Legal Eagles

Raptor advocates score a small victory in court

Two years ago, the U.S. Fish and Wildlife Service was tidying up its plans to remove Endangered Species Act protection for bald eagles, including those endemic to Arizona. But as that historic moment approached, conservationists were making plans of their own.

In February, those twin trajectories crash-landed in a Phoenix courtroom, where U.S. District Court Judge Mary Murguia questioned the grand raptors' fate under current Fish and Wildlife policies. Then Murguia--not known as a particularly "green" judge--actually delayed a decision on whether federal officials had adequately reviewed impacts of delisting Arizona's birds.

In 2004, the Center for Biological Diversity and Maricopa Audubon petitioned to have the Southwestern desert nesting bald eagle considered as a distinct population. In August 2006, Fish and Wildlife rejected that petition.

But the latest court postponement, by this judge, does not bode well for agency prospects.

According to lawyers representing the Center and Maricopa Audubon, Judge Murguia's ultimate verdict should be simple: Require the Fish and Wildlife Service to flesh out its rationale for not exempting the Southwestern species from delisting.

Although less than 50 breeding pairs exist in Arizona, the birds were delisted, along with the 11,000 other eagles across the country. Scientists generally believe that a minimum of 500 breeding pairs is necessary for species survival.

Indian tribes also joined the conservationists' legal effort, filing "friends of the court" briefs to argue that they weren't consulted--as required by federal law--regarding the eagle's cultural significance.

The courtroom was packed, as lawyers criticized the wildlife agency for failing to fully address the Arizona bird's precarious status, and for issuing for a "90-day finding" justifying its decision--when the determination really took many months to make.

In that 90-day finding and subsequent delisting, FWS officials seemed to ignore the very scientists they had recruited to evaluate the Southwestern eagle--a situation eerily reminiscent of the cactus ferruginous pygmy owl saga, in which agency officials buried dissenting data from their own biologists and removed that bird from endangered protections.

One could be forgiven for sensing a trend here. But depending upon how Judge Murguia rules, those same FWS bureaucrats might soon face the embarrassing prospect of second-guessing themselves.

That would likely mean dusting off a lengthy peer review from the venerable Raptor Research Foundation--the review that agency officials initially requested and then largely disregarded. The foundation's 11-page letter, dated August 2006, warned of disaster if the eagle was delisted.

"We predict that, without mandatory habitat protection measures, removing the bald eagle from protection under the ESA will result in a loss of habitat in these and other areas," the scientists wrote. "Depending on how extensive these losses are, bald eagle populations could decrease soon after delisting ... ."

"In summary," the letter continued, "we do not believe that the Southwest bald eagle population is secure, and we question whether even current numbers can be sustained without active management and habitat protection."

This was hardly a ringing endorsement of Fish and Wildlife plans. But there was another similarity to the pygmy owl saga: conservation groups only learned of internal bickering over that delisting after an agency memo was smuggled out; this time, a concerned Fish and Wildlife staffer tipped off outside groups about the Raptor Research Foundation's letter.

But there may yet be ironic justice, if legal rulings achieve what worried scientists could not. "It was our view that the same kind of compelling evidence for delisting did not exist for the Southwest eagle population, certainly not the way it did for populations in other parts of the country," says Leonard Young, the foundation's president. "We'd prefer to see that reconsideration happen without court action. But if that's what prompts careful reconsideration, then that's a positive development."

Fish and Wildlife spokesman Jeff Humphrey defends his agency's decision, citing a three-part litmus test underlying the move: Is the Arizona eagle a "discrete" population? Is it a significant population compared to other eagles? And is it truly endangered?

"We determined that the Southwest population is not significant to the larger bald eagle population, with over 10,000 breeding pairs in the lower 48 states," Humphrey says. Nor did it meet the 'threatened' benchmark. "The desert nesting bald eagle population in Arizona is larger than we've ever seen before."

Others suggest that the eagle might actually enjoy a brighter future without endangered species protection. Among them is Jamey Driscoll, raptor management coordinator for the Arizona Game and Fish Department.

Removing the eagle's endangered status gives Arizona the lead role in its well-being. And while the AGF's eagle-management program doesn't offer designated habitat protection, Driscoll argues that efforts are being made to strengthen federal protections under the Bald and Golden Eagle Protection Act. Dating from 1940, the act operates in tandem with the ESA, and specifically prohibits the taking, possession and commercial trade in eagles, except under certain specified conditions, such as the gathering of feathers for Native American religious purposes.

According to Driscoll, that long-running law may be tightened to include protection for eagle habitat. And because of a different protection formula, "it looks to me as if it's stricter than the ESA for Arizona," he says. For instance, "there may not be as many 'take' permits issued under the Bald and Golden Eagle Protection Act as there were under the ESA."

Here's why: Since takings permits are keyed to the number of birds in a population, managing the smaller Arizona eagle population separately could mean that fewer "take" permits can be issued (these permits are required, for example, when a federal construction project might impact a nesting pair).

The Bald and Golden Eagle Protection Act "is going to be a big player in taking over the role of the ESA," Driscoll says. "The act, as currently drafted, is just as strong as the ESA, with fines and prison time" for illegal takings. "The only thing is that it doesn't protect habitat."

Driscoll says federal officials are now drafting habitat protections into the eagle-protection law. That draft was also mentioned by Humphrey as potentially offering eagles more safeguards.

But Leonard Young and his foundation folks are skeptical, especially since federal laws contain no habitat-protection requirements for animals once they're removed from endangered species status.

And the draft protections now being touted are a far cry from ironclad safeguards, he says. "It depends upon whether someone actually implements them, or they just remain on the drawing board as a good idea."

Even if implemented, "it would be something relatively new and not tested in court. So to put the same conservation weight on that, as compared to the very well-adjudicated habitat protection under the ESA ... I'm not sure they're comparable at this time."

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