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Environmental Law

: ESA Blawg

Desert bald eagles "relisted" as threatened by U.S. District Court Judge in Arizona

By Keith Rizzardi

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Center for Biological Diversity v. Kempthorne, 2008 U.S. Dist. LEXIS 17517, No. CV 07-0038-PHX-MHM (D.Az., Mar. 5, 2008)

BACKGROUND: In 2004, CBD submitted a petition to list a desert population of bald eagles as a “distinct population segment.” In 2006, based on a 90-day review of the petition, FWS rejected the CBD petition, finding that the petition did not provide information to demonstrate that a DPS may be warranted. See 71 Fed. Reg. 51549 (Aug. 30, 2006). Later, in 2007, FWS delisted the bald eagle in all contiguous 48 states, and noted in the analysis that it superceded all other analyses, including the review of the CBD desert DPS petition. 72 Fed. Reg. 37,346 (July 9, 2007).

EXCERPT OF RULING: The FWS's Negative 90-Day Finding Was Arbitrary and Capricious... The only question before the FWS when it conducts a 90-day review is whether the petitioned action may be warranted, not whether it is warranted... In this case, not only does the administrative reflect that Plaintiffs' petition appears to present substantial information that the petitioned action may be warranted, FWS scientists found that there was no information in the FWS's files to refute the information in the petition, and the FWS published a negative 90-day finding after the July 18, 2006 conference call established that there was disagreement among FWS scientists as to whether listing the Desert bald eagle as a DPS was ultimately warranted. Moreover, 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. Accordingly, the Court finds that the FWS's decision to ignore the reasonable disagreements among its scientists at the initial 90-day stage and not issue a positive 90-day find-ing and proceed with a status review to determine whether the petitioned action was in fact warranted, violates the ESA and is arbitrary and capricious under the APA.

Bald eagle photo by FWS / Mike Lockhart

COMMENTARY: The Court’s remedy in this case was remarkable. Not only did it order that FWS must review the CBD petition – again – but it also essentially RELISTED the bald eagle desert populations, by enjoining the delisting of the species as applied to the desert populations. However, the Court was quite open and upfront with its explanation for the extraordinary remedy, finding that this was one of the rare circumstances warranting such judicial action.

During the summary judgment motions, FWS also argued that the case was moot because the delisting of the bald eagle resolved all the DPS issues. The court strongly disagreed:

This Court cannot accept the proposition that after explicitly stating that it need not re-examine the DPS status of any particular population segment of the bald eagle, the FWS actually "addresse[d] the same issues that the [FWS] would have considered as part of a 12-month finding had the [FWS] made a positive 90-day finding on the petition." 72 Fed. Reg. at 37,347. The mere fact that a handful of interested parties submitted information concerning the Desert bald eagles' DPS status during the comment period for the FWS's delisting proposal is not the equivalent of publishing a positive 90-day finding in the Federal Register on the specific issue of the Desert eagle's DPS status and then soliciting comment from various federal and state agencies, Tribes, and other interested parties on the particular issue of whether listing the Desert bald eagle as a DPS is warranted.

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