FWS Decrees the Southwestern Bald Eagle is Safe, in Spite of Science
NOTE: The following is one of a series of over 100 case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
High level officials in the U.S. Fish and Wildlife Service (FWS) and the Department of the Interior (DOI) forced FWS scientists to manipulate their findings to validate a predetermined decision that the Arizona population of bald eagles does not merit continued protection under the Endangered Species Act (ESA).1 The FWS has removed ESA protections for the bald eagle due to its successful recovery in many parts of the United States,2 but external peer reviewers of the delisting proposal concluded the southwestern population is particularly isolated and has not recovered sufficiently to warrant delisting.3 Combined with uncertainty surrounding the adequacy of bald eagle protections after nationwide delisting, the subversion of science in the case of the Arizona bald eagle population imperils the future of our national bird.
Government memos obtained by the Center for Biological Diversity (CBD) under the Freedom of Information Act reveal that Benjamin Tuggle, regional director of the FWS Southwestern office, and Ren Lohoefener, former assistant director for the Endangered Species Program in the FWS Washington D.C. Office, "reached a policy call" that the Arizona bald eagle did not meet the requirements under the ESA to be listed as a distinct population segment, or DPS. In order to support this decision, FWS scientists were instructed during a meeting that the "answer has to be that its not a DPS" and "now we need to find an analysis that works." The scientists objected to the inconsistency of this decision with their scientific findings, and were forced to request help from the officials in how to word their scientific report so that it wouldn't contradict the policy decision.4
The Arizona bald eagle petition also received attention from high level administrators Douglas Krofta, chief of the Branch of Listing for the Washington, DC branch of FWS, and Julie MacDonald, former assistant secretary of the DOI. MacDonald resigned in April 20075 after a report by the Office of the Inspector General, while not mentioning the bald eagle, implicated her in systematically undermining the science in multiple Endangered Species Act decisions through direct edits and authoritative decrees.6
The offices of Krofta and MacDonald promoted a new administrative procedure for 90-day petitions,7 which request a species be considered for listing, delisting, or a change in listing status. This procedure was then used for the Arizona Bald Eagle petition;8 this new process introduced the use of a table focusing on finding FWS data to refute the claims in the petition.9 FWS meeting notes obtained by CBD show that the table was explicitly forbidden to contain supporting information: "Table – can use info from files that refutes petition but not anything that supports, per Doug. Acknowledge data exists, however, we make decision based on whats (sic) in petition."10
The 90-day petition process for the Endangered Species Act is intended to serve as a warning system to prompt FWS to protect imperiled species. The new methodology exemplified by the table instructs FWS scientists not to use their data to get a complete picture of the species in the petition, but to only consider the specific arguments and scientific justifications of the petitioner. This listing process clearly does not support the legal responsibility of the FWS to make its ESA determinations "solely on the basis of the best scientific and commercial data available."11
On Aug 30, 2006, the FWS denied the petition to list the Arizona bald eagle as a distinct population.12 This runs contrary to the recommendations of their own seven-member scientific panel that was convened to peer review the bald eagle delisting proposal, who concluded "we do not believe that the Southwest Bald Eagle population is secure, and we question whether even current numbers can be sustained without active management and habitat protection."13 This opinion was echoed by Robert T. Magill, former Nongame Birds Program Manager for the Arizona Game and Fish Department, and chair for the Southwestern Bald Eagle Management Committee. Magill summarizes his detailed analysis by saying "the conclusion that the bald eagle in the Southwestern Recovery Region no longer needs protection from the Endangered Species act is incorrect."14
These scientists are concerned over the low numbers of breeding pairs of eagles, high adult mortality, and increasing threats of habitat alteration and human encroachment.15 Data from the FWS shows the Arizona population is bordered by a paucity of bald eagles in neighboring states;16 these birds occupy a unique desert setting, tend to breed earlier, are smaller, and faithfully breed in the southwest.17 CBD has filed a lawsuit contesting the Arizona bald eagle decision.18
The FWS announced the removal of the bald eagle from Endangered Species Act protections on June 28, 2007,19 along with management guidelines20 to explain the bird's protections under the Golden and Bald Eagle Protection Act21. FWS has also issued guidance defining how to interpret this law's prohibition on "disturbing" a bald eagle,22 but the real effect of this law has yet to been seen in practice. If these protections are too weak to defend the still-vulnerable southwestern population of the bald eagle, the progress within the region could be lost.
2. U.S. Fish and Wildlife Service. Bald eagle soars off Endangered Species List. Accessed July 12, 2007.
3. Raptor Research Foundation. Raptor Research Foundation peer review of bald eagle delisting documents. August 11, 2006. Also a letter from Robert Magill, former Nongame Birds Program Manager for the Arizona Game and Fish Department and Chair of the Southwestern Bald Eagle Management Committee. June 17, 2006.
4. FOIA document: Bald Eagle Call on July 18, 2006.
5. Barringer, Felicity. Interior official steps down after report of rules violation. The New York Times. May 2, 2007.
6. Department of the Interior, Office of the Inspector General. Report of investigation: Julie MacDonald, deputy assistance secretary – Fish, Wildlife, and Parks. Available online from the Center for Biological Diversity.
7. FOIA document: New Petition Outline (revised) email. May 6, 2005. Provided by CBD.
8. FOIA document: Bald Eagle Summary Outline. Feb 21, 2006. Provided by CBD.
9. FOIA document: New Petition Outline (revised) email.
10. FOIA document: Listing Meeting notes from May 16, 2005. Provided by CBD.
12. U.S. FWS. Questions and answers: 90-day petition finding for Sonoran Desert bald eagle population. Aug 30, 2006. Accessed July 12, 2007.
13. Raptor Research Foundation peer review.
14. Letter from Robert Magill, former Nongame Birds Program Manager for the Arizona Game and Fish Department and Chair of the Southwestern Bald Eagle Management Committee. June 17, 2006.
15. Raptor Research Foundation peer review and Magill letter.
16. U.S. Fish & Wildlife Service. Estimated Number of Bald Eagle Breeding Pairs (by State). Accessed July 12, 2007.
17. FOIA document: Bald Eagle Summary Outline.
18. Center for Biological Diversity. Bush administration suppressed scientific panel recommendation to keep Arizona bald eagle on endangered species list. Jan 5, 2007.
19. US FWS. Bald eagle soars off the Endangered Species List. Secretary Kempthorne: The eagle has returned. June 28, 2007. Accessed July 12, 2007.
20. US FWS. National Bald Eagle Management Guidelines. May 2007. Accessed July 12, 2007.
22. US FWS. Final Environmental Assessment: Definition of "disturb" as applied under the Bald and Golden Eagle Protection Act. May 2007. Accessed July 12, 2007.