The U.S. Fish and Wildlife Service “abused its discretion” when it concluded desert bald eagles no longer need protection under the endangered species act, U.S. District Court Judge David Campbell has concluded.
Therefore, the federal judge ordered the agency to undertake a new, 12-month study to determine whether the roughly 50 nesting pairs of bald eagles in Arizona need continued protection, even if bald eagles nationally have fully recovered.
The decision represents yet another sharp rejection of the Fish and Wildlife’s procedures, in which officials in Washington, D.C. repeatedly overruled the recommendations of biologists on the scene.
The judge concluded that the Fish and Wildlife Service’s action was not “founded on a rational connection between the facts found and the choices made.”
Therefore, the agency must start over and carefully consider studies showing that the desert bald eagles have differences in genetics, behavior and mating behavior that make them a vulnerable, distinct and significant population.
One pair of breeding bald eagles has become a major tourist attraction on Bear Canyon Lake and other pairs nest in giant cottonwoods along Tonto Creek.
Biologists say the offspring of those successful pairs may soon colonize other Rim Country streams and lakes.
The ruling represented the latest victory for the Southwest Center for Biological Diversity, which has been struggling since 2007 to compel the federal government to continue to protect the habitat of desert bald eagles even after it takes the bald eagle off the endangered species list nationally.
Judge Campbell ruled that the Fish and Wildlife Service had not followed its own procedures in its most recent decision to remove the Arizona eagles from the list, but made it clear he wasn’t actually ruling on whether the desert eagles deserved continued protection.
Moreover, the judge essentially dismissed complaints by the San Carlos Apache Tribe and the Salt River Tribe that the wildlife service hadn’t adequately consulted with them on their request to provide Arizona eagles with continued protection.
The tribes complained the Wildlife Service had refused to meet individually with the tribal councils and hadn’t let them meet at all with the Washington, D.C. officials who actually made the decision.
Although the judge said the Wildlife Service’s claim it had fully consulted with the tribes “rings hollow,” he nonetheless concluded the agency had met the minimum requirements of the law.
U.S. Fish and Wildlife Service officials this week declined comment on the judge’s order, saying they had to review their options.
Center for Biological Diversity founder Robin Silver said he hopes the Fish and Wildlife Service will finally accept the repeated recommendations of its own biologists.
He said he hopes the government “will listen to the consensus of bald eagle experts and will allow protection to be reinstated for our bald eagle.”
The legal issue turns on whether the 50 or so nesting pairs of Arizona eagles qualify for continued protection of their habitat, despite the recovery of bald eagles nationally.
Other federal laws still make it illegal to kill or harass bald or golden eagles, but provide no legal protection for the habitat on which they rely.
Nationally, the recovery of bald eagles represents a striking success for the Endangered Species Act. The effects of the pesticide DDT caused the bald eagle population to crash by causing a fatal thinning in their eggshells.
The population nationally bottomed out at 487 breeding pairs in 1963, but has since ballooned to nearly 10,000 breeding pairs. That prompted the Wildlife Service to remove bald eagles from the endangered species list in 2007.
However, biologists and conservationists argued that the desert eagles qualified for additional protection as a still-threatened population.
The Endangered Species Act allows for protection for a subpopulation that has distinctive genetics, behavior or breeding habits — providing they’re endangered and fill a significant gap in the range of the species overall.
Federal biologists and many independent researchers did studies concluding that the Arizona eagles should qualify as a “discrete” species filling a significant gap in the overall range of the eagles.
Moreover, the Tonto Apache Tribe and others said the Arizona eagles have great spiritual and cultural significance and so merited special protection.
Back in 2007, the U.S. Fish and Wildlife Service first issued a preliminary finding saying that the survival of the Arizona eagles wasn’t important to the overall future of the species. It then declined to do a full-fledged study on whether the Arizona eagles were still threatened, saying the delisting of the eagles nationally made the question “moot.”
A U.S. Fish and Wildlife Service official in Washington made that decision, overruling field biologists and the recommendation of local and regional wildlife service officials.
Federal Court Judge Mary Murguia overturned that decision in 2009, calling it “arbitrary and capricious.” She ordered Fish and Wildlife to do a full, 12-month study.
The Wildlife Service completed that study in February and once more recommended delisting the Arizona eagles. Judge Murguia ruled that this time the Fish and Wildlife Service had followed its procedures properly.
The Center for Biological Diversity and the tribes filed a new action, this time attacking the latest, full study.
Now, yet another judge has upheld that lawsuit. Judge Campbell cited memos showing that Fish and Wildlife Service’s Gary Frazer had based his decision largely on that earlier 2007 determination without considering in any detail the nearly unanimous recommendations of field biologists and independent researchers.
Those studies agree that the desert eagles have distinctive features and have adapted to unique conditions on desert rivers.
Although the ranks of the Arizona eagles have been growing steadily, studies suggest that such small populations face a constant risk of extinction due to things like drought and changes in the rivers and streams on which they depend.
The U.S. Fish and Wildlife Service will now have to do another 12-month study, this time presumably directly addressing the questions raised by biologists.