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Abandoned or seized wildlife property (e.g., animals or animal parts) are typically donated or sold by the federal government to noncommercial entities that will display or exhibit the wildlife, if no return to the wild if possible. Moreover, even donations or loans to Native Americans of abandoned wildlife property must be completed pursuant to the permits requirements of 50 C. We intend to allow American Indians meeting the certification requirements in § 22.22 and public scientific or educational institutions to transport into or out of the United States on a temporary basis dead bald and golden eagles, their parts, nests, or dead eggs. As noted above, special permits must be obtained for any transportation of eagles outside the U. Significantly, defendant was compensated for the sale of the artifacts in the sum of ,000, an amount that the trial court refused to disgorge. Nor do we find anything in the record to suggest that by permitting a deduction for the contribution of the Eagle Artifacts, unscrupulous sellers of Indian art are likely to hunt, capture and kill protected eagle species in an effort to manufacture 'ancient' artifacts that can be sold to collectors, unsuspecting or not, for spurious donations to charitable organizations. It is arguable that, under these circumstances, even allowing a tax benefit to individuals who possessed the eagle parts illegally does fly in the face of the congressional intent of the act.However, the regulations specifically forbid the sale of abandoned eagle artifacts because it would contravene the policy behind the BGEPA. Thus, defendant’s argument that the seizure represented a taking was less persuasive as he received commercial compensation. As noted by the court, however, the onus falls not on a tax court, but upon those responsible for enforcing the provisions of the act.Sale of migratory birds and bald or golden eagles would be prohibited because the Service believes that sale is inappropriate when possession and sale of these birds is highly regulated or prohibited by the Migratory Bird Treaty or Eagle Protection Acts in order to conserve them. This limitation on commerce in eagle artifacts was upheld in a bankruptcy context. The Commerce Clause of the United States Constitution, Art. 3, allows Congress to enact laws affecting interstate commerce. Specifically, the Court established that Congress’s exercise of commerce power be related to an activity that substantially affects interstate commerce. 1996), the Ninth Circuit rebuffed such a challenged to the BGEPA.The Arizona Bankruptcy Court held that since the BGEPA prohibited the sale of a Sioux Indian ghost dance shield which had eagle feathers attached to it, the bankrupt, to whom the artifact was entrusted for possible sale, nor subsequent purchasers had a property interest in it. Put simply, this provision allows Congress to exclusively regulate any activity that touches commerce between the states. This holding spawned challenges to conservation statutes, alleging that they do not have any substantial affect on interstate commerce. Defendant in Bramble was charged with attempting to sell eagle feathers among with other criminal violations.
However, it was the increasing use of the insecticide DDT (dichloro-diphenyl-trichloroethane) and other organochlorine compounds that posed a unique risk to these carnivores. In 1962, the protection of the eagle was expanded to include the related species of the golden eagle. As a result, Congress designed a penalty designed to strike fear into the heart of ranching country: the cancellation of grazing rights. Moreover, to encourage enforcement of the BGEPA, the statute now provided that one-half of any fine up to ,500 would be paid to any person giving information that leads to a conviction under the statute. The term "take" as the statute currently reads includes to: pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb; "transport" includes also ship, convey, carry, or transport by any means whatever, and deliver or receive or cause to be delivered or received for such shipment conveyance, carriage, or transportation. 