The groups challenged the Service's 2006 rejection of their October 6, 2004 petition to increase protection for the eagle and its habitat and challenged the agency's nationwide effort to remove Endangered Species Act protection from all bald eagles.
On March 5, Federal District Judge Mary Murguia reversed the Service's 2006 decision, calling it "arbitrary and capricious, and contrary to law." She reinstated Endangered Species Act protection for the eagle and its habitat in Arizona and ordered the Fish and Wildlife Service to complete a reevaluation of its 2006 decision within nine months.
Only about 50 breeding pairs of desert nesting bald eagles survive. The groups assert that they are "reproductively, geographically, biologically, and behaviorally distinct from all other bald eagle populations" and occupy uniquely hot and dry habitat.
Unique populations and their habitat qualify for Endangered Species Act protection with a designation as a distinct population segment, DPS.
On October 6, 2004, the Center and Maricopa filed a petition requesting increased protection for the bald eagle in Arizona. The petition was based on evidence of increasing threats to habitat and presentation of data from a previously suppressed Arizona Game and Fish Department study demonstrating likely extinction of nesting bald eagles from Arizona within the next 57 and 82 years.
Increasing habitat threats represent the gravest risk to nesting eagles in Arizona mostly because of increasing groundwater pumping drying up streamside nesting habitat, the groups say. The Endangered Species Act is the only law that protects the habitat of imperiled wildlife.
On August 30, 2006, the Fish and Wildlife Service rejected the groups' petition.
Desert nesting bald eagle in Arizona (Photo by George Andrejko courtesy Arizona Game and Fish Department)
On January 4, 2007, the Center and Maricopa Audubon filed a lawsuit in federal court challenging the rejection of their petition. The Service responded on July 9, 2007 with nationwide removal of Endangered Species Act protection for bald eagles, including the desert nesting bald eagle in Arizona.
In her ruling, Judge Murguia quoted several Fish and Wildlife Service, FWS, officials who participated in a telephone conference call on July 18, 2006.
"During that call," the judge wrote, "although Sarah Quamme, of the FWS's Regional Office, stated that there was "no info[rmation] to refute [Plaintiffs' petition] at [the] 90 day stage," FWS biologist Chris Nolan asserted that whether or not a population qualifies as a DPS is "largely a policy call."
Nolan informed the participants on that telephone conference that Ben Tuggle, FWS southwest regional director and Ren Loenhoffer, FWS associate director in the Washington, D.C. Office "have reached a policy call and we need to support [it]."
Quamme then said that "the answer has to be that it's not a DPS" ... we "have marching orders."
Doug Krofta, of the Washington, DC office, who was on the conference call said, "We've been given an answer, now we need to find an analysis that works." He said, "Need to fit argument in as defensible a fashion as we can."
Judge Murguia concluded, "These statements suggest that the FWS drew an irrational connection between the facts found and the choice made in the 90-day finding; they appear to exemplify an arbitrary and capricious agency action."
She wrote, "…it appears that FWS participants in the July 18, 2006 conference call received 'marching orders' and were directed to find an analysis that fit with a negative 90-day finding on the DPS status of the desert bald eagle. These facts cause the Court to have no confidence in the objectivity of the agency's decision making process in its August 30, 2006 90-day finding."
Dr. Robin Silver, founder and board member of the Center for Biological Diversity and vice president of Maricopa Audubon, said, "Bush administration officials removed bald eagle habitat protection to benefit their developer friends who seek to divert stream flow critical for eagles."
"This court victory has given Arizona's desert nesting bald eagle a stay of execution," he said. "We now have additional time to make protection for our bald eagle and its habitat permanent."
The San Carlos Apache Tribe, Yavapai-Apache Nation, Tonto Apache Tribe, Fort McDowell Yavapai Nation, and Salt River Pima-Maricopa Indian Community all joined the lawsuit to help protect the desert nesting bald eagle.
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