Order Code RL34174
What Happens to the Bald Eagle Now That It Is
Not Protected Under the
Endangered Species Act?
September 17, 2007
Kristina Alexander
Legislative Attorney
American Law Division

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What Happens to the Bald Eagle Now That It Is
Not Protected Under the Endangered Species Act?
Summary
In 2007 the American bald eagle was removed from the list of species protected
by the Endangered Species Act (ESA). However, the ESA was not the only statute
protecting the eagle. Among the federal statutes protecting the bald eagle are the Bald
and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act
(MBTA). Additionally, state laws and federal agency policy continue to protect the
bird. This report reviews the Endangered Species Act protections for the bald eagle
and compares them to the protections remaining under the Bald and Golden Eagle
Protection Act and the Migratory Bird Treaty Act. It also considers other legal
protections that shield the bald eagle from harm, such as state laws and other federal
acts and policies.
Some differences in protection under BGEPA and MBTA, compared with the
ESA, are as follows:
! Habitat protection is uncertain, based on a new regulatory
definition that is untested in the courts.
! Federal agencies will not have to consult with the Fish and
Wildlife Service before developing a project that could harm
bald eagles.
! Private citizens will not be able to initiate actions against other
private citizens to claim that eagles are harmed.
! The federal government probably will be immune from most
enforcement.
! The incidental take permit under BGEPA is not as involved as
the permit under the ESA, and does not require any public
notice or comment, even for federal projects.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Delisting Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Post-Listing Monitoring by FWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Endangered Species Act, the Bald and Golden Eagle
Protection Act, and the Migratory Bird Treaty Act . . . . . . . . . . . . . . . . 4
How Habitat is Protected under the ESA, BGEPA, and MBTA . . . . . . 5
Consultation with the Federal Government . . . . . . . . . . . . . . . . . . . . . . 7
No Private Right of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Application of the Laws to the Federal Government . . . . . . . . . . . . . . . 8
Permits to Take Eagles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Knowing Violations under ESA, BGEPA and MBTA . . . . . . . . . . . . 12
State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lacey Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Interstate Wildlife Violator Compact . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Other Federal Agency Directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
National Forests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
National Wildlife Refuges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
National Parks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bureau of Land Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Executive Order 13186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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What Happens to the Bald Eagle
Now That It Is Not Protected
Under the Endangered Species Act?
Background
The American Bald Eagle (Haliaeetus leucocephalus) stopped being protected
under the Endangered Species Act (ESA) (P.L. 93-205, 87 Stat. 886; 16 U.S.C. §§
1531 - 1343) as of August 8, 2007. Efforts to halt the declining population of the
bald eagle began as early as 1940 with the passage of the Bald Eagle Protection Act
(June 8, 1940, c. 278, § 1, 54 Stat. 250). That act, aimed at stopping hunters, had
little effect, and in 1963 the Audubon Society estimated there were only 487 nesting
pairs left. In 1967 the bald eagle was listed as an endangered species under a
predecessor of the ESA, the Endangered Species Preservation Act of 1966 (P.L. 89-
699, 80 Stat. 926). Despite this legislation, the real protection to the eagle came in
1972 when the pesticide DDT was banned. The pesticide had caused the bird’s
eggshells to be too thin, and the species’ decline is attributed primarily to the effects
of this compound. In 1978 the eagle was listed as endangered under the ESA in 43
of the lower 48 states, and threatened in Michigan, Minnesota, Oregon, Washington,
and Wisconsin.1
The states followed suit. Most states have their own laws protecting the bald
eagle, as one of a list of species in peril, or under a rule specifically protecting it.2 A
list of state laws and regulations is included in the Appendix to this Report.
In 1995 the bald eagle population had increased, and the species was reclassified
as threatened in all 48 states.3 The delisting process began in 1999. (64 Fed. Reg.
36454 (July 6, 1999).) The final rule was issued in July 2007. (72 Fed. Reg. 37345
(July 9, 2007).) According to the FWS there are 9,789 nesting pairs at present, a
number that exceeded the agency’s recovery plans. Prior to the arrival of Europeans,
1 Under the ESA, endangered means the species is in danger of extinction throughout all or
a significant portion of its range. 16 U.S.C. § 1532(6). A threatened species is defined as
a species that is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. 16 U.S.C. § 1532(20).
2 These state laws are not preempted by the ESA. The act specifically allows “any State law
or regulation respecting the taking of an endangered species or threatened species may be
more restrictive [than this chapter].” ESA § 6; 16 U.S.C. § 1535(f).
3 Alaska and Hawaii are not part of the bald eagle’s listing (or delisting). Alaska has always
had a healthy population of eagles (currently estimated at 15,000 breeding pairs), and the
bald eagle does not occur in Hawaii.

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the bald eagle population in the lower 48 states was estimated at between 250,000
and 500,000.
The Delisting Process
Removing a species from protection under the ESA is called delisting. Under
the ESA a species may be delisted for a number of reasons, such as extinction, or
more happily in the case of the bald eagle, recovery. The Fish and Wildlife Service
(FWS), the federal agency charged with most endangered species tasks (the other
being the National Oceanic and Atmospheric Administration’s National Marine
Fisheries Service (NMFS)), found that the population of the bald eagle had
rebounded to the point where protection under the ESA was no longer necessary.
The delisting process considers the same five factors that were reviewed at the
time the eagle was placed on the list:
! the destruction, modification, or curtailment of its habitat or range;
! use for commercial, recreational, scientific, or educational purposes;
! disease or predation;
! the inadequacy of existing regulatory mechanisms; or
! other natural or manmade factors affecting its continued existence.
(ESA § 4; 16 U.S.C. § 1533.)
A decision to delist a species is to be made “solely on the basis of the best
scientific and commercial data available.” (16 U.S.C. § 1533(b)(1)(A).) Delisting the
bald eagle was brought by FWS without being petitioned by a private party, but it
was not without controversy. One lawsuit was filed to hasten the process.4 More than
six years after the proposed delisting notice was published, no final decision had been
made. A real estate developer who had an eagle nest on his property sued to force
the agency to act, arguing that the delay was harming his planned subdivision since
he was unable to build within 330 feet of the nest. At the time the district court heard
the case the comment period on the delisting had been reopened by FWS. The court
agreed that the data received from the first comment session was old and allowed the
FWS more time. However, the court set a deadline for the final notice: “defendants
shall issue a final determination within a reasonable period of time, but no later than
February 16, 2007, unless defendants present persuasive evidence of just cause for
further limited delay.”5 The final notice was published July 7, 2007.
Another lawsuit related to the delisting was based on a petition to have a distinct
population segment (DPS) of bald eagles named that would still be protected under
the ESA. The Center for Biological Diversity (CBD) filed the petition to have the
eagles found in the Sonoran Desert of Arizona defined as a DPS. FWS rejected the
petition, finding it lacked substantial scientific or commercial information. CBD
4 Contoski v. Scarlett, No. 05-2528 (JRT/RLE), 2006 WL 2331180 (D. Minn.
August 10, 2006).
5 Id.

