What Happens to the Bald Eagle Now That It Is Not Protected Under the Endangered Species Act (ESA)?

What Happens to the Bald Eagle Now That It Is
Not Protected Under the Endangered Species Act
Updated October 9, 2008
Kristina Alexander
Legislative Attorney
American Law Division

What Happens to the Bald Eagle Now That It Is Not
Protected Under the Endangered Species Act (ESA)?
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. Finally, it briefly discusses the Sonoran Desert bald eagle
population that was listed as a threatened species in May 2008, following a court
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
!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.

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......................8
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
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. States with Eagle Protection Laws.......................18
List of Tables
Table A-1. States Laws and Regulations Affecting Eagle Protection .........18

What Happens to the Bald Eagle Now That
It Is Not Protected Under the
Endangered Species Act (ESA)?
The American Bald Eagle (Haliaeetus leucocephalus) is no longer protected
under the Endangered Species Act (ESA)1 as of August 8, 2007, with the exception
of a population of eagles located in the Sonoran Desert of Arizona. Efforts to halt
the declining population of the bald eagle began as early as 1940 with the passage of2
the Bald Eagle Protection Act. 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 federal government listed the bald eagle as an endangered species under
a predecessor of the ESA, the Endangered Species Preservation Act of 1966.3
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 484
states, and threatened in Michigan, Minnesota, Oregon, Washington, and Wisconsin.
The states followed suit. Today, 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.5 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.6 The delisting process began in 1999.7 The final rule

1 P.L. 93-205, 87 Stat. 886; 16 U.S.C. §§ 1531 - 1543.
2 June 8, 1940, c. 278, § 1, 54 Stat. 250.
3 P.L. 89-699, 80 Stat. 926
4 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).
5 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).
6 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.
7 64 Fed. Reg. 36454 (July 6, 1999).

was issued in July 2007.8 According to FWS there were 9,789 nesting pairs at that
time, a number that exceeded the agency’s recovery plans. Prior to the arrival of
Europeans in North America, the bald eagle population in the area that is now 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 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.9
A decision to delist a species is to be made “solely on the basis of the best
scientific and commercial data available.”10
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.
Delisting the bald eagle was brought by FWS without being petitioned by a
private party, but it was not without controversy. More than six years after the
proposed delisting notice was published, no final decision had been made. One
lawsuit was filed to hasten the process.11 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 FWS more time. However, the court
set a February 16, 2007, deadline for the final notice,12 which was published July 7,


8 72 Fed. Reg. 37345 (July 9, 2007).
9 ESA § 4; 16 U.S.C. § 1533.
10 16 U.S.C. § 1533(b)(1)(A).
11 Contoski v. Scarlett, No. 05-2528 (JRT/RLE), 2006 WL 2331180 (D. Minn.
August 10, 2006).
12 Id.

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.13 The Center for Biological Diversity (CBD) filed a petition, and then a
lawsuit, to have the eagles of the Sonoran Desert of Arizona defined as a DPS in an
effort to keep those eagles protected under the act. FWS rejected the petition, finding
it lacked substantial scientific information. FWS argued that the suit was mooted by
delisting the species; the finding that the Sonoran Desert bald eagle was not a DPS
was in the same Federal Register notice as the species’ delisting. FWS wrote that the
while the Sonoran Desert bald eagle was a geographically distinct population, it did
not behave differently from other eagles. Although it lived in a hot climate, it was
still located near riparian areas. The fact that it nested in cliffs was unusual, but FWS
found that more and more, eagles were becoming opportunistic nesters and would
nest in places other than treetops. FWS found the Sonoran Desert bald eagle was not
a significant discrete population segment and, therefore, was not entitled to special
protection.14 A federal district court deemed FWS’s decision arbitrary and
capricious, and remanded it to FWS.15 Because the petition had been filed while the
bald eagle was still a listed species, the court ordered the Sonoran Desert bald eagle
to be listed as threatened while FWS prepared a 12-month finding as required under
the ESA.16
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.17 As part
of its review, FWS prepared a post-listing monitoring plan, which was included in
the July 9, 2007, delisting notice in the Federal Register. FWS has indicated that the
bald eagle faces certain hazards, primarily loss of habitat, although it does not believe
any of the risks threaten to reverse the overall recovery of the species.18 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

13 For more information on DPSs, see CRS Report RL34238, Gray Wolves under the
Endangered Species Act: Distinct Population Segments and Experimental Populations, by
Kristina Alexander and M. Lynne Corn.
14 72 Fed. Reg. 37345, 37354 - 58 (July 9, 2007).
15 Center for Biological Diversity v. Kempthorne, CV-07-0038-PHX-MHM (D. Az. March

5, 2008).

