ENVIRONMENTAL ASSESSMENT
PROPOSED RULE:
RELIGIOUS CEREMONIAL
COLLECTION OF GOLDEN EAGLETS
IN WUPATKI NATIONAL
MONUMENT
January 2001
NATIONAL PARK SERVICE
CONTENTS
PURPOSE AND NEED FOR THE ACTION
Scope of the Environmental Assessment
Summary of Selected Regulations and Policy
Relationship to Other Planning Projects
Alternative B - Adopt
Proposed Rule
Alternative 2 – Adoption of Proposed Rule
Proposed Rule, Special Regulations; Areas Of The National Park System; Religious Ceremonial Collection Of Golden Eaglets From Wupatki National Monument
The
National Park Service (NPS) has issued a proposed rule (see Appendix A) to
allow, under certain circumstances, the Hopi Tribe to collect golden eaglets (Aquila chrysaetos) from Wupatki National
Monument for religious ceremonial purposes.
This rule would authorize this activity upon terms and conditions
sufficient to protect park resources against impairment, consistent with the
Bald and Golden Eagle Protection Act.
Wupatki
National Monument, a unit of the National Park System, is in north-central
Arizona approximately 30 miles north of Flagstaff. The monument was established by Presidential Proclamation No.
1721 in December 1924, and currently comprises more than 35,400 acres. The proclamation setting aside the
land as a National Monument notes that the area is set aside as a monument
because of "...two groups of prehistoric ruins built by the ancestors of a
most picturesque tribe of Indians still surviving in the United States, the
Hopi, or People of Peace." The
proclamation further notes that "the public interest would be promoted by
reserving these prehistoric remains as a National Monument together with as
much land as may be necessary for the proper protection thereof." (Proclamation No. 1721 of December 9,
1924). This proclamation, along with
other applicable laws relating to the management of units of the national park
system, govern the day to day administration of the monument.
In
May 1999 members of the Hopi Tribe requested permission from the Superintendent
of Wupatki National Monument to collect young golden eagles from nest sites in
the monument for religious ceremonial purposes. The traditional Hopi ceremony involves collection of eaglets from
golden eagle nests in May or June, raising of the birds to fledgling stage in
the Hopi Village, when birds are sacrificed and the feathers used in a variety
of subsequent religious ceremonies. The
tribe held valid 1-year permits from the U.S. Fish and Wildlife Service and
Arizona Game and Fish Department to collect golden eaglets at the time of their
request to the National Park Service.
Golden
eagles are not listed as federal threatened or endangered species, but are
protected by federal law under the Bald and Golden Eagle Protection Act, and
the Migratory Bird Treaty Act. Under
authority of these acts, the Albuquerque office of the U.S. Fish and Wildlife
Service issued a permit to the Hopi Tribe in March 1999, allowing collection of
a maximum of 40 golden eagles (and an unlimited number of red-tailed hawks (Buteo jamaicensis)) in Coconino, Navajo,
and Apache counties during the 1999 calendar year. In addition, the Arizona
Game and Fish Department issued a permit to the Hopi Tribe in April 1999
allowing the collection of no more than 10 golden eagles and ten red-tailed
hawks from federal or state lands in Arizona during 1999. Both permits require permission of the
landowner for access and collection, and the observance of all other applicable
state and federal laws.
Following
consideration of the request of the Hopi Tribe, the National Park Service
denied the request for a special use permit to collect golden eagles, based
upon National Park Service regulations that prohibit taking wildlife in units
of the national park system unless specifically permitted by law. The
Department of the Interior’s Assistant Secretary for Fish and Wildlife and
Parks subsequently withdrew the National Park Service denial in order to allow
for reconsideration of the issue. In October 1999 the tribe withdrew its
request to collect eaglets from Wupatki National Monument.
The purpose of the proposed rule is to allow
authorized members of the Hopi Tribe to collect golden eaglets from Wupatki
National Monument for religious ceremonial purposes, under conditions
protecting park resources from impairment. The importance of eagle gathering to
the Hopi Tribe is articulated in Article IV of the Tribal Constitution, which
states:
“The Tribal Council shall negotiate with the United States Government agencies concerned, and with other tribes and other persons concerned, in order to secure protection of the right of the Hopi Tribe to hunt for eagles in its traditional territories, and to secure adequate protection for its outlying, established shrines”
As
described in the proposed rule, the practice of eagle gathering is integral to
the Hopi religious ceremonial cycle and culture. The eagle serves as the link
between the spiritual world and the physical world, a connection that embodies
the essence of Hopi spirituality and belief.
The cyclical relationship between the eagle and the Hopi Tribe is
renewed annually through the practice of eagle gathering, sustaining the
connection between the physical and
spiritual worlds for the next generation of Hopi.
The
proposed rule is needed because those clans of the Hopi Tribe whose traditional
eaglet gathering area includes Wupatki National Monument are unable under
existing National Park Service regulations to obtain a special use permit to
collect golden eaglets in the monument.
Only a few of the clans and religious societies of the Hopi Tribe bear
the important ceremonial obligation of eagle gathering, and each has a
traditional area from which it may exclusively gather eagles. Clan ownership of
eagle nesting areas corresponds to the early settlement areas and migration
routes of the clans before they arrived at their modern villages. The Hopi Tribe regards the eagles as
embodying the spirits of their ancestors, and the clan areas often contain, or
are very close to, Hopi clan ruins. The
collection of golden eaglets from specific geographic areas is a fundamental
part of Hopi religion, and there is an ancestral and historical connection
between the Hopi Tribe and Wupatki National Monument. Anthropologists have described the Hopi’s “famous nest at
Wupatki” as an important area for traditional Hopi eagle gathering (Ellis
n.d.).
Without
the proposed rule, the National Park Service does not have the legal authority
to issue such a special use permit.
Allowing the collection of golden eaglets from within Wupatki National
Monument would violate existing National Park Service Regulations that
expressly prohibit the taking of wildlife within units of the national park
system, “except by authorized hunting and trapping…” Hunting and trapping are not statutorily authorized within
Wupatki National Monument.
This
environmental assessment focuses exclusively on the potential effects of the
proposed rule to allow authorized members of the Hopi Tribe to collect golden
eaglets from Wupatki National Monument under terms and conditions specified by
the National Park Service to prevent impairment of park resources. Any other similar requests received in the
future to allow collection of resources in other national park system units by
Indian tribes for religious ceremonial purposes are beyond the scope of this
environmental assessment. Such
proposals would be addressed individually on a case-by-case basis on their own
merits.
In
addition, this environmental assessment focuses primarily on the potential
effects of the proposed rulemaking. It
does not address in detail the potential impacts associated with the specific
implementation of the proposed rule.
Detail such as gathering times, take limits, and permit tenure would be
addressed as part of the proposed permitting process. Additional NEPA documentation would be prepared as part of the
permitting process to address potential impacts to the resources and visitors
of Wupatki National Monument from the taking of golden eaglets by the Hopi
Tribe.
The
relative importance to the Hopi of the golden eagle nesting sites in Wupatki
National Monument for gathering of eaglets relative to nest sites outside the
park is unknown and is not part of this analysis. However, the historical connection of the Hopi people to the
ruins at Wupatki National Monument is recognized in the establishing
legislation of the monument. In
addition, the collection of golden eaglets by Hopi religious practitioners for
ceremonies in clan-specific locations near ruins left by the Hopi is well
documented.
The
following sections provide a brief overview of regulations applicable to
management of units of the national park system, protection of golden eagles,
and Indian religious issues. Indian
religious and ceremonial concerns are specifically addressed in a number of
statutes and executive orders, including the American Indian Religious Freedom
Act of 1978 (AIRFA), the Religious Freedom Restoration Act (RFRA), Executive
Order 13007 on Sacred Sites, 1998 Executive Order on Consultation and
Coordination with Indian Tribal Governments, and Executive Order 13175 –
Consultation and Coordination with Indian Tribal Governments. None of these directives provide legal
authority to override existing laws such as those that govern management of the
national park system. These laws and executive orders direct federal agencies
within their authority to accommodate religious needs.
The Organic Act created the National Park Service and defined its
purpose as follows:
“The service …shall promote and regulate the use of federal areas known as national parks, monuments, and reservations…by such means and measures as conform to the fundamental purpose…which purpose is to conserve the scenery and the natural and historic objects and wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” The act further authorizes the Secretary of the Interior to make “such rules and regulations as he may deem necessary or proper for the use and management of” the National Park System, and to “provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of” units of the National Park System.”
The
National Park Service Management Policies, issued December 2000 by the Director
of the National Park Service, provide a detailed interpretation of the National
Park Service Organic Act and related authorities. The Management Policies help
NPS managers understand their legal duties in managing the national park
system, and establish policies and procedures that help ensure the law is
properly and consistently applied throughout the national park system. Briefly
stated, the Management Policies note that impairment prohibited under the
Organic Act constitutes those impacts that, in the professional judgment of the
responsible National Park Service manager, would harm the integrity of park
resources or values, including the opportunities that otherwise would be
present for the enjoyment of these resources or values. A complete copy of the
Management Policies can be found on the National Park Service Web site at http://www.nps.gov/.
This
act prohibits taking, possession, and trade in bald and golden eagles. The act
provides federal protection for bald and golden eagles; provides for civil or
criminal penalties for violations and a reward for informers; authorizes
cancellation of grazing, leases, licenses, permits, or other agreements for
violations; and provides for possession and transport of golden eagles for
falconry under certain conditions. It also
authorizes the U.S. Fish and Wildlife Service to issue permits to allow the
taking, possession, or transport of bald or golden eagles or their parts,
nests, or eggs for authorized purposes, including use by Native American tribes
for religious purposes.