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filed suit in January 2007; the case is still pending.6 FWS argued that the suit was
mooted by the delisting, which included a finding that the Sonoran bald eagle was not
a DPS, although the court has not yet decided the issue. In the same Federal Register
notice with the eagle’s delisting, FWS wrote that the while the Sonoran bald eagle
was a geographically distinct population, it did not behave differently from other
eagles. Although it lives in a hot climate, it is still located near riparian areas. The
fact that it nests in cliffs was unusual, but the FWS found that more and more, eagles
are becoming opportunistic nesters and will nest in places other than treetops.
Therefore, the FWS found the Sonoran bald eagle is not a significant discrete
population segment and, therefore, was not entitled to special protection. (72 Fed.
Reg. 37345, 37354 - 58 (July 9, 2007).)
Post-Listing Monitoring by FWS. When a species is delisted, the agency
is required to monitor the well-being of the species for at least five years. (ESA §
4(g); 16 U.S.C. § 1533(g).) As part of its review, the FWS prepared a post-listing
monitoring plan, which was included in the July 9, 2007, delisting notice in the
Federal Register. The FWS has indicated that the bald eagle faces certain hazards,
although it does not believe any of the risks threaten to reverse the overall recovery
of the species. While the population has continued to increase over the past three
decades, the growth will not reach pre-settler numbers, primarily due to loss of
habitat.7 However, the FWS has noticed that to some extent the eagle has adapted its
nesting practices, in some instances nesting closer to people and other eagles, and
sometimes choosing nesting locations in places other than trees. Also, the eagle is
able to exist in a wide range of settings — in all states but Hawaii. Any future losses
of habitat are not expected to imperil the species.
Environmental risks also threaten the eagle — for example, mercury poisoning
from eating mercury-contaminated fish, and lead poisoning from eating prey that
contains lead shot or lead sinkers from fishing.8 Mercury emissions are being
reduced, and some states have prohibited the use of lead shot or lead sinkers, so those
threats may be lessening. The FWS considered the risk of high pathogenicity avian
influenza (HPAI), but noted that the disease had yet not been discovered in any
eagles or other migratory birds in North America. (72 Fed. Reg. at 37353.) Another
disease, avian vacuolar myelinopathy, has killed 80 eagles to date. The cause of this
disease, which affects muscular coordination, is unknown, but human-introduced or
natural toxins are suspected, according to the U.S. Geological Survey.9
6 Center for Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz.).
7 According to FWS, “available habitat will almost certainly limit the population of bald
eagles in the lower 48 states.” 72 Fed. Reg. at 37359.
8 Under federal law, lead shot is currently illegal for waterfowl hunting. See
[http://www.fws.gov/migratorybirds/issues/nontoxic_shot/nontoxic.htm]. However, states
regulate hunting of other game species. To the extent that eagles scavenge from these
carcases, they may ingest lead.
9 See National Wildlife Health Center webpage at [http://www.nwhc.usgs.gov/disease_
information/avian_vacuolar_myelinopathy/index.jsp].

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The FWS post-listing monitoring plan includes National Bald Eagle
Management Guidelines (Guidelines), which were released in June 2007.10 The
Guidelines do not have the effect of law, but provide information on what behavior
could disturb the eagles. The Guidelines recommend different types of buffers to
limit harassment of the birds, such as distance buffers and landscape buffers. For
example, for construction that will be visible from a nest, the Guidelines recommend
a buffer of 660 feet. If that activity is not visible from the nest, a 330-foot buffer is
recommended. (Guidelines, p. 12.)
In conjunction with the delisting, the FWS prepared other regulatory documents
under the Bald and Golden Eagle Protection Act (BGEPA) (June 8, 1940, c. 278, §
1, 54 Stat. 250; 16 U.S.C. §§ 668-668d) — a rule defining disturb (72 Fed. Reg.
31139 (June 5, 2007)); and a proposed regulation to allow permits for incidental
takes of eagles (both bald and golden) (72 Fed. Reg. 31141 (June 5, 2007).) These
will be discussed in detail later in this report.
The Endangered Species Act, the Bald and Golden Eagle
Protection Act, and the Migratory Bird Treaty Act
A key factor in the bald eagle’s potential for continued success as a species is
that the ESA is not the only statute protecting it. The eagle is also covered by the
Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act (MBTA)
(July 3, 1918, c. 128, § 2, 40 Stat. 755; 16 U.S.C. §§ 703 - 712). These acts pre-date
the ESA and underscore the bird’s symbolic importance to America. In fact the
preface to BGEPA recognizes the bird’s significance: “the bald eagle is no longer a
mere bird of biological interest but a symbol of the American ideals of freedom.” (54
Stat. 250 (1940).) This section will discuss the three acts generally before comparing
them.
The Endangered Species Act has a broad purpose. It is intended to:
provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, to provide a program for the
conservation of such endangered species and threatened species, and to take such
steps as may be appropriate to achieve the purposes of the treaties and
conventions set forth in ... this section. (16 U.S.C. 1531(b).)
Also provided in the ESA is a list of prohibited acts, which includes the following:
it is unlawful for any person subject to the jurisdiction of the United States to —
(A) import any such species into, or export any such species from the United
States;
(B) take any such species within the United States or the territorial sea of the
United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any
such species taken in violation of subparagraphs (B) and (C);
10 72 Fed. Reg. 31156 (June 5, 2007), online at [http://www.fws.gov/migratorybirds/
issues/BaldEagle/NationalBaldEagleManagementGuidelines.pdf].

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(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of commercial activity, any such
species;
(F) sell or offer for sale in interstate or foreign commerce any such species; or
(G) violate any regulation pertaining to such species or to any threatened species
of fish or wildlife listed pursuant to section 1533 of this title.... (16 U.S.C. §
1538(a)(1).)
BGEPA and the MBTA are more narrowly drafted. BGEPA provides as follows:

Whoever, within the United States or any place subject to the jurisdiction
thereof, without being permitted to do so as provided in this subchapter, shall
knowingly, or with wanton disregard for the consequences of his act take,
possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export
or import, at any time or in any manner any bald eagle commonly known as the
American eagle or any golden eagle, alive or dead, or any part, nest, or egg
thereof of the foregoing eagles, or whoever violates any permit or regulation
issued pursuant to this subchapter, shall be fined ... or imprisoned ... or both. (16
U.S.C. 668(a).)
The MBTA provides as follows:
it shall be unlawful at any time, by any means or in any manner, to pursue, hunt,
take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell,
offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship,
export, import, cause to be shipped, exported, or imported, deliver for
transportation, transport or cause to be transported, carry or cause to be carried,
or receive for shipment, transportation, carriage, or export, any migratory bird,
any part, nest, or eggs of any such bird, or any product, whether or not
manufactured, which consists, or is composed in whole or part, of any such bird
or any part, nest, or egg thereof included in the terms of [certain conventions] ....
(16 U.S.C. § 703(a).)
How Habitat is Protected under the ESA, BGEPA, and MBTA. All
three statutes prohibit destroying the bird, its eggs, and its nest, but the ESA protects
the eagle, its eggs, its nest, and its habitat. BGEPA and the MBTA appear to be
drafted to prohibit only direct harms to the eagle, whereas the ESA has been
structured to prevent indirect harm such as habitat destruction. The difference is
significant. Based on the plain language of BGEPA and the MBTA, a developer
could remove all the trees near a bald eagle nest, provided it did not touch the eagle,
the eggs, or the nest.11 It has been up to the courts to find whether BGEPA and the
MBTA prohibit only direct harm to the bird, or also ban the indirect harm of habitat
destruction.
All three statutes use the word take, which is clarified under the ESA and
BGEPA, but is not defined in the MBTA. The ESA defines take as “to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in
any such conduct.” (ESA § 3, 16 U.S.C. § 1532(19).) BGEPA defines take as
11 “Removal of trees is not in itself a violation of the Eagle Act,” 72 Fed. Reg. 37363.

