Desert Eagle Wrangle
Environmentalists are clashing with the U.S. government over the status of Arizona bald eagles like this one soaring over Lake Pleasant.

A Southwest environmental group might seek an injunction to block the recently announced removal of the bald eagle from the endangered species list.
It won’t be hard to find a judge. The Center for Biological Diversity is already in court over the U.S. Fish and Wildlife Service’s earlier refusal to exempt Arizona’s desert-nesting bald eagle from the delisting.
Nationwide, the bald eagle has made a dramatic recovery. Noting this, Fish and Wildlife published a final rule in the July 9 Federal Register to remove bald-eagle protection under the Endangered Species Act. The rule takes effect 30 days from that date.
That is, unless plaintiffs in the case convince a federal judge to block its enforcement.
“The desert-nesting bald eagle has no habitat protection, and we can’t allow that to stand,” said Robin Silver, the center’s board chairman and a Phoenix-area emergency-room doctor.
The center and a co-plaintiff — the Maricopa Audubon Society — could challenge the rule narrowly or broadly, Silver said.
“Whether we try to go in and seek an injunction against the entire rule and the delisting nationwide or whether we’re able to focus on the desert-nesting eagle alone is still to be decided,” Silver said.
The center and the Audubon Society sued Fish and Wildlife in January over the agency’s finding that the desert-nesting eagles do not merit special consideration. The case is pending before U.S. District Court Judge Mary Murguia in Phoenix.
The plaintiffs argue that Arizona’s eagles should be treated differently from the rest of the U.S. bald eagle population. That difference, they add, warrants continued endangered-species protection for Arizona eagles, even as it’s removed for eagles nationwide.
Overall, the bald eagle has made a big comeback. There are now nearly 10,000 breeding pairs in the lower 48 states — up from fewer than 500 in 1963, according to U.S. Fish and Wildlife.
Arizona has 43 breeding pairs
Arizona has an estimated 43 breeding pairs. That’s more than a threefold increase from the 1970s, according to Arizona Game and Fish.
The Center for Biological Diversity, however, says that’s still a small figure. And eagle habitat — streams and lakes through the upper and lower Sonoran Desert — remains fragile. In addition, Arizona bald eagles have become biologically adapted to a desert environment, the center says.
The center and the Audubon Society first petitioned Fish and Wildlife in October 2004 to exempt Arizona’s bald eagle from the proposed delisting. In addition, the petition asked the agency to reclassify the bald eagle from threatened to more serious endangered status. Last August, the agency issued a finding denying the petition.
It’s called a 90-day finding because that’s the time the agency has to respond, though that’s rarely met because of a backlog, said Jeff Humphrey, spokesman for the Arizona branch of U.S. Fish and Wildlife.
The final rule in the Federal Register says that while bald eagles do represent a “discrete” population, it isn’t significant, when looking at the big picture.
Arizona’s eagle population, the rule said, “represents less than 1 percent of the current estimated number of breeding pairs of bald eagles in the lower 48 states.”
It concluded that the desert bald eagle is not biologically all that different from the national population and is “not a listable entity…”
Dan Rohlf, an attorney for the center, said the rule all but writes off Arizona’s bald eagles. In short, there are plenty of eagles elsewhere.
“What this decision finds is that even if bald eagles in Arizona become extinct, then that is not a problem under the Endangered Species Act,” said Rohlf with the Pacific Environmental Advocacy Center in Portland, Ore.
Silver said Fish and Wildlife has not proved its case scientifically, as required by the Endangered Species Act. The decision, he said, reflected the Bush administration’s hostility toward the environment.
But Humphrey said the rule was a matter of policy, not politics. He added that delisting does not put Arizona’s bald-eagle population at risk.
“Arguably, the bald eagles are managed more intensely here than they are anywhere else in the United States,” he said.
Statewide programs to remain in place
Officials at Arizona Game and Fish agree.
Statewide programs to protect and monitor nesting eagles will remain in place, said Eric Gardner, non-game branch chief for Arizona Game and Fish.
“For us, bald-eagle management is going to be business as usual, post-delisting,” Gardner said.
This includes on-site nest watchers and nest-area closures during nesting season, as well as banding and other monitoring efforts, he said. Eagles will also be protected federally through the long-standing Bald and Golden Eagle Protection Act.
But Silver said that’s not enough.
“It doesn’t protect habitat. It still doesn’t protect habitat,” Silver said.
Humphrey and Gardner point to a new and stronger rule on what it means to disturb eagles under the eagle protection act. Among other things, the rule prohibits human activity that interferes with an eagle’s nesting, breeding or feeding.
Humphrey, however, conceded it would not protect the prey base — the fish that eagles feed on.
The Federal Register entry followed a June 28 Washington, D.C., news conference in which Interior Secretary Dirk Kempthorne announced the delisting. No mention was made of the battle of over Arizona’s nesting population.
Governor weighs in
Gov. Janet Napolitano had already weighed into fray with a letter to Kempthorne dated June 26. She said the bald eagle plays “a significant role in the cultural life ways and belief systems of the members of the Arizona Tribes.” Tribal leaders, she added, want to keep endangered-species protection for Arizona’s bald eagles.
She asked Kempthorne to do more to consult tribal leaders before delisting the desert-nesting bald eagles.
In court, Judge Murguia has ordered parties to submit final briefs by the end of August.
But the entry in the Federal Register suggested the center and the Audubon Society might no longer have a case. It said that any “controversy” over the earlier 90-day finding is moot.
“That’s what the agency is arguing,” Rohlf said. “Whether or not that’s the case, whether or not we’ll agree that’s the case, I think is a question we’re analyzing.”
Humphrey said that while the final rule replaces the earlier finding, the conclusions are the same. The desert eagle gets delisted.