AIRFA
states:
“On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to sites, use and possession of sacred objects, and the freedom of worship through ceremonials and traditional rites.”
AIRFA does not create any judicially enforceable rights; however, courts have interpreted AIRFA to require federal agencies to “…learn about, and to avoid unnecessary interference with, traditional Indian religious practices, [and to] evaluate their policies and procedures in light of the Act’s purpose, and ordinarily should consult Indian leaders before approving a project likely to affect religious practices.” Although the Supreme Court has found that federal agencies have broad discretion to conduct actions even if they adversely affect the practice of Indian religions, it at the same time encourages agencies to make reasonable accommodations for the practice of Indian religion (Lyng v. Northwest Cemeteries 1988).
The
Religious Freedom Restoration Act (RFRA)
RFRA
provides that the government may substantially burden a person’s exercise of
religion only if the exercise is in furtherance of a compelling governmental
interest and it is the least restrictive means of furthering that compelling
governmental interest. RFRA encourages
accommodation of Indian religious ceremonies and rites.
Executive
Order 13007 directs that federal agencies:
”…shall, to the extent practicable, permitted by law, and not clearly
inconsistent with essential agency functions, (1) accommodate access to and
ceremonial use of Indian sacred sites by Indian religious practitioners and (2)
avoid adversely affecting the physical integrity of such sacred sites.” The order defines sacred sites as a
“specific, discrete, narrowly delineated location of federal land” identified
by tribal interests as “sacred by virtue of its established religious
significance to, or ceremonial use by an Indian religion.” The Departmental Manual implementing the
Sacred Sites Executive Order requires agencies of the Department of the
Interior to establish procedures that accommodate “access to and ceremonial use
by religious Indian practitioners of Indian sacred sites” and to “consult with
tribal governments and give full consideration to tribal views in its decision
making process.”
President
Clinton’s 1994 policy statement recognizes the importance eagles occupy in many
Native American religious and cultural practices and directs executive
departments and agencies to “work cooperatively with tribal governments and to
reexamine broadly their practices and procedures to seek opportunities to accommodate
Native American religious practices to the fullest extent of the law.”
A
repository for eagle feathers is located in Colorado and managed by the U.S.
Fish and Wildlife Service. All eagles
found dead are to be sent to the facility.
Eagles, eagle parts, and eagle feathers are then distributed to Native
American tribes requesting them for religious and ceremonial purposes
throughout the United States.
This executive order states that “each agency shall, to the fullest extent practicable and permitted by law, consider any application by an Indian tribal government for a waiver of statutory or regulatory requirements.”
Section
6(b) of this executive order states that “each agency shall, to the extent
practicable and permitted by law, consider any application by an Indian tribe for
a waiver of statutory or regulatory requirements in connection with any program
administered by the agency with a general view toward increasing opportunities
for utilizing flexible policy approaches at the Indian tribal level in case in
which the proposed waiver is consistent with the applicable federal policy
objectives and is otherwise appropriate.”
The
National Park Service is currently preparing a Draft General Management Plan
for Wupatki National Monument. The plan
is intended to provide a comprehensive management direction for the monument
over the next 10 to 15 years. Consultation with affiliated tribes, including
the Hopi, is being conducted throughout the course of the planning
process. Release of a Draft General
Management Plan and Environmental Impact Statement for public review and
comment is anticipated in winter of 2001.
The following section provides a description of the alternatives analyzed in the environmental assessment. Two alternatives are presented for consideration: Alternative A, No Action, and Alternative B, Adopt Proposed Rule.
Alternative
A, No Action consists of the continued management and operation of Wupatki
National Monument without a Final Rule for Religious Ceremonial Collection of
Eaglets in Wupatki National Monument.
Under this alternative the National Park Service would be unable to
issue a special use permit to the Hopi Tribe to allow collection of golden
eagles for religious and ceremonial purposes.
Consequently, the Hopi Tribe would be unable to access the monument for
this purpose. In general, this
alternative would result in no discernable change from existing conditions and
operations.
The
National Park Service has developed a proposed rule (see Appendix A) to allow,
under certain circumstances, the Hopi Tribe to collect golden eaglets from
Wupatki National Monument for religious ceremonial purposes. Under Alternative B, the National Park
Service would amend its regulations specific to Wupatki National Monument to
authorize collection of golden eaglets.
This activity would be subject to terms and conditions sufficient to
prevent impairment of park resources, and consistent with the Bald and Golden
Eagle Protection Act.
With
adoption of this proposed rule, the Hopi Tribe, upon showing that the Tribe has
a valid permit issued by the U.S. Fish and Wildlife to collect golden eaglets,
could be granted a special use permit to collect eaglets at Wupatki by the
Superintendent of Wupatki National Monument.
However, before a permit could be issued, the Superintendent would
conduct appropriate analyses under NEPA, the National Park Service Organic Act,
and related acts to ensure that this activity would not impair park
resources. Public involvement and
review would also be undertaken as part of this process. Information collected
during the public involvement process would then be considered in making any
determination as to whether or not to issue a permit. Scientific and technical
information would also be developed as part of this process. This information
would likely include an evaluation of local (in-park) and regional golden eagle
populations and trends; golden eagle breeding status, activity, and
productivity; and available breeding habitat. The National Park Service would
seek to work cooperatively with the U.S. Fish and Wildlife Service, Arizona
Game and Fish Department, and the Biological Resources Division of the U.S.
Geological Survey in collecting and analyzing data and assessing potential
impacts to eagle populations to ensure consistency with the Bald and Golden
Eagle Protection Act. The U.S. Fish and
Wildlife Service and U.S. Geological Survey will be initiating a regional survey
of golden eagle populations in February 2001.
Aerial surveys will be conducted in Arizona, New Mexico, Nevada, Utah,
and Wyoming.
Future
NEPA analyses would evaluate and disclose the potential beneficial, adverse,
direct, and indirect impacts to golden eagle populations in the area from
collection of golden eaglets from Wupatki National Monument and subsequent
sacrifice of the fledglings. The NEPA
documentation would also determine if the collection of eaglets would
constitute impairment of park resources, thereby violating the National Park
Service Organic Act of 1916. In
addition, potential cumulative impacts would be assessed, addressing the
potential incremental effects of issuing a special use permit in conjunction
with other past, present, and reasonably foreseeable future actions in the
region potentially affecting golden eagle populations. Other potential environmental and social
effects of eaglet collection would also be analyzed and disclosed for other
relevant topics, including effects on Hopi culture and traditional ways, and
implications to visitor use and experience in the monument.
Mitigating
measures would also be developed to minimize adverse effects of eagle
collection on park resources and visitors.
These measures would serve as enforceable conditions of the special use
permit.
The following sections provide an overview of the environment potentially affected by the project alternatives.
The
following impact topics are addressed and analyzed in this environmental
assessment.
·
Natural
resources, specifically golden eagles – the National Environmental Policy Act
of 1969 requires consideration and analysis of impacts of federal actions on
natural resources. Project alternatives would have impacts to golden
eagles. Although not a listed species
under the Endangered Species Act, golden eagles are protected under the Bald
and Golden Eagle Protection Act, and receive protection in Wupatki National Monument
as an element of the monument’s wildlife resources. Consequently, potential
effects of the alternatives are analyzed on golden eagles.
·
Cultural
Resources, specifically ethnography – the National Environmental Policy Act of
1969 requires consideration and analysis of impacts of federal actions on
cultural resources, including ethnography. Project alternatives have the
potential to affect the ways of life and traditional practices of the Hopi
Tribe. Therefore, potential effects of
the alternatives on the Hopi Tribe are analyzed in this environmental
assessment.
·
Visitor
Use – the alternatives could affect visitor use and experience in Wupatki
National Monument. As a key element of
the National Park Service Organic Act (…”provide for the enjoyment…”),
potential effects on visitor experience are addressed in this document.
·
Environmental
Justice – Executive Order 12898 requires federal agencies to incorporate
environmental justice in their mission by identifying and addressing any
disproportionately high and adverse effects of their actions on minority and
low income communities. The no action
alternative could have disproportionately high adverse effects on the Hopi
Tribe. The Tribe has been and continues
to be constrained in its ability to pursue its traditional ways of life by not
being permitted to collect golden eaglets at Wupatki National Monument. Therefore, environmental justice is
addressed as an impact topic in this assessment.
A
number of potential impact topics are not addressed in this environmental
assessment because the alternatives described in chapter 2 - the issuance of a
proposed rule allowing the Hopi tribe to collect golden eaglets from Wupatki
National Monument for religious ceremonial purposes - would have no effect on
these topics. These topics include all
other natural and cultural resources not included in the above impact topics,
including wetlands, floodplains, threatened, endangered, and special concern
species, air quality, water resources, prime and unique farmlands, vegetation,
and general wildlife, archeological resources, cultural landscapes, and
historic structures; transportation; and general socioeconomic environment.
Wupatki
National Monument occupies approximately 56 square miles of dry, rugged land on
the southwestern Colorado Plateau directly west of the Little Colorado River.
The plateau has been shaped by erosion over time to reveal layers of red
sandstone and white limestone. Elevations in this region (north of the Mogollon
Rim) range from 2,400 above sea level at the bottom of the Grand Canyon to a
high of 12,670 feet above sea level in the San Francisco Peaks.
The
monument is comprised of two general vegetation types of roughly equal area:
·
upland
desert scrub, largely located east of the Doney Monocline, and
·
juniper
savannah grassland west of the monocline
Although former ranching activities, including cattle grazing, have affected vegetation communities in Wupatki, grasslands in the park remain in relatively pristine condition. Perennial water sources for wildlife are extremely scarce in the monument, with the Little Colorado River, located along the park’s eastern boundary, and Peshlaki Spring comprising the only natural surface water. Other springs and seeps have been developed for park or ranching use and are not available for wildlife.