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“pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or
disturb.” (16 U.S.C. § 668(c).)
Because the MBTA is silent, the courts have had to interpret how the statute
defines take. The Ninth Circuit has held that the act applies only to direct taking,
such as by poisoning or hunting, and not to indirect takes made by habitat
modification.12 The court compared the ESA to the MBTA: “Habitat destruction
causes ‘harm’ to the owls under the ESA but does not ‘take’ them within the meaning
of the MBTA.”13 Other courts agree that habitat destruction does not amount to a
take under the MBTA. For example, a district court found that habitat destruction
and logging even during the bird’s nesting season were not a take.14 Based on these
decisions, it appears the MBTA does not provide habitat protection for the eagle.
The next question is whether BGEPA protects habitat in the same way as the
ESA. Based on the plain terms of the respective acts, there is a lesser standard
toward habitat protection in BGEPA than in the ESA. One of the ESA’s purposes
is ecosystem protection, after all, yet habitat is not mentioned in BGEPA. Because
habitat is not specifically provided for in BGEPA, courts have reviewed the take
provision to find whether habitat protection is implied. One district court found the
protections under BGEPA were the same as under ESA: “the respective definitions
of ‘take’ do not suggest that the ESA provides more protection for bald eagles than
the Eagle Protection Act.”15 The court compared the definitions of take, which under
the ESA includes the word harm, to find there was no difference.
The issue can be focused on how the definition of disturb, which is found in
BGEPA, compares to harm in the ESA. FWS issued a regulatory definition of
disturb in 2007 to clarify that some habitat manipulation could be considered a take.
The rule defines disturb as: “to agitate or bother a bald or golden eagle to a degree
that causes, or is likely to cause, based on the best scientific information available,
(1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering
with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by
substantially interfering with normal breeding, feeding, or sheltering behavior.”16 (50
C.F.R. § 22.3; 72 Fed. Reg. 31139 (June 5, 2007).) Under this standard, harmful
behavior could be halted before the death or injury actually occurred, provided it was
likely to occur. Thus, the government would not need to show an eagle died to make
its case.
12 Seattle Audubon Society v. Evans, 952 F.2d 297, 303 (9th Cir. 1991) (MBTA did not
prevent Forest Service from logging areas that were habitat for migratory birds).
13 Id.
14 Mahler v. U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996).
15 Contoski v. Scarlett, No. 05-2528 (JRT/RLE), 2006 WL 2331180 (D. Minn.
August 10, 2006).
16 The draft rule’s definition was not as broad as the final rule, defining disturb as: “to
agitate or bother a bald or golden eagle to the degree that interferes with or interrupts normal
breeding, feeding, or sheltering habits, causing injury, death, or nest abandonment.” (71 Fed.
Reg. 8265 (February 16, 2006).) Under the draft rule, an action would have to cause injury,
death, or nest abandonment to be a violation.

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However, the extent of habitat protection provided by this regulatory change has
not been reviewed by the courts. Because the BGEPA definition of disturb is now
similar to the ESA definition of harm, it is worth reviewing how courts have
interpreted harm to see how disturb may be applied under BGEPA. The FWS
defines harm as follows: “Harm in the definition of ‘take’ in the Act means an act
which actually kills or injures wildlife. Such act may include significant habitat
modification, or degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering.”
(50 C.F.R. § 17.3.)
After some dispute in the lower courts, the U.S. Supreme Court upheld the FWS
definition of harm, finding it was reasonable.17 Destruction of habitat could be
considered an indirect taking of the eagle, and indirect, as well as deliberate, takings
were contemplated by Congress when writing the ESA, according to the Court.
Despite this, the courts have not uniformly found when a habitat intrusion
amounts to a taking under the ESA. The dispute centers on whether a species must
be injured or killed before there is a cause of action. The Ninth Circuit has
interpreted Section 9 broadly as it applied to habitat modification. So long as the
injury to wildlife occurs, either in the past, present, or future, the injury requirement
in the definition is satisfied.18 Other courts have been more circumspect. For
example, one district court said that an injury must occur before a Section 9 taking
may be found:
Although some of the comments specifically argued that habitat modification
alone is a prohibited taking under section 9, in the opinion of the Service,
Congress expressed no such intent. The final definition adds the word “actually”
before the words “kills or injures” in response to comments requesting this
addition to clarify that a standard of actual, adverse effects applies to section 9
takings. In response to the broad misperception of the intent of the rule, an
additional sentence has been added which is similar to the original definition’s
language. This additional language makes it clear that habitat modification or
degradation, standing alone, is not a taking pursuant to section 9. To be subject
to section 9, the modification or degradation must be significant, must
significantly impair essential behavioral patterns, and must result in actual injury
to a protected wildlife species.19
It is possible that the language in BGEPA will be subject to less legal wrangling.
While the ESA regulation states that there must be an actual injury for there to be
harm, leading to these contradictory holdings, BGEPA clarifies that actions likely to
17 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115
S. Ct. 2407, 132 L. Ed. 2d 597 (1995).
18 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir.1995); see
also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1064 (9th Cir. 1996) (evidence of a threat
of future harm to the threatened marbled murrelet supports a permanent injunction; evidence
of past harm is not required), cert. denied, 117 S. Ct. 942 (1997).
19 Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F. Supp. 2d 529,
553 (D.N.J. 1998).

