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U.S. Fish and Wildlife Service Must Decide Whether to Delist Bald Eagles by February 2007

By Jessica K. Ferrell
September 13, 2006

Update: In February 2007, the district court extended the deadline by which the USFWS must decide to delist bald eagles to June 29, 2007. Contoski v. Kempthorne, No. 05-02528, Docket No. 54 (Feb. 2, 2007).

In July 2007, the USFWS formally delisted bald eagles. See 72 Fed. Reg. 37346 (July 9, 2007).

Ruling in favor of a private land developer, a federal district court last month ordered the U.S. Fish and Wildlife Service (“USFWS”) to make a final determination by February of next year on a six-year old proposed rule to delist the bald eagle as a “threatened” species under the Endangered Species Act (“ESA”). Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180 (D. Minn. Aug. 10, 2006).

Background

The USFWS reported fewer than 500 mating pairs of bald eagles in the lower 48 states in the 1960s. By 1999, there were 5,748 nesting pairs,[1] and experts estimate there are more than 7,000 nesting pairs of bald eagles in the United States today.[2] A 1999 census reported that approximately 658 breeding pairs were located in Washington state, with approximately 405 in Oregon, 681 pairs in Minnesota, 216 in Montana, 160 pairs in California, and 128 pairs in Idaho.[3] In 2001, the Washington Department of Fish and Wildlife (“WDFW”) reported that bald eagles have increased in Washington from approximately 105 nesting pairs in 1980, to about 650 in 2001.[4] The WDFW attributed the bald eagle’s recovery to factors including, but not necessarily limited to, the ban on the pesticide DDT, protection of nesting and roosting habitat through state law, the use of non-toxic shot for waterfowl hunting, and a decrease in shooting and harassment (presumably, due to state and federal laws prohibiting such conduct).[5]

Since the bald eagle population has increased since its original listing in 1978, the USFWS published a proposed rule to delist the bald eagle in 1999, for which it has yet to issue a final determination.[6] The USFWS again proposed to remove bald eagles in the lower forty-eight states from the federal list of endangered species in 2006 .[7] Following the failed proposed rule in 1999,[8] the USFWS issued a new notice of the proposed rule to delist and reopened the comment period. The USFWS has yet to issue a final determination on that rule, either.[10]

Challenge Brought

Plaintiff Edmund Contoski in Contoski v. Scarlett owns property abutting the shore of Sullivan Lake in Morrison County, Minnesota. Mr. Contoski proposed a residential subdivision on his property, and the Minnesota Department of Natural Resources notified him of an active bald eagle’s nest on his property by sending him a letter “recommending that there be no development within a 330 feet radius of the nest to ensure compliance with the ESA and the Eagle Protection Act.”[11]

Mr. Contoski filed suit against P. Lynn Scarlett, Acting Secretary of the Department of the Interior, USFWS, and H. Dale Hall, in his official capacity as director of the USFWS, on October 31, 2005. He alleged that defendants violated the ESA and the Administrative Procedure Act by failing to perform a non-discretionary duty -- issuing a final determination on the delisting of the bald eagle.[12]

Analysis

Standing and Habitat Protection Under the ESA and Federal Eagle Protection Act

In Contoski v. Scarlett, district judge John R. Tunheimexplained that “[t]he ESA requires that a final determination be made within one year of publication of a rule proposing to determine whether a species is an endangered or threatened species, or to designate or revise critical habitat[,]”[13] and that, “under the Administrative Procedures Act, a plaintiff may seek a court order compelling agency action “unlawfully withheld or unreasonably delayed.”[14]

Defendants conceded during oral argument that their failure to act with respect to the 1999 proposed rule violated 16 U.S.C. § 1533(b)(6)(A), but argued that plaintiff lacked standing to bring the action, and that the action was “prudentially moot” because the USFWS re-opened the comment period.[15] The Court disagreed. Applying the Lujan v. Defenders of Wildlife test for standing,[16] the court found that plaintiff demonstrated that: 1) he personally suffered an injury in fact; 2) the injury was fairly traceable to the challenged action of the defendant; and 3) it was likely that the injury will be redressed by a favorable decision in the litigation.[17]

