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Update | Jemez Pueblo Quickly Given OK To Take Eagles From Valles Caldera National Preserve

By Kurt Repanshek – November 8th, 2023

NPT Editor’s note: This updates with comments from Mike Murray, chair of the Coalition to Protect America’s National Parks.

In a move viewed as unprecedented and apparently against agency regulations, National Park Service Director Chuck Sams signed off on a request to allow the Jemez Pueblo in New Mexico to kill either a bald or golden eagle in Valles Caldera National Preserve for cultural purposes.

The director’s decision, made October 18, just five weeks after the pueblo made the request, appears to conflict with National Park Service regulations that prohibit the taking of wildlife. They specifically block the “use, or possession of fish, wildlife, or plants for ceremonial or religious purposes, except for the gathering and removal of plants or plant parts by enrolled members of an Indian tribe in accordance with 36 CfR § 2.6, or where specifically authorized by federal statutory law, treaty…”

“Principled arguments can be made both opposing or supporting the issuance of an eagle take permit in a unit of the National Park System,” said Mike Murray, chair of the Coalition to Protect America’s National Parks. “Is it the right thing to do or not and is it allowable under applicable authorities? In any case, the NPS decision to allow the take of one eagle at Valles Caldera is precedent setting. To the best of my knowledge, this has never been allowed in any other park system unit.”

National Park Service officials in Washington, D.C., could not immediately respond to Traveler’s inquiries about the decision.

According to the National Park Service Management Policies of 2006, a compendium of directives for superintendents, superintendents are allowed to “designate certain fruits, berries, nuts, or unoccupied seashells that may be gathered by hand for personal use or consumption if it will not adversely affect park wildlife, the reproductive potential of a plant species, or otherwise adversely affect park resources.”

Former National Park Service Director Jon Jarvis in 2010 voiced opposition to the longstanding regulations prohibiting most consumptive harvesting in parks, which had the effect of prohibiting tribal members from collecting ramps, a type of wild onion, from Great Smoky Mountains National Park, generating considerable controversy as NPS directors do not have the discretionary authority to ignore federal regulations. That incident led the Park Service to review the ban, “and tribal perspectives were sought concerning how the regulation might be revised to permit park superintendents and Indian tribes to enter into agreements to gather plants and minerals for traditional uses,” said David Barna, at the time the agency’s chief spokesman.

The resulting regulation authorized “the National Park Service to enter into agreements with federally recognized Indian tribes to allow for the gathering and removal of plants or plant parts from National Park System areas for traditional purposes.” It did not authorize the taking of wildlife under any circumstances.

An issue with the taking of eagles from Valles Caldera is whether treaty rights the pueblo holds at the preserve allows for such takings. Frank Buono, who has worked in almost every aspect of national parks for almost 30 years, as a backcountry and law enforcement ranger, interpreter, fee collector, volunteer, and retired as deputy superintendent of Joshua Tree National Park, told the Traveler that while the Code for Federal Regulations “contains an exception for existing Federal law or treaty rights. … Jemez Pueblo has no treaty right to take eagles in Valles Caldera or the adjacent Bandelier National Monument.”

While “numerous Native American tribes and pueblos” have connections with Valles Caldera, and some “do not support ceremonial take of eagles,” it was not clear from the environmental assessment prepared on the request or the Finding Of No Significant Impact (both attached below) whether the Park Service consulted with other tribes and pueblos on this request. The agency also did not invite public comment on the matter “because of the limited window of time between application submittal and the start of the ceremonial period within which the proposed eagle take would occur.”

“The lack of a public comment opportunity and consultation with other affiliated Indian tribes, including some that oppose the ceremonial take of eagles, regarding a precedent-setting proposed action is a significant concern,” said Murray. “This is especially true since the EA found that “cultural values of other Pueblos and tribes that do not support ceremonial take of eagles would be adversely affected.”

The fact that Sams signed off on the request, as opposed to the Park Service’s regional director, who more customarily handles such chores, also drew attention.