Natural History
No federally-listed threatened or endangered species are known to occur in Wupatki National Monument. However, a number of sensitive plant and animal species are known or are likely to occur in the monument, including the golden eagle. Golden eagles have utilized monument lands as both hunting and nesting habitat.
Golden
eagles are large, long-lived raptors with a low reproductive output. They occur throughout much of the northern
hemisphere. In North America, they
occur in much of Canada and Alaska, the western U.S. and in western Mexico. They are generalist predators, preying
primarily on small to medium sized mammals.
They will also feed on carrion (especially young eagles) and wild and
domestic sheep, young deer, caribou, antelope, and young cattle. They also take birds on the ground and in
flight and snakes. They usually do not
breed until they are 5 years old. Once
they become adults of breeding age, they are very long-lived, with life spans
of 20 years or more.
Golden
eagles build stick nests on cliffs, rock outcrops, and large trees. They add a great deal of green plant
material to their nests [e.g. grasses, Mormon tea (Ephedra spp.), juniper foliage].
They add to their nests throughout the year and nests can be very
large. Nests weigh in the range of
several hundred kilograms (Watson 1997).
Golden eagles usually have multiple nests within their territory and alternate
among them in successive years of nesting.
Beecham and Kochert (1975) reported 1-12 nests per golden eagle
territory (mean of 6) in Idaho. In arid
climates especially, golden eagle nests persist for many years after being
abandoned. In areas where nest sites
are limited, such as Wupatki National Monument, suitable nest sites have likely
been occupied for centuries.
Nest site availability, food, or eagle territoriality may limit
breeding populations of golden eagles. In some areas (e.g. the Great Plains)
where there are few rock outcrops or large trees, breeding eagles are
rare. In years when prey is very
scarce, some pairs do not breed even though they have a suitable nest site. In
areas where nest sites and food are plentiful, golden eagles’ intolerance of
nearby breeding pairs limits the breeding population. In the latter case, territoriality is the key limiting factor,
but food availability is likely the ultimate limiting cause.
Golden
eagles lay 1-3 eggs (usually 2, rarely 3).
Average number of young fledged per nesting attempt is about 1 eaglet
per territorial pair. Sometimes one
eaglet will kill the other.
Human-related
sources of golden eagle mortality include shooting, collisions (with utility
lines, wire fences, vehicles, etc.), electrocutions (while perching on utility
lines), poisoning, and harvest. However, there is no systematic data
identifying the number of eagles killed through direct human impacts in the
western U.S. or four corners area. The relative importance of these factors is
largely unknown.
Shooting
and poisoning by ranchers have been intense in some areas of the west. Spofford (1969) states: “It is now clear that
for over 20 years at least 1,000 and perhaps 2,000 golden eagles have been
killed from airplanes each winter and spring in far-western Texas and
southeastern New Mexico.” Ranchers also
have killed eagles using poisoned carrion in Colorado, Wyoming, and other
western states. Unintentional poisoning
(e.g. lead poisoning of eagles ingesting lead bullets or pellets while feeding
on carrion) may be a significant cause of death.
Benson
(1982) determined that electrocution was the cause of death for 80.6% of 416
eagle carcasses necropsied from six western states. Trauma from collisions with powerlines and wire fences may also
be an important cause of mortality.
Eagles feeding on road-killed carrion are killed by collision with cars
and trucks.
Harvest
by native Americans is another direct impact to golden eagles. Hopi Indians reported 208 golden eagles
harvested from 1986-1999 in Coconino, Navajo, and Apache counties under permit
by the U.S. Fish and Wildlife Service. Young eagles are more likely to be
killed by these direct impacts because they are less wary and more likely to
enter into hazardous situations, especially if they are very hungry.
In
the northern part of their range, golden eagles are migratory. Large numbers of
northern migrants (from Alaska and Canada) winter in the western U.S. Shooting, poisoning, and collisions impact
both the migratory and breeding populations of the southwestern U.S. Collecting eaglets from nests only impacts
the smaller breeding population of golden eagles.
Indirect
impacts of human activity include habitat alteration (urbanization,
overgrazing, etc.) and behavior altering disturbance. Such effects may cause otherwise suitable eagle territories or
nest sites to go unused, thereby reducing population size and productivity. Another indirect impact to consider is
disturbance of nesting eagles. Raptors and golden eagles in particular are
considered by raptor biologists to be very sensitive to human disturbance. Support for this idea is predominantly
anecdotal or based on correlative studies (e.g. where nests with eggs or
eaglets have been abandoned after disturbance or where occupied nest sites have
been abandoned in the face of increasing human use).
People
close to nesting eagles may keep adults from their nest, causing young chicks
to die from exposure. Hot sunny conditions or cold wet conditions pose the
greatest threat, especially if eggs or small chicks are present. Chicks may also become weak and die if the
adults do not bring food to the nest. A person entering an eagle nest with
large young (eaglets 1.5 to 2 months old) may cause the eaglets to “jump.” Although premature fledglings usually
survive and continue to be fed by the adults, they may be injured and face
increased likelihood of predation.
Severe
disturbance may cause adults to abandon a nesting attempt. Severe and/or chronic disturbance may result
in nest or territory abandonment. Once
the disturbance is removed, eagles will probably reoccupy the territory at some
point, all other relevant factors remaining the same.
Harmata (2000) has data showing that, after a nest is visited by researchers to band the young, there is less likelihood it will be reoccupied the next year. Relative to the issue of eagle gathering at Wupatki National Monument, his data would be more meaningful if he looked at territory reoccupancy as well. At Wupatki, there are approximately 7 nests in and near Citadel Sink. Harmata’s data indicate that after a nest visit, the occupied nest is less likely to be used the next year. It does not address the probability that one of the other 6 nests in this territory will be used.
There
are long-running golden eagle studies where many nests have been visited
annually to band young with no evident impact to territory occupancy (or other
variables such as survival and productivity).
Banding disturbance is not analogous to harvest disturbance because
eaglets remain in the nest after banding. After harvest, eaglets may or may not
remain in the nest depending upon the number of eaglets harvested.
No controlled experimental
studies are known that prove the relationship between human disturbance and
golden eagle nest or territory abandonment, productivity, or population level
or trend. Habituation of nesting golden eagles to human disturbance is quite
variable. In some areas with intense
recreational activity, golden eagles have acclimated to recreational use. For example golden eagles regularly nest
within 200-300 meters of a very popular boating, swimming and camping beach in
Glen Canyon National Recreation Area in Arizona (Glen Canyon National
Recreation Area, n.d.). In more remote
areas where eagles are not habituated to humans, eagles have ceased using nest
sites as recreation increased. In
Yukon-Charley Rivers National Preserve in Alaska, golden eagles nested on
cliffs near the Yukon River; now they mostly nest on cliffs far from the river
and boaters (Skip Ambrose, 2000).
Harvest
is also a direct impact to golden eagles through removing eaglet(s) from
nests. Harvested eaglets may be killed
or released after some period. In addition, harvest has indirect impacts. Harvest of all the eaglets in a nest will
cause the adult eagles to abandon the nest during that breeding season. As a
result, the adults will spend much less time in the nest vicinity for the
remainder of the breeding season. The adult eagles will not resume normal
breeding season activities until January or February the next year at the
earliest. Collecting one eaglet from a multiple chick nest will not likely result
in nest abandonment during that breeding season. Effects of harvest of all or
some of the eaglets in a nest on adult eagles in subsequent breeding seasons
are not known.
In Wupatki National Monument, suitable golden eagle nest sites are rare. There are no trees large enough to serve as nest sites for eagles in the monument. The only large rock outcrops are at Citadel and Antelope Sinks and along Antelope Wash. No occupied golden eagle nests were identified within Wupatki National Monument during surveys conducted in both 1999 and 2000. Details of these surveys are provided below.
A survey of the cliffs and suitable outcrops in Wupatki National Monument for golden eagle nest sites and nesting activity was conducted by the National Park Service in June 1999 (Britten 1999a). No occupied nests were found and one golden eagle was sighted. The Citadel Sink area in the western portion of the monument is a golden eagle nesting territory, with at least 7 probable golden eagle nests identified in this area. Four nests were recorded in Citadel Sink, and 3 nests were found 200 – 300 meters to the northeast. The Citadel Pueblo, a major visitor attraction in the park, lies above and overlooking this nesting territory. One additional nest site was recorded near Doney Mountain just outside the southern boundary of the monument (Britten 1999a).
Based upon presence of fresh nesting material, some of these nests were likely visited by eagles in 1999, but judging from the lack of prey remains or “whitewash” (defecation), none of the nests are believed to have had breeding success in 1999 (Britten 1999a). A mated pair of eagles probably occupied the Citadel Sink territory during 1999, and may have had eggs or young chicks that were subsequently lost (Britten 1999b).
Two old nests that may have been old hawk or raven nests or very old remains of a golden eagle nest were identified just outside the eastern boundary of the monument in the Antelope Sink area.
A
more comprehensive survey of Wupatki National Monument and adjacent lands for
golden eagle nesting activity was conducted in 2000. Surveying activities were
conducted over the entire breeding season, from the beginning of February
through September (Drost 2000). In addition
to the inactive nest sites identified during the 1999 survey and described
above, one active nest was found during the 2000 survey. The active nest was found at the mouth of
Citadel Wash just north of the monument boundary on private land. One nestling was sighted in April and
successfully fledged at the end of May (Drost 2000). No active golden eagle nests were located on Wupatki National
Monument land during this survey.
Historic golden eagle nest sites in or near the monument, such as
Citadel Sink and Doney Mountain, are believed to be alternate nest sites for
the pair nesting at Citadel Wash (Drost 2000).