In reaching this conclusion, the court engaged in a detailed comparison of the relative protections provided by the ESA and the the Bald and Golden Eagle Protection Act of 1940[18] (“federal Eagle Protection Act”).[19] Defendants argued that plaintiff’s injury could not be redressed by the litigation, because even if the bald eagle were delisted under the ESA, the federal Eagle Protection Act would still protect the species.[20] In turn, Plaintiff argued that the federal Eagle Protection Act “does not prohibit adverse habitat modification, and therefore development of his property could go forward if protection of the bald eagle under the ESA were removed.”[21] The court concluded that Plaintiff’s argument regarding the federal Eagle Protection Act’s failure to prohibit adverse modification of habitat had “no merit,” explaining that both the ESA and the federal Eagle Protection Act “prohibit the take of bald eagles, and the respective definitions of ‘take’ do not suggest that the ESA provides more protection for bald eagles than the Eagle Protection Act.”[22]

Despite the court’s rejection of Plaintiff’s argument based on the relative protections afforded by the ESA and the federal Eagle Protection Act, the court still found that Plaintiff’s injury was redressible within the meaning of the Lujan test for standing, “because a favorable decision from this Court would likely remove one regulatory barrier to plaintiff’s development of his property.”[23]

With respect to causation, the court rejected Defendants’ argument that Plaintiff’s injury was “not fairly traceable” to them, reasoning instead that “[t]he regulatory burden imposed on plaintiff’s property by the listing of the bald eagle under the ESA is a discrete injury.” The court found that “this injury is fairly traceable to the protection defendants give the eagle by maintaining its status as a listed species under the ESA.”[24] Accordingly, the court found that Mr. Contoski had standing to bring his suit.[25]

Prudential Mootness Doctrine

Under the “prudential mootness doctrine,” courts “may withhold relief based on considerations of prudence and comity for coordinate branches of government.”[26] The court distinguished the relevant cases by noting that, unlike plaintiffs in those cases, Mr. Contoski had not yet received the remedy he sought, so held that the prudential mootness doctrine did not apply.[27]

The Court’s Order

Ultimately, the court found that defendants “failed to comply with the mandatory deadlines set forth in the ESA,” so decided that it had to “compel defendants to act.”[28] Considering the equities, the court noted that the information in the 1999 proposed rule is about six years old, and, in light of the ESA mandate that agencies use the “best scientific and commercial data available,” allowed defendants until February 16, 2007 to issue a final determination on the delisting of the bald eagle.[29]

Reactions from Parties to the Suit

Plaintiffs in the case stating that “the ruling would serve the lawsuit’s intent” because Mr. Contoski “sued the federal government to get a ‘date certain’ on a decision on delisting.”[30]

USFWS spokeswoman Valerie Fellows reported that “the agency is working to remove the bald eagle from the list of endangered species, but it wants to ensure the bird will be adequately protected by states and federal laws before doing so.”[31] She is reported as saying, “We are evaluating the court decision and preparing our response to it. However, we are working diligently to delist the bald eagle, because it has met the goals for recovery.”[32]

Potential Local and Regional Impacts of Delisting the Bald Eagle

The ESA has protected the bald eagle as a threatened species for nearly twenty years.[33] If delisted, the federal Eagle Protection Act, the Migratory Bird Treaty Act of 1918,[34] and the Lacey Act, along with state wildlife laws,[36] would continue to protect the species. In Washington, state law also protects the bald eagle via the Bald Eagle Protection Act (“State Eagle Protection Act”),[37] passed by Washington State Legislature in 1984. Bald eagles have been federally listed as threatened in Washington State since 1978. In 1995, the populations in other states that had been listed as endangered were downlisted to threatened status, but the status in Washington did not change.[38] The State Eagle Protection Act emphasizes protection of nesting and roosting habitat.[39] It requires the establishment of rules defining buffer zones around bald eagle nest and roost sites, and requires those rules to reflect the need for variation with respect to the extent of buffer zones on a case-by-case basis.[40] In 1986, the Washington State Wildlife Commission promulgated Bald Eagle Protection Rules.[41] These rules aim to protect habitat through implementation of Bald Eagle Management Plans.[42] If the bald eagle is delisted federally, the state will respond immediately by downlisting the species under state law to “sensitive” status.[43]

