2011-22600. Endangered and Threatened Wildlife and Plants; Bald Eagles Nesting in Sonoran Desert Area of Central Arizona Removed From the List of Endangered and Threatened Wildlife

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are issuing a final rule to comply with a court order that removed regulatory protections under the Endangered Species Act of 1973, as amended (Act), for the bald eagles nesting in the Sonoran Desert area of central Arizona. On July 9, 2007, we published a final rule to remove bald eagles in the lower 48 States from the List of Endangered and Threatened Wildlife (List) due to recovery. However, the United States District Court for the District of Arizona, by order dated March 6, 2008, enjoined the Service from removing the bald eagles nesting in the Sonoran Desert area of central Arizona from the threatened species list under the Act pending the Service's status review and 12-month finding on a petition to classify the bald eagles nesting in the Sonoran Desert area of central Arizona as a distinct population segment (DPS), list this DPS as endangered, and designate critical habitat. On May 1, 2008, to conform to the court's order, we published a final rule listing the potential Sonoran Desert bald eagle DPS as threatened under the Act. On February 25, 2010, the Service published its 12-month finding determining that the bald eagles nesting in the Sonoran Desert area of central Arizona did not qualify as a DPS and were, therefore, not a listable entity under the Act. On September 30, 2010, as a result of the Service's completed status review and publication of the 12-month finding, the United States District Court for the District of Arizona lifted the injunction. We are issuing this final rule to amend the regulations for the Federal Lists of Endangered and Threatened Wildlife by removing the bald eagles nesting in the Sonoran Desert area of central Arizona from the list. This action amends the CFR to reflect the September 30, 2010, court order.

DATES:

This rule amending the CFR to reflect the September 30, 2010, court order is effective September 2, 2011. However, the court order reinstating the provisions of the delisting rule for the bald eagles nesting in the Sonoran Desert area of central Arizona had legal effect immediately upon being filed on September 30, 2010.

ADDRESSES:

This final rule is available on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0069.

FOR FURTHER INFORMATION CONTACT:

Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone, 602-242-0210; facsimile, 602-242-2513. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at [phone] for TTY.

SUPPLEMENTARY INFORMATION:

Background

Bald eagles (Haliaeetus leucocephalus) gained protection under the Bald Eagle Protection Act (16 U.S.C. 668-668d) in 1940 and the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) in 1972. A 1962 amendment to the Bald Eagle Protection Act added protection for the golden eagle (Aquila chrysaetos), and the amended statute became known as the Bald and Golden Eagle Protection Act (BGEPA). On February 14, 1978, the Service listed the bald eagle as an endangered species under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.) in 43 of the contiguous States, and as a threatened species in the States of Michigan, Minnesota, Wisconsin, Oregon, and Washington (43 FR 6230). On July 12, 1995, we published a final rule to reclassify the bald eagle from endangered to threatened in the 43 States where it had been listed as endangered and retain the threatened status for the other five States (60 FR 36000).

On July 6, 1999, we published a proposed rule to delist the bald eagle throughout the lower 48 States due to recovery (64 FR 36454). On February 16, 2006, we reopened the public comment period to consider new information received on our July 6, 1999 (71 FR 8238), proposed rule to delist the bald eagle in the lower 48 States. On October 6, 2004, we received a petition 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 distinct population segment (DPS) under the Act, 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. We announced in our 90-day finding on August 30, 2006 (71 FR 51549), 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 (Plaintiffs) filed a lawsuit challenging the Service's 90-day finding that the bald eagles nesting in the Sonoran Desert area of central Arizona did not qualify as a DPS, and further challenging the Service's 90-day finding that the population should not be uplisted to endangered status.

On July 9, 2007 (72 FR 37346), we published the final delisting rule for bald eagles in the lower 48 States due to recovery. This final delisting rule also included the bald eagles located in the Sonoran Desert. On August 17, 2007, the CBD and the Maricopa Audubon Society filed a Motion for Summary Judgment, requesting the court to make a decision on their January 5, 2007, lawsuit. In early 2008, several Native American Tribes submitted amicus curiae (“friend of the court”) briefs in support of the August 17, 2007, Motion for Summary Judgment. The San Carlos Apache Tribe, Yavapai-Apache Nation, and Tonto Apache Tribe submitted amicus curiae briefs to the court on January 29, 2008; the Salt River Pima-Maricopa Indian Community submitted an amicus curiae brief to the court on February 4, 2008; and the Fort McDowell Yavapai Nation submitted an amicus curiae brief to the court on February 7, 2008.

On March 5, 2008, the U.S. District Court for the District of Arizona made a final decision in the case and 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)), dated March 6, 2008, required the Service to conduct a status review of the Desert bald eagle population pursuant to the Act to determine whether that population may qualify as a DPS, and if so, whether listing that DPS as threatened or endangered pursuant to the Act is warranted. The court enjoined the Service's application of the July 9, 2007 (72 FR 37346), final delisting rule to the bald eagles nesting in the Sonoran Desert area of central Arizona pending a status review and 12-month finding on the Plaintiffs' petition.

On May 1, 2008, to conform with the court's March 6, 2008, order, we published a final rule listing the potential Sonoran Desert bald eagle DPS as threatened under the Act (73 FR 23966). On May 20, 2008, we published a Federal Register notice (73 FR 29096) initiating a status review for the bald eagles nesting in the Sonoran Desert area of central Arizona.