Most
golden eagle sightings during the survey were concentrated in the Doney Cliffs
area in the central part of the monument, from Doney Mountain north to Citadel
Wash. Based upon observations made
during the survey, a total of four golden eagles were accounted for in the
survey area: the nesting pair at Citadel Wash, a single adult seen west of the
Little Colorado River southeast of the monument, and a lone subadult observed
over Antelope Wash in the central portion of the monument (Drost 2000).
In conclusion, based on the distribution of suitable nest sites and old golden eagle nests in Wupatki National Monument and information on golden eagle densities and Nearest Neighbor Distances in the literature, it is very unlikely more than one pair of golden eagles will nest in Wupatki National Monument in any year. It may be rarely that golden eagles successfully raise young in the monument, since the “best” nest site in the monument appears to be in the vicinity of Citadel Sink. Citadel Sink is heavily used by park visitors, and golden eagles are thought to be very sensitive to human disturbance.
Wupatki
National Monument and the surrounding area contain thousands of archeological
sites, most dating from 1064 until about 1275 A.D. The monument contains an exceptionally well-preserved
archeological landscape, including large residential sites, isolated field
structures, ceremonial ballcourts, lithic quarries, agricultural fields,
shrines, rock art, and other features (National Park Service 2000). The density of sites in this area is
typically more than 40 sites per square mile, and as high as more than 100
sites per square mile. Wupatki National
Monument was originally set aside to preserve and interpret several large
pueblos with standing architecture: Wupatki, Wukoki, Citadel, Natakihu, Lomaki,
and the two Box Canyon pueblos.
Subsequent legislation added Crack-in-Rock Pueblo to the northern
portion of the monument (National Park Service 2000).
The
archeological sites that Wupatki National Monument was created to protect are
considered to be the ancestral homes of modern-day Hopi, Zuni, and other Puebloan
peoples. Certain Navajo clans also
claim affiliation to the prehistoric pueblo remains. These sites preserve a tangible record of the clan migrations
recorded by tribal oral traditions.
Hopi shrines situated within and outside the current monument boundaries
are part of a sacred landscape linking the Hopi Mesas with the San Francisco
Peaks (National Park Service 2000).
In
addition to the archeological sites and shrines, other Wupatki resources are of
traditional importance to the American Indian tribes in the area. Numerous plant species were traditionally
used by Hopis and Navajos, and many of these plants continue to have importance
for medicinal and ceremonial purposes.
The Navajo Nation has identified 32 culturally significant plant species
in the monument that are in use today for medicinal, domestic, or other
purposes. The Hopi Tribe has identified three plant species found in Wupatki
that are in use today (National Park Service 2000).
Raptor
species, including the golden eagle and red-tailed hawk, have key roles in Hopi
religious ceremonies. The practice of eagle gathering is at the heart of the
annual Hopi religious ceremonial cycle. The collection of eaglets from specific
geographic areas is an important part of Hopi religion, and there is an
ancestral and historical connection between the Hopi Tribe and Wupatki National
Monument. Eaglets are gathered from nests soon after birth and raised to
fledglings in Hopi villages. During
summer’s Niman Kachina, or Home Dance ceremony the fledgling eagles are
sacrificed (smothered) and sent home to the spiritual world (Frigout
1979). Eagle feathers are subsequently
used in all Hopi religious ceremonies and rituals. They are used as prayer feathers and adorn symbols of prayer in
ceremonies such as the Kachina ceremony, Flute ceremony, Snake ceremony, and
social dances.
Most
visitors experience Wupatki National Monument as a “drive-through” experience, visiting
the visitor center and museum exhibits and taking short walks to one or two of
the pueblos. Many of the monument’s
visitors are enroute to or from Grand Canyon National Park (National Park
Service 2000). The monument’s major
pueblos, including Wupatki, Wukoki, Lomaki, and Citadel have been developed for
self-guided interpretation, with hardened surfaces to accommodate visitation.
Short interpretive programs, both talks and guided walks, are offered when
staffing permits. The Crack-in-Rock
area and other backcountry sites are visited via ranger-led programs available
4 to 8 times per year. The remainder of
the monument is closed to visitation (National Park Service 2000).
Throughout
the monument, broad vistas of desert grasslands, mesas, buttes, and volcanic
hills contrast sharply with the San Francisco Peaks visible in the
distance. Spectacular views of the
landscape within and beyond the monument are a major part of the visitor
experience on the drive through Wupatki.
A variety of additional recreational opportunities are available on
adjacent and nearby U.S. Forest Service Land, including hiking, horseback
riding, mountain biking, backpacking, four-wheel-drive excursions, and
off-highway vehicle use (National Park Service 2000).
Ten
affiliated tribes have identified traditional relationships and/or resources
within the boundaries of the monument (National Park Service 2000). As previously described above, the
monument’s enabling legislation emphasizes the close relationship between
monument lands and the Hopi Tribe.
Specific clans of the Hopi Tribe bear the important ceremonial
obligation of golden eaglet gathering, and Wupatki National Monument comprises
a portion of the traditional area from which these clans have traditionally
gathered eaglets. However, the park is unable by regulation to allow collection
of golden eaglets by the Hopi Tribe. Consequently, the National Park Service’s
management of Wupatki has direct implications on traditional ways of life of
the Hopi Tribe.
The following sections describe potential beneficial and adverse effects of the two alternatives described in the Alternatives chapter. Direct, indirect, and cumulative impacts are disclosed for natural and cultural resources and visitor use and experience. Impacts of the no action alternative are evaluated by extrapolating the effects of existing conditions into the future and assessing these effects over time. The impact of alternative B is analyzed and expressed relative to the impacts of the no action alternative.
Potential impacts are both identified and characterized in this chapter. Characterization includes a description of impact type (beneficial or adverse), intensity (severity of impact), and duration (short or long term). Impact type is defined as follows:
· beneficial impact – the impact would improve the quality or enhance the condition of the resource, visitor experience, or human population.
· adverse impact – the impact would degrade or reduce the quality of the resource, visitor experience, or human population.
Impact intensity is expressed in terms of negligible, minor, moderate, or major, with the following definitions.
· negligible - the impact is localized at the lowest levels of detection and would have no overall effect on the resource, visitor experience, or human population.
· minor – the impact is localized, slightly detectable or noticeable, and confined to a relatively small area or human population.
· moderate – the impact is clearly detectable or noticeable, and could have an appreciable impact on the resource, visitor experience, or human population.
· major – the impact would have a substantial and highly noticeable effect on the resource, visitor experience, or human population.
Impact duration is defined as follows:
· short-term impact – the effect would occur for a year or less.
· long-term impact – the effect would occur over a period of time greater than 1 year.
“Cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or nonfederal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time (40 CFR 1508.7).
As indicated above, the Hopi Tribe would be unable to obtain a special use permit to gather golden eaglets under the no action alternative, as no specific rule would exist allowing the park to issue such a permit. Consequently, clans of the Hopi Tribe requesting authorization to collect eaglets from Wupatki National Monument would continue to be unable to access the monument to engage in this religious ceremony. The affected Hopi clans would continue to experience moderate adverse impacts over the long term due to their inability to pursue their traditional ways of life on their ancestral lands in Wupatki National Monument. Performing the ceremony on ancestral lands is a key element of the Hopi religious practice.
However, under alternative 1, the Hopi eagle gathering could continue on other federal, state, or private lands. Breeding eagles are relatively scarce in Wupatki National Monument, and continuing to prohibit eagle gathering in the monument would not substantially impede the Hopi Tribe’s ability to collect enough golden eaglets to meet their religious and ceremonial needs.
Implementation of the no action alternative would have no discernable impact on visitor use or visitor experience in Wupatki National Monument. Visitor access and available activities would remain much as they are today. Management of park visitation at Wupatki would continue in approximately the same manner in the future without a proposed rule to allow taking of golden eaglets by the Hopi Tribe.
Under alternative 1, the Hopi Tribe would continue to experience moderate long-term adverse impacts as a result of their inability to legally collect golden eaglets on ancestral lands in Wupatki National Monument. This ongoing effect would have a disproportionate impact on the affected clans of the Tribe because the prohibition on collecting golden eaglets in the monument specifically prevents those clans requesting authorization from engaging in ceremonies and activities that are vital to their culture and tradition. However, the Tribe can, under appropriate authorization, continue to collect eaglets from other lands under Alternative 1.
Regional
and local golden eagle populations have been and continue to be adversely
affected by a variety of human activities.
As described in the Affected Environment section, sources of
human-related mortality include roadkills, powerline electrocutions, collisions
with powerlines and wire fences, shooting, poisoning, and ceremonial gathering.
In addition, breeding habitat has been reduced as a result of ongoing
urbanization. Adverse impacts to golden
eagles from these and other actions are expected to continue in the future,
resulting in moderate long-term effects to golden eagle populations. However, because the no action alternative
is not anticipated to have adverse impacts to golden eagles over time, it would
not contribute incrementally to the adverse effects of the above actions.
Consequently no cumulative impacts are anticipated.
There
would be no cumulative impacts to visitor use under alternative 1. The no action alternative would have no
discernable effect on visitor use, therefore not contributing incrementally to
the effects of other actions.
Past
actions by the federal and state governments, such as the establishment of
Wupatki, as well as other land management designations, agency jurisdictions,
and regulations have constrained or placed conditions on the ability of the
Hopi Tribe to collect golden eaglets for ceremonial purposes. Continuing loss of breeding habitat from
urbanization as well as human-related eagle mortality would likely further
reduce golden eagle populations, resulting in moderate adverse effects on the
Hopi’s ability to gather eaglets from lands outside the monument. The above
adverse effects to eagle populations, in conjunction with the adverse effects
of Alternative 1 in perpetuating the Hopi’s inability to collect golden eagles
from their ancestral lands in Wupatki National Monument, would result in
moderate long-term adverse cumulative impacts to the Hopi Tribe. Cumulative impacts are anticipated to be
moderate because the Hopi Tribe would likely still be able to collect eaglets
from public lands outside the monument, despite the potential for declining
eagle populations in the region.