Delisting of the bald eagle could affect development projects in Washington and other states with significant eagle populations, possibly by enabling previously enjoined projects to move forward – subject to restrictions imposed by state and federal laws other than the ESA that protect the bald eagle.[44] The WDFW speculates that a change in the eagle’s federal endangered species status would “affect primarily federal permits, such as Army Corps of Engineers permits for activities within bodies of water.”[45]

For more information, contact Jessica Ferrell.

[1] Eryn Gable, Court Orders Feds to Delist Bald Eagle Within 6 Months, Land Letter (Aug. 17, 2006) (subscription required).

[2] Id..

[3] USFWS, Bald Eagle Estimated Number of Breeding Pairs (By State)* (last visited Aug. 23, 2006).

[4] WDFW, Bald Eagles in Washington (March 2001).

[5] Id.

[6] Endangered and Threatened Wildlife and Plants; Proposed Rule To Remove the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454 (proposed July 6, 1999).

[7] Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Threatened and Endangered Wildlife, 71 Fed. Reg. 8238 (Feb. 16, 2006) (to be codified at 50 CFR Pt. 17); see also USFWS, Bald Eagle: An American Success Story (last visited August 23, 2006).

[8] The delisting proposal was rejected in large part due to public concerns over habitat protection for eagles. See generally Jane Kay, Bald eagle may fly on its own, Delisting could extol federal species act but hurt protection, San Francisco Chronicle (Feb. 14, 2006).

[9] See Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Threatened and Endangered Wildlife, 71 Fed. Reg. 8238 (Feb. 16, 2006) (to be codified at 50 CFR Pt. 17) (extending public comment period to May 17, 2006). The USFWS extended the comment period to June 19, 2006. 71 Fed. Reg. 28293 (May 16, 2006).

[10] See Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at *1 (D. Minn. Aug. 10, 2006).

[11] Id. at *1.

[12] Id. at *1.

[13] Id. (citing 16 U.S.C. § 1533(b)(6)(A); 50 C.F.R. § 424.17(a)(1); Forest Guardians v. Babbitt, 174 F.3d 1178, 1181-82 (10th Cir.1999)).

[14] Id. (citing 5 U.S.C. § 706(1); EEOC v. Liberty Loan Corp., 584 F.2d 853, 856 (8th Cir.1978)).

[15] Id.

[16] 504 U.S. 555, 560-61 (1992).

[17] Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at *2.

[18] 16 U.S.C. §§ 668-668d.

[19] See Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at *1-*3. Under the federal Eagle Protection Act, “the term ‘take’ means “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.’ Because the definition of ‘take’ in the [federal] Eagle Protection Act does not include ‘harm,’ whether the [federal] Eagle Protection Act prohibits adverse habitat modification depends on the interpretation of ‘disturb,’ which is the broadest verb used in the definition of ‘take’ in the [federal] Eagle Protection Act.” Id. (citing 16 U.S.C. § 668c). The Contoski court noted that the USFWS not yet defined “disturb” in a final rulemaking, but published a proposed rule which would also change the definition of the term “disturb” within the meaning of the federal Eagle Protection Act to “to agitate or bother a bald or golden eagle to the degree that interferes with or interrupts normal breeding, feeding, or sheltering habits, causing injury, death, or nest abandonment.” See Protection of Bald Eagles; Definition, 71 Fed. Reg. 8265, 8266 (Feb. 16, 2006) (to be codified at 50 CFR Pt. 22); see also Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at *1 (discussing this rule). The Contoski court found that “[t]he plain meaning of the term ‘disturb’ is at least as broad as the term ‘harm,’ and [that] both terms are broad enough to include adverse habitat modification.” It also noted that the Plaintiff “pointed to nothing in the legislative history or purpose of the Acts that persuades the Court that ‘disturb’ should be interpreted more narrowly than ‘harm,’” so held that “the protection against adverse habitat modification afforded the bald eagle under the [federal] Eagle Protection Act is at least as protective as that provided by the ESA.” Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at *3.