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cause injuries are a disturbance. That phrase moots the dispute regarding actual
injury.
While the wording differs regarding whether an action actually kills a listed
species, the degree of harm for injuring a species appears to be similar between the
two acts. Where the ESA prohibits behavior that “significantly impair[s] essential
behavioral patterns, including breeding, feeding or sheltering,” the BGEPA
regulations would now prevent actions that “substantially interfere with normal
breeding, feeding, or sheltering behavior.”
Consultation with the Federal Government. The ESA provides more
than just rules against hurting the birds, however. The ESA requires affirmative
steps on behalf of the federal government when its projects interact with a listed
species. This is one significant way in which the ESA differs from BGEPA and the
MBTA. It requires federal agencies to “insure that any action authorized, funded, or
carried out by such agency ... is not likely to jeopardize the continued existence of
any endangered species or threatened species or result in the destruction or adverse
modification of [designated critical] habitat....” (ESA § 7; 15 U.S.C. § 1536(a)(2).)
Federal agencies must undertake a Section 7 consultation, which is made with the
FWS or NMFS, depending on the species. According to FWS, in 2006 it made 57
formal consultations under Section 7 regarding the bald eagle leading to incidental
take permits, and 5,184 informal consultations. (72 Fed. Reg. at 37363.) As the bald
eagle is no longer listed, those consultations are not required. There is no similar
language or requirement in either BGEPA or the MBTA.
No Private Right of Action. Another meaningful difference between ESA
and the other two statutes is that only the ESA provides a private right of action. This
means the ESA allows citizens to sue others for failing to comply with the act. A
look at the last 50 cases to have published decisions brought at least in part under the
ESA shows the significance of this change. Of those 50 cases, one was brought by
the federal government. The remaining 49 were by private litigants, sometimes
against other private parties, but mostly against the federal government. Although
the issue has not been discussed in the BGEPA context, courts that have considered
whether there is a private right of action under MBTA have rejected the theory.20 It
appears likely that a similar conclusion would be reached for citizen suits under
BGEPA, since that statute is silent on the matter.
Application of the Laws to the Federal Government. In addition to
allowing private citizens to enforce the ESA, the ESA also allows actions to be
brought against the federal government. This waiver of sovereign immunity is
20 See Turtle Island Restoration Network v. U.S. Department of Commerce, 438 F.3d 937
(9th Cir. 2006) (noting that MBTA does not have a private right of action but not considering
whether it may be used in conjunction with the APA to sue the government); Flint Hills
Tallgrass Prairie Heritage Foundation v. Scottish Power, PLC, No. 05-1025-JTM, n.1 (D.
Kan. February 22, 2005) (noting that MBTA does not provide a right of action for private
parties to sue another private party); Center for Biological Diversity v. Pirie, 201 F. Supp.
2d 113, 117 (D.D.C. 2002) (MBTA did not provide private right of action, but APA could
be used as basis for injunction), vacated on other grounds sub nom., Center for Biological
Diversity v. England, Nos. 02-5163, 02-5180 (D.C. Cir. January 23, 2003).

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explicit under Section 11(g), the citizen suit provision. Courts have also allowed
citizen suits to be brought via the Administrative Procedure Act (APA) (5 U.S.C. §
551 et seq.) for actions that were not covered under Section 11(g).
It is not so clear whether BGEPA or the MBTA waived sovereign immunity for
enforcement against the government. There is no express waiver in either act. The
caselaw is more developed for claims under the MBTA. The courts are split as to
whether the APA can be used as a vehicle to bring MBTA claims against the
government. Generally speaking, in order to sue the federal government under the
APA, a plaintiff uses the APA with a substantive statute that applies to the federal
government. The relevant statute must provide the legal basis for the complaint. The
APA provides some waiver of sovereign immunity, but does not confer authority to
grant relief if another statute impliedly forbids the relief which is sought. (5 U.S.C.
§ 702(2).) In an APA suit, the court reviews whether an agency action was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” (5 U.S.C. § 706.)
Two of the three federal courts of appeals to consider the issue have held that
the MBTA cannot be used to sue the federal government, even using the APA.21 The
Eleventh Circuit said that under the APA, an agency’s actions must first be subject
to a law before they could be found not in accordance with it.22 The Eleventh Circuit
looked at the plain language of the MBTA and the legislative history to hold that the
act did not apply to the federal government. The MBTA states that a “person,
associations, partnership or corporation” could violate the act, and does not mention
the government. The court compared that language to the ESA, which includes “any
officer, employee, agent, department, or instrumentality of the Federal Government”
in its definition of person, saying “Congress has demonstrated that it knows how to
subject federal agencies to substantive requirements when it chooses to do so.”23
Accordingly, the government was not subject to the MBTA.
The Eighth Circuit also rejected the idea that the MBTA could be used along
with the APA to challenge a Forest Service action that would kill migratory birds.
The court said that the MBTA did not appear to apply to federal agencies, but based
its decision on different factors than the Eleventh Circuit. The court noted that the
MBTA did not provide a private right of action, and found it could not be used as the
underlying basis for an APA injunction.24 The court then considered whether the
government could be liable for criminal conduct. The court reviewed the definition
of take under the MBTA to hold “it would stretch this 1918 statute far beyond the
21 No right to sue: Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997); Newton County
Wildlife Ass’n v. U.S. Forest Service, 113 F.3d 110 (8th Cir. 1997). Right to sue: Humane
Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) (expressly rejecting
the holdings of Newton County and Martin to hold that the FWS was subject to an
injunction under the MBTA).
22 Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997).
23 Id. at 1555.
24 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110 (8th Cir. 1997).

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CRS-10
bounds of reason to construe it as an absolute criminal prohibition on conduct, such
as timber harvesting, that indirectly results in the death of migratory birds.”25
The D.C. Circuit Court decision is the most recent of the three to consider
whether the MBTA applied to the federal government. It found that the act provided
only injunctive relief against the government. In contrast to the Eighth Circuit, which
had expressly rejected the argument, the D.C. Circuit held that because the
underlying treaties within the MBTA applied to the federal government, the act
applied to the government.26 The court also said that “person” under the act could
apply to a person acting on behalf of the government. However, in light of the
common interpretation that “person” does not mean the government, the court said
that the criminal provisions of the MBTA would not apply to federal agencies.27 But
injunctive relief under the act was still available.
Lower courts are also divided. A general rule regarding APA complaints is that
the plaintiff must identify a substantive statute that the agency has transgressed and
show how that statute applies to the United States.28 However, most courts
considering complaints against the federal government for violating the MBTA have
not considered whether the statute applies.29 Some distinguish between using the
MBTA to enjoin a federal action and using it for criminal enforcement.30
There is every reason to expect that a similar schism will occur when courts
consider whether the BGEPA applies to takings by the federal government. Because
the statute has not been exercised in this capacity due to overlapping coverage by the
ESA, it is not clear how this issue will be resolved. Like the MBTA, the language of
BGEPA applies to a person, which is defined as “associations, partnerships, and
corporations.” (16 U.S.C. § 668(c).) No mention is made of the government, and
there is no provision for a citizen suit. BGEPA differs somewhat from MBTA,
however, in that it is not solely a criminal statute, but also provides for civil
sanctions.
BGEPA’s history does not clarify whether claims against the government could
be brought. The legislative history includes a House Report, recording a letter from
25 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110, 115 (8th Cir. 1997).
26 Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000).
27 Humane Society of the United States v. Glickman, 217 F.3d 882, 886 (D.C. Cir. 2000),
referring to, United States v. Cooper Corp., 312 U.S. 600, 604 (1941).
28 See, e.g., Preferred Risk Mutual Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996).
29 See Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991) (MBTA did not
prevent Forest Service from logging areas that were habitat for migratory birds); Mahler v.
U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996) (logging during nesting season did
not violate MBTA); see also Robertson v. Seattle Audubon Society, 503 U.S. 429 (1991)
(reviewing whether an appropriations bill impliedly modified the MBTA, among other acts,
without considering whether the MBTA applied to federal agencies).
30 Center for Biological Diversity v. Pirie, 201 F. Supp. 2d 113 (D.D.C. 2002), vacated on
other grounds sub nom., Center for Biological Diversity v. England, Nos. 02-5163, 02-5180
(D.C. Cir. 2003).