Habitat loss from urbanization would likely be somewhat less on public lands
relative to private lands.
Under Alternative 2, moderate to major beneficial impacts could occur to those clans of the Hopi Tribe requesting authorization to gather eaglets in the monument, depending on the nesting activity and success and hence, availability of golden eaglets in Wupatki National Monument. These factors would be considered as part of the terms and conditions associated with issuing a special use permit. Clans would then be able to pursue related religious ceremonies on their ancestral lands, a key component of traditional Hopi cultural practice. These beneficial effects would likely be long-term, regardless of subsequent permit renewals or authorizations, due to the important place such ceremonies have in the culture of the relevant clans.
Adoption of the proposed rule by the National Park Service could result in moderate adverse impacts to those visitors who observe the collection of golden eaglets. Although the potential that eagle gathering would be observed by visitors is remote, such visitors may feel their experience has been diminished by this interaction of humans with native wildlife. However, there could also be beneficial impacts to those visitors who find interest in and value the experience of observing Hopi traditional activities and ceremonies.
The National Park Service would evaluate steps to minimize contact between visitors and those authorized individuals of the Hopi Tribe gathering eaglets in the monument. These provisions would not only serve to protect the privacy and sanctity of the Hopi religious ceremony, but also minimize the potential for visitor conflicts. Such steps, depending on their nature, would be considered and their impacts analyzed as part of the special use permitting and associated NEPA process.
The collection of eaglets could also reduce the opportunity for visitors to observe golden eagles while visiting the monument. If the only eaglet in a nest is collected, the adults would likely leave the nest area. The young typically spend weeks after fledging near the nest, and because they are more tolerant of people than adult eagles, are likely to be seen by visitors (Britten 2000). Loss of this opportunity would have a minor adverse impact on visitor experience over the long term. Impacts would be minor due to the interpretive and educational focus of the monument on its cultural resources, as well as the limited potential at present for viewing golden eagles in the monument.
Implementation of alternative 2 (authorization of the proposed rule) is not expected to result in tangible adverse impacts to the Hopi Tribe regarding environmental justice. Moderate to major beneficial impacts to the Hopi Tribe are anticipated under the preferred alternative compared to alternative 1 as a result of the ability of the participating clans to now access ancestral lands to engage in traditional religious practices.
As described under Cumulative Impacts for Alternative 1, moderate long-term adverse impacts to regional and local golden eagles populations are anticipated to continue in the future as a result of human-related activities. These impacts include direct mortality (from roadkills, powerline electrocutions, collisions with fences and powerlines, shooting, and poisoning), as well as loss or degradation of breeding habitat as a result of continuing urbanization. Adoption of the proposed rule under Alternative 2 would contribute incrementally to the above adverse effects should a permit be granted for the taking of golden eaglets by the Hopi Tribe. As described under Alternative 2 above, long-term adverse impacts would occur to local and possibly regional golden eagle populations, including displacement, direct loss of eaglets, and disturbance of nest sites and territories during eagle gathering activities. The intensity or magnitude of these impacts would depend upon the number of eaglets taken and other permit conditions. Overall, the adverse impacts of past, present, and reasonably foreseeable future human activities, in conjunction with the incremental adverse impacts of Alternative 2, would likely result in moderate adverse cumulative impacts to regional golden eagle populations. Impacts are anticipated to be moderate because of the limited breeding habitat occurring in Wupatki National Monument. Given the limited breeding habitat in the monument, the number of golden eagles that could be collected there would also be limited. Therefore, the incremental adverse effect of Alternative 2 would be a relatively small component of the total cumulative effect on golden eagle populations.
As
described above under Cumulative Impacts under Alternative 1, past actions by
the federal and state governments, such as the establishment of Wupatki, as
well as other land management designations, agency jurisdictions, and
regulations have constrained or placed conditions on the ability of the Hopi
Tribe to collect golden eaglets for ceremonial purposes. Continuing loss of breeding habitat from
urbanization as well as human-related eagle mortality would likely further
reduce golden eagle populations, resulting in moderate adverse effects on the
Hopi’s ability to gather eaglets from lands outside the monument. However,
implementation of Alternative 2 would have moderate to major beneficial impacts
to those clans of the Hopi Tribe requesting authorization to gather eaglets in
the monument, depending on the nesting activity and success and hence,
availability of golden eaglets in Wupatki National Monument. The above adverse effects to eagle populations, in conjunction with the
beneficial effects of Alternative 2 on the Hopi’s ability to collect golden
eagles from their ancestral lands in Wupatki National Monument, would result in
moderate beneficial cumulative impacts to those clans of the Hopi Tribe requesting authorization to
gather eaglets in the monument.
Cumulative impacts are anticipated to be moderate and beneficial because
despite ongoing adverse impacts to regional golden eagle populations,
implementation of alternative 2 would facilitate the gathering of golden
eaglets on Hopi ancestral lands that have been unavailable to the Tribe since
the establishment of Wupatki National Monument.
There are no known past, present, or reasonably foreseeable future actions that would contribute to potential impacts of Alternative 2 on visitors observing the collection of golden eaglets. Consequently, cumulative impacts to visitor experience under Alternative 2 would be limited to effects on the opportunity for visitors to observe golden eagles. As described above, adverse impacts to local and regional golden eagle populations from human activities (i.e., electrocutions, poisoning, urbanization), including direct loss, displacement, and habitat loss and degradation would continue to adversely affect the potential for visitors to observe golden eagles in Wupatki National Monument. The collection of eaglets under Alternative 2 could further reduce the opportunity for visitors to observe golden eagles while visiting the monument. Together, adverse effects to golden eagle populations from other past, present, and reasonably foreseeable future actions, in combination with eaglet collection under Alternative 2 would have a minor adverse impact on visitor experience over the long term due to the reduced opportunity for visitors to observe golden eagles in the monument. Impacts would be minor due to the interpretive and educational focus of the monument on its cultural resources, as well as the limited potential at present for viewing golden eagles in the monument.
As
described in the proposed rule (Appendix A), it is possible in the future that
the National Park Service could receive requests from other Native American
tribes or other groups to collect resources from Wupatki National Monument or
other units of the national park system.
The National Park Service has the authority under 36 CFR section 2.5 to
issue permits for collection of resources for research purposes, and a
superintendent is allowed to “designate certain fruits, berries, nuts, or
unoccupied seashells for personal use or consumption” if the gathering or
consumption will not adversely affect park wildlife, plant species, or park
resources. Superintendents have
exercised discretion to permit collection of park resources for ceremonial
purposes on a local level as a form of personal consumption governed by 36 CFR
2.1(c). Factors affecting this discretion include the nature and purpose of the
collection request, the specific resources affected, enabling legislation of
the park unit, and potential for adversely affecting park resources.
Potential
cumulative impacts to the resources and visitors of Wupatki National Monument
associated directly with the implementation of alternative 2 (and issuance of a
special use permit) would be specifically addressed as part of the NEPA
analysis and documentation conducted in conjunction with the special use
permitting process to ensure no impairment of park resources. The analysis
would include an evaluation of the potential cumulative effects on golden eagle
populations, taking into account other past, present, and reasonably
foreseeable future actions affecting golden eagles in the park and region.
Cumulative effects of eaglet collection on other relevant impact topics such as
visitor use and experience and impacts on the Hopi would also be considered.
The Department of the Interior has consulted with Hopi tribal officials throughout the preparation of the proposed rule for allowing collection of golden eaglets in Wupatki National Monument. A government-to-government meeting of National Park Service and Hopi tribal officials was held December 14, 2000 in Phoenix to discuss this document, the proposed rule, and possible implications of its implementation should it become final.
The National Park Service has also consulted with the U.S. Fish and Wildlife Service regarding the proposal and its relationship to the Bald and Golden Eagle Protection Act. The U.S Fish and Wildlife Service has been issuing permits to the Hopi for collection of golden eaglets and other raptors since 1986 in Apache, Navajo, and Coconino counties in northeastern Arizona.
This environmental assessment will be made available to interested agencies, organizations, and the general public for 60 days for review and comment, with notice published in the Federal Register. At the end of the public comment period, the National Park Service will evaluate the input received and revise the proposed rule and accompanying environmental assessment accordingly. Should the National Park Service conclude that the final rule would not have the potential for significant impact to the human environment, a Finding of No Significant Impact (FONSI) would be prepared and authorized by the Intermountain Regional Director. The final rule and FONSI would be published in the Federal Register. If the final rule is determined to have the potential for significant impact to the human environment, the National Park Service would issue a Notice of Intent (NOI) to prepare an environmental impact statement on the proposal.
Ambrose,
Skip.
2000
Personal
Communication. U.S. Fish and Wildlife Service, Endangered Species Office,
Fairbanks, Alaska.
Beecham,
J. J. and M.N. Kochert.
1975 Breeding biology of the golden eagle in southwestern Idaho.
Wilson Bulletin, 87:506-513.
Benson,
P. C.
1982 Prevention of golden eagle electrocution, Palo Alto Calif.:
Electric Power Red. Inst. EPRI EA-2680 Final Report, 90 pp.
Britten,
Mike
1999a Golden Eagle Surveys for Flagstaff Area National Monuments.
National Park Service. Intermountain Region, Denver, Colorado.
1999b Trip Report for Travel to Wupatki National Monument. Intermountain Support Office, Denver,
Colorado.