[20] Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180, at*2.

[21] Id.

[22] Id.

[23] Id. (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-262 (1977)).

[24] Id. at *3, n.2.

[25] Id. at *3.

[26] Id. (citing Voyageurs Nat’l Park Ass’n v. Norton, 381 F3d 759, 765 (8th Cir.2004); S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997)).

[27] Id. at *3-*4.

[28] Id. at *4 (citing 5 U.S.C. § 706(1)).

[29] Id. (citing Ctr. for Biological Diversity v. Badgley, 2000 WL 1513812, at *3 (D. Or. Oct. 11, 2000); 16 U.S.C. § 1533(b)(1)(A)). For a bibliography of scientific literature cited in the re-opening of the public comment period on the proposed delisting rule see USFWS, February 16, 2006 Proposed Rule – Reopening the Public Comment Period Due to New Information (last visited Aug. 23, 2006).

[30] Mark Wolski, Federal Court Orders Interior Department To Decide if Bald Eagle Remains Protected, Vol. 37 BNA No. 33 (August 18, 2006) (subscription required).

[31] Eryn Gable, Court Orders Feds to Delist Bald Eagle Within 6 Months, Land Letter (Aug. 17, 2006) (subscription required).

[32] Frederic J. Frommer, WILDLIFE: U.S. Might Delist Eagles, Grand Forks Herald (Aug. 12, 2006).

[33] See 43 Fed. Reg. 6233 (Feb. 14, 1978) (listing the bald eagle as endangered throughout the lower 48 states except in Michigan, Minnesota, Wisconsin, Washington, and Oregon, where it was designated as threatened).

[34] 16 U.S.C. §§ 703-711.

[35] 16 U.S.C. §§ 3371-3378. Violations of both the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act can serve as predicate crimes for prosecution under the Lacey Act. See United States v. Sandia, 188 F.3d 1215 (10th Cir. 1999).

[36] See, e.g., Washington’s Bald Eagle Protection Act, RCW 77.12.655; 14 Cal. Admin. Code. § 670.5(a)(5)(C) (listing the bald eagle as an endangered bird under California state law).

[37] See RCW 77.12.655.

[38] See WDFW, Bald Eagle Management and Protection in Washington State (2006).

[39] RCW 77.12.655.

[40] See WDFW, Bald Eagle Management and Protection in Washington State (2006).

[41] WAC 232-12-292.

[42] See generally WDFW, Bald Eagle Management and Protection in Washington State (2006).

[43] Id.

[44] For example, as reported previously in the Environmental News, work on a condominium and marina in development for nearly twenty-five years on California’s Big Bear Lake was permanently halted by a federal district court in June 2006, based on findings that the developed violated the Endangered Species and Clean Water Acts, due to the presence of bald eagles on the development site. See District Court Permanently Halts Development on California’s Big Bear Lake: Judge Imposes $1.3 Million Civil Penalty (June 28, 2006) (discussing the opinion in Center For Biological Diversity v. Marina Point Development Associates, No. 04-07036, Order, Docket No. 339, at 12 (C.D. Cal. issued June 12, 2006)). Although federal and state protections could continue to prohibit the Big Bear Lake development at issue in Center for Biological Diversity v. Marina Point Development Associates from proceeding, the removal of ESA protections could conceivably enable the development to proceed if developers could show compliance with all applicable laws still protecting the species.

[45] WDFW, Bald Eagle Management and Protection in Washington State (2006).

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