[Federal Register: May 1, 2008 (Volume 73, Number 85)]
[Rules and Regulations]
[Page 23966-23970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01my08-10]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS--R2--ES--2008--0044; 40120--1113--0000-B3]
RIN 1018--AW12
Endangered and Threatened Wildlife and Plants; Listing the
Potential Sonoran Desert Bald Eagle Distinct Population Segment as
Threatened Under the Endangered Species Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing
a final rule to amend the regulations for the Federal List of
Endangered and Threatened Wildlife at 50 CFR 17.11 by designating bald
eagles (Haliaeetus leucocephalus) in the Sonoran Desert area of central
Arizona as threatened under the authority of the Endangered Species Act
of 1973, as amended (Act). We are also reinstating and clarifying the
former special rule at 50 CFR 17.41 that applied to threatened members
of this species. This action revises the CFR to reflect a March 6,
2008, court order.
DATES: This action is effective May 1, 2008. However, the court order
had legal effect immediately upon being filed on March 6, 2008.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 85021; telephone
602-242-0210; facsimile 602-242-2513; http://www.fws.gov/southwest/es/
arizona/.
SUPPLEMENTARY INFORMATION:
Background
Information about the bald eagle's life history can be found in our
July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the
lower 48 States.
Previous Federal Action
Information about previous Federal actions was provided in our July
9, 2007 (72 FR 37346), final delisting rule for bald eagles in the
lower 48 States.
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 distinct population segment (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. We announced our 90-day finding, required under 16 U.S.C.
1533(b)(3)(A), 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 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 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. 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 found that the Service:
(1) Finding on the status of the Sonoran Desert population of bald
eagles in our July 9, 2007 (72 FR 37346), final delisting rule did not
moot the plaintiff's challenge to the August 30, 2006, negative 90-day
petition finding;
(2) Applied an inappropriately strict evidentiary burden on the
petition at the 90-day review stage and thus arbitrarily and
capriciously concluded that the petition did not present substantial
information that listing the ``Desert bald eagle population'' may be
warranted; and
(3) Arbitrarily and capriciously conducted the 90-day review of the
petition by soliciting information and opinions from a limited outside
source.
The court provided the following remedies and ordered the Service
to:
(1) Conduct a status review of the Desert 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, pursuant to 16 U.S.C. 1533(b)(3)(B),
on whether listing the Desert bald eagle population as a DPS is
warranted, and if so, whether listing that DPS as threatened or
endangered is warranted; and
[[Page 23967]]
(3) Issue the 12-month finding within nine 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 ``Desert bald eagle population''
referenced in the court order consists of those bald eagles in the
Sonoran Desert of the southwest that reside in central Arizona and
northwestern Mexico. Because these Sonoran Desert bald eagles were only
listed under the Act in Arizona (and not in Mexico) at the time of the
petition, the court's order enjoining our final delisting decision
applies only to those bald eagles found in the Sonoran Desert region of
the American Southwest. In other words, the court's order temporarily
reinstated the listing of the bald eagle as a threatened species, but
only with respect to the eagles that reside in the Sonoran Desert of
central Arizona. The court order was effective as of March 6, 2008, the
date it was filed.
In order to determine the geographic area where the bald eagle
would remain listed as threatened in Arizona, we examined the CBD's
letter sent to us on March 5, 2005, clarifying their petitioned October
2004 Distinct Population Segment boundary. We used the information
provided by the CBD because the court found that their October 2004 90-
day petition ``may be warranted'' and, therefore, the petition
represents the basis for determining the geographic extent of the area
affected by this final rule.
The CBD cited two documents describing vegetation communities
(Brown 1973, 1994) and an Arizona Game and Fish Department (AGFD) bald
eagle nest search report (Canaca et al. 2004). The CBD notes in the
petition that information is provided to support listing a ``distinct
population segment of Southwestern Desert Nesting Bald Eagle consistent
with the geographical boundaries including the Sonoran Desert riparian
areas of Central Arizona and northwestern Mexico.'' With regards to the
Arizona portion, the petition notes that this area in central Arizona
exists between 329 and 1719 meters (1080 and 5640 feet) in elevation,
falling within the Upper and Lower Sonoran Life Zones and transition
areas as described by Brown 1994. We used the above three references
and the specific elevation text to define the geographic boundary of
the petitioned DPS.
Therefore, while we had specific clarification with respect to
elevational boundaries, bald eagle breeding areas, the Upper and Lower
Sonoran Life Zones, and the State of Arizona, we also received
ambiguous direction with respect to the boundaries of ``central
Arizona'' and which transition areas outside of the Upper and Lower
Sonoran Life Zones to include. Because of these ambiguities and lack of
a specific map in the petition, we were left to interpret their
clarification, primarily at the perimeters of the boundary.
