Earlier this month, while bald eagle chicks were testing their wings in the Arizona desert, the fight to protect them took an ugly turn. Environmentalists accused government bureaucrats of suppressing science to avoid protecting the Arizona bald eagle as a separate population under the Endangered Species Act, but officials say they were following the law. The controversy is putting a damper on the Fish and Wildlife Service’s excitement over its upcoming decision to remove the bald eagle from the threatened species list. The agency says the delisting celebrates the species’ recovery — from 400 breeding pairs nationwide in 1963 to nearly 10,000 pairs today.
But with only 43 pairs, Arizona’s eagles aren’t a success story, says Robin Silver, chairman of the Center for Biological Diversity. “No other population of bald eagle on Earth nests in the arid desert,” he says, and that unique ecological setting, combined with its reproductive isolation, make the Arizona population significant to the species. In October 2004, the center petitioned the Fish and Wildlife Service to list the Arizona eagles as a separate, endangered population.
Last August, the Service issued a 90-day finding that the petition didn’t warrant the more detailed 12-month review that could lead to a listing. The Center for Biodiversity filed suit in January to overturn that decision. Now, in documents obtained through the Freedom of Information Act, the center says it has proof that high-ranking bureaucrats in the Department of Interior told Fish and Wildlife biologists to manipulate science. The biologists, the center says, were forced to support a predetermined decision not to list the Arizona eagles as a separate population. The center has sent the documents to the Justice Department and requested an investigation.
The dispute hinges on the level of analysis required for a 90-day decision, as opposed to a 12-month finding, says Jeff Humphrey, a spokesman for the Arizona office of the Fish and Wildlife Service. Under what’s known as the “four corners rule,” for a 90-day finding officials only have to consider information provided in the “four corners” of a petition. If the 90-day review finds that the petition itself contains enough evidence to warrant a 12-month analysis, then the agency may look at supporting data from its own files.
The four corners rule has been agency policy since before the current administration, says Sean Skaggs, an endangered species lawyer who worked for the Interior Department for 10 years and now practices at Ebbin Moser + Skaggs in San Diego. So when a service biologist’s notes from a conference call about the petition say “Can use info from files that refutes petition but not anything that supports,” it’s not the smoking gun proving bureaucratic interference that the center claims it is. Rather than a political conspiracy, to Skaggs the documents show serious scientists grappling with complex biological and legal issues.
Even so, the decision not to protect the eagles may not stand up in court, because a February 2006 analysis by biologists at the agency’s Arizona office indicates that the petition did contain “significant information” that would warrant a 12-month review. Officials will have to show a good written record of their reasons for departing from that analysis. If they can’t, “the court’s likely to find that they were arbitrary and capricious” when they decided to reject the petition, Skaggs says.
If the eagles are delisted, they will be managed under the Bald and Golden Eagle Protection Act. Although that law safeguards individual nests, it won’t preserve the broad swaths of habitat required under the Endangered Species Act, which protects three-quarters of the bald eagle breeding territories in Arizona. The best of these lie along the Salt and Verde Rivers, which are under stress from the region’s burgeoning growth. Silver calls the Arizona bald eagle “the bellwether species that protects our major riparian areas.”
The FWS will issue its decision on the nationwide delisting by June 29.
U.S. Fish and Wildlife Service Bald Eagle Document Library (to access, click here:
Center for Biological Diversity Desert Nesting Bald Eagle Site