Tonto Tribe Helps Win Suit Forcing Bald Eagle Relisting

Judge blasts federal agency for ‘arbitrary and capricious' decision on desert birds

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A blistering judge's order requiring the U.S. Fish and Wildlife Service to put the Arizona bald eagle back on the Endangered Species List, also gave the Tonto Apache Tribe an unusual voice in wildlife protection.

The Tribe had joined with environmental groups to protest a federal decision to take the roughly 40 pairs of bald eagles that nest along Arizona riparian areas off the endangered species list along with the rest of the eagles in North America.

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Some 42 pairs of bald eagles nest in Arizona that fish along desert streams have regained protection under the Endangered Species Act as a result of a lawsuit filed in part by the Tonto Apache Tribe.

"There's a resident bald eagle that perches at Green Valley Lake sometimes," said Hubert Nanty, executive director of the Tribe's gaming office who pushed to get the several tribes involved in the lawsuit.

"It's very gratifying to see people just looking and watching and observing. It's just a reflection of beauty that belongs, as it perches there -- a natural reflection of nature itself. That was my personal ambition -- to make them visible to us, that they need our protection."

The tribe's involvement with the lawsuit helped establish the right of tribes to be more fully involved in wildlife management. Eagles remain sacred to many tribes. In the case of the Apache, feathers are considered living things -- and Apache men pass eagle feathers to their children in a ceremonial way, said Nanty.

In a ruling in mid-March, U.S. District Court Judge Mary Murguia called the Fish and Wildlife Service decision-making process "arbitrary and capricious" and ordered the agency to launch a nine-month study on whether the Arizona eagles qualified as a "distinct" sub-population. If so, the Sonoran Desert bald eagles could keep additional protection for key habitat and perhaps more federal funds for conservation and management.

Nationally, the several hundred bald eagles that survived the impact of the DDT-spurred thinning of their eggshells have grown to an estimated 10,000 in the past 30 years. In Arizona, the population of nesting desert eagles has tripled since the 1970s, to a peak of 44 nesting pairs.

In their lawsuit, The Audubon Society, the Centers for Biological Diversity, the Tonto Apache and others cited memos suggesting the agency had brushed aside the contrary views of some field biologists in deciding the desert eagles didn't qualify as a "distinct population."

The judge ordered the full study to determine whether the desert eagles will dwindle without extra protection and whether they fill a key "gap" in the overall range of the bald eagles. If the full study convinces the Fish and Wildlife Service to grant indefinite protection to the desert eagles, it will probably mean more federal money for management and a stronger legal basis for protecting "critical habitat," which includes many prime riparian areas in the state -- including Tonto Creek and Lake Roosevelt.

Environmentalists have hailed the order, noting that the order will make it easier to protect a host of desert species dependent on riparian areas. On the other hand, the order could complicate the efforts of towns like Prescott to obtain a water supply, since groundwater pumping upstream could reduce flows on the Verde River -- which supports a string of desert eagle nests.

However, FWS spokesman Jeff Humphrey said that the order will actually produce relatively little change in current management plans, because the state and federal agencies had already agreed to continue managing the eagles jointly. That includes support for a state nest watch program that has reduced mortality among chicks by 20 or 30 percent.

Arizona has distinct populations

Arizona has two distinct eagle populations -- the year-round nesting eagles and their offspring and a larger number of eagles that migrate through annually.

Humphrey said that the evidence suggests that the desert eagles, which are smaller, forage differently and nest sooner, don't join in with the migratory eagle populations -- which nest elsewhere. Nor have biologists recorded instances in which those migrating northern eagles have moved move into an empty nest territory.

Moreover, biologists don't know whether the roughly 40 to 50 nesting pairs of desert eagles have already saturated most of the prime nest sites, which must be in cliffs or atop large trees like cottonwoods close by a river or stream with riffles and pools in which the eagles can fish.

In addition, biologists haven't undertaken the expensive DNA studies that would show how much genetic difference has developed between the desert eagles and the rest of the North American population.

Humphrey said that the Fish and Wildlife Service really got in trouble mostly for trying to jump ahead as quickly as possible to the eventually likely conclusion of the delisting process.

The law requires the agency to first do a 90-day assessment based on existing information to determine if a full-fledged study is necessary. To qualify for protection as a sub-population, the desert eagles would have meet three criteria: they must form a "distinct" population; they must be "significant" or fill a "gap" in the range of the overall population; and they must be in danger of extinction without continued protection. Since the population of desert eagles has been increasing steadily, federal wildlife managers concluded they weren't any longer in danger or extinction and therefore the full study wouldn't likely affirm all three criteria.

However, the judge in the case largely agreed with the environmental groups and the tribes, who criticized a rush to judgment based more on orders from the regional and Washington offices than on the views of field biologists -- although the law says the agency cannot consider "political and economic" factors.

In fact, the judge concluded that the paperwork trail did show that the Fish and Wildlife Service biologists had repeatedly concluded that the desert eagles occupied a unique niche for eagles and that loss of the population would result in a significant gap in the eagle's range. Moreover, the desert eagle population remains small, vulnerable and subject to a much greater mortality rate.

Although the record did document differences of opinion between Wildlife Service biologists, that difference alone was reason to require a full study.

The court blasted the agency for a July 18, 2006, meeting involving the local, regional and Washington offices, during which the administrators essentially over ruled the views of some field biologists. In that meeting, regional administrator Sarah Quamme noted that the agency had its "marching orders." In addition, Doug Krofta, of the Washington D.C. office, agreed and said "we've been given an answer, now we need to find an analysis that works."

As a result, the court concluded that "these statements suggest that the FWQS drew an irrational connection between the facts and the choice made in the 90-day finding: they appear to exemplify an arbitrary and capricious agency...These facts cause the Court to have no confidence in the objectivity of the agency's decision-making process."

The judge's order also marked the first time that Arizona tribes gained a voice in wildlife management decisions off the reservation. Previously, the Fish and Wildlife Service mailed notices of its decisions to the tribes, but generally didn't fully consult with the tribes.

FWS spokesman Humphrey said the law still requires the agency to consider only scientific information in making the decision, but the agency will now seek information from the tribes.

"That's certainly a lesson we've learned. When we did start to hear from the tribes, we were hearing largely from their cultural resources department, not their natural resources department. We found we were communicating with perhaps the wrong group of people in each group."

For Nanty in Payson, the legal victory was a heartening sign of respect for the profound cultural importance of both bald and golden eagles to the Apache -- especially for a generation that's making a strong effort to rediscover and respect traditional ways.

"To Apaches, the feather of an eagle is very important. It never dies. It is always living. It is perpetuating from generation to generation -- passed on. The specific belief is that we don't carry feathers just for ordinary purposes, but that it means something to our family."

He said that many Apache men pass a feather along to their children in a ceremonial way. "Where ever the place of passing would be, is done in the morning and in the evening in a very, very surreal and special moment. The sense of responsibility to care for the feather -- it goes from generation to generation."

He welcomed the new level of cooperation spurred by the lawsuit.

"Never once had this tribe received a letter from Fish and Wildlife asking us to attend a one-day session in which we can talk about the bald eagle -- the significance and so forth. They've never asked that. But now they are required to by law and this judge ordered them to abide by her decision that there be a consultation process," said Nanty.

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