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CRS-11
the Acting Secretary of Agriculture. According to the report, the letter explains the
purpose of the legislation:
All too frequently occur in newspapers and other publications reproductions of
pictures of gunners who have killed an eagle of so much wing spread and other
dimension as are displayed in the legend accompanying the picture or news item
relating to it. It is apparent to this Department from its long observations with
respect to the wildlife of this country that there are those in any community in
which an eagle may appear who are immediately seized with a determination to
kill it for no other reason than that it is an eagle and a bird of large proportions.
H.Rept. 2104 (76th Cong.)
This language addresses hunting eagles, not the harm to eagles that may result from
government projects. It appears that logging and other federal projects that would
take eagles were not contemplated by Congress as being covered under this statute.
If plaintiffs lack the ability to use BGEPA or the MBTA to stop government
projects that may harm the eagle, they will have lost a significant litigation tool.
Permits to Take Eagles. Before delisting, one way in which BGEPA was
more protective of the eagle than the ESA, is that it did not allow permits for taking
the birds as an unintended consequence of other activities, such as the incidental take
permit issued by FWS under ESA Section 10 (16 U.S.C. § 1539) or ESA Section 7,
for federal actors. However, the FWS issued a proposed rule to authorize incidental
takes under BGEPA, similar to a ESA Section 10 permit. FWS says it is authorized
to allow these permits under 16 U.S.C. § 668a, which allows the Secretary of the
Interior to issue permits where:
it is compatible with the preservation of the bald eagle or the golden eagle to
permit the taking, possession, and transportation of specimens thereof for the
scientific or exhibition purposes of public museums, scientific societies, and
zoological parks, or for the religious purposes of Indian tribes, or that it is
necessary to permit the taking of such eagles for the protection of wildlife or of
agricultural or other interests....
This rule would allow FWS to issue permits for the take of eagles where “such
permits are consistent with the preservation of the bald and golden eagle, and the take
is associated with, and not the purpose of an otherwise lawful activity, and such take
cannot be practicably avoided.” (72 Fed. Reg. 31141, 31143 (June 5, 2007).) In the
draft rulemaking, FWS explained how the phrase “practicably avoided” was to be
interpreted. It said that practicable meant capable of being done after taking into
consideration cost, existing technology, and logistics in light of the overall project
purpose. (72 Fed. Reg. at 31142.) Something was unavoidable only if the activity
was “necessary for the public welfare,” and all “practicable, industry-accepted
measures to minimize the take are in effect.” (72 Fed. Reg. at 31142.) For any permit,
the take must be consistent with the preservation of the eagles, and FWS did not
anticipate that permits will “significantly affect eagle populations.”
Permittees under the draft BGEPA regulation would include federal, state, local,
and tribal governments, as well as private parties, according to FWS. (72 Fed. Reg.
31144.) However, we could not find any language in the regulations or draft

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CRS-12
regulations pertaining to these permits that includes the federal government or tribal
governments. Despite the definition in the statute, the regulations define person as
“an individual, corporation, partnership, trust, association, or ... any officer,
employee, agent, department or instrumentality of any State or political subdivision
of a State.” (50 C.F.R. § 22.3.) The FWS estimates that two-thirds of the 300
applicants seeking the permits will be governmental. (72 Fed. Reg. 31149.) Permits
issued to private entities under the more stringent ESA guidelines amounted to 1.8
per year since 2002. Permits to federal entities averaged 52 per year during that time.
(72 Fed. Reg. at 31142.) Based on these numbers, the FWS anticipates receiving
more than 240 additional permit applications for taking per year than before the eagle
was delisted.31 (72 Fed. Reg. at 31149.)
According to FWS, the proposed take permit under BGEPA will be “less
burdensome” to obtain than the incidental take permits under the ESA. (72 Fed. Reg.
at 31141.) One way the permit process will be less burdensome is that there is no
public notice and opportunity to comment, as under the ESA. Also, the permittees do
not need to prepare a Habitat Conservation Plan, as required under Section 10 of the
ESA. (16 U.S.C. § 1539(a)(2).)
BGEPA continues to authorize permits for scientific and exhibition purposes
(50 C.F.R. § 22.21); Indian religious purposes (50 C.F.R. § 22.22); and taking
depredating eagles (50 C.F.R. § 22.23); and falconry purposes (50 C.F.R. § 22.24).
FWS also allows states to petition for Depredation Control Orders, but only for
golden eagles. These orders are issued for seasonal protection of domestic herds and
have a limited duration. Unlike the permits, which have no public notice or
publication requirements, the orders must be published in the Federal Register.
Permitting provisions under the MBTA are very limited and do not appear to
apply to the federal government. The fact that the permitting regulations did not
provide for federal agency permits was further justification for the 8th Circuit to find
that the MBTA did not apply to federal actors.32 However, that fact was not
commented on by the D.C. Circuit when finding the Forest Service violated the act
by not having a permit.33 Some permitting is provided for under the MBTA.
However, with the new permit allowed under BGEPA, it is unlikely that those
needing to take a bald eagle will turn to the MBTA.34
Knowing Violations under ESA, BGEPA and MBTA. Prosecuting a
violation under BGEPA and the MBTA frequently requires less proof than under the
31 n.b. Not all incidental take permits result in an actual taking.
32 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110, 115 (8th Cir. 1997)
33 Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000).
34 The following permits are available under the MBTA: hunting conducted under a state
hunting license (50 C.F.R. § 20.20); import and export (50 C.F.R. § 21.21); banding and
marking (50 C.F.R. § 21.22); taxidermist permit (50 C.F.R. § 21.24); waterfowl sale and
disposal (50 C.F.R. § 21.25); special Canada goose (50 C.F.R. § 21.26); special purpose (50
C.F.R. § 21.27); falconry (50 C.F.R. § 21.28); raptor propagation (50 C.F.R. § 21.30);
rehabilitation (50 C.F.R. § 21.31); and depredation (50 C.F.R. § 21.41).

