Issues & Action

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PHOENIX—Conservationists and American Indians filed a court request Wednesday requesting an extension of a deadline for protecting Arizona’s desert nesting bald eagle to allow Arizona’s Indian nations, communities, and tribes time to demonstrate that the eagle’s historical range is more extensive than acknowledged by the U.S. Fish and Wildlife Service.

The Service’s removal of the eagle’s Endangered Species Act protections was reversed in March by U.S. District Court Judge Mary Murguia. The judge ordered the Service to immediately reinstate protections and provide a new evaluation and decision by December 5th. Wednesday’s motion, which seeks to extend the decision to October 12th, 2009, enjoys support from Arizona Governor Janet Napolitano and the Fort McDowell Yavapai Nation, and is unopposed by the Fish and Wildlife Service.

“The desert nesting bald eagle population is highly threatened and entirely distinct from other bald eagle populations. No recognized bald eagle expert disagrees,” said Dr. Robin Silver, co-founder and board member of the Center for Biological Diversity and vice president of Maricopa Audubon. “Today’s request affords Indian people time to establish the population’s significant historical presence — before we lost 90 percent of the riparian areas it depends on.”

To date, support for Endangered Species Act protection for Arizona’s desert nesting bald eagle has been filed by the following organizations and desert nesting bald eagle experts (click here to see the letters): The Raptor Research Foundation, Arizona Audubon, Center for Biological Diversity, Richard Glinski, Robert Magill, Steve Hoffman, Ron Horejsi, E. Linwood Smith, Robert Ohmart, R. William Mannan, Robert Steidl, Clayton White, William Mader, John Gunn, and Rich Erman.

The Arizona Game and Fish Department has also rejected the Fish and Wildlife Service’s refusal to recognize the population’s designation as a “distinct population segment.”

Wednesday’s motion was filed by the Center for Biological Diversity, Maricopa Audubon, the Intertribal Council of Arizona, and the Salt River Pima-Maricopa Indian Community. Attorneys Dan Rohlf of Lewis & Clark Law School Pacific Environmental Advocacy Center, Justin Augustine of the Center for Biological Diversity, and Howard Shanker of Flagstaff represent the Center and Maricopa Audubon in this case.

Background
Only about 60 breeding pairs of desert nesting bald eagles survive. 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.”

Increasing habitat threats represent the gravest risk to nesting eagles in Arizona, mostly because of increasing groundwater pumping drying up streamside nesting habitat. The Endangered Species Act is the only law that protects the habitat of imperiled wildlife.

On October 6, 2004, the Center and Maricopa Audubon 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 suppressed Arizona Game and Fish Department study that demonstrated likely extinction of nesting bald eagles from Arizona in 57 to 82 years. Future extinction is likely in spite of recent population gains, due to high mortalities of juveniles and adults.

On August 30, 2006, the Fish and Wildlife Service rejected the petition by the Center and Maricopa Audubon, and on July 9, 2007, it removed Endangered Species Act protection from all bald eagles nationwide. On January 4, 2007, the Center and Maricopa Audubon filed a lawsuit in federal court challenging the rejection of the petition and inclusion of Arizona’s desert nesting bald eagle in the nationwide removal of Endangered Species Protection. 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.

On March 5, 2008, Murguia reversed the Service’s 2006 petition rejection, calling it “arbitrary and capricious, and contrary to law.” She also reinstated Endangered Species Act protection for the eagle and its habitat in Arizona and ordered the Fish and Wildlife Service to complete a re-evaluation of its 2006 decision within nine months, by December 5th.