2000 Personal communication. Wildlife Biologist, National Park
Service, Intermountain Region, Denver, Colorado
Drost,
Charles A.
2000
Golden
Eagle Survey at Wupatki National Monument (draft).
U.S. Geological Survey, Biological Resources
Division. Forest and Rangeland Ecosystem Science Center, Colorado Plateau Field
Station. Flagstaff, Arizona.
Ellis,
Florence H.
n.d. The Hopi: Their History and Use of Lands, 149-154. Collected in Hopi Indians, 1974.
Frigout,
Arlette
1979 “Hopi ceremonial organization”. Handbook of North American
Indians, Vol. 9, Smithsonian Institution. Washington, D.C.
Glen
Canyon National Recreation Area
n.d. Raptor
Observation Database, unpublished data.
Harmata, Alan R.
2000
Personal Communication. Department of
Biology, Montana State University, Bozeman, Montana
National
Park Service, U.S. Department of
Interior
2000
Preliminary
Draft General Management Plan/Environmental Impact Statement for Wupatki
National Monument (in preparation). Intermountain Support Office, Denver,
Colorado.
Palmer,
R.S. (ed.)
1988
Handbook
of North American Birds. Volume 5, Diurnal Raptors, Family Accipitridae
(concluded). Yale University Press, New
Haven and London.
Spofford,
W. R
1969.
Problems
of the golden eagle in North America. pp. 345-347 in Peregrine Falcon
Populations. J. H. Hickey ed. Univ. of Wisconsin Press. Madison WS.
David
Kreger, Technical Specialist for Natural Resources Compliance, Denver Service
Center, National Park Service
Sam
Henderson, Superintendent, Wupatki National Monument, National Park Service
Jacob Hoogland, Chief, Environmental Quality Division, Washington Office., National Park Service
Patricia
Parker, Chief, American Indian Liaison Office, Washington Office, National Park
Service
Molly
Ross, Office of the Solicitor, Department of the Interior, Washington, D.C.
K.C.
Becker, Office of the Solicitor, Department of the Interior, Washington, D.C.
Mike
Britten, Wildlife Biologist, Intermountain Region, National Park Service
Steve
Mitchelson, Natural Resource Specialist, Intermountain Region, National Park
Service
Chris
Turk, Regional Environmental Quality Coordinator, Intermountain Region,
National Park Service
Paul
Whitefield, Natural Resource Specialist, Wupatki National Monument, National
Park Service
Frank
Williss, Technical Specialist, Cultural Resource Compliance, Denver Service
Center, National Park Service
Charles
Drost, Zoologist, Biological Resources Division, Colorado Plateau Field
Station, U.S. Geological Survey
Jeff
Haskins, Chief, Migratory Bird Office, Region 2, U.S. Fish and Wildlife Service
SPECIAL REGULATIONS;
AREAS OF THE NATIONAL PARK SYSTEM; RELIGIOUS CEREMONIAL COLLECTION OF GOLDEN
EAGLETS FROM WUPATKI NATIONAL MONUMENT
4310-70-U
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7.101
RIN 1024-AC86
SPECIAL REGULATIONS;
AREAS OF THE NATIONAL PARK SYSTEM; RELIGIOUS CEREMONIAL COLLECTION OF GOLDEN
EAGLETS FROM WUPATKI NATIONAL MONUMENT
AGENCY: National Park Service, Interior
ACTION: Proposed Rule
SUMMARY: The National Park Service (NPS) has preliminarily determined that under certain circumstances it is appropriate to allow the Hopi Tribe to collect golden eaglets within Wupatki National Monument, a unit of the National Park System, for religious ceremonial purposes. This rule would authorize this activity upon terms and conditions sufficient to protect park resources against impairment, and consistent with the Bald and Golden Eagle Protection Act.
DATES: Written comments will be accepted by mail, fax, or electronic mail through [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION IN FEDERAL REGISTER].
ADDRESSES: Comments should be addressed to: Kym Hall, National Park Service, 1849 C Street, N.W., Room 7413, Washington, DC 20240. Fax: (202) 208-6756. Email: WASO_Regulations@nps.gov.
FOR FURTHER INFORMATION CONTACT: Sam Henderson, Superintendent, Wupatki National Monument, 6400 N. Highway 89, Flagstaff, Arizona 86004. Telephone: (520) 526-1157. Fax: (520) 526-4259. Email: WUPA_superintendent@nps.gov or Dr. Patricia Parker, Chief, American Indian Liaison Office, National Park Service, 1849 C Street, N.W., Room 3410, Washington, DC 20240. Telephone: (202) 208-5475. Fax: (202) 208-0870. Email: Pat_Parker@nps.gov
SUPPLEMENTARY INFORMATION
Existing Regulations
A subsection of NPS regulations, promulgated in 1983, prohibits Apossessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state@ living or dead wildlife or fish, plants, paleontological specimens, or mineral resources, or the parts or products of any of these items, except as otherwise provided. 36 C.F.R. ' 2.1(a).
Another provision of these regulations authorizes NPS to issue permits allowing the collection of national park system resources for research upon certain conditions. 36 C.F.R. ' 2.5(b). No such permit may be issued except to:
an official representative of a reputable scientific or educational institution or a State or Federal agency for the purpose of research, baseline inventories, monitoring, impact analysis, group study, or museum display when the superintendent determines that the collection is necessary to the stated scientific or resource management goals of the institution or agency and that all applicable Federal and State permits have been acquired, and that the intended use of the specimens and their final disposal is in accordance with applicable law and Federal administrative policies.
In addition, a permit may not be issued if Aremoval of the specimen would result in damage to other natural or cultural resources, affect adversely environmental or scenic values, or if the specimen is readily available outside of the park area.@
Subsection 2.5(c) prohibits issuing a permit to take a specimen that is listed as an endangered or threatened species under state or federal law unless the specimen Acannot be obtained outside of the park area and the primary purpose of the collection is to enhance the protection or management of the species.@ Subsection 2.5(f) prohibits issuing a research collection permit in park areas where the enabling legislation prohibits the killing of wildlife.
NPS regulations allow a park superintendent to Adesignate certain fruits, berries, nuts or unoccupied seashells which may be gathered by hand for personal use or consumption@ if Athe gathering or consumption will not adversely affect park wildlife,@ or otherwise adversely affect the plant species, or park resources. 36 C.F.R. ' 2.1(c)(1). Another subsection addresses the ceremonial use of NPS resources, stating that the regulations Ashall not be construed as authorizing the taking, use or possession of fish, wildlife or plants for ceremonial or religious purposes, except where specifically authorized by Federal statutory law, treaty rights, or in accordance with ' 2.2 [wildlife protection] or '2.3 [fishing].@ 36 C.F.R. ' 2.1(d). The preamble to this rulemaking explained that the provision was added in response to comments that had Aquestioned the applicability@ of the regulation in such circumstances, and went on to say:
The Service recognizes the American Indian Religious Freedom Act directs the exercise of discretion to accommodate Native religious practice consistent with statutory management obligations. The Service intends to provide reasonable access to, and use of, park lands and park resources by Native Americans for religious and traditional activities. However, the National Park Service is limited by law and regulations from authorizing the consumptive use of park resources. (48 FR 30,252 (1983)).
In 1999, members of the Hopi Tribe requested permission from the NPS to take golden eaglets from Wupatki National Monument for religious purposes. Citing the National Park Service Organic Act and 36 C.F.R. '' 2.1, 2.2, and 2.5, the NPS denied the Hopi request. The Assistant Secretary for Fish and Wildlife and Parks then withdrew the NPS denial in order to reconsider the issue. Upon advice of the Solicitor, as explained below, the proposal is being made to change the regulation to allow favorable action on the Hopi request.
The practice of eagle gathering is at the heart of the Hopi religious ceremonial cycle and the Hopi culture. The eagle serves as the link between the spiritual world and the physical world of the Hopi, a connection that embodies the very essence of Hopi spirituality and belief. Golden eaglets are gathered from nests soon after birth and are kept and raised to fledglings in Hopi villages. Later, during the Niman Kachina ceremony, the golden eagles are sacrificed and Asent" to their spiritual home. The eagles' feathers are subsequently used in all Hopi religious ceremonies such as the Kachina, Flute, and Snake ceremonies. The cyclical relationship between the eagle and the Hopi is renewed annually through the practice of eaglet gathering, sustaining the connection between the spiritual and physical worlds for the next generation of Hopi.
The importance that
the Hopi attach to the ceremonial gathering of eagles is expressed in Article
IV of the Tribal Constitution approved by Secretary of the Interior Ickes on
December 19, 1936:
The Tribal Council shall negotiate with the United States Government agencies concerned, and with other tribes and other persons concerned, in order to secure protection of the right of the Hopi Tribe to hunt for eagles in its traditional territories, and to secure adequate protection for its outlying, established shrines.
Only a few of the Hopi clan and religious societies bear the important ceremonial obligation of eagle gathering, and each of these has a traditional area from which it – and no other clan or society that is not related to it – may gather eagles. Hopi clan ownership of traditional eagle nests is well documented in the anthropological literature. "The nests of eagles near village ruins are owned by the descendants of clans which once lived in their neighborhood." Jesse Walter Fewkes, Property Rights in Eagles Among the Hopi, 2 American Anthropologist (n.s.), 690‑707, 693 (1900). "The territory around the Hopi villages where eagles may be found is, and has been from time immemorial, divided into portions or allotments, which are controlled by certain clans or families. These territories extend as far as 50 and 60 miles from the villages." H.R. Voth, Notes on the Eagle Cult of the Hopi, collected in H.R. Voth, Brief Miscellaneous Hopi Papers, Field Columbian Museum, Publication 157, 107‑109, Anthropological Series 11(2)(1912). Clan ownership of eagle nesting areas corresponds to the early settlement areas and migration routes of the clans before they arrived at their modern villages. The Hopi regard the eagles as embodying the spirits of their ancestors, and the clan areas often contain, or are very close to, Hopi clan ruins.