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CRS-13
ESA. Under BGEPA, a criminal violation must be the result of knowing conduct or
conduct taken in wanton disregard for the consequences of the action. (16 U.S.C. §
668.) This is a lesser standard than is required under the ESA, which provides for
penalties only for knowing acts.35 (ESA § 11; 16 U.S.C. § 1540.) The original
language of BGEPA required willful behavior for a criminal violation, but the act
was amended in 1972 to remove the word willfully from 16 U.S.C. § 668c and to add
“knowingly, or with wanton disregard for the consequences of his act” to Section
668(a).36 (P.L. 92-535, 86 Stat. 1064.) A knowing violation occurs if the person knew
they were taking a certain action, for example, if they knew that they were firing a
gun at a bird. It does not depend on whether the person committing the violation
knew the bird was an eagle,37 or that the eagle was protected. In one case under
BGEPA, a defendant argued that he thought he was shooting a “big, brown hawk,”
and claimed he could not be convicted of knowingly killing an eagle under these
circumstances. The court rejected this parsing of the statute, finding that knowingly
modified the taking of the bird, not the species of the bird.38 Under this construct,
knowingly means only that the defendant knew he was taking a certain action, not
that he knew the action was illegal. This is distinct from willfully committing a
violation, which could be described as knowing the action itself was illegal. With the
expanded definition of disturb proposed, this could make prosecution of violators
easier than under the ESA. For example, under BGEPA, cutting down trees in
wanton disregard for whether it would harm bald eagles could be prosecuted as an
offense. It would not be necessary to show that the person knew cutting down the
trees would hurt eagles.
Felony violations under the MBTA are based on the knowing standard, just as
under ESA and BGEPA. In contrast, misdemeanor violations have a strict liability
standard,39 with the exception of crimes related to baiting birds.40 Violators of
35 United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998) (ESA is a general intent
statute, meaning the defendant did not have to know he was killing a wolf, only that he was
shooting an animal that turned out to be a wolf); United States v. Nguyen, 916 F.2d 1016
(5th Cir. 1990) (defendant did not need to know that possessing the turtle was illegal to
violate the ESA, only that he possessed the turtle); United States v. St. Onge, 676 F. Supp.
1044 (D. Mont. 1988) (government did not have to show the defendant knew the animal he
was killing was a grizzly bear).
36 “Take” used to be defined as “pursue, shoot, shoot at, wound, kill, capture, trap, collect,
or otherwise willfully molest or disturb.” (Emphasis added.) For a discussion on the
legislative history of this amendment to the act, see United States v. Moon Lake Electric
Ass’n Inc., 45 F. Supp. 2d 1070, 1085-88 (D. Colo. 1999).
37 United States v. Zak, 486 F. Supp. 2d 208 (D. Mass. 2007).
38 United States v. Zak, 486 F. Supp. 2d 208, 219 (D. Mass. 2007) (“knowingly” only refers
to Defendant’s behavior in deliberately retrieving his rifle and intentionally aiming and
shooting, not to his state of awareness as to the specific identity of the bird he shot).
39 See, e.g., United States v. Corrow, 119 F.3d 796 (10th Cir. 1997) (possession of golden
eagle feathers was enough for conviction, as government did not have to show the defendant
knew he was breaking the law); United States v. Smith, 29 F.3d 270, 273 (7th Cir. 1994);
United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986); United States v. Chandler, 753
F.2d 360, 363 (4th Cir. 1985); United States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984);
(continued...)

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CRS-14
BGEPA are often charged with MBTA violations as well. According to one court,
“MBTA constitutes a lesser included offense of the BGEPA.”41 Another court noted
their connection: “the BGEPA was modeled after and, in some respects, duplicates
the offenses enumerated in the MBTA.” Therefore, when there is proof satisfying
the requirements of the BGEPA, that will be sufficient for conviction under the
MBTA.42
One common feature to all three statutes is that they all provide for forfeiture
of all “guns, traps, nets, and other equipment, vessels, vehicles, aircraft and other
means of transportation used [to take a bald eagle].”43 In terms of punishment for
crimes, the statutes are similar, except that the ESA does not provide for felonies.44
State Laws
Most, but not all, states have their own laws protecting the eagle. (See Table
Listing States with Eagle Protection Laws at the end of this report.) The ESA allowed
states to have stricter laws without being pre-empted, and so states could continue to
list the bald eagle as endangered or threatened without running afoul of the act. The
MBTA also expressly allows states to make and enforce laws “not inconsistent” to
give “further protection to migratory birds, their nests, and eggs.” (16 U.S.C. § 708.)
No similar provision is found in BGEPA. However, under standard rules of statutory
construction, state laws that are consistent with the act would not be pre-empted.
We found that two states have changed their own rules to reduce the protected
status of the bird since the delisting was proposed: Florida and Maine. Virginia
acknowledged that the federal law was changing, but stated the eagle continued to be
protected under state law: “Notwithstanding the prospective removal of the bald
eagle from the federal list of endangered or threatened species, the bald eagle
continues to be threatened in the commonwealth of Virginia, and is hereby declared
to be a threatened species in Virginia effective as of, and simultaneously with, the
date of its removal from the federal list.” (4 Va. Admin. Code 15-20-130.) At least
one state, Louisiana, links its protected species to those listed under the ESA.
However, it has not changed its listing of the bald eagle, which indicates its status as
endangered. (La. Admin. Code 76:1.317.)
39 (...continued)
United States v. Wood, 437 F.2d 91 (9th Cir. 1971); Rogers v. United States, 367 F.2d 998,
1001 (8th Cir. 1966).
40 16 U.S.C. § 704(b) (amended in 1998 to add knowing standard in the instance of baiting).
See also, United States v. Delahoussaye, 573 F.2d 910 (5th Cir. 1978) (the presence of bait
must reasonably have been ascertainable in order to sustain conviction).
41 United States v. Zak, 486 F. Supp. 2d at 216 (D. Mass. 2007).
42 United States v. Corbin Farm Serv., 444 F. Supp. 510, 535 (E.D. Cal. 1978), aff’d, 578
F.2d 259 (9th Cir.1978).
43 ESA - 16 U.S.C. § 1540(e)(4)(B); BGEPA - 16 U.S.C. § 668a(b); MBTA - 16 U.S.C.
§ 707(d).
44 ESA - 16 U.S.C. § 1540(b)(1); BGEPA - 16 U.S.C. § 668; MBTA - 16 U.S.C. § 707.

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CRS-15
Like the federal government, many states have multiple protections for the bald
eagle. Those that do, for example, Georgia and Kansas, have statutes that protect
endangered and threatened wildlife, which currently include the bald eagle, and also
have statutes that prohibit harming eagles. Other states protect against harming
migratory birds without a permit. Thus, even if the states that list the bald eagle
eliminate their coverage as a threatened or endangered species, the bird could
continue to be protected under separate laws.
Lacey Act. The existence of state laws protecting eagles is significant because
it allows them to be protected under another federal law, the Lacey Act. The Lacey
Act prohibits possessing and transporting plants and animals, the taking of which was
illegal under a state, federal, or international law. (16 U.S.C. § 3371). Therefore, if
an eagle were harmed in violation of one state’s law, it would be illegal to possess
that eagle in any other state. The Lacey Act includes forfeiture provisions, as well as
civil and criminal penalties.
Interstate Wildlife Violator Compact. A multi-state agreement affords
some protection to the bald eagle. The Interstate Wildlife Violator Compact is an
agreement whereby states agree to share information about fish and game violators
and honor other states’ decisions to deny licenses and permits. Therefore, someone
found to have violated one state’s game rules would face being banned from being
licensed in the 26 participating states.45
Other Federal Agency Directives

The FWS states that other practices of the federal government will protect the
bald eagle, in addition to the federal laws discussed above. FWS estimates that over
3,500 bald eagle nests are located on federal property. (72 Fed. Reg. at 37360 - 362.)
The federal obligations are described by FWS based on the agency that manages the
property.
National Forests. Most nests on federal property are located within the
National Forest System, which is under the jurisdiction of the Department of
Agriculture Forest Service. The FWS estimates there are more than 2,000 known
nests. According to FWS, the National Forest Management Act of 1976 (16 U.S.C.
§§ 1600 et seq.) requires the forests to be managed for multiple use and sustained
yield, including wildlife and wilderness.
National Wildlife Refuges. Wildlife refuges have an additional 600 bald
eagle nests. (72 Fed. Reg. at 37361.) They are managed by the Department of the
Interior. Four refuges provide specifically for the management of bald eagles: Karl
E. Mundt National Wildlife Refuge (South Dakota, Nebraska), Mason Neck National
45 Those states participating in the agreement, by adopting it as their own state law, are
Arizona, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas,
Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico,
New York, North Dakota, Oregon, South Dakota, Tennessee, Utah, Washington and
Wyoming.

