) Defenders of Wildlife, 958 F. Supp. at 684.

(259) See Section VI.A, supra, for an additional discussion of threats to bald eagle habitat and Section II.C, supra, for an additional discussion of the protections the ESA contains that other statutes do not.

(260) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(261) Id.

(262) Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988).

(263) Michael J. Brennan et al., Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species Art, 16 TUL. ENVTL. L.J. 387, 41011 (2003); see Bennett v. Spear, 520 U.S. 154, 176 (1997) (stating that the best scientific data requirement serves to avoid haphazard application of the ESA and also "to avoid needless economic dislocation"); Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 523 n.5 (9th Cir. 1998) (stating that the best scientific data requirement does not preclude FWS from considering business or political concerns if two proposed plans would both protect a species).

(264) Brennan, supra note 263, at 422

(265) See Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 26 (D.D.C. 1996) (remanding the FWS decision not to list the Alexander Archipelago wolf (Cards lupus ligoni) because it was unjustifiable where the long-term survival of the wolf was threatened and the only drawback cited to listing the wolf was that listing would be controversial with the national congressional members from Alaska); Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 51-52 (D.D.C. 1996) (remanding the FWS's decision not to list the Queen Charlotte goshawk (Accipiter gentiles laingi) because the agency stated that the viability of the goshawk and its habitat were threatened, and the agency had no plan to protect the species).

(266) Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1035 (1997).

(267) 16 U.S.C. [section] 1533(a)(1)(A) (2000).

(268) Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. at 52.

(269) Proposed Rule, 64 Fed. Reg. 36,454, 36,458 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17).

(270) Id.

(271) 16 U.S.C. [section] 1532(20) (2000).

(272) See Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1151-52 (D. Or. 1998) (holding that the National Marine Fisheries Service's conclusion that the Oregon Coast evolutionarily significant unit of coho salmon (Oncorhynchus kisutch) should not be delisted because it would be protected by habitat measures set to be implemented in two years was arbitrary and capricious because it failed to consider whether the salmon would become endangered in the "foreseeable future").

(273) Proposed Rule, 64 Fed. Reg. at 36,458.

(274) Federal Land Policy and Management Act of 1976, 43 U.S.C. [section] 1701-1785 (2000).

(275) Doremus & Pagel, supra note 40, at 1265.

(276) See id. (discussing the failure of various statutes to adequately protect bald eagles after delisting).

(277) Proposed Rule, 64 Fed. Reg. at 36,458.

(278) Id.

(279) Doremus & Pagel, supra note 40, at 1265.

(280) Id.

(281) 16 U.S.C. [section] 1538(a)(1)(D) (2000).

(282) Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 28, 26 (D.D.C. 1996); Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 52 (D.D.C. 1996).

(283) See Biodiversity Legal Found., 943 F. Supp. at 24; Southwest Ctr. for Biological Diversity, 939 F. Supp. at 52 (both stating that if a species is threatened or endangered and does not have protections, FWS has a duty to list it under the ESA); see also Doremus & Pagel, supra note 40, at 1259 (arguing that species should not be delisted unless other laws will protect a species from needing listing protection).

(284) See supra Sections VI.A and VI.C.1.

(285) See supra Sections VI.A and VI.C.1. Although FWS cites other statutes in its discussion of regulatory mechanisms that will protect the bald eagle after delisting, the BGEPA and the MBTA are the only statutes cited that explicitly protect bald eagles. Other statutes cited in the proposed rule, such as the Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000), have only an indirect effect on eagles. See Proposed Rule, 64 Fed. Reg. 36,454, 86,459 (proposed July 6, 1999) (to be codified at 50 C.F.R. pt. 17) (discussing the statutes that will protect bald eagles in lieu of the ESA).

(286) See supra Section II.C.

(287) See supra Section II.C,

(288) Proposed Rule, 64 Fed. Reg. at 86,459.

(289) Doremus & Pagel, supra note 40, at 1261.

(290) Id.

(291) See Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302-03 (9th Cir. 1991) (holding that the MBTA and the ESA have marked differences, and that the MBTA has more limited protections than the ESA). Also see Section HI for a discussion of differences between the MBTA and the ESA.

AMIE JAMIESON, [c] Amie Jamieson, 2004. Managing Editor, Environmental Law, 2004-2005; Ninth Circuit Review Member, Environmental Law, 2003-2004; J.D. expected 2005, Lewis & Clark Law School; M.S. 1999, Florida State University (Sociology); B.A. 1997, University of Maine (Sociology). The author thanks Professor Susan Maandiberg for her guidance and patience. The author also thanks 2003-2004 Ninth Circuit Review Editor, Environmental Law, Rebecca Watkins, for her thoughtful comments. Finally, the author thanks Rick Piet for his support and understanding.