On February 25, 2010, the Service published its 12-month finding on the petition to designate the bald eagles nesting in the Sonoran Desert area of central Arizona as a DPS, list it as endangered, and designate critical habitat under the Act (75 FR 8601). The Service found that the bald eagles nesting in the Sonoran Desert area of central Arizona did not qualify as a DPS and, therefore, were not a listable entity under the Act. Concurrent with publication of our 12-month finding, the Service filed a motion for dissolution of the court's injunction. By order dated September 30, 2010, the United States District Court for the District of Arizona dissolved the injunction. This had the effect of reinstating the provisions of the delisting rule for the bald eagles nesting in the Sonoran Desert area of central Arizona, thereby removing the bald eagles nesting in the Sonoran Desert area of central Arizona from the List of Endangered and Threatened Wildlife. (Center for Biological Diversity, et al. v. Salazar, et al., 07-cv-00038-PHX-MHM, 2010 U.S. Dist. LEXIS 72664 (D. Ariz. Sept. 30, 2010). This final rule amends the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to reflect the court's order, dated September 30, 2010, that the Service's May 1, 2008, final rule was rendered ineffective by the court's ruling.

We notified all affected Tribes and State and Federal partners of the ruling and its impact shortly after the order was released. We published a statement on our Web site to notify the public of the ruling and its impact shortly after the order was released and provided additional information in a questions-and-answers document. We continued to meet with Tribes after the finding was published to further discuss their concerns.

Administrative Procedure

This rulemaking is necessary to comply with the September 30, 2010, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are unnecessary. Because the court order had legal effect immediately upon being filed on September 30, 2010, the Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective immediately upon publication.

Effects of the Rule

We are issuing this rule to amend the regulations for the Federal Lists of Endangered and Threatened Wildlife at 50 CFR 17.11 by removing the bald eagles nesting in the Sonoran Desert area of central Arizona from the list. However, as previously mentioned, the court order reinstating the provisions of the delisting rule for the bald eagles nesting in the Sonoran Desert area of central Arizona had legal effect immediately upon its filing on September 30, 2010.

All bald eagles will continue to be protected under the BGEPA and MBTA. The Bald Eagle Protection Act (16 U.S.C. 668-668d) was passed in 1940, specifically protecting bald eagles in the United States. A 1962 amendment to this Act included the golden eagle in this protection, and the amended statute became known as the Bald and Golden Eagle Protection Act (BGEPA). The golden eagle was given protected status because of population declines, value to agriculture in the control of rodents, and to afford greater protections to bald eagles because of the similarity of appearance to juvenile bald eagles. This law prohibits the take, possession, sale, purchase, barter, or offering to sell, purchase or barter, transport, export or import of any bald eagle, alive or dead, including any part, nest, or egg, unless allowed by permit (16 U.S.C. 668(a)). “Take” includes “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb” (16 U.S.C. 668c; 50 CFR 22.3).

The MBTA makes it unlawful to at any time, by any means or in any manner, pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)).

We recommend that persons use our Bald Eagle National Management Guidelines (Guidelines) announced in the Federal Register on June 5, 2007 (72 FR 31156), as guidance for minimizing the risk of disturbing bald eagles under the BGEPA and its implementing regulations. The Guidelines include suggestions for protecting bald eagles and their habitat while they are nesting, feeding, and roosting.

In addition to the protective provisions provided by the BGEPA and MBTA, the Conservation Assessment and Strategy for Bald Eagles in Arizona (CAS) (Driscoll et al. 2006), contains guidance on measures to eliminate, reduce, or minimize effects to eagles in Arizona. On January 22, 2007, the Service signed a Memorandum of Understanding with the Arizona Game and Fish Department (AGFD) supporting the implementation of the AGFD's CAS. The Memorandum of Understanding was also signed by the following: Bureau of Reclamation, Bureau of Land Management, National Park Service, Forest Service, Department of Defense, including the U.S. Army Corps of Engineers, Arizona Public Service, Maricopa County, 56th Fighter Wing at Luke Air Force Base (Department of Defense), Salt River Project, and various other agencies for conservation of the bald eagle in Arizona. The CAS provides additional valuable guidance for protecting bald eagles in Arizona, and we support using it in conjunction with our Guidelines to protect bald eagles in Arizona.

This rule will not affect the status of the bald eagles nesting in the Sonoran Desert area of central Arizona under State laws or suspend any other legal protections provided by State law. This rule will not affect the bald eagle's Appendix II status under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).

References Cited

Driscoll, J.T., K.V. Jacobson, G.L. Beatty, J.S. Canaca, and J.G. Koloszar, 2006. Conservation Assessment and Strategy for the Bald Eagle in Arizona. Nongame and Endangered Wildlife Technical Report 173. Arizona Game and Fish Department, Phoenix, Arizona.

Lists of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Regulation Promulgation

Accordingly, in order to comply with the court orders discussed above, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below.

PART 17—[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

§ 17.11

[Amended]

2. Amend § 17.11 by removing from the table at paragraph (h) the entry for “Eagle, bald (Haliaeetus leucocephalus)”.

§ 17.41

[Amended]

3. Amend § 17.41 by removing and reserving paragraph (a).

Dated: August 26, 2011.

Gregory E. Siekaniec,

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