Slapped down by the courts and beset by environmentalists and the Tonto Apache Tribe, the U.S. Fish and Wildlife Service is once more pondering whether desert bald eagles need the extra protection of the Endangered Species Act -- even though the national bird is thriving elsewhere.
The federal wildlife agency will accept comments and information from now until July 7, after a judge reproached the agency for a previous decision to delist the desert birds that the judge said was more political than scientific.
The request for input during the new public comment phase seeks only new scientific data that will help determine whether the 40-50 pairs of nesting bald eagles in Arizona constitute a "discrete" population that occupies a significant chunk of territory not used by other bald eagles. Moreover, the federal agency must also determine whether the desert eagles would likely become extinct, without the protections the ESA affords.
A federal court ordered the Fish and Wildlife Service to undertake the comprehensive review after overturning the agency's earlier ruling that the desert eagles probably wouldn't meet the stringent tests for protection as a sub-population, once the larger, national population was de-listed.
However, the Arizona Audubon Society, Centers for Biological Diversity and various tribes including the Tonto Apache sued to overturn that decision. In the court case, the critics obtained documents showing that regional and national officials for the Fish and Wildlife Service directed local officials to come up with reasons not to list the desert eagles. That direction from headquarters essentially overruled the findings of some field biologists who had already written reports suggesting the desert eagles qualified as a discrete population occupying a significant portion of the overall range of eagles.
Robin Silver, a wildlife photographer and emergency room doctor who founded the Centers for Biological Diversity, said "it was a political decision, it wasn't a scientific decision. I hope they'll do it right this time, otherwise they'll see us back in court. "
The desert eagles have gradually extended their nesting areas, mostly along the Verde, Salt and Gila Rivers in Central Arizona, although they have also established territories at places like Green Valley Park in Payson, Woods Canyon Lake in the Apache Sitgreaves Forest, Luna Lake near Alpine and along Tonto Creek and near Lake Roosevelt.
Silver said the federal agency has come under political pressure to de-list the desert eagles, partly because they nest each year in a thicket of struggle and controversy -- Arizona's dwindling riparian areas.
The desert bald eagles nest in streamside trees like cottonwoods or in cliffs close to lakes and streams. The fish they snatch out of lakes and stream riffles are critical to their success in raising their young. Ironically, the creation of a chain of reservoirs with downstream riparian areas may have created bald eagle habitat that didn't exist previously.
In any case, the Endangered Species Act requires the federal government to designate areas critical to the survival of protected creatures and then to manage that habitat in such a way as to prevent the extinction of the listed species. For environmentalists, that makes an endangered, charismatic species like the bald eagle the key to protecting the state's remaining riparian areas. But it could also create conflicts with the many agencies and interest groups contending for a share of that scarce water.
As one example, Silver noted that Prescott and several other communities are in a struggle with the Salt River Project over whether groundwater pumping in the Verde Valley and the Upper Verde River could reduce flows in a stream that already nearly dries up in the summer. Payson has a ringside seat to that dispute in part because SRP currently pumps water from the Blue Ridge Reservoir and puts it into the East Verde River, where it flows down to join the politically troubled waters of the Lower Verde.
"We have a societal decision to make," said Silver, "concerning the survival of the Upper Verde -- which in round terms works out to seven or eight bald eagle nests. When Prescott dewaters the Upper Verde, the only law that's protecting habitat is the Endangered Species Act. If you remove protection for the desert bald eagles, then there is no law to protect the Upper Verde."
The decision as to whether the desert eagles qualify as a population that can be separately protected, turns on a few key points.
The desert bald eagles apparently return to their nesting territories each year and the young birds they produce also try to find nest sites in the desert. So far, biologists have discovered only one or two cases in which eagles born somewhere else ended up trying to nest in the desert.
The Fish and Wildlife Service has not yet come up with the money for a genetic study that would determine whether the desert eagles are genetically distinct from the rest of the bald eagle population.
"They've decided they don't want to spend the money on the genetics because they don't want to prove they're unique," suggested Silver. Preliminary studies have identified some genetic differences, but haven't linked those difference to specific genes, he said. Generally, the desert bald eagles are a little smaller and nest at somewhat different times of the year, but visually don't look any different from other bald eagles.
Moreover, other studies have suggested that once a population gets down to 50 breeding pairs, it remains in ongoing danger of extinction.
On the other hand, the desert bald eagles have been steadily increasing the number of nesting territories and the output of baby birds, which biologists take as an encouraging sign.
Some biologists argue that the bald eagles have already occupied most of the likely nesting territories along streams and lakes in which they can fish successfully. Others argue that the eagles keep testing new territories, as was illustrated by the recent report of a pair of eagles nesting at Woods Canyon Lake, east of Payson atop the Mogollon Rim.
Nest watchers have been posted to keep people away from the nesting area to protect the chicks.
Despite the slow, steady growth of the desert population, the eagles in Arizona still have a lower reproductive rate and higher mortality rate than eagles elsewhere. Advocates say the state's active nest watching program has saved 10 to 20 percent of the chicks born in an average year, by keeping people away from nest sites and by calling in biologists when a chick is in danger.
That nest watch program has been funded, in part, with federal money that may dry up if the desert bald eagles lose their status under the Endangered Species Act.
Silver said previous studies show the desert eagles meet the test of being a discrete population, given the lack of outside birds establishing nesting territories.
Silver said the desert eagles also meet the test of occupying a "significant" portion of the overall range of the species.
"I think that most bald eagle experts recognize that the southwest is a significant portion of the United States," said Silver.
The Fish and Wildlife Service will continue collecting evidence until July 7, before gathering up all the available information and once again trying to decide whether the desert bald eagles meet the scientific test for protection as a subspecies.
But for Silver and other advocates, the question is much more fundamental.
"We don't have a law called ‘the habitat protection act,' so this is all we've got. Society has to make a choice here. How many people would vote to let Prescott have unlimited access to water, no matter what the cost? Is the Upper Verde worth more to us as a society than letting Prescott grow way beyond its means?"