We used all the factors provided by the CBD (i.e., bald eagle
territories, elevation, life zones, and transition areas) and
established a boundary that included all known bald eagle breeding
areas within central Arizona. The boundary was difficult to interpret
on the ground due to irregular lines or gaps in elevation from layers
of electronic geographical data. Therefore, we used more identifiable
and easily understood boundaries of county lines and highways that were
found at the outer edges of the erratic boundaries. It is important to
note that known bald eagle breeding habitat of the Sonoran Desert, as
described in the petition, is not contiguous between Arizona and
northwestern Mexico. The somewhat disjointed nature of bald eagle
breeding habitat and its well known distribution in Arizona is likely
why the petitioners specified ``central Arizona.'' Thus, the counties
in the southern half of Arizona were not included in this final rule
because they do not possess known bald eagle breeding areas, known
suitable habitat for breeding eagles, and fall outside of the
petitioner's geographic description.
We determined that the affected area covers the following eight
Arizona counties: (1) Yavapai, Gila, Graham, Pinal, and Maricopa
Counties in their entirety; and (2) southern Mohave County (that
portion south and east of the centerline of Interstate Highway 40 and
east of Arizona Highway 95), eastern LaPaz County (that portion east of
the centerline of U.S. and Arizona Highways 95), and northern Yuma
County (that portion east of the centerline of U.S. Highway 95 and
north of the centerline of Interstate Highway 8). All bald eagles found
within this area are protected as a threatened species under the Act,
with a special rule under our regulations at 50 CFR 17.41. Please refer
to the following map for details of the geographic area affected by
this action.
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[GRAPHIC] [TIFF OMITTED] TR01MY08.005
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[[Page 23969]]
Administrative Procedure
This rulemaking is necessary to comply with a March 6, 2008, court
order. Therefore, under these circumstances, the Director has
determined, pursuant to 5 U.S.C. 553(b), that prior notice and
opportunity for public comment are impractical and unnecessary. The
Director has further determined, pursuant to 5 U.S.C. 553(d), the
agency has good cause to make this rule effective upon publication and
require compliance retroactively to the date of the court order.
Effects of the Rule
Any and all bald eagles, including migrants, found within the
boundaries of the Sonoran Desert area of central Arizona, as delineated
by the map included as part of this rule, are hereby listed as a
threatened species under the Act, with a special rule found at 50 CFR
17.41.
The provisions of the special rule at 50 CFR 17.41 that we are
adding here under the Act are the same as those in the prior special
rule that was removed per our July 9, 2007 (72 FR 37346), final
delisting rule removing the threatened status for bald eagles in the
lower 48 States. This special rule now applies only to bald eagles in
the Sonoran Desert area of central Arizona, the only such population of
bald eagles so listed under the Act. Under this special rule, bald
eagle banding and marking permits issued under the Migratory Bird
Treaty Act (MBTA) (16 U.S.C. 703-712) and its implementing regulations
at 50 CFR 21.22, and also under the Bald and Golden Eagle Protection
Act (BGEPA) (16 U.S.C. 668-668d) and its implementing regulations at 50
CFR part 22, will be deemed to also satisfy the requirements for a
permit under the Act and its implementing regulations at 50 CFR 17.31
and 17.32. The BGEPA regulations at 50 CFR part 22 authorize permits
for taking, possession, and transportation within the United States for
scientific, educational, and depredation control purposes and for the
religious purposes of American Indian tribes. This part also governs
the transportation into or out of the United States of bald and golden
eagle parts for scientific, educational, and Indian religious purposes.
Under this special rule, it will not be necessary to obtain a separate
permit under the Act for the same activities already authorized under
the MBTA and BGEPA permits described above.
Although the petition also included Sonoran Desert bald eagles in
northwestern Mexico, these bald eagles remain unlisted because bald
eagles in this area were not previously listed pursuant to the Act and
thus their status was unaffected by the court order limiting the
effects of our July 9, 2007 (72 FR 37346), final delisting rule.
Consistent with the court's March 6, 2008 order, this rule will be
in effect ``pending the outcome of the status review and 12-month
finding.'' However, we will immediately remove the bald eagle in the
Sonoran Desert area of central Arizona from the List of Endangered and
Threatened Wildlife if the court's March 6, 2008, order is stayed or
reversed in any subsequent judicial proceeding, or if, after completion
of the status review, we publish a 12-month finding that listing the
Sonoran Desert bald eagle is not warranted. No decision has been made
as to whether the government will appeal that order.
