E8-11052. Endangered and Threatened Wildlife and Plants; Initiation of Status Review for the Bald Eagle (Haliaeetus leucocephalus) in the Sonoran Desert Area of Central Arizona and Northwestern Mexico

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice; initiation of status review and solicitation of new information.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the initiation of a status review for the bald eagle (Haliaeetus leucocephalus) in the Sonoran Desert area of central Arizona and northwestern Mexico, hereafter referred to as the “Sonoran Desert area bald eagle.” Through this action, we encourage all interested parties to provide us with information regarding the status of, and any potential threats to, the Sonoran Desert area bald eagle.

DATES:

To allow us adequate time to conduct this review, we request that information be submitted on or before July 7, 2008.

ADDRESSES:

You may submit information by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R2-ES-2008-0059; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Solicited section below for more information).

FOR FURTHER INFORMATION CONTACT:

Steve Spangle, Field Supervisor, Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951; telephone [phone]; facsimile 602-242-2513. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the Sonoran Desert area bald eagle (Haliaeetus leucocephalus). Information gained during this process will be used to evaluate whether the Sonoran Desert area bald eagle is a Distinct Population Segment (DPS) as described in our policy on determining a DPS (61 FR 4722, February 7, 1996) (DPS), and if listing as threatened or endangered is warranted under the Endangered Species Act of 1973, as amended (Act). If we determine that listing the Sonoran Desert area bald eagle is warranted, we intend to propose critical habitat to the maximum extent prudent and determinable at the time we prepare a proposed listing rule.

At this time, we request any additional information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties on the status of the Sonoran Desert area bald eagle, including:

(1) Information regarding Sonoran Desert area bald eagles' historical and current population status, distribution, and trends; biology and ecology; and habitat selection. We also solicit information of this type on adjacent populations and geographic areas for use in evaluating discreteness and significance of the Sonoran Desert area bald eagle.

(2) Information that supports or refutes the appropriateness of considering the Sonoran Desert area bald eagle to be discrete, as defined in the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722, February 7, 1996), including, but not limited to:

(a) Information indicating that Sonoran Desert area bald eagles are markedly separated from other populations of bald eagles due to physical, physiological, ecological, or behavioral factors. This may include information regarding bald eagles of Sonoran Desert area natal origin breeding with bald eagles from populations of different natal origin, and information regarding the Sonoran Desert area bald eagles' isolation from other breeding populations of eagles.

(b) Information indicating whether or not the Sonoran Desert area bald eagle is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist.

(3) Information that supports or refutes the appropriateness of considering the Sonoran Desert area bald eagle to be significant, as defined in the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722, February 7, 1996) including, but not limited to:

(a) Information indicating that the ecological setting, including such factors as temperature, moisture, weather patterns, plant communities, etc., in which the Sonoran Desert area bald eagle persists is unusual or unique when compared to that of bald eagles found elsewhere in the United States or Mexico. This may also include information indicating that the Sonoran Desert area bald eagle has or has not developed adaptations to that unique environment, such as breeding behavior, morphological characteristics, egg development and characteristics, or nest types.

(b) Information indicating that loss of Sonoran Desert area bald eagle would or would not result in a significant gap in the range of the taxon.

(c) Information indicating that the Sonoran Desert area bald eagle differs markedly from other populations of bald eagles in its genetic characteristics.

(4) Information regarding the availability of suitable, but unoccupied, breeding habitat that might allow for expansion of the Sonoran Desert area bald eagle populations. This may include information on areas outside of the boundaries delineated for the Sonoran Desert area bald eagle in our May 1, 2008, final listing rule (73 FR 23966).

(5) Information on the effects of potential threat factors that are the basis for a listing determination under section 4(a) of the Act, which are:

(a) The present or threatened destruction, modification, or curtailment of the Sonoran Desert area bald eagle's breeding habitat or range, including but not limited to the effects on habitat from: Water management (river diversions, dams, dam operations, surface and groundwater withdrawals); human population growth and accompanying increases in water demands; human recreation; reduced riparian health and regrowth of streamside trees for nesting, foraging, and roosting; urban development; and climate change;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation, including but not limited to the effects of avian pox or West Nile virus, Mexican chicken bugs, or ticks;

(d) The inadequacy of existing regulatory mechanisms, including but not limited to adequacy or inadequacy of funding for ongoing management; appropriateness and effect of incidental take permitted for Sonoran Desert area bald eagles while listed under the Act; impacts of low-flying aircraft and effectiveness of flight advisories; and the adequacy or inadequacy of protections under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act; and

(e) Other natural or manmade factors affecting its continued existence, including but not limited to information on: Productivity, survival, and mortality rates of this population; the occurrence and effect of inbreeding; effects to Sonoran Desert area bald eagles while outside the Sonoran Desert area; effects to Sonoran Desert area bald eagles' prey base and productivity, including effects of nonnative predatory fish and native fish restoration; the presence and abundance of pesticides and contaminants such as lead, mercury, or dichlorodiphenyldichloroethylene (DDE); the effects of climate change; and the effects from eggshell thinning.

