Specific Comments by Thomas F. King

I am writing to comment on the Draft Environmental Assessment (DEA) you
issued in July, 2008 on the proposal to permit take under the Bald and
Golden Eagle Protection Act (73 FR 47574-77).

On the whole, the proposal looks reasonable, and it appears that the
Fish and Wildlife Service (FWS) is taking reasonable steps to address
its impacts on both natural and cultural aspects of the environment. I
do have a few less positive comments, however, and some suggestions,
mostly dealing with controlling impacts on so-called "cultural
resources."

Under Section 106 of the National Historic Preservation Act (NHPA),
agencies must take into account the effects of their undertakings on
historic properties -- places included in or eligible for the National
Register of Historic Places. The DEA makes a commendable effort to
address FWS Section 106 responsibilities, but becomes confused in a
number of places about just when and how Section 106 applies.
[Any]{.underline} take permit is a federal undertaking as defined under
NHPA and the regulations implementing Section 106 (36 CFR 800). Any such
take has the potential to affect historic properties -- both eagle
habitat or specific nesting sites eligible for the National Register
because of the cultural significance of eagles to Native Americans and
others, and other kinds of historic properties (archaeological sites,
historic buildings) etc. that may be affected by the action to which the
take permit applies. An undertaking of a type that has such potential
must be reviewed under Section 106. It follows that [any]{.underline}
issuance of a take permit must be reviewed under Section 106. This is a
pretty straightforward requirement, but the DEA at some points implies
that Section 106 review is required only when known historic properties
are present, or when particular kinds of historic properties may be
present, or when an Indian tribe or some other authority is involved.
Below I will identify a number of specific locations in the EA where
such errors creep in, and suggest corrections.

A similar problem is expressed in the DEA with regard to Indian tribal
consultation, suggesting that it is required only when a particular FWS
official "deems" it necessary (on what basis, we are not told) and at
others implying (though not saying) that it is required only or mostly
on "tribal lands." In fact, given the significance of eagles in tribal
culture, and the many legal authorities under which FWS has obligations
to tribes, I suggest that tribal consultation should be a routine part
of any take permit action.

On the other hand, the DEA repeatedly implies that tribes are the only
parties with possible cultural interests in eagles, which is manifestly
not true. Provision needs to be made in the permitting process, and
under Section 106, for addressing the concerns of any party with
cultural interests in eagles, eagle nests, and eagle habitat.

Following are more specific comments.

Page 6: The discussion of NHPA and its implications is inaccurate.

A.  The paragraph addresses only Section 106 of NHPA (ignoring, for
    example, Sections 101(d)(6) and 110), and fails to describe Section
    106 accurately.

B.  NHPA does [not]{.underline} require agencies to evaluate effects on
    "cultural resources;" it addresses only one narrow class of cultural
    resource -- those districts, sites, buildings, structures and
    objects" that meet criteria as "historic properties." Other cultural
    resources must be addressed under NEPA and other legal authorities
    (American Indian Religious Freedom Act, Religious Freedom
    Restoration Act, executive orders 12898 and 13007, etc.).

C.  Section 106 regulations require consultation not only with the State
    Historic Preservation Officer and Indian tribes, but with other
    interested parties as well, and it requires specific efforts to
    reach agreement about ways to resolve adverse effects.

D.  The fact that some eagle nests may be traditional cultural
    properties (TCPs) is only one of several reasons that Section 106
    must be complied with in issuing take permits; another is that
    larger sites and landscapes may be considered eligible for the
    National Register, with eagle nests as contributing elements within
    such areas. Another is that historic properties other than eagle
    nests/traditional cultural properties -- for example, archaeological
    sites, non-traditional cultural landscapes, historic buildings --
    may be affected directly or indirectly by activities associated with
    some kinds of permitted takes.

E.  The fact that FWS wasted its time checking the National Register of
    Historic Places database for potentially affected historic
    properties is truly startling, and it is particularly outlandish to
    suggest that the database might be of any help in locating TCPs. The
    Register's database is not only a grossly incomplete source of
    information on such properties, it can be seriously misleading. It
    is certainly no basis whatever for imagining what places "may be
    associated with eagle habitat and...are likely to be considered
    TCPs." TCPs for whom? The National Register? The National Register
    has no earthly (or unearthly) idea where TCPs may be that are
    important to Indian tribes or others, nor should it; it's not the
    Register's responsibility but FWS's to do this sort of
    identification. Nor are TCPs the only kind of historic property that
    might be affected by a take. EVERY take permit action is an
    undertaking that has the potential to affect historic properties,
    and needs Section 106 review, as well as review under NEPA and other
    authorities. All this discussion needs to be reconsidered, and
    Appendix A, which is fantastically misleading, should be deleted.

Page 7. The discussion of the Native American Graves Protection and
Repatriation Act (NAGPRA) is inaccurate. Native American burial sites
are not the only concern under NAGPRA; the law also addresses Native
American cultural items, which might include, for example, medicine
bundles and other caches of items associated with spiritual activities,
or even natural features so associated. Tribal consultation under NAGPRA
is necessary on every proposed take permit, to (a) decide whether Native
American graves or cultural items may be affected and (b) if so, develop
a plan of action or comprehensive agreement about how to deal with them.

Page 7. The discussion of the Religious Freedom Restoration Act (RFRA)
is welcome but there is a troubling implicit blindness to religious
values other than those of Indian tribes. While tribal religious values
are doubtless most likely to be associated with eagles, and while FWS
certainly has special responsibilities toward tribes, other religions
may ascribe significance to eagles as well, and should not be ignored.
In a similar vein, I see no reference to executive order 12898, which
necessitates special efforts to avoid disproportionate and adverse
environmental impacts on (among other things) the religious and cultural
values and practices of low income populations and minority populations,
whether tribal or not.

Page 7. In the discussion of executive order 13007, how is it envisioned
that the Regional Historic Preservation Officer will know whether tribal
sacred sites may be involved? And who will decide whether to "deem"
consultation with this officer to be necessary, and how? Tribal
consultation to identify and address impacts on sacred sites (regardless
of whether they are historic properties) is needed on [any]{.underline}
proposed take permit.

Page 52. The fact that religious and cultural issues are addressed in
Section 3.8 is welcome, but the "in addition" language is puzzling,
implying that the location of "currently recognized tribal lands" is
somehow relevant to the discussion. What does FWS think the boundaries
of tribal lands have to do with addressing the religious and cultural
significance of eagle nesting sites and their neighborhoods? The
exclusive focus on tribal religious and cultural values is also
troubling: does FWS think that Indian tribes are the only groups of
American citizens with religious or cultural interests in eagles, their
nests, and their habitats? Or, as page 53 implies, that the cultural
interests of non-Indian people are simply of an economic character? FWS
should recognize the need to consult with anyone who has cultural
concerns about eagles and their habitat, and to find ways to address
their concerns.

The problems outlined above are reflected as the DEA proceeds in the
discussion of the religious and cultural impacts of each alternative.