Letters:

Federal Register notice of status review for desert nesting bald eagles

2008 Desert nesting Bald Eagle Population Viability Analysis by Center for Biological Diversity

Arizona Game and Fish Department status review comments

Hualapai Indian Nation status review comments

Raptor Research Foundation status review comments

Audubon Arizona status review comments

Steve Hoffman (Audubon Montana) status review comments

Professor Clayton White status review comments

Professors Bill Mannan and Steidl status review comments

Linwood Smith, PhD. status review comments

Rich Glinski (editor Raptors of Arizona) status review comments

Ron Horejsi (Desert Bald Eagle Recovery Team Member, retired) status review comments

Tim Tibbitts (former USFWS raptor biologist) status review comments

Lower San Pedro River Important Bird Area

For Immediate Release, June 4, 2008

Contact:	Dr. Robin Silver, Center for Biological Diversity (602) 246-4170
	Herb Fibel, Maricopa Audubon (480) 966-5246
	Dr. Paul Green, Tucson Audubon (520) 777-9525

PHOENIX, AZ—The Center for Biological Diversity, Maricopa Audubon Society, and Tucson Audubon Society filed a lawsuit today against Pinal County to stop the county’s ongoing ecological damage to the Bureau of Land Management’s lower San Pedro River conservation easement southeast of Phoenix. The suit seeks to revoke the county’s eminent domain seizure of federal property, to limit entry of damaging off-road vehicle traffic, and to stop the county’s dredge-and-fill operations in the river. The suit was filed in U.S. District Court in Phoenix.

The lawsuit results from Pinal County’s January 31, 2008 seizure of a local ranching family’s private property, which is restricted by a Bureau of Land Management conservation easement. In 1996, the family had sold the conservation easement on its property to protect its rare year-round stream and habitat from cattle grazing and off-road vehicles. The conservation easement restricts motorized access to emergency and administrative use only.

The county used eminent domain seizure to create an unrestricted passageway across the San Pedro River through the conservation area. It did so in local county court proceedings, claiming an “emergency” need to create an unrestricted San Pedro River passageway and testifying that they did not “believe BLM will raise any objection to the condemnation proceeding.”

Only no emergency existed, and the Bureau of Land Management objects.

The conservation easement is federal property. Seizure of federal property by the county violates the U.S. Constitution’s Supremacy Clause, prohibiting seizure of federal property without federal permission.

The Bureau of Land Management did not approve the county’s seizure; its signs in the conservation area still read “NO MOTORIZED VEHICLES, ADMINISTRATIVE USE ONLY.” Emergency access has never been denied. The lawsuit seeks revocation of the county’s eminent domain seizure of the conservation area.

The county is maintaining the newly unrestricted passageway open to all traffic, including off-road vehicles. Off-road vehicles are now accessing the streambed and stream banks via the passageway. The result is accelerating erosion and destruction of streamside habitat.

The county maintains its newly unrestricted passageway by bulldozing in the stream and by importing fill from outside the area, but the Clean Water Act requires a federal permit prior to dredging and filling in a year-round stream. Pinal County has no permit. The lawsuit seeks an injunction against the county’s dredge-and-fill operations in the river.

The Bureau of Land Management’s lower San Pedro River conservation easement is home to an endangered songbird, the Southwestern willow flycatcher, which has been federally protected as endangered since 1995. The Center initiated protective efforts for the flycatcher in 1992. The lower San Pedro River has been designated as federal critical habitat for the flycatcher since 1997.

“We cannot allow Pinal County’s misuse of the eminent domain process to destroy the conservation area. We must protect the Southwestern willow flycatcher and the San Pedro River,” said the Center’s Robin Silver.

“Tucson Audubon has been instrumental in securing Important Bird Area designation for the lower San Pedro River. The area is crucial habitat for recovery of the imperiled Southwestern willow flycatcher, and for the Western yellow-billed cuckoo. It is also an area of global importance for Bell’s vireo. Pinal County’s destructive activities must be halted,” said Tucson Audubon’s Paul Green.

“Maricopa Audubon has a long history of protecting the San Pedro River. Pinal County’s advocacy for wanton ORV abuse in such a sensitive and important conservation preserve is inexcusable,” said Maricopa Audubon’s Herb Fibel.

The Center for Biological Diversity, Maricopa Audubon, and Tucson Audubon are represented by attorney Cliff Levenson of Phoenix and the Center’s Mike Senatore.