Anthropologists have described the "famous nest at Wupatki" as an important area for traditional eagle gathering by the Hopi. Florence H. Ellis, The Hopi: Their History and Use of Lands (n.d.) 149‑154, collected in Hopi Indians (1974). Wupatki National Monument was set aside by President Coolidge in 1924 under the authority of the Antiquities Act, 16 U.S.C. '' 431-33. The Proclamation is silent on eagle gathering. It identified the purpose of the monument in language common to the time; that is, to reserve and protect Aprehistoric ruins built by the ancestors of a most picturesque tribe of Indians still surviving in the United States, the Hopi or People of Peace.@ Proc. No. 1721 (43 Stat. 1977).
The National Park Organic Act created the NPS and defined its purpose in relevant part as follows:
The service . . . shall promote and regulate the use of the Federal areas known as national parks, monuments and reservations . . . by such means and measures as conform to the fundamental purpose . . . which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. ' 1.
The 1916 Act further authorizes the Secretary of the Interior to make Asuch rules and regulations as he may deem necessary or proper for the use and management of@ the National Park System, and to Aprovide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of@ units of the National Park System. 16 U.S.C. ' 3.
In 1978, section 1 of the Organic Act was amended to include these provisions:
Congress declares . . . [that the] National Park System [shall be] preserved and managed for the benefit and inspiration of all the people of the United States . . . [and] directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by Section 1 . . . to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established except as may have been or shall be directly and specifically provided by Congress. 16 U.S.C. ' 1a-1.
With some exceptions, the NPS has generally prohibited consumptive uses of National Park System resources except as specifically authorized by Congress. Applicable regulations generally prohibit hunting of wildlife, and prohibit removal of plants, paleontological, archeological, cultural or mineral resources, but allow recreational fishing and the collection of fruits, nuts, and berries for personal consumption. See 36 C.F.R. §§ 2.1(a); 2.1(c); 2.2 and 2.3.
Constitutional
Considerations and Statutes, Court Decisions, and Executive Orders that Address
Indian Religious Ceremonial Concerns
The following discussion explains why we believe applicable laws and policies allow the NPS to accommodate the Hopi’s religious ceremonial interest in collecting golden eaglets (Aquila chrysaeots) at Wupatki National Monument to the extent it will not result in impairment of the resources protected by the National Park Service Organic Act.
Constitutional considerations. The leading judicial guidance on the intersection between management of federal non-Indian lands and Indian religious practices is Lyng v. Northwest Indian Cemetery Protective Ass=n, 485 U.S. 439 (1988). The Supreme Court there made clear that the First Amendment=s free exercise clause permits curtailing Indian religious practices on federal lands in appropriate circumstances. See also U.S. v. Hugs, 109 F.3d 1375 (9th Cir. 1997) (permit requirement of Bald and Golden Eagle Protection Act does not violate free exercise clause when applied to Native American religious practices, even though it imposed a substantial burden on the practice of Native American religions in which eagles and eagle parts Aplay a central role,@ because it was the least restrictive means of serving the compelling governmental interest of protecting eagles, while permitting access to eagles and eagle parts for religious purposes); Regulation of Hardrock Mining (Solicitor=s Opinion M # 36999, Dec. 27, 1999) (Constitution does not compel rejection of the proposed mining plan on BLM-managed public land even though it would seriously and irreparably degrade a cultural resource of importance to a nearby Indian Tribe). The Constitution does not, in other words, require the National Park Service to accommodate uses, by Indians or others, of national park system resources for religious ceremonial purposes. The Supreme Court also said in Lyng, however, that Athe Government=s rights to the use of its own land . . . need not and should not discourage it from accommodating [Indian] religious practices . . ..@ 485 U.S. at 454. See also Solicitor=s Opinion M # 36999, at 5. Such accommodations may be undertaken in appropriate cases without raising questions under the establishment clause of the First Amendment. See Bear Lodge Multiple Use Assoc. v. Babbitt, 175 F.3d 814 (10th Cir. 1999), cert. denied, 2000 WL 305849 (March 27, 2000) (upholding Park Service=s encouragement of a voluntary month-long Ano-climb@ period at Devil=s Tower National Monument in order to accommodate Indian religious practices); Office of Legal Counsel, Department of Justice, Memorandum to the Secretary of the Interior - Permissible Accommodation of Sacred Sites, September 18, 1996, p. 1 (federal government Ahas broad latitude to accommodate the use of sacred sites by federally recognized Indian tribes@ without violating the establishment clause).
Such accommodations may appropriately provide preferences for Indian tribes and their members. Such preferences have unique and deep roots in American law, and may be upheld when similar practices involving others might not pass muster. See, e.g., Morton v. Mancari, 417 U.S. 535 (1974) (Bureau of Indian Affairs hiring preference for Indians upheld because policy was based on political relationship between Tribes and Federal Government); Rupert v. Director, U.S. Fish & Wildlife Service, 857 F. 2d 32 (1st. Cir. 1992) (upholding exemption from criminal prosecution for possession of eagle feathers by members of federally recognized tribes); Peyote Way Church of God v. Thornburgh, 922 F.2d 1210, 1217 (5th Cir. 1991) (upholding statutory exemption from laws prohibiting peyote possession for Native American Church members, the court noting that the federal-tribal relationship Aprecludes the degree of separation between church and state ordinarily required by the First Amendment@); United States v. Gibson, 2000 WL 117987 (11th Cir. Aug. 21, 2000) (limitation of religious use exemption under Bald and Golden Eagle Protection Act to Indians who were members of federally recognized tribes did not violate non-tribal members= constitutional or statutory free exercise rights).
The Religious Freedom Restoration Act (RFRA). RFRA, enacted in 1993, 42 U.S.C. ' 2000bb et. seq., provides that the government may substantially burden a person=s exercise of religion only if the exercise is in furtherance of a compelling governmental interest and it is the least restrictive means of furthering that compelling governmental interest.[1] There is a reasonable argument that the NPS regulations prohibiting collection of golden eaglets in Wupatki National Monument may substantially burden the Hopis= exercise of religion, to the extent that collection of these resources may be regarded as a necessary element in the Hopis= religious ceremony. Whether the prohibition could be sustained under RFRA would depend on whether there is a compelling governmental interest at stake, and whether the prohibition is the least restrictive means of furthering it. Since the NPS is charged with the conservation of wildlife under its Organic Act, 16 U.S.C. ' 1, it is understood that the NPS has a compelling governmental interest in the absolute bar on the take of wildlife for all purposes except scientific research. There is a question however if this prohibition is the least restrictive means to further that interest. The question becomes more difficult given the Hopi religion=s necessity of taking a golden eaglet from a specific location of historical and religious importance, in this instance, Wupatki National Monument. Prohibiting this religious exercise may amount to a substantial burden on their religion. Cf. Callahan v. Woods, 736 F.2d 1269, 1272 (9th Cir. 1984) (AIf the compelling state goal can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest.@) We do not have to reach these questions here, however, if the NPS has the authority to, and has decided to accommodate, the Hopi Tribe=s religious ceremonial collection of golden eaglets at Wupatki National Monument. Plainly the RFRA encourages, and does not prohibit, such accommodation.
The American Indian Religious Freedom Act (AIRFA). This Act, enacted in 1978, declares Athe policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the[ir] traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.@ 42 U.S.C. ' 1996. The second section of AIRFA, not codified in the U.S. Code, requires the President to direct the various federal agencies responsible for administering relevant laws to Aevaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices,@ and directed the President to report to Congress with twelve months of enactment the results of the evaluation. 92 Stat. 469.
The Secretary of the Interior convened a task force of federal agencies, which issued the report called for by Congress. American Indian Religious Freedom Act Report (Federal Agencies Task Force, August 1979). The Task Force discussed, among other things, the problem of restricting the gathering of indigenous natural substances from federal lands for use in Indian religious ceremonies and practices, noting in particular that the Agathering of a specific plant or animal may be forbidden or limited by conservation statutes.@ Id. at 51- 53. It recommended that each agency Aaccommodate Native American religious practices to the fullest extent possible@ under existing statutes, and also that agencies Arevise existing regulations, policies and practices to provide for separate consideration of any Native American religious concerns . . ..@ Id. at 62-63. The report also recommended that agencies Aprovide exemptions from restrictions on access to and gathering, use and possession of federal property for Native American religious purposes similar to those provided for scientific purposes.@ Id. at 63.
AIRFA does not create any judicially enforceable rights. Lyng v. Northwest Indian Cemetery Protective Ass=n, 485 U.S. 439, 455, 471 (1988). Courts have, however, construed AIRFA to require federal agencies to:
learn about, and to avoid unnecessary interference with, traditional Indian religious practices, [and to] evaluate their policies and procedures in light of the Act=s purpose, and ordinarily should consult Indian leaders before approving a project likely to affect religious practices. AIRFA does not, however, declare the protection of Indian religions to be an overriding federal policy, or grant Indian religious practitioners a veto on agency action.
Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) cert. denied, 464 U.S. 956 (1983). Thus AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values. Id. at 747. See also Havasupai Tribe v. U.S., 752 F. Supp. 1471, 1488 (D. Ariz. 1990), aff=d 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959 (1992); cf. Lyng, supra, 485 U.S. at 454.