16 FWS listed the “proposed Sonoran Desert Bald Eagle Distinct Population Segment” as
threatened on May 1, 2008. 73 Fed. Reg. 23966. On May 20, 2008, FWS announced it was
initiating a status review to see if the listing was appropriate. 73 Fed. Reg. 29096.
17 ESA § 4(g); 16 U.S.C. § 1533(g).
18 According to FWS, “available habitat will almost certainly limit the population of bald
eagles in the lower 48 states.” 72 Fed. Reg. at 37359.

contains lead shot or lead sinkers from fishing.19 Mercury emissions are being
reduced, and some states have prohibited the use of lead shot or lead sinkers, so those
threats may be lessening. FWS considered the risk of high pathogenicity avian
influenza, but noted that the disease had yet not been discovered in any eagles or
other migratory birds in North America.20 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.21
FWS post-listing monitoring plan includes National Bald Eagle Management
Guidelines (Guidelines), which were released in June 2007.22 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. 23
In conjunction with the delisting, FWS promulgated new regulations under the
Bald and Golden Eagle Protection Act (BGEPA)24 — defining disturb;25 and
allowing permits for incidental takes of eagles (both bald and golden).26 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 likely 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 Act27
(MBTA). 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

19 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.
20 72 Fed. Reg. at 37353.
21 See National Wildlife Health Center webpage at [http://www.nwhc.usgs.gov/disease_
information/avian_vacuolar_myelinopathy/index.j sp].
22 72 Fed. Reg. 31156 (June 5, 2007), online at [http://www.fws.gov/migratorybirds/
23 Guidelines, p. 12.
24 June 8, 1940, c. 278, § 1, 54 Stat. 250; 16 U.S.C. §§ 668-668d.
25 72 Fed. Reg. 31139 (June 5, 2007).
26 73 Fed. Reg. 29075 (May 20, 2008).
27 July 3, 1918, c. 128, § 2, 40 Stat. 755; 16 U.S.C. §§ 703 - 712.

significance: “the bald eagle is no longer a mere bird of biological interest but a
symbol of the American ideals of freedom.”28 This section will discuss the three acts
generally before comparing them.
The Endangered Species Act has a broad purpose. It is intended to conserve
ecosystems, provide a program to conserve species, and to achieve the purposes of
treaties and conventions.29 The ESA also prohibits trading, transporting, taking, or
selling fish or wildlife listed under the act.30
BGEPA and the MBTA are more narrowly drafted. BGEPA prohibits taking,
selling, trading, or transporting bald and golden eagles, or their parts, nests or eggs.31
The MBTA makes it illegal to hunt, take, capture, kill, possess, sell, barter, trade, or
transport any migratory bird, or a part, nest, or egg of the bird.32
How Habitat is Protected under the ESA, BGEPA, and MBTA. All
three statutes prohibit destroying the bird, its eggs, or 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.33 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
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 in34
any such conduct.” BGEPA defines take as “pursue, shoot, shoot at, poison,
wound, kill, capture, trap, collect, or molest or disturb.”35
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 habitat36
modification. The court compared the ESA to the MBTA: “Habitat destruction

28 54 Stat. 250 (1940).
29 16 U.S.C. § 1531(b).
30 16 U.S.C. § 1538(a)(1).
31 16 U.S.C. § 668(a).
32 16 U.S.C. § 703(a).
33 “Removal of trees is not in itself a violation of the Eagle Act,” 72 Fed. Reg. 37363.
34 ESA § 3, 16 U.S.C. § 1532(19).
35 16 U.S.C. § 668(c).
36 Seattle Audubon Society v. Evans, 952 F.2d 297, 303 (9th Cir. 1991) (MBTA did not

causes ‘harm’ to the owls under the ESA but does not ‘take’ them within the meaning
of the MBTA.”37 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.38 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, 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.”39 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.”40
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.
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. 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

36 (...continued)
prevent Forest Service from logging areas that were habitat for migratory birds).
37 Id.
38 Mahler v. U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996).
39 Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180 (D. Minn. August 10, 2006).
40 50 C.F.R. § 22.3; 72 Fed. Reg. 31139 (June 5, 2007). 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 had to cause injury, death, or nest abandonment to be
a violation.

modification, or degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering.”41
After some dispute in the lower courts, the U.S. Supreme Court upheld FWS
definition of harm, finding it was reasonable.42 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.43 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:
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 protected44
wildlife species.
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
cause injuries are a disturbance. That phrase moots the dispute regarding actual
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.”

