[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Rules and Regulations]
[Pages 54711-54713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22600]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket ID FWS-R2-ES-2011-0069; 92220-1113-0000; ABC Code: C6]
RIN 1018-AX08
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.
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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 (800) 877-8337 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
[[Page 54712]]
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
[[Page 54713]]
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. Amend Sec. 17.11 by removing from the table at paragraph (h) the
entry for ``Eagle, bald (Haliaeetus leucocephalus)''.
Sec. 17.41 [Amended]
0
3. Amend Sec. 17.41 by removing and reserving paragraph (a).
Dated: August 26, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-22600 Filed 9-1-11; 8:45 am]
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