Sonoran bald eagle not listed (again)

 Posted by on April 20, 2012
Apr 202012

The Fish and Wildlife Service has declined again to list the bald eagle in Arizona as threatened or endangered. The service's news release is pasted below.

Contacts:  Steve Spangle, (602) 242-0210, Steve_Spangle@FWS.Gov,  Tom Buckley (505) 248-6455, Tom_Buckley@FWS.Gov, Jeff Humphrey (602) 242-0210, Jeff_Humphrey@FWS.Gov

Service Determines Bald Eagle in the Sonoran Desert Does Not Warrant Protection under List of Endangered and Threatened Species

The U.S. Fish and Wildlife Service today [Friday, April 20] announced the results of a revised 12-month finding on a petition to list the Sonoran Desert Area population of bald eagle (Haliaeetus leucocephalus) as threatened or endangered under the Endangered Species Act (ESA). After review of the scientific and commercial information used in its previous determination, the Service has found that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS) and listing the Sonoran Desert Area population of bald eagle is not warranted at this time.

Pursuant to a November 30, 2011, court order, the Service drafted a new 12-month finding on the petition to list the Sonoran Desert Area population of bald eagle as a DPS. The court ordered the Service to base this new 12-month finding on the information that was used to reach the February 25, 2010, 12-month finding that this population was not a listable entity under the ESA.

To determine if a DPS designation is appropriate, the Service has a three-step evaluation process. First, the Service determines whether a vertebrate population is discrete and, if the population is discrete, then determines whether the population is significant. If the population is determined to be both discrete and significant, then the DPS policy requires the Service to determine if the species would meet the requirements for endangered or threatened under the ESA.

The Service determined that the Sonoran Desert Area population of bald eagle does meet the discreteness criteria under DPS policy. However, the Service determined that this population does not meet the significance requirement. After reviewing the 2010 information, as required by the court, the Service found no direct or indirect evidence that would indicate persistence in the Sonoran Desert Area is biologically or ecologically important to the taxon as a whole. The Service also found that: (1) loss of the population would not result in a significant gap in the range; (2) the population does not represent the only surviving natural occurrence of the bald eagle; (3) and the population’s genetic characteristics do not differ markedly from those of other bald eagle populations.

The Service then went one step further to provide additional information about the Sonoran Desert Area population of bald eagle and conducted a threats assessment detailing the nature, scope, and likely effect of the threats to the population and the species to determine if the species would meet the listing requirements for endangered or threatened under the ESA, were it a listable entity. Based on the best available information, none of these poses a significant threat at a population level. If the Sonoran Desert Area population of the bald eagle were a listable entity, listing would not be warranted.

The Sonoran Desert Area population includes all bald eagle territories within Arizona, the Copper Basin breeding area in California near the Colorado River, and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert and adjacent transitional communities.

The Sonoran Desert population of bald eagles continues to be protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. This finding will not affect the status of the Sonoran Desert population of the bald eagle under State laws or suspend any other legal protections provided by State law.

This finding will be available on the Internet at at Docket Number FWS–R2–ES–2008–0059, and Supporting documentation used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Southwest Regional Office, 500 Gold Ave SW, Room 6034, Albuquerque, NM 87102. Please submit any new information, materials, comments, or questions concerning this finding to the above address.

The Endangered Species Act provides a critical safety net for America’s native fish, wildlife and plants. This landmark conservation law has prevented the extinction of hundreds of imperiled species across the nation and promoted the recovery of many others.

The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals, and commitment to public service. For more information on our work and the people who make it happen, visit Connect with our Facebook page at, follow our tweets at, watch our YouTube Channel at and download photos from our Flickr page at

More news from the Southwest...

Preliminary strategy for jaguar recovery is complete (press release, 4/19/2012)

Apr 162012

FWS has proposed new regulations that would extend from five to 30 years the duration of programmatic permits that allow the taking of bald or golden eagles.

In the proposal, published Friday, April 13, FWS said:

In February 2011, we published draft Eagle Conservation Plan Guidance that provided information on how to prepare Eagle Conservation Plans and apply for eagle take permits. Many commenters recommended that we extend the term of the permit, as we are proposing to do with this rule. Since publication of the 2009 final rule, we have reviewed applications from proponents of renewable energy projects, such as wind and solar power facilities, for programmatic permits to authorize eagle take that may result from both the construction and ongoing operations of renewable energy projects. During our review, it became evident that the 5-year term limit imposed by the 2009 regulations (see 50 CFR 22.26(h)) needed to be extended to better correspond to the timeframe of renewable energy projects. We propose to amend the regulations to provide for terms of up to 30 years for programmatic permits. The maximum permit tenure for standard Sec. 22.26 permits would remain at 5 years.

"Programmatic take" of eagles "is defined at 50 CFR 22.3 as 'take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified,' " the service noted.

The proposal was immediately attacked by the American Bird Conservancy, which said it would result in the deaths of more eagles from wind turbines. In a news release, ABC Wind Campaign Coordinator Kelly Fuller said, “It is simply irresponsible of [FWS] to propose granting 30-year take permits for birds such as eagles, which have populations that are still in a precarious state. Just three years ago, the FWS concluded in a published rulemaking that they shouldn’t grant permits for longer than five years 'because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle.' The underlying science has not changed, and there is no proven method for fixing a wind farm so that it no longer kills eagles, short of turning off the turbines."