41 50 C.F.R. § 17.3.
42 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).
43 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).
44 Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F. Supp. 2d 529,

553 (D.N.J. 1998).

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....”45 Federal agencies must undertake a
Section 7 consultation, which is made with 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.46 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
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 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.47 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
explicit under Section 11(g), the citizen suit provision. Courts have also allowed48
citizen suits to be brought via the Administrative Procedure Act (APA) 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

45 ESA § 7; 15 U.S.C. § 1536(a)(2).
46 72 Fed. Reg. at 37363.
47 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).
48 5 U.S.C. § 551 et seq.

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.49 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.”50
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.51 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.52 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.”53
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.54 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
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.”55

49 5 U.S.C. § 702(2).
50 5 U.S.C. § 706.
51 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 FWS was subject to an injunction
under the MBTA).
52 Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997).
53 Id. at 1555.
54 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110 (8th Cir. 1997).
55 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110, 115 (8th Cir. 1997).

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.56 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.57 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.58 However, most courts
considering complaints against the federal government for violating the MBTA have
not considered whether the statute applies.59 Some distinguish between using the
MBTA to enjoin a federal action and using it for criminal enforcement.60
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.”61 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
the Acting Secretary of Agriculture. According to the report, the letter explains the
purpose of the legislation:

56 Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000).
57 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).
58 See, e.g., Preferred Risk Mutual Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996).
59 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).
60 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).
61 16 U.S.C. § 668(c).

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 no62
other reason than that it is an eagle and a bird of large proportions.
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 1063 or ESA Section 7, for federal actors.
However, FWS issued a rule to allow 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.”
This rule allows existing take permits under Section 10 to be used. It also
creates a process to issue permits under BGEPA for actions that were covered by
Section 7 incidental take statements.64 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 BGEPA regulation would include federal, state, local, and
tribal governments, as well as private parties, according to FWS.65 However, CRS
could not find any language in the 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.”66 FWS estimates that two-thirds of
the 300 applicants seeking the permits will be governmental.67 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.68 Based

62 H.Rept. 2104 (76th Cong.).
63 16 U.S.C. § 1539.
64 73 Fed. Reg. at 29077-78.
65 72 Fed. Reg. 31144.
66 50 C.F.R. § 22.3.
67 72 Fed. Reg. 31149.
68 72 Fed. Reg. at 31142.

on these numbers, FWS anticipates receiving more than 240 additional permit
applications for taking per year than before the eagle was delisted.69
According to FWS, the take permit under BGEPA will be “less burdensome”
to obtain than the incidental take permits under the ESA.70 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.71
BGEPA continues to authorize permits for scientific and exhibition purposes;72
Indian religious purposes;73 and taking depredating eagles;74 and falconry purposes.75
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.76 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.77 Some permitting is provided for under the MBTA.78
Knowing Violations under ESA, BGEPA, and MBTA. Prosecuting a
violation under BGEPA and the MBTA frequently requires less proof than under the
ESA. Under BGEPA, a criminal violation must be the result of knowing conduct or79
conduct taken in wanton disregard for the consequences of the action. This is a

69 72 Fed. Reg. at 31149. n.b. Not all incidental take permits result in an actual taking.
70 72 Fed. Reg. at 31141.
71 16 U.S.C. § 1539(a)(2).
72 50 C.F.R. § 22.21.
73 50 C.F.R. § 22.22.
74 50 C.F.R. § 22.23.
75 50 C.F.R. § 22.24.
76 Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d. 110, 115 (8th Cir. 1997)
77 Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000).
78 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).
79 16 U.S.C. § 668. 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

lesser standard than is required under the ESA, which provides for penalties only for
knowing acts.80 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,81 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.82 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, 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,83 with the exception of crimes related to baiting birds.84 Violators of
BGEPA are often charged with MBTA violations as well. According to one court,

79 (...continued)
U.S.C. § 668c and to add “knowingly, or with wanton disregard for the consequences of his
act” to Section 668(a). P.L. 92-535, 86 Stat. 1064.
80 ESA § 11; 16 U.S.C. § 1540. See United States v. McKittrick, 142 F.3d 1170, 1177 (9th
Cir. 1998) (ESA is a general intent statute, meaning that 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);th
United States v. Nguyen, 916 F.2d 1016 (5 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
that the defendant knew the animal he was killing was a grizzly bear).
81 United States v. Zak, 486 F. Supp. 2d 208 (D. Mass. 2007).
82 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).
83 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 defendantth
knew he was breaking the law); United States v. Smith, 29 F.3d 270, 273 (7 Cir. 1994);
United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986); United States v. Chandler, 753thth
F.2d 360, 363 (4 Cir. 1985); United States v. Catlett, 747 F.2d 1102, 1105 (6 Cir. 1984);th
United States v. Wood, 437 F.2d 91 (9 Cir. 1971); Rogers v. United States, 367 F.2d 998,th

1001 (8 Cir. 1966).