“Unusually, the FONSI was signed by National Park Service Director Chuck Sams rather than a local or regional NPS official,” noted Caldera Action, a nonprofit that advocates for the public lands of the Jemez Mountains with a special emphasis on Valles Caldera National Preserve and adjacent Bandelier National Monument.

“The NPS chose to allow the eagle [taking] because they wish to support Native traditions on the preserve by people who have lived near the [Valles Caldera] for many hundreds of years,” the group added. “We agree with the NPS that traditional activities should be permitted, providing modern technology used does not damage wildlife or wildland qualities.”

According to Buono, the only other time a tribe officially sought to take wildlife from within a park occurred in May 1999 when Hopi Indians arrived at Wupatki National Monument in Arizona “to take golden eaglets for a religious ritual that culminates in the eagle’s death. No tribe had ever sought to take eagles from a park under an Eagle Act permit. NPS regulations do not allow this. So, the NPS professionals, from the park superintendent to the NPS director, denied the request, only to be overturned by the political appointees in the Interior Department.”

“No law waives the [National Park Service] Organic Act and its rules for Indians taking of park eagles or other wildlife,” Buono told the Traveler on Tuesday. “Taking wildlife in parks is the proverbial ‘third rail.’ Attempts to weaken that protection, whether by the [National Rifle Association] in the 1980s or the Trump predator-take rules in Alaska National Preserves to open the preserves to recreational hunting, normally spark a heightened level of outrage.”

The retired Park Service official also took exception to Sams’ determination that the taking of a single bald or golden eagle would not constitute an impairment of preserve resources, pointing out that “the Determination of Non-Impairment acknowledges that the NPS has no current data on eagle populations reporting that there has been no survey of eagles since winter 2017.”

But the Park Service concluded in its finding that “[T]wo environmental assessments (USFWS 2009, 2013) have been presented to the public that conclude ongoing take of eagles by Native Americans for religious purposes has no discernable effect on the stability of eagle populations in question. Thus, the take of one bald or golden eagle is highly unlikely to cause extirpation of either species, leaving a sustaining population and species integrity intact and available for future enjoyment. The bald eagle population is increasing which reduces the potential adverse impact on the population, thereby further diminishing the potential for impairment.”

Nevertheless, Buono wonders if the decision at Valles Caldera will expand to other parks.

“If the NPS allows the use of the permit in Valles Caldera, may Sams also be empowered to allow Jemez to use the same permit at some prospective date in Bandelier [National Monument]? May Sams allow the Hopi, who also receive an annual [Bald and Golden Eagle Protection Act] permit for use in northeastern Arizona, to gather eagles in Wupatki in May of 2024?”

Murray at the Coalition shared those concerns.

“It strikes me that the cumulative impact analysis in various sections of the EA does not acknowledge the possibility and perhaps likelihood that future eagle take permit requests will occur at Valles Caldera or other parks once the precedent for allowing the take of eagles in park units has been established. This seems like an obvious flaw in the cumulative effects analysis, which is supposed to consider ‘reasonably foreseeable future actions’,” he said.

Bob Krumenaker, recently retired as the superintendent of Big Bend National Park after a 41-year career as Park Service natural resource manager and superintendent, noted that the Jemez Pueblo request on very short notice put the Valles Caldera superintendent and the NPS into a no-win position. But he, too, expressed concern about the way this decision was made.

“Clearly, the NPS has a legal and ethical mandate to work with the tribes, and I appreciate the desire to accommodate the request,” said Krumenaker. “But the rapid turnaround, lack of public review, lack of site-specific resource data, and even lack of consultation with other tribes is concerning. I have great respect for the people who had to make this decision, but I don’t see where we have the legal authority to do this.”

Murray said the matter might have been best served by putting off the request for this year.

“Given the short notice that NPS had to properly evaluate a precedent-setting permit request, which should have included public involvement and tribal consultation, it would have been prudent for the NPS to defer on issuing the immediate permit request in order to allow for proper evaluation of the request for future issuance of such a permit,” he said.