A federal court judge has once again extended the legal battle over whether to restore endangered species protection to Arizona bald eagles.
The Centers for Biological Diversity has filed a legal action insisting that the U.S. Fish and Wildlife Service committed scientific misconduct in using an outdated, early draft of a computer modeling study showing little danger that the population of desert nesting bald eagles might die off.
Later, updated versions of the modeling program showed a moderate or even high danger of extinction if the Verde River ever goes dry — since many of the 68 nesting pairs of Arizona eagles live along the Verde River.
Currently, several studies show the Verde River could go wholly or partially dry eventually, due to groundwater pumping to sustain the projected growth of Prescott and the Verde Valley. The Salt River Project is locked in a legal battle to prevent additional groundwater pumping by Prescott, since the Verde River flows into its reservoirs near Phoenix.
The latest court order came in response to a request from the Centers for Biological Diversity to hold off on its latest challenge of the U.S. Fish and Wildlife’s insistence the desert-nesting bald eagle doesn’t need continued protection, now that the eagles have recovered nationally. The U.S. Fish and Wildlife Service almost four years ago removed bald eagles from the endangered species list nationally. However, the Centers for Biological Diversity and the Maricopa Audubon Society and the San Carlos Apache Tribe have all fought tenaciously to maintain protections for the Arizona eagles. The Endangered Species Act allows for protection of a subpopulation that fills a critical gap in a species range.
The opponents have twice blocked the U.S. Fish and Wildlife Service effort to drop protections for the Arizona eagles. In both cases, federal court judges ruled that the federal government had ignored its own rules and acted in an “arbitrary and capricious” manner. The court record included several memos and e-mails that showed officials in the regional and national office had overruled the findings and recommendations of the field biologists who had studied the eagles.
Each time it lost in court, the U.S. Fish and Wildlife Service (USFWS) simply repeated the process and came to the same conclusion, generally filling out the paperwork differently, but relying on the same studies and estimates. The agency repeatedly determined the desert-nesting eagles couldn’t be considered a significant, endangered subpopulation that occupied an important gap in the species overall range.
The Arizona eagles are smaller, nest earlier and are more likely to build nests in cliff faces than eagles elsewhere. Their population has been expanding steadily in the past 30 years, although much more slowly than bald eagles nationally. The young eagles born in Arizona generally wander widely for their first four or five years before returning to Arizona and looking for a nesting territory — usually not far from where they were born. The Verde River formed the original core and as the young eagles have returned, they’ve set up nesting territories at regular intervals all along the Verde and Salt rivers and along Tonto Creek. Some have also settled in along the shores of lakes and reservoirs, returning year after year to raise their young.
The latest allegation of scientific misconduct involves a 2009 study by USFWS researcher Brian Millsap, who developed a computer projection that gave the odds the desert-nesting eagles might die out under different circumstances.
Initially, Millsap’s projections showed little danger of a localized extinction. The U.S. Fish and Wildlife Service repeatedly cited that early, unpublished draft estimate in rejecting the claims that despite steady population growth, the threat of a localized extinction remained.
However, Millsap continued to refine his computer model in 2010 and 2011, according to the Centers for Biological Diversity filings, based on e-mails and memos obtained from the agency.
Eventually, Millsap ran a projection based on the assumption the Verde River might go dry — at least along a portion of its course. That assumption produced a “high probability of extinction over a 100-year interval” according to a subsequent draft of his study, quoted in court documents.
However, the USFWS did not include this updated draft in subsequent court filings. That omission of the revised projections of the never published study constituted scientific misconduct and a violation of the USFWS rules as well as federal law, insisted the Centers for Biological Diversity.
The Centers cited a pattern of omissions in the legal record of the USFWS decision-making. In addition, the Centers included e-mails and memos from higher-ups in the national and regional office of USFWS that made field researchers rewrite or revise reports to ensure their recommendations supported the agency’s insistence the desert-nesting eagles were neither a unique subpopulation deserving of separate protection or in any danger of extinction.
The Centers’ lawyer therefore asked Federal Court Judge David Campbell to hold off ruling on the latest legal challenge until the USFWS can complete an internal investigation into the alleged misconduct.
On Dec. 19, Judge Campbell granted that request.