84 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).

“MBTA constitutes a lesser included offense of the BGEPA.”85 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
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].”87
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.”88 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 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.”89 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.90
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

85 United States v. Zak, 486 F. Supp. 2d at 216 (D. Mass. 2007).
86 United States v. Corbin Farm Serv., 444 F. Supp. 510, 535 (E.D. Cal. 1978), aff’d, 578
F.2d 259 (9th Cir.1978).
87 ESA - 16 U.S.C. § 1540(e)(4)(B); BGEPA - 16 U.S.C. § 668a(b); MBTA - 16 U.S.C.
§ 707(d).
88 16 U.S.C. § 708.
89 4 Va. Admin. Code 15-20-130.
90 76 La. Admin. Code pt. 1, § 317.

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 was91
illegal under a state, federal, or international law. 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
Other Federal Agency Directives
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 3,50092
bald eagle nests are located on federal property. 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. FWS estimates there are more than 2,000 known nests.93
According to FWS, the National Forest Management Act of 1976 requires the
forests to be managed for multiple use and sustained yield, including wildlife and
National Wildlife Refuges. Wildlife refuges have an additional 600 bald94
eagle nests. 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 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.”95 Regulations prohibit visitors from disturbing
wildlife. 96

91 16 U.S.C. § 3371.
92 72 Fed. Reg. at 37360 - 362.
93 16 U.S.C. §§ 1600 et seq.
94 72 Fed. Reg. at 37361.
95 16 U.S.C. § 1.
96 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 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, environmental97
... values.” 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].”98
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.99 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.100
The Army Corps of Engineers (Corps) adds another 65 nests to the DOD
inventory. The Corps has an obligation to consult with FWS for projects that would
modify streams to conserve wildlife resources.101
Executive Order 13186. An executive order imposes additional obligations102
on federal agencies to protect migratory birds. The executive order required each
federal agency to enter a memorandum of understanding (MOU) with FWS if the
agency will take actions that “have, or are likely to have, a measurable negative effect
on migratory bird populations.”103 The order also requires the agencies to take into
account numerous conservation measures, such as:
!support the conservation intent of the migratory bird conventions;
!restore and enhance the habitat of migratory birds, as practicable;
!prevent harming the environment for the benefit of migratory birds,
as practicable; and
!design migratory bird habitat and population conservation practices
as practicable.

97 Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq.
98 43 C.F.R. § 3461.5(k).
99 16 U.S.C. § 670a.
100 72 Fed. Reg. at 37362.
101 16 U.S.C. § 662.
102 Exec. Order No. 13186, 66 Fed. Reg. 3853 (January 17, 2001).
103 Exec. Ord. No. 13186, § 3.

Two agencies have entered an MOU as of September 2007. The DOD entered
a MOU with FWS in July 2006. The Department of Energy entered an MOU on
August 3, 2006. Both MOUs expire after five years.104
Although the bald eagle is no longer a listed species under the Endangered
Species Act, with the exception of the Sonoran Desert population, 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 protections come from the Bald and Golden
Eagle Protection Act and the Migratory Bird Treaty Act, 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
!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.

104 See FWS website for copies of the MOUs: [http://www.fws.gov/migratorybirds].

Appendix. States with Eagle Protection Laws
Table A-1. States Laws and Regulations
Affecting Eagle Protection
State Law /Regulation Restrictions
ArizonaAriz. Rev. Stat. Ann. § 17-Prohibits taking, wounding, killing or

314 possessing eagles. Fine is $2,500.

Arkansas002-00-001 Ark. Code R.Lists bald eagle as an endangered
§ 01.00-C 03-07species.