We will publish a notice requesting public input for the status
review required under the March 6, 2008, court order in the Federal
Register in the near future. This status review will consider the
population of bald eagles as described in the October 6, 2004, petition
and any other relevant information received during the public comment
period and will be based upon the best scientific and commercial data
available, pursuant to the Act.
Under this final rule, the prohibitions and conservation measures
provided by the Act, particularly sections 7, 9, and 10, apply to bald
eagles in the Sonoran Desert area of central Arizona. Federal agencies
are required under the court order and this final rule to consult with
us under section 7 of the Act in the event that activities they
authorize, fund, or carry out may affect listed bald eagles.
In addition to the conservation measures provided by the Act, 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 AGFD
supporting the implementation of the AGFD's CAS. The Memorandum of
Understanding was also signed by the following Federal agencies: Bureau
of Reclamation, Bureau of Land Management, National Park Service,
Forest Service, and the Department of Defense, including the U.S. Army
Corps of Engineers. The CAS provides additional valuable guidance for
protecting bald eagles in Arizona, and we support using it in
conjunction with our Bald Eagle National Management Guidelines to
protect bald eagles in Arizona.
All bald eagles, of course, will continue to be protected under the
BGEPA and MBTA. 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
violating the protections afforded to all bald eagles under these
various Acts and their respective implementing regulations. The
Guidelines include suggestions for protecting bald eagles and their
habitat while they are nesting, feeding, and roosting. While eagles
originating in the Sonoran Desert area of central Arizona would not be
protected by the Act if they traveled to other parts of the United
States, they would still be afforded the protections under the BGEPA
and MBTA.
This rule will not affect the bald eagle's status 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).
Additionally, pursuant to section 6 of the Act, we are able to
grant available funds to the State of Arizona for management actions
promoting the protection of bald eagles in the Sonoran Desert area of
central Arizona.
Required Determinations
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment, as defined in the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), in connection with regulations adopted
pursuant to section 4(a) of the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to consult with Federally recognized Tribes on a
government-to-government basis. Accordingly, we will promptly consult
with the affected Tribes regarding the effects of the court's March 6,
2008, order and this final rule.
[[Page 23970]]
We will also consult with the affected tribes as we conduct our new
status review concerning the Sonoran Desert nesting bald eagle
population.
References Cited
Brown, D. 1973. The Natural Vegetative Communities of Arizona.
Arizona Game and Fish Department, Phoenix, AZ.
Brown, D. (editor). 1994. Biotic Communities of the Southwestern
United States and Northwestern New Mexico. The University of Utah
Press, Salt Lake City, UT.
Canaca, J.S., K.V. Jacobson, and J.T. Driscoll. 2004. Arizona Bald
Eagle 2003 Nest Survey, Nongame and Endangered Wildlife Program
Technical Report 226. Arizona Game and Fish Department, Phoenix, AZ.
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 Program Technical
Report 173. Arizona Game and Fish Department, Phoenix, Arizona.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
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.
Sec. 17.11 [Amended]
0
2. In Sec. 17.11(h), an entry for ``Eagle, Bald'' is added under BIRDS
to read as follows:
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Species Vertebrate population
----------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
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* * * * * * *
Birds
* * * * * * *
Eagle, bald..... Haliaeetus leucocephalus.......... North Arizona: South to Arizona: (1) Yavapai, T........ ...... NA........ 17.41(a).
northern Mexico. Gila, Graham, Pinal, and
Maricopa, Counties; and
(2) Southern Mohave County
(that portion south and
east of the center of
Interstate Highway 40 and
east of Arizona Highway
95), eastern LaPaz County
(that portion east of the
centerline of U.S. and
Arizona Highways 95), and
north of the centerline
of Interstate Highway 8).
* * * * * * *
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0
3. Section 17.41 is amended by adding paragraph (a) to read as follows:
Sec. 17.41 Special rules--birds.
(a) Bald eagles (Haliaeetus leucocephalus) wherever listed as
threatened under Sec. 17.11(h). All provisions of Sec. Sec. 17.31 and
17.32 apply to any threatened bald eagle, with the following
exceptions:
(1) The Service will consider any permit that we issue for bald
eagles under Sec. 21.22 (banding and marking permits) or part 22 of
this chapter (permits for certain activities with bald or golden
eagles) to satisfy all requirements of Sec. 17.31 and the permits we
issue under Sec. 17.32.
(2) The Service will not require a second permit under Sec. 17.32
for any activity that is covered by a permit issued under Sec. 21.22
or part 22 of this chapter.
(3) The Service will require a permit under Sec. 17.32 for any
activity that is not covered by a permit issued under Sec. 21.22 or
part 22 of this chapter.
* * * * *
Dated: April 18, 2008.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. 08-1203 Filed 4-28-08; 4:00 pm]
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