By Tim Hull
(CN) – The desert-nesting bald eagle does not have threatened-species protection because wildlife officials ignored federal law and may have let policy issues cloud their judgment, a federal judge ruled in Arizona, ordering the federal agency to take a new look at a “result-driven” finding on the Sonoran Desert-dwelling raptor.
Biologists say there are less than 50 nesting pairs of desert bald eagles in Arizona, where they tend to live along the arid state’s few rivers and streams.
The Center for Biological Diversity and the Maricopa Audubon Society have argued since 2004 that the species deserves protection under the Endangered Species Act as a “distinct population segment” of the bald eagle, which the U.S. Fish and Wildlife Service (FWS) famously removed from the threatened-species list in
2007 and touts as one its greatest successes.
In two lawsuits, the environmental groups claimed that the service has failed to properly study whether the desert subspecies should be listed separately and has ignored overwhelming evidence from scientists that the dryland bird is significantly different from bald eagles in other habitats.
U.S. District Judge David Campbell recently set aside the agency’s “12-month finding” on the species and ordered it to complete a new study by April 2012. The service’s finding that the desert bald eagle is a discrete species but insignificant to the bald eagle population as a whole was marred by preconceived notions and had simply aped the previous decision to delist all bald eagles, Campbell said.
“It appears that the 2007 de-listing decision was made … in an environment in which Washington’s ‘policy call’ resulted in ‘marching orders’ for FWS scientists in Arizona,” the Nov. 30 decision states. “Needless to say, a result-driven decision should not become the presumptive baseline for a subsequent and properly-noticed status review, to be departed from only for compelling reasons.”
Between 2008 and 2009, Fish and Wildlife scientists in Arizona produced 10 drafts of the 12-month finding, all of them concluding that the desert eagle was discrete, significant and deserving of protection, according to the ruling.
Nonetheless, the service’s assistant director for endangered species, Gary Frazer, decided in 2009 that the desert eagle did not qualify for distinct population segment status, based on his review of the 2007 delisting rule for all bald eagles. The resulting 12-month finding “incorporated much of the de-listing rule verbatim,” according to the ruling.
Judge Campbell agreed with environmentalists that the 2007 delisting rule for bald eagles “was not a valid status review for the desert eagle” and “was made at a time when FWS simply was not open to new information about the desert eagle.”
“FWS did not comply with the notice, comment, and consultation requirements established by statute and regulations for a status review and 12-month finding,” he wrote.
“An invalid status review should not trump a valid status review,” Campbell added. “Findings reached without appropriate notice, comment, and consultation should not become an agency’s presumptive decision. Such a procedure flies in the face of the notice, comment, and consultations requirements of the law.”
The plaintiffs’ co-counsel, Dan Rohlf, with the Pacific Environmental Advocacy Center at Lewis & Clark Law School in Portland, Ore., told Courthouse News that the agency has fought for so long against protecting the desert bald eagle because of a fear that listing the Arizona bird would somehow dull the public-relations sheen of the bald eagle’s delisting everywhere else.
“My suspicion is that the agency doesn’t want what it likes to hold up as an example of the endangered species act’s success to come with an asterisk,” he said. “Washington, D.C., is a place where politics often times come into play, but listing decisions have to be based solely on science. In this case the science is pretty clear that the population of eagles is both discrete and significant.”
A Fish and Wildlife spokesman in Phoenix said that the agency was still reviewing the ruling and could not comment.
In an earlier lawsuit, the Center for Biological Diversity challenged the service’s refusal to study whether the desert bald eagle qualified as a distinct population in the run-up to the highly publicized delisting of all bald eagles.
Siding with the environmental groups in that case, U.S District Judge Mary Murguia said she had “no confidence in the objectivity of the agency’s decision making process’ due, in part, to evidence in the record that FWS officials in Washington, D.C. had given ‘marching orders’ to local FWS personnel that the petition was