002-00-001 Ark. Code R. §

01.00 18.20
Prohibits taking bald eagles.
CaliforniaCal. Fish & Game Code §Prohibits taking or possessing “fully
3511protected birds,” which include the
bald eagle.
Cal. Code Regs § 670.5Lists bald eagle as endangered.
ColoradoCo. Rev. Stat. § 33-6-109 Prohibits taking all wildlife not
privately owned. Fine of $2,000 to
$100,000, plus incarceration for
2 CCR 406-8, ch. 10, Art.taking threatened or endangered
III, #1003(A)(2)species.
Lists bald eagle as threatened.
ConnecticutConn. Gen. Stat. § 490.26-Prohibits disturbing, molesting,
93harassing, killing or attempting to kill
bald eagles. $100 fine.
Conn. State Agency Reg.Lists bald eagle as endangered.
Delaware Del. Code Ann. tit. 7, § 739Prohibits disturbing or destroying
nests, killing or attempting to kill
eagles, removing eggs, selling or
possessing eagles/eggs. Class A
FloridaFla. Stat. § 372.0725Prohibits intentionally killing or
wounding listed species.
Fla. Admin. Code 68A-Lists eagle as threatened. Notice of
27.004rulemaking (8/3/07) plans to delist
GeorgiaGa. Code Ann. § 27-3-22Prohibits hunting, trapping, taking,
purchasing, or selling eagles or any
Ga. Comp. R. & Regs §part, nest, or egg thereof.
391-4-10-.06Prohibits harassing, capturing, killing
or directly causing the death of a
protected species. Prohibits habitat
Ga. Comp. R. & Regs §destruction on public lands.
391-4-10-.09Lists bald eagle as a threatened

State Law /Regulation Restrictions
IdahoIdaho Code Ann. § 36-Prohibits hunting, taking or

1102(b)possessing migratory birds.

Idaho Admin. Code r.Prohibits taking threatened or species.

Idaho Admin. Code r.Lists bald eagle as a threatened species.

Illinois Ill. Stat. ch. 520, § 5/2.2 Prohibits taking, possessing, selling,
offering to sell eagles, including their

17 Ill. Admin. Codenests or eggs.

1010.30Lists bald eagle as threatened.

IndianaInd. Code § 14-22-34-12Prohibits taking, possessing,
transporting, selling endangered

312 Ind. Admin. Code 9-4-species. Class A misdemeanor.

14(7)Lists the bald eagle as endangered.

IowaIowa Code § 481B.5Prohibits taking, possessing,
transporting, selling animals listed as
threatened or endangered by state or

571 Iowa Admin. Code r.federal government.

77.2(1)Lists the bald eagle as endangered.

KansasKan. Stat. Ann. § 32-1005Prohibits capturing, killing,
possessing, selling, transporting,
Kan. Admin. Regs. § 115-buying eagles. $1,000 fine.
15-3(h)Prohibits intentional taking of
Kan. Admin. Regs. § 115-threatened or endangered species.

15-1(b)Lists bald eagle as threatened.

LouisianaLa. Rev. Stat. § 56-1901.AProtects those species that are

76 La. Admin. Code pt. 1,federally-listed.

§ 317Indicates that the bald eagle is
federally-listed as endangered.
MaineMaine Rev. Stat. § 12808Prohibits taking, hunting, trapping, or
possessing an endangered or

2007 Maine Laws 166 (HPthreatened species.

296)Changes bald eagle listing to
Code Maine Rules § 9-137-threatened.
Lists bald eagle as threatened.
Maryland Md. Nat. Res. Code § 1-Provides for habitat protection and

705monitoring. No provision for taking.

Code Md. Regs.Lists bald eagle as threatened.
MassachusettsMass. Gen. Laws. ch. 131,Prohibits hunting or taking bird of
§ 75Aprey, or taking, molesting, or
disturbing their nests. The bald eagle

321 Code Mass. Regs.is a bird of prey.

10.90Lists bald eagle as endangered.

State Law /Regulation Restrictions
MichiganMich. Comp. LawsProhibits taking, possessing,
§ 324.36505(1)transporting, selling, offering for sale
any listed species [on state or federal
Mich. Admin. Code R.list].

299.1026(2)(h)Lists bald eagle as threatened.

MinnesotaMinn. R. 6134.0200, subptLists bald eagle as a species of

2(C) special concern.

MississippiMiss. Code Ann. § 49-5-Prohibits taking, possessing,
109 transporting, exporting, selling or
offering for sale of state-listed
Code Miss. Rulesendangered species.
§ 19-000-044Lists bald eagle as endangered (last
updated 2000).
MissouriMo. Code Regs. Ann. tit. 3Prohibits importing, selling,
§ 10-4.111(1)possession, take, of endangered
Mo. Code Regs. Ann. tit. 3species.
§ 10-4.111(3)
Lists bald eagle as endangered.
MontanaMont. Code Ann., §$1,000 fine for killing a bald eagle.