The proposal's comment period ends May 14, but we wouldn't be surprised to see that extended.


US/Russia ice seal survey to begin as NMFS ponders peer reviews

The United States and Russia will conduct surveys for ice seals, the National Marine Fisheries Service has announced. In addition, the agency is asking for comments on peer reviews of the service's December 2010 proposal to list four subspecies of ringed seals and two distinct population segments (DPS) of bearded seals, including the Arctic ringed seal and the Beringia DPS of bearded seals, as threatened under the ESA.

NMFS "found substantial scientific disagreements in some peer and public comments received on the listing proposals, particularly relating to the sufficiency or accuracy of the model projections and analysis of future sea ice habitat for Arctic ringed seals and the Beringia DPS of bearded seals," the agency said in an April 5 press release.

Ice seal page (Go here for peer reviews)

AP story ("US, Russia to begin Bering Sea seal survey")

Nov 302011

The Fish and Wildlife Service's 12-month finding on bald eagles in Arizona was procedurally flawed, a federal judge ruled today.

Bald eagle (Photo by Mike Lockert, FWS)

(Editor's note: We initially reported that the judge found the delisting decision was "illegal," but it appears that for now, the eagle is still off the list in Arizona. As the judge said in his order, "Plaintiffs also ask the court to enjoin [FWS] from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand. Defendants [FWS] seek an opportunity to brief the propriety of injunctive relief before the court imposes such a remedy. The court will establish a short briefing schedule and resolve the issue of injunctive relief in the next several weeks.")

The judge directed the parties to submit briefs by Dec. 16 on the plaintiffs’ request that the court enjoin FWS "from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand."

A couple of quick excerpts from U.S. District Judge David G. Campbell's opinion:

"The Court will set aside the 12-month finding as an abuse of discretion and require FWS to complete a new 12-month finding. Because it does not appear that the status review process was procedurally flawed, the Court will not require FWS to start the process over again with notice and public comment. The Court instead will require FWS to complete a new 12-month finding based on information gathered and consultations completed during the status review conducted in response to Judge Murguia’s order. The Court expresses no view on the proper outcome of the new 12-month finding."

"This Court agrees that the 2007 delisting rule was not a valid status review for 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. See 16 U.S.C. § 1533(b)(3)(A), (B); 50 C.F.R. § 424.14(b)(3), 15(a) & (c). As a result, the 2007 delisting rule should not have become FWS’s de facto decision on the DPS issue, to be departed from only for compelling reasons. An invalid status review should not trump a valid status review. 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."

Desert bald eagle suit dismissed

 Posted by on October 1, 2010
Oct 012010

Editor's note: Arizona Republic coverage here This population of bald eagles lives in Arizona

A federal judge has dissolved an injunction that has kept bald eagles in Arizona on the threatened species list  (Center for Biological Diversity v. Salazar, 07-38-PHX-MHM, D. Ariz.).

U.S. District Judge Mary Murguia also dismissed a motion by plaintiffs to file a supplemental complaint challenging the Fish and Wildlife Service's 12-month finding, which concluded the eagle in Arizona was not a listable entity.

CBD's Robin Silver said CBD "will file a new lawsuit for a new injunction on Monday."

CBD and the Maricopa Audubon Society will still be before Murguia, however. The judge said she wasn't going to allow another jurist to take over any future litigation on the eagle.

Any new case filed by plaintiffs will be substantively similar to its challenge of the 90-day finding, involving similar parties, facts, science, law, and argument," Murguia said. "Because of the court['s] familiarity with the parties, facts, science, law, and argument, the goal of judicial economy would be served by ensuring that the undersigned presides over any future action brought by plaintiffs concerning the 12-month finding.

In other words -- CBD, bald eagle, FWS -- I've got you and I'm not letting you go.

CBD had challenged the Fish and Wildlife Service's negative 90-day finding on its petition to determine that the eagles that nest in Arizona are a listable entity that should be protected under the ESA.

Murguia initially ruled (see below for 2008 order) that the 90-day finding was arbitrary and capricious and told FWS to conduct a status review and issue a 12-month finding. Not unexpectedly, the 12-month finding (issued in February) also came back negative.

"The FWS has reached an outcome, it is just not the one for which plaintiffs had hoped," Murguia noted.

She said CBD had put too much stock in her initial order of two years ago:

In ordering injunctive relief, the Court’s primary concern was maintaining the status quo. Had the FWS properly issued a positive 90-day finding, it would not have been able to de-list the Desert bald eagle until it had conducted a status review and issued a 12-month finding. The FWS ability to de-list the eagle at that time, however, would not have been conditioned on judicial review of the 12-month finding. Thus, the Court made the statement that it was “not willing to risk the continued vitality of the Desert bald eagle pending the FWS’s lawful determination of whether listing the Desert eagle as a DPS is warranted,” (Doc. 53, p. 24), only to convey the importance of maintaining the status quo until such time as the status review and 12-month finding had been completed. In other words, the Court did not find it equitable that the Desert bald eagle should be subjected to possible harm pending the FWS completion of steps it should lawfully have taken before attempting to de-list the Desert bald eagle.
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