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CRS-16
Wildlife Refuge (Virginia); James River National Wildlife Refuge (Virginia); and
Bear Valley National Wildlife Refuge (Oregon).
National Parks. More than 300 bald eagle nests are found on National Park
Service property, including national parks, wild and scenic rivers, national seashores
and national monuments. The Department of the Interior National Park Service is
charged with conserving the wildlife within its lands to “leave them unimpaired for
the enjoyment of future generations.” (16 U.S.C. § 1.) Regulations prohibit visitors
from disturbing wildlife. (36 C.F.R. § 2.1(a).)
Bureau of Land Management. The Department of the Interior Bureau of
Land Management (BLM) manages 264 million acres of land. According to the
FWS, 200 bald eagle nests are located on BLM lands, which are all subject to
management to protect “the quality of the scientific, scenic, historical, ecological,
environmental ... values.” (Federal Land Policy and Management Act of 1976, 43
U.S.C. §§ 1701 et seq.) BLM regulations prohibit conducting surface mining
operations where a bald eagle nest is present: “A bald or golden eagle nest or site on
Federal lands that is determined to be active and an appropriate buffer zone of land
around the nest site shall be considered unsuitable [for mining].” (43 C.F.R. §
3461.5(k).)
Department of Defense. Department of Defense (DOD) facilities have at
least 275 nests, according to FWS. DOD must conserve natural resources on its
facilities pursuant to the Sikes Act. (16 U.S.C. § 670a). The Sikes Act requires each
installation to have a plan for conserving natural resources. According to FWS, these
plans typically include special management areas for eagle nests, and goals to
minimize human disturbance in nesting areas. (72 Fed. Reg. at 37362.)
The Army Corps of Engineers (Corps) adds another 65 nests to the DOD’s
inventory. The Corps has an obligation to consult with FWS for projects that would
modify streams to conserve wildlife resources. (16 U.S.C. § 662.) In addition, many
Corps projects are also managed for wildlife and recreation under the secondary
jurisdiction of FWS.
Executive Order 13186. An executive order imposes additional obligations
on federal agencies to protect migratory birds. (Responsibilities of Federal Agencies
to Protect Migratory Birds, Exec. Order No. 13186, 66 Fed. Reg. 3853 (January 17,
2001).) The executive order required each federal agency to enter a memorandum of
understanding (MOU) with the FWS if the agency will take actions that “have, or are
likely to have, a measurable negative effect on migratory bird populations.” (Exec.
Ord. No. 13186, § 3.) The order also requires the agencies to take into account
numerous conservation measures, such as the following:
(1) support the conservation intent of the migratory bird conventions by
integrating bird conservation principles, measures, and practices into agency
activities and by avoiding or minimizing, to the extent practicable, adverse
impacts on migratory bird resources when conducting agency actions; (2) restore
and enhance the habitat of migratory birds, as practicable; (3) prevent or abate
the pollution or detrimental alteration of the Environment for the benefit of
migratory birds, as practicable; (4) design migratory bird habitat and population

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CRS-17
conservation principles, measures, and practices, into agency plans and planning
processes (natural resource, land management, and environmental quality
planning, including, but not limited to, forest and rangeland planning, coastal
management planning, watershed planning, etc.) as practicable, and coordinate
with other agencies and nonfederal partners in planning efforts. (Exec. Ord. No.
13186, § 3(e).)
Two agencies have entered an MOU as of September 2007. The DOD entered
a MOU with the FWS in July 2006. The Department of Energy entered an MOU on
August 3, 2006. Both MOUs expire after five years.46
Conclusion
Although the bald eagle is no longer a listed species under the Endangered
Species Act, there are a host of other laws, both federal and state, that continue to
protect it, although arguably not to the same extent. The most significant are the Bald
and Golden Eagle Protection Act and the Migratory Bird Treaty Act, both of which
prohibit killing the bird or its eggs, or taking its nests. The enforcement provisions
appear to remain the same, allowing criminal and civil fines, as well as civil
forfeiture. At the initiation of the delisting process, it appeared that the eagle’s habitat
would lose most of its protection by the delisting. However, a new rule expanded the
regulatory definition of disturb under BGEPA to include habitat destruction. Courts
have yet to consider this definition, so its impact on protecting the bald eagle’s
habitat is still unknown. The significant changes after the delisting are as follows:

! Federal agencies will not have to consult with the Fish and
Wildlife Service before developing a project that could harm
bald eagles.
! Private citizens will not be able to initiate actions against other
private citizens to claim eagles are harmed.
! The federal government probably will be immune from most
enforcement.
! The incidental take permit under BGEPA is not as involved as
the permit under the ESA and does not require any public
notice or comment, even for federal projects.
46 See FWS website for copies of the MOUs: [http://www.fws.gov/migratorybirds].

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CRS-18
Appendix

States with Eagle Protection Laws
State
Law/Regulation
Restrictions
Arizona
Ariz. Rev. Stat. Ann.
Prohibits taking, wounding, killing or
§ 17-314
possessing eagles. Fine is $2,500.
Arkansas
002-00-001 Ark.
Lists bald eagle as an endangered species.
Code R. § 01.00-C
03-07
002-00-001 Ark.
Prohibits taking bald eagles.
Code R. § 01.00
18.20
California
Cal. Fish & Game
Prohibits taking or possessing “fully
Code § 3511
protected birds,” which include the bald
eagle.
Colorado
Co. Rev. Stat.
Prohibits taking all wildlife not privately
§ 33-6-109
owned. Fine of $2,000 to $100,000, plus
incarceration for taking threatened or
endangered species.
2 CCR 406-8, ch. 10,
Lists bald eagle as threatened.
Art. III, #1003(A)(2)
Connecticut
Conn. Gen. Stat.
Prohibits disturbing, molesting, harassing,
§ 490.26-93
killing or attempting to kill bald eagles.
$100 fine.
Delaware
Del. Code Ann. tit. 7,
Prohibits disturbing or destroying nests,
§ 739
killing or attempting to kill eagles,
removing eggs, selling or possessing
eagles/eggs. Class A misdemeanor.
Florida
Fla. Stat. § 372.0725
Prohibits intentionally killing or wounding
listed species.
Fla. Admin. Code
Lists eagle as threatened. Notice of
68A-27.004
rulemaking (8/3/07) plans to delist eagle.
Georgia
Ga. Code Ann.
Prohibits hunting, trapping, taking,
§ 27-3-22
purchasing sell eagles or any part, nest, or
egg thereof.
Ga. Comp. R. &
Prohibits harassing, capturing, killing or
Regs § 391-4-10-.06
directly causing the death of a protected
species (threatened, endangered, rare or
unusual). Prohibits habitat destruction on
public lands.
Ga. Comp. R. &
Lists bald eagle as a threatened species.
Regs § 391-4-10-.09
Idaho
Idaho Code Ann.
Prohibits taking hunting, taking or
§ 36-1102(b)
possessing migratory birds.
Idaho Admin. Code
Prohibits taking threatened and endangered
r. 13.01.06.300.02
species.
Idaho Admin. Code
Lists bald eagle as threatened species.
r. 13.01.06.150.03a