NebraskaNeb. Admin. Code TitleLists bald eagle as threatened.
163, ch. 4, § 004.02
NevadaNev. Stat. § 503.610Prohibits killing, injuring, possessing,
or pursuing with such intent the bald
eagle or taking, injuring, possessing
or destroying the nests or eggs.
Nev. Admin. CodeLists bald eagle as endangered.
§ 503.050
NewN.H. Rev. Stat. Ann. §Prohibits hunting, capturing, killing,
Hampshire209:9taking, or possessing bald eagles or
molesting or disturbing its nest or
N.H. Admin. Rules Fisyoung.

1001.01(a)Lists bald eagle as endangered.

New JerseyN.J. Rev. Stat. 23:2A-6Prohibits taking, possessing,
transporting, selling, offering for sale
wildlife determined to be endangered
N.J. Admin. Code 7:25-or nongame species.

4.13Lists bald eagle as endangered.

New MexicoN.M. Admin. CodeLists bald eagle as threatened.
New YorkN.Y. Envtl. Cons. Law §Prohibits taking bald eagles, eggs and


6 N.Y. Code Rules & Regs.

§ 182.6Lists bald eagle as threatened species.

State Law /Regulation Restrictions
North CarolinaN.C. Stat. Ann. § 113-294Prohibits taking, possessing,
transporting, selling, or buying any

15A N.C. Admin. Code §bald eagle, or any part, nest or egg.

10I .0103 Class 1 misdemeanor.

Lists bald eagle as threatened.
North Dakota N.D. Cent. Code § 20.1-04-Prohibits taking, killing, hunting,
05 possessing, etc. bald eagle or nest or
OhioOhio Stat. § 1533.07 Prohibits catching, killing, injuring,
or pursuing bald eagles.
Ohio Admin. CodeLists bald eagles as endangered.
OklahomaOkla. Stat. tit. 29 § 5-410 Prohibits knowingly and willfully
molesting, injuring or killing any
species of eagle, their nests, eggs or
OregonOre. Admin. Rule 629-665-Requires forest projects to meet
0100 et seq.protection goals for bald eagle
nesting sites, roosting sites, and
foraging perches.
Pennsylvania25 Pa. Code § 87.138Protects bald eagles and their nests
and eggs from harm from mining

58 Pa. Code § 133.21projects.

Lists bald eagle as threatened.
South CarolinaS.C. Code 50-11-852Prohibits hunting or molesting eagles
and other birds of prey. $500-$1000
fine plus up to one year.
S.C. Code Regs 123-150.1Lists bald eagle as an endangered
South DakotaS.D. Codified Laws § 34A-Prohibits taking, possessing,
8-9transporting, selling threatened or
endangered species. Misdemeanor.
S.D. Admin. RulesLists bald eagle as a threatened

41:10:02:02 species.

Tennessee26-10 Tenn. Admin. Reg.Lists bald eagle as wildlife in need of


TexasTexas Parks & Wild.Prohibits trapping, taking, killing,
§ 68.015possessing, or selling, or attempting
to capture, trap, take, or kill,
endangered fish or wildlife.
State list of threatened andBald eagle is listed as threatened.
endangered species(www2.tpwd.state.tx.us/huntwild/wil
VermontVt. Stat. Ann. tit. 10A §Prohibits taking or possessing

10-4.1threatened or endangered species.

Vt. Stat. Ann. tit. 10A §Lists bald eagle as state endangered

10-6.9 species.

State Law /Regulation Restrictions
Virginia4 Va. Admin. Code 15-20-Prohibits taking, transporting,
130processing, or selling threatened or
endangered species. Bald eagle is
listed as threatened.
WashingtonWash. Admin. CodeProhibits hunting protected wildlife
§ 232-12-011(threatened, sensitive, other). Bald
eagle is listed as threatened.
Wash. Admin. Code § 232-Lists bald eagle as threatened.
West VirginiaW.Va. Code § 20-2-5aPenalty for conviction of killing bald
eagle is $5,000. Eagle is considered
W.Va. Code R. § 38-2-8protected (non-game) bird.
Prohibits surface mining activities
from unlawful taking of a bald eagle,
its nest or any eggs.
WyomingWyo. Code R. 040-020-Prohibits intentional taking of
052(11)nongame wildlife. Bald eagle is
considered nongame wildlife.