Executive Orders and other Policy Statements. A 1994 policy statement, and Executive Orders issued in 1996 and 1998, have all promoted government accommodation of Indian religious practices within the limits of agency discretion. President Clinton=s APolicy Concerning Distribution of Eagle Feathers for Native American Religious Purposes@ (1994) recognizes the important place eagles occupy in many Native American religious and cultural practices and directs executive departments and agencies to Awork cooperatively with tribal governments and to reexamine broadly their practices and procedures to seek opportunities to accommodate Native American religious practices to the fullest extent under the law.@ 59 FR 22,953 (Apr. 29, 1994).
President Clinton=s 1996 Executive Order on Sacred Sites directs that federal agencies:
shall, to the extent practicable, permitted by law, and not clearly
inconsistent with essential agency functions, (1) accommodate access to and ceremonial
use of Indian sacred sites by Indian religious practitioners and (2) avoid
adversely affecting the physical integrity of such sacred sites.
Executive Order 13,007, Section 1, 61 FR 26,771 (1996). The Order defines Asacred site@ as a Aspecific, discrete, narrowly delineated location of Federal land@ identified by tribal interests as Asacred by virtue of its established religious significance to, or ceremonial use by an Indian religion.@ Id. ' 1(b)(iii). While the Order does not reach directly to the collection of plants or wildlife on federal land for Indian religious purposes, it is suggestive of accommodation where possible. The Departmental Manual implementing the Sacred Sites Executive Order requires Interior agencies to establish procedures that accommodate Aaccess to and ceremonial use by religious Indian practitioners of Indian sacred sites@ and to Aconsult with tribal governments and give full consideration to tribal views in its decision making process.@ 512 DM '' 3.4(1)(b); 3.7 (1998).
President Clinton=s 1998 Executive Order on Consultation and Coordination with Indian Tribal Governments states in pertinent part that Aeach agency shall, to the extent practicable and permitted by law, consider any application by an Indian tribal government for a waiver of statutory or regulatory requirements.@ No. 13,084, 63 Fed. Reg. 27,655 (May 14, 1998). Recently, President Clinton reaffirmed the United States= commitment to consultation with Indian tribal governments and issued Executive Order 13175 (November 6, 2000) which details the process agencies must follow to ensure meaningful and timely input from tribal officials in the development of regulations or policies that have tribal implications.
None of these
executive directives purport to (nor could they) provide legal authority to
override existing laws such as those that govern management of the national
park system. To the extent permitted by
law, however, they direct federal agencies to accommodate uniquely Indian
needs.
General discussion and conclusion. In light of the statutes, court decisions, executive orders and other legal considerations discussed above, we believe the NPS has a reasonable legal basis for promulgating a regulation that allows the Hopi Tribe to collect golden eaglets at Wupatki National Monument for religious ceremonial purposes. The collection of golden eaglets from specific geographic areas is an important part of the Hopi religion, and there is an ancestral and historical connection between the Hopi Tribe and Wupatki National Monument. The proposed regulation would allow the NPS to include terms and conditions, including gathering times, take limits, and permit tenure, that are sufficient to protect the park resources against impairment, and would require compliance with the Bald and Golden Eagle Protection Act.
The proposed regulation, and the accompanying environmental assessment, applies only to this narrow situation. It is possible that the NPS will receive requests from other tribes for similar rule changes to address their religious practices. Such requests will be addressed on their merits. Any further rule change must follow notice and comment and other procedures required by applicable law. The current proposal is to deal strictly and exclusively with the Hopi Tribe=s proposal to collect golden eaglets at Wupatki National Monument.
PUBLIC PARTICIPATION: If you wish to comment, you may submit your comments by any one of several methods. You may mail comments to the National Park Service, Ranger Activities Division, Suite 7408, 1849 C. St., N.W., Room 7413, Washington, D.C. 20240. You may also comment via the Internet to WASO_Regulations@nps.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please include “RIN 1024-AC86@ in your subject line and your name and return address in the body of your message. Finally, you may hand‑deliver comments to Kym Hall, National Park Service, 1849 C. St., N.W., Room 7413, Washington, D.C. 20240. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
DRAFTING INFORMATION: The principal author of this proposed interpretive rule is John Leshy, Solicitor, Department of the Interior.
COMPLIANCE WITH OTHER LAWS
Regulatory Planning and Review (E.O. 12866).
In accordance with the criteria in Executive Order 12866, OMB has determined the rule not to be significant.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) This rule does not interfere with actions taken or planned by another agency. The Hopi must obtain a permit from the Fish and Wildlife Service before being allowed to collect golden eaglets. However, this rule does not at all affect the standards, times or necessary elements for obtaining that permit. This rule only addresses the ability of the Hopi to collect golden eaglets from Wupatki National Monument after they have received the necessary permit from FWS.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or monetary loan programs or the rights or obligations of their recipients.
(4) This proposed rule may be controversial because it proposes to allow a new collection of wildlife, but it proposes to do so only in very extremely limited circumstances, for a single or very few specimens of a single species of non-endangered wildlife in a single unit of the National Park System for a very narrowly defined purpose by a single entity, and only then when it is determined by the U.S. Fish & Wildlife Service and the National Park Service to be consistent with the laws protecting wildlife and with the laws preventing impairment of natural resources in the National Park System, respectively.
Regulatory Flexibility Act.
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). The economic effects of this rule are local in nature and negligible in scope.
Small Business Regulatory Enforcement Fairness Act (SBREFA).
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule will have no effect on small or large businesses. It addresses only the Hopi Tribe=s religious ceremonial collection of golden eaglets at Wupatki National Monument and involves no small businesses. This rule:
1. Does not have an annual effect on the economy of $100 million or more.
2. Does not represent a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
3. Does not have a significant adverse effect
on competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. The Department has determined that this rule meets the applicable standards provided in Section 3(a) and 3(b)(2) of Executive Order 12988.
Takings (E.O. 12630).
In accordance with Executive Order 12630, the rule does not have significant takings implications. No property acquisition or impacts on private property owners are expected due to the administrative nature of the rule. The rule addresses only Hopi collection of golden eaglets from Wupatki National Monument, and no private property rights are involved or affected.
Federalism (E.O. 13132).
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation will not have a substantial direct effect on the states, or on the distribution of power and responsibilities among the various levels of government. The rule addresses only the collection of golden eaglets from Wupatki National Monument, a unit of the national park system, and such activity does not require state activity.
Civil Justice Reform (E.O. 12988).
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The preamble clearly explains that the rule creates a special exception to 36 C.F.R. ' 2.1(d) which allows the Hopi to collect golden eaglets from Wupatki National Monument for religious ceremonial purposes subject to conditions sufficient to prevent impairment.
Paperwork Reduction Act.
This rule does not require an information collection from 10 or more parties. It does not require submissions under the Paperwork Reduction Act or OMB form 83-I.
National Environmental Policy Act.
This rule does not constitute a major federal action significantly affecting the quality of the human environment. A draft Environmental Assessment has been completed. Copies of that assessment may be obtained through one of several methods.
--Internet: http://www.nps.gov/wupa/
--By email: wupa_superintendent@nps.gov
--By
mail: Superintendent, Wupatki National
Monument, 6400 N. Highway 89, Flagstaff, Arizona 86004.
Public comments regarding the Environmental Assessment may be submitted to Kym Hall, National Park Service, 1849 C Street, N.W., Room 7413, Washington, D.C. 20240, by email to WASO_regulations@nps.gov, or by fax at (202) 208-6756. Public comments will be accepted through March 19, 2001.
Government‑to‑Government Relationship with Tribes.
In accordance with the Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249) and 512 DM 2, we have identified potential effects on the Hopi Indian Tribe. The proposed regulation, and the accompanying environmental analysis, applies only to this narrow situation. It is possible that the NPS will receive requests from other tribes for similar rule changes to address their religious practices. Such requests will be addressed on their merits. Any further rule change must follow notice and comment and other procedures required by applicable law. The current proposal is to deal strictly and exclusively with the Hopi Tribe=s proposal to collect golden eaglets at Wupatki National Monument. We have consulted with the Hopi Tribe regarding the proposed rule. We will further consider their comments, and the comments of all interested parties, that are received during the comment period.
Clarity of this regulation.
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in body type and is preceded by the symbol “§” and a numbered heading; for example, § 7.101 Wupatki National Monument. (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You may also email the comments to this address: Exsec@ios.doi.gov.
District of Columbia, National parks, Reporting and recordkeeping requirements
Accordingly, Part 7 of 36 CFR is amended as set forth below:
PARK 7 -- SPECIAL REGULATIONS; AREAS OF THE NATIONAL PARK SYSTEM
1. The table of contents is amended to read as follows:
Sec.
* * * * *
7.101 Wupatki National Monument
2. The authority for Part 7 is amended to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q) 462(k).
Sec. 7.96 also issued under D.C. Code 8-137 (1981); D.C. Code 40-721 (1981).
Sec. 7.101 also issued under 42 U.S.C. 2000bb; 42 U.S.C 1996; Executive Orders No. 13084, 13007, 13175.
Add § 7.101 to read as follows:
§ 7.101 Wupatki National Monument.
(a) Collection of Golden Eaglets from Wupatki National Monument by Hopi Tribe. Upon terms and conditions sufficient to prevent impairment to park resources, and upon a showing that the Tribe has a valid permit to collect golden eaglets under the Bald and Golden Eagle Act, 16 U.S.C. ' 668-668d, the Superintendent of Wupatki National Monument shall grant a permit to the Hopi Tribe to collect golden eaglets from Wupatki National Monument for religious ceremonial purposes.
(b) [Reserved].
__________________________________ ____________________
Date
Assistant Secretary
Fish and Wildlife and Parks
[1] The Supreme Court has held that RFRA is unconstitutional as applied to state governments, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (1997), but the question here is the impact of RFRA on the federal government.