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CRS-19
States with Eagle Protection Laws
State
Law/Regulation
Restrictions
Illinois
Ill. Stat. ch. 520,
Prohibits taking, possessing, selling,
§ 5/2.2
offering to sell eagles, including their nests
or eggs.
Indiana
Ind. Code § 14-22-
Prohibits taking, possessing, transporting,
34-12
selling endangered species. Class A
misdemeanor.
312 Ind. Admin.
Lists the bald eagle as endangered.
Code 9-4-14(7)
Iowa
Iowa Code § 481B.5
Prohibits taking, possessing, transporting,
selling animals listed as threatened or
endangered by state or federal government.
571 Iowa Admin.
Lists the bald eagle as endangered.
Code r. 77.2(1)
Kansas
Kan. Stat. Ann.
Prohibits capturing, killing, possessing,
§ 32-1005
selling, transporting, buying eagles. $1,000
fine.
Kan. Stat. Ann.
Authorizes rules for enacting nongame and
§ 32-963
endangered species conservation act.
Kan. Admin. Regs.
Prohibits intentional taking of threatened or
§ 115-15-3(h)
endangered species.
Kan. Admin. Regs.
Lists bald eagle as threatened.
§ 115-15-1(b)
Louisiana
La. Rev. Stat.
State protects those species that are
§ 56-1901.A
federally-listed.
La. Admin. Code
Indicates that the bald eagle is federally-
76:I.317
listed as endangered.
Maine
Maine Rev. Stat.
Prohibits taking, hunting, trapping, or
§ 12808
possessing an endangered or threatened
species.
2007 Maine Laws
Changes bald eagle listing to threatened.
166 (HP 296)
Maryland
Md. Nat. Res. Code
Provides for habitat protection and
§ 1-705
monitoring. No provision for taking.
Massachusetts
Mass. Gen. Laws. ch.
Prohibits hunting, taking, possessing bird of
131, § 75A
prey, or taking, molesting, disturbing nests
or eggs of bird of prey, which includes the
eagle.
Michigan
Mich. Comp. Laws
Prohibits taking, possessing, transporting,
§ 324.36505(1)
selling, offering for sale any listed species
[on state or federal list].
Mich. Admin. Code
Lists bald eagle as threatened.
R. 299.1026(2)(h)

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CRS-20
States with Eagle Protection Laws
State
Law/Regulation
Restrictions
Mississippi
Miss. Code. Ann.
Prohibits taking, possessing, transporting,
§ 49-5-109
exporting, selling or offering for sale of
state-listed endangered species.
Code Miss. Rules
Lists bald eagle as endangered (last updated
§ 19-000-044
2000).
Missouri
Mo. Code Regs.
Prohibits importing, selling, possession,
Ann. tit. 3
take, of endangered species.
§ 10-4.111(1)
Mo. Code Regs.
Lists bald eagle as endangered.
Ann. tit. 3
§ 10-4.111(3)
Montana
Mont. Code Ann., §
$1,000 fine for killing a bald eagle.
87-1-111(b)
New
N.H. Rev. Stat. Ann.
Prohibits hunting, capturing, killing, taking,
Hampshire
§ 209:9
or possessing bald eagles or molesting or
disturbing the nest or young.
New Jersey
N.J. Rev. Stat.
Prohibits taking, possessing, transporting,
23:2A-6
selling, offering for sale wildlife
determined to be endangered or nongame
species.
N.J. Admin. Code
Lists bald eagle as endangered.
7:25-4.13
New York
N.Y. Envtl. Cons.
Prohibits taking bald eagles, eggs and nests.
Law § 11-0537
6 N.Y. Code Rules &
Lists bald eagle as threatened species.
Regs. § 182.6
Nevada
Nev. Stat. § 503.610
Prohibits killing, destroying, wounding,
trapping, injuring, possessing, pursuing
with such intent the bald eagle or taking,
injuring, possessing or destroying the nests
or eggs.
North Carolina
N.C. Stat. Ann.
Prohibits taking, possessing, transporting,
§ 113-294
selling or buying any bald eagle or golden
eagle, alive or dead, or any part, nest or
egg. Class 1 misdemeanor.
North Dakota
N.D. Cent. Code
Prohibits taking, killing, hunting,
§ 20.1-04-05
possessing, etc. bald eagle or nest or egg.
Ohio
Ohio Stat. § 1533.07
Prohibits catching, killing, injuring, or
pursuing bald eagles.
Oklahoma
Okla. Stat. tit. 29
Prohibits knowingly and willfully
§ 5-410
molesting, injuring or killing any species of
eagle, their nests, eggs or young.
Oregon
Ore. Admin. Rule
Requires forest projects to meet protection
629-665-0100 et seq.
goals for bald eagle nesting sites, roosting
sites and foraging perches.

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CRS-21
States with Eagle Protection Laws
State
Law/Regulation
Restrictions
Pennsylvania
25 Pa. Code § 87.138
Protects bald eagles and their nests and
eggs from harm from mining projects.
South Carolina
S.C. Code 50-11-852
Prohibits hunting or molesting eagles and
other birds of prey. $500-$1000 fine plus
up to one year.
S.C. Code Regs
Lists bald eagle as an endangered species.
123-150.1
S.C. Code Regs.
Prohibits taking, possessing, transporting,
123-150.2
exporting, processing, selling, any
endangered species.
South Dakota
S.D. Codified Laws
Prohibits taking, possessing, transporting,
§ 34A-8-9
selling threatened or endangered species.
Misdemeanor.
S.D. Admin. Rules
Lists bald eagle as a threatened species.
41:10:02:02
Texas
Texas Parks & Wild.
Prohibits trapping, taking, or killing,
§ 68.015
possessing, selling, or attempting to
capture, trap, take, or kill,
endangered fish or wildlife.
State list of
Bald eagle is listed as threatened.
threatened and
(www2.tpwd.state.tx.us/huntwild/wild/spec
endangered species
ies/endang/animals/birds/)
Vermont
Vt. Stat. Ann. tit.
Prohibits taking or possessing threatened or
10A § 10-4.1
endangered species.
Vt. Stat. Ann. tit.
Lists bald eagle as state endangered
10A § 10-6.9
species.
Virginia
4 Va. Admin. Code
Prohibits taking, transporting, processing,
15-20-130
or selling threatened and endangered
species. Bald eagle is listed as threatened.
Washington
Wash. Admin. Code
Prohibits hunting protected wildlife
232-12-011
(threatened, sensitive, other). Bald eagle is
listed as threatened.
Wash. Admin. Code
Requires site management plans to protect
§ 232-12-292
bald eagles and their habitat.
West Virginia
W.Va. Code
Penalty for conviction of killing bald eagle
§ 20-2-5a
is $5,000. Eagle is considered protected
(non-game) bird.
W.Va. Code R.
Prohibits surface mining activities from
§ 38-2-8
unlawful taking bald eagle, its nest or any
eggs.
Wyoming
Wyo. Code R.
Prohibits intentional taking of nongame
040-020-052(11)
wildlife. Bald eagle is considered nongame
wildlife.

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