Ariz. bald eagle denied ESA protection, prompting lawsuit

Eryn Gable

Environmentalists are challenging the Fish and Wildlife Service's decision to deny Endangered Species Act protection to nesting desert bald eagles in Arizona, saying federal protection of the bird's habitat is critical to its survival.

In a lawsuit filed last week in U.S. District Court in Phoenix, the Center for Biological Diversity and Maricopa Audubon Society argued that habitat destruction and human harassment represent the biggest threats to the eagle, whose population is estimated at about 50 breeding pairs.

Although the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act provide some protections for bald eagles, only ESA protects eagle habitat. Moreover, they say, FWS's decision places politics, not science, front and center in determining the eagle's fate.

As evidence, they point to a July 2006 FWS conference call in which FWS biologist Chris Nolan stated that FWS Southwest Regional Director Benjamin Tuggle and then-FWS Assistant Director Ren Lohoefener "have reached [a] policy call and we need to support it." During the same call, other FWS officials said they had been given "marching orders" and the staff should "find an analysis that works."

But Tuggle appeared to have changed his mind by last August, recommending in a memo to Gary Frazer, FWS's assistant director for endangered species, that Sonoran Desert bald eagles be considered "significant," since they live in an area that is "unique and unusual" for bald eagles.

Frazer responded in a December 2009 memo that the bird did not meet the standards for ESA listing, saying,

"My staff will work with you on development of the revised version of the finding."

"All we know is the marching orders were given again and they were followed," said Robin Silver of CBD.

FWS spokeswoman Vanessa Kauffman would not comment on the allegations in the lawsuit, citing FWS policy.

A distinct population?

February's decision against an endangered or threatened listing was the second time FWS denied protection to desert bald eagles. In 2007, the agency concluded that the Sonoran Desert eagle did not meet the criteria for a "distinct populaiton segment," or DPS, making it ineligible for ESA protection. That same year, it removed ESA protections for bald eagles nationwide.

Environmentalists challenged the 2007 decision, resulting in a court-ordered temporary restoration of ESA protections while FWS completed a subsequent analysis. At the time, District Court Judge Mary Murgula called the agency actions "arbitrary and capricious."

With that analysis completed, Murgula on Oct. 1 granted a request by FWS to remove the desert nesting bald eagle from the Endangered Species List. But her ruling did not examine the agency decision itself, allowing environmental groups to file a separate lawsuit.

Without ESA protection, environmentalists say grazing and off-road vehicle use will continue to destroy eagle habitat, and the mandatory requirement for agency funding of the NestWatch program, which provides onsite protection for the most threatened nests, will end. NestWatch has rescued 9.4 percent of all young eagles fledged in Arizona between 1983 and 2005, including up to 50 percent of a given year's reproduction.

In its latest decision against listing, FWS noted that the desert bald eagle had made a remarkable recovery.

The number of known breeding areas, which numbered only three in Arizona in 1971, had increased to 59 in 2009. Similarly, the number of bald eagle pairs occupying these sites increased from three in 1971 to 48 in 2009.

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Source: Land Letter

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