The Bald and Golden Eagle Protection Act (“Act”) is federal legislation prohibiting any form of possession or taking of both bald and golden eagles. The bald eagle is commonly known as the American eagle. The Act prohibits possession, sale, purchase, barter, export or import of any bald eagle, or any golden eagle that is alive or dead. The Act also prohibits possession, sale, barter, transport, export, and import of any part, nest, or egg thereof of the foregoing eagles[i]. A person is charged with criminal or civil penalty if s/he is deemed to violate the provisions of the Act. However, a penalty cannot be assessed unless such person is given notice and opportunity for a hearing with respect to such violation. In determining the amount of the penalty, the gravity of the violation and the demonstrated good faith of the person charged is considered by the Secretary of the Interior (“Secretary”)[ii]. Upon any failure to pay the penalty assessed under this Act, the Secretary may request the Attorney General to institute a civil action in a district court of the U.S. In hearing any such action, the court must sustain the Secretary’s action if supported by substantial evidence[iii].
In United States v. Kornwolf, 276 F.3d 1014 (8th Cir. Minn. 2002), the court ruled that any person attempting to sell two Native American artifacts containing eagle feathers will be found guilty of violating the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act. The court also observed that the prohibition against the sale of bird parts lawfully taken before the effective date of federal protection is fully consonant with the purposes of the Eagle Protection Act. Hence, it is reasonable for Congress to conclude that the possibility of commercial gain presents a special threat to the preservation of the eagles because that creates a powerful incentive both to evade statutory prohibitions against taking birds and to take a large volume of birds. It is the general view that neglecting the sale of bird feathers is a serious danger because there is no sure means by which to determine the age of bird feathers. The feathers recently taken can easily be passed off as having been obtained long ago[iv].
In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119230 (D. Neb. Nov. 25, 2009), it was held that a defendant bears the initial burden of establishing that his/her personal free exercise of his/her religion was substantially burdened by the Act. In this regard, the defendant must establish that the possession of eagles was for his/her own personal use, as opposed to commercial use. The defendant must also show that the burden on his/her free exercise of his/her religion is substantial, rather than a mere inconvenience for purposes of the Religious Freedom Restoration Act of 1993. The fact that the bald eagle is no longer listed as an endangered species does not, as a matter of law, establish that the government’s interest in protecting the species is less than compelling. The court recognized that unrestricted access to bald eagles would destroy the legitimate and conscientious eagle population conservation goal of the Act. In addition, the Act also criminalizes taking protected birds or possessing them, dead or alive without a permit.
In United States v. Zak, 486 F. Supp. 2d 208 (D. Mass. 2007), the court ruled that the Act demands proof that a defendant knowingly or with wanton disregard for the consequences of his/her act took a bald eagle without permission. Nevertheless, the Migratory Bird Treaty Act (MBTA) merely requires evidence of an unauthorized taking of a migratory bird. The bald eagle is a migratory bird protected under the MBTA[v]. The conclusion is therefore unavoidable that proof satisfying the requirements of the Act will always be sufficient for conviction under the MBTA. Accordingly, an individual whose conduct violates both statutes may be prosecuted under the double jeopardy clause of the Fifth Amendment[vi].
[i] 16 USCS § 668.
[ii] Id.
[iii] Id.
[iv] United States v. Kornwolf, 276 F.3d 1014, 1016 (8th Cir. Minn. 2002).
[v] United States v. Zak, 486 F. Supp. 2d 208 (D. Mass. 2007).
[vi] Id.