(6) Information supporting the existing boundary developed in our May 1, 2008, final listing rule (73 FR 23966) for Sonoran Desert area bald eagles under consideration in this status review, or information indicating that the boundary should be modified to include other areas.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, because section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will determine whether listing is warranted, not warranted, or warranted but precluded.

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov,, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and materials we receive will be available for public inspection on http://www.regulations.gov,, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

Background

Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register. Section 4(b)(3)(B) also requires that, for any petition to revise the Lists of Threatened and Endangered Wildlife and Plants that contains substantial scientific or commercial information that the action may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted but precluded by other pending proposals. Such 12-month findings are to be published promptly in the Federal Register.

On October 6, 2004, we received a petition, dated October 6, 2004, from the Center for Biological Diversity (CBD), the Maricopa Audubon Society, and the Arizona Audubon Council requesting that the “Southwestern desert nesting bald eagle population” be classified as a DPS, that this DPS be reclassified from a threatened species to an endangered species, and that we concurrently designate critical habitat for the DPS under the Act.

On March 27, 2006, the CBD and the Maricopa Audubon Society filed a lawsuit against the U.S. Department of the Interior and the Service for failing to make a timely finding on the petition. The parties reached a settlement, and the Service agreed to complete its petition finding by August 2006. On August 30, 2006 (71 FR 51549), we announced our 90-day finding that the petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted.

On January 5, 2007, the CBD and the Maricopa Audubon Society filed a lawsuit challenging the Service's 90-day finding that the “Sonoran Desert population” of the bald eagle did not qualify as a DPS, and further challenging the Service's 90-day finding that the population should not be up-listed to endangered status.

On July 9, 2007 (72 FR 37346), we published the final delisting rule for bald eagles in the lower 48 States. In that final delisting rule, we stated that our findings on the status of the Sonoran Desert population of bald eagles superseded our 90-day petition finding because the final delisting rule constituted a final decision on whether the Sonoran Desert population of bald eagles qualified for listing as a DPS under the Act.

On March 5, 2008, the U.S. District Court for the District of Arizona ruled in favor of the CBD and the Maricopa Audubon Society. The court order (Center for Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)) was filed on March 6, 2008.

The court ruled for the plaintiffs and ordered the Service to:

(1) Conduct a status review of the Sonoran Desert area bald eagle population pursuant to the Act to determine whether listing that population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered pursuant to the Act is warranted;

(2) Issue a 12-month finding on whether listing the Sonoran Desert area bald eagle population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered is warranted; and

(3) Issue the 12-month finding within 9 months of the court order pursuant to 16 U.S.C. 1533(b)(3)(B), which translates to on or before December 5, 2008.

Further, the court enjoined the Service's application of the July 9, 2007 (72 FR 37346), final delisting rule to the Sonoran Desert population of bald eagles pending the outcome of our status review and 12-month petition finding. The court order was effective as of March 6, 2008, the date it was filed. On May 1, 2008, we published a final rule (73 FR 23966) listing the potential Sonoran Desert area bald eagle DPS as threatened under the Act in response to the court order. Please refer to the map and final rule published on May 1, 2008 (73 FR 23966) for details of the geographic area affected by this action.

At this time, we are soliciting new information on the status of and potential threats to the Sonoran Desert population of bald eagles. We will base our new determination as to whether listing is warranted on a review of the best scientific and commercial information available, including all such information received as a result of this notice. For more information on the biology, habitat, and range of the Sonoran Desert population of bald eagles, please refer to our previous 90-day finding published in the Federal Register on August 30, 2006 (71 FR 51549), and our final delisting rule for the bald eagle published in the Federal Register on July 9, 2007 (72 FR 37346).

Author

The primary author of this notice is the staff of the Arizona Ecological Services Office.

Authority

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

Dated: May 8, 2008.

Kenneth Stansell,

Acting Director, U.S. Fish and Wildlife Service.