92-535.) Other changes were added in 1970’s , including the proviso that the Secretary of the Interior may permit the taking, possession, and transportation of golden eagles for the purposes of falconry with exception that only golden eagles that cause depredations on livestock and wildlife may be taken for falconry. In all of these examples, each person could be subject to criminal prosecution under the Eagle Act. While the statute requires a minimal level of intent, the application of this standard appears to depend on the level of knowledge a defendant should have. The defendants in that case were charged with killing eagles under both the MBTA and the BGEPA after Moon Lake, a "rural electrical distribution cooperative," caused the death of 38 birds of prey including eagles. He can make contact between two wires and that will electrocute him. In theory, one could suffer a separate conviction for each eagle shot on a hunting trip. The Supreme Court resolved the issue of commercial transaction in eagle parts in Andrus v. These artifacts existed prior to the establishment of the Eagle Act. Specifically, the defendants contended that their religious freedom was abridged by the Eagle Act due to the difficulty in obtaining necessary eagle parts through the permit process.Summary: This article explores the history and text of the BGEPA. As the court observed, the statute contains no citizen reporting requirement, only an incentive provision.It further examines the relevant legal issues spawned by the Act, including free exercise challenges by Native Americans, the abrogation of treaty rights, commerce in eagle parts, and requisite intent for criminal prosecution under the Act. It is arguable, however, that Hetzel’s possession of the eagle was knowing.The question for the future is whether the eagle’s remarkable recovery can continue despite legal challenges and continuing habitat pressures. § 668 ), the Migratory Bird Treaty Act of 1918 ( 16 U. In several areas breeding populations disappeared entirely. In 1940, Congress acted to prevent what seemed to be the inevitable destruction of the Nation’s symbol. Thus, the 1962 amendments provided not only for the preservation of the golden eagle, but also the preservation of a cultural practice. Reed wrote to Senator Magnuson, Chairman of the Committee on Commerce, urging the passage of the amendments. 12186 will help to protect these majestic birds, aptly described by the Congress in 1940 as ‘a symbol of the American ideals of freedom.’ 1972 U. Thus, the 1972 amendments struck at the most apparent and pervasive threat to the eagle population – commerce. Since the process of criminal prosecution is slowed by the overburdened caseload often facing federal prosecutors, the amendments added a civil component to the statute. Congress amended the statute to lessen the degree of knowledge required to convict violators, from "willfully" to "knowingly or with wanton disregard for the consequences of his act." 16 U. Although violators were subject to a maximum fine of 0, it appears that each violator convicted under the Act was fined an average of only about per incident. This reduction in the specific intent under the Act The forfeiture provision of the statute was also added in 1972. Additionally, under the BGEPA, any employee of the Department of the Interior authorized to enforce the provisions of the statute, may arrest individuals for violations committed in the employee’s presence without a warrant. Thus, it is the intent of an individual rather than solely his or her actions that will subject him or her to liability under the BGEPA. The defendant readily admitted that he possessed the eagle to the federal officer present in the game refuge. As the oft-touted legal maxim statues, ignorance is no defense to the law. The evidence would have to show more than mere negligence; while there is no intent to injure, the person must be conscious from his knowledge of surrounding circumstances and conditions that his conduct will naturally and probably result in injury. Recent decisions have not elaborated on the level of intent. means that the power companies would not be liable for acts committed prior to the date of enactment. Likewise, the BGEPA also encompasses death to eagles through poisoning. In Corbin Farm Service , an alfalfa field owner sprayed the field with a registered pesticide were charged with misdemeanor violations of the Federal Insecticide, Fungicide, and Rodenticide Act and the Migratory Bird Treaty Act, stemming from the death of American widgeon, a waterfowl protected under the MBTA. Counsel need not inform a defendant of every collateral aspect in pleading guilty.The bald eagle (image) is currently protected by three acts of Congress: the Bald and Golden Eagle Protection Act ( 16 U. A variety of causes was suspected for the decline, including loss of habitat, illegal shooting, pesticides, electrocution from high voltage lines, and other human disturbances. Boradiansky, Conflicting Values: The Religious Killing of Federally Protected Wildlife , 30 Nat. The purpose behind the enactment of the 1940 version of the Bald Eagle Act, as it was then known, can be explained through the words from the Acting Secretary of Agriculture in 1939: 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. Grier, Ban of DDT and Subsequent Recovery of Reproduction in Bald Eagles, 218 Science 1232 (1982). Congressional House debate surrounding the 1962 amendments took particular notice of the fact that the golden eagle is ‘important in enabling many Indian tribes, particularly those in the southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them.’ Similarly the Department of the Interior observed that ‘the eagle, by reason of its majestic, solitary, and mysterious nature, became an especial object of worship. There exist but 10-20,000 golden eagles in North America, and 20-30,000 northern bald eagles. Indeed, the language of the statute catalogs the specific commercial activities prohibited under the Act: "sell, purchase, barter, offer to sell, purchase or barter, transport, export or import." 16 U. By creating a civil penalty and a civil forfeiture provision, the drafters sought to remedy inadequate enforcement. In order to prevent, or deter, the taking of eagles in the future, violators should be subjected to greater penalties than allowed in the current law, and the amount of knowledge required to be proved in order to obtain a conviction in this type of case should be reduced. This section authorizes the seizing of eagle parts obtained through enforcement of the Eagle Act as well as the instrumentalities used to obtain those eagles or their parts. Intent forms the basis of most criminal prosecutions. He explained, however, that he was unaware it was illegal to possess the carcass. The court determined that a literal construction of the statute, whereby a person would be convicted of a It is important to note that the BGEPA was modeled after the Migratory Bird Treaty Act. As with the previous examples of violations based on possession, purchase, killing, and selling, the law does not distinguish based on the type of activity. It is quite clear, however, that innocent possession is an unlikely defense despite the court’s sympathy to the defendant in Hetzel . However, since power lines have a tendency to destroy eagles, such lines erected after the date of enactment should provide such safeguards as are available in order for the power companies to avoid the charge of acting with ‘negligent disregard for the consequences’ of their acts. The Moon Lake court indicated that the Senate hearings also addressed the issue of intent specifically with regard to poisoning: [Mr. The court’s ruling further solidified that the BGEPA covered acts beyond traditional hunting. The court found the sentence fair and just in light of the circumstances and likewise found his plea need not be invalidated for the court’s failure to advise defendant of this consequence. Courts have consistently defeated challenges to the Act where defendants were shown to have engaged in commerce of eagle parts. And it is particularly relevant that Congress has twice reviewed and amended the statute without rejecting the Department's view that it is authorized to bar the sale of pre-existing artifacts. Significantly, "in 1962, Congress extended the Eagle Protection Act to cover golden, as well as bald, eagles, 76 Stat. 1997), the defendants invited undercover agents on a big game hunt.
Because DDE is one of the most persistent contaminants in the environment, they were able to determine that the surprisingly low levels of DDE were caused by a high level of turnover (deaths of adult and subadult birds) in eagle populations. Despite the inclusion of the golden eagle in 1962, the population of both species still experienced a decline. And, as does the MBTA, the BGEPA proscribes taking or killing "at any time or in any manner." 16 U. Electrocution on power transmission poles in the West has been a low grade but constant source of eagle deaths for many years . The comprehensive scheme of deterrent and punitive features embodies the statute’s primary directive. Commercial demand necessarily feeds the need to take more eagles. The only allowance under the regulations for eagle parts acquired before 1940 relate to the possession and transportation within the United States of these pre-Act birds. While the Act itself provides for the "possession and transportation" of bird parts obtained before the effective date of the Act, the plain language of the statute does not contemplate commerce in those same bird parts. The court found that the sale negated a claim of possession for religious purposes and instead brought the possession under the ambit of federal law. The BGEPA prohibits any type of commerce in eagles or their parts. The Act does except the possession and transportation within the United States of those eagles or eagle parts lawfully obtained prior to 1940, the original date of the statute’s enactment. In 2002, the Eighth Circuit aligned itself with Allard in holding that conviction under BGEPA does not constitute an unconstitutional taking. The only distinction was the fact defendant himself had obtained the eagle artifacts prior to the date of the amendment of the statute to include golden eagles. Had the government been inclined, it could have instituted a forfeiture proceeding under the BGEPA.