United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
This case involves Plaintiffs' attempts to have the Sonoran Desert population of bald eagles listed as threatened or endangered under the Endangered Species Act. This population of the bald eagle, which will be referred to in this order as the "desert eagle, " has been the subject of two previous lawsuits in this Court. See Ctr. For Biological Diversity v. Kempthorne, 2008 WL 659822 (D. Ariz. Mar. 6, 2008); Ctr. For Biological Diversity v. Salazar, 2011 WL 6000497 (D. Ariz. Nov. 30, 2011). Plaintiffs challenge the decision of the Fish and Wildlife Service that the desert eagle is not a distinct population segment under the Endangered Species Act.
The parties have filed cross motions for summary judgment. Docs. 30, 63. The motions are fully briefed (Docs. 63, 66, 68), and the Court heard oral argument on October 10, 2014. The Court will grant summary judgment for Defendants.
The Endangered Species Act ("ESA") defines "species" to include "any distinct population segment of any species of vertebrate fish or wildlife[.]" 16 U.S.C. § 1532(16). The Fish and Wildlife Service ("FWS") is an agency charged with determining when a portion of a species constitutes a distinct population segment ("DPS").
The bald eagle was first listed as an endangered species on March 11, 1967. The listing occurred under the Endangered Species Preservation Act of 1966, a predecessor to the ESA. Following enactment of the ESA in 1973, the bald eagle was listed as endangered in 43 states and threatened in 5 others. 43 Fed. Reg. 6230 (Feb. 14, 1978). On July 12, 1995, the bald eagle was reclassified as threatened in all states. 60 Fed. Reg. 36000.
The bald eagle is an ESA success story. Under the protection of the ESA, bald eagle numbers increased significantly throughout the United States from less than 500 breeding pairs in 1963 to almost 10, 000 breeding pairs in 2007. 72 Fed. Reg. 37346. As a result this remarkable recovery, FWS removed the bald eagle from the threatened species list in 2007.
In 2004, as delisting was being considered, the Center for Biological Diversity ("CBD") filed a petition asking FWS to designate the desert eagle as a DPS and provide for its continued protection under the ESA. Upon receiving such petitions, FWS must issue a 90-day finding on whether the "petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b). After some delay and litigation, FWS found that CBD's petition did not "present substantial scientific or commercial information to indicate that the Sonoran Desert bald eagle constitutes a valid DPS." 71 Fed. Reg. 51549 at 51556 (Aug. 30, 2006).
CBD challenged the finding in this Court, and in 2008 Judge Mary H. Murguia set aside the finding as arbitrary and capricious under the Administrative Procedures Act ("APA"). Ctr. For Biological Diversity v. Kempthorne, 2008 WL 659822 (D. Ariz. Mar. 6, 2008). Judge Murguia stated that she had "no confidence in the objectivity of the agency's decision making process" due, in part, to evidence that FWS officials in Washington, D.C. had given "marching orders" to local FWS personnel that the petition was to be denied. Id. at *12. Judge Murguia remanded the petition to FWS with orders to conduct a full status review and issue a finding on whether the desert eagle constituted a DPS. Id at *15-16.
After additional public comment and review, FWS issued its finding in February 2010. 75 Fed. Reg. 8601-01 (Feb. 25, 2010). FWS found that the desert eagle population was not a DPS eligible for listing under the ESA. Id. Plaintiffs challenged this new finding in this Court, and the undersigned judge set it aside. See Ctr. for Biological Diversity v. Salazar, 2011 WL 6000497, at *14 (D. Ariz. Nov. 30, 2011). The Court held that the finding was based on a 2007 delisting procedure and rule that "failed to comport with the notice, comment, and consultation requirements of the law." Id. at *9. The Court found the finding to be an abuse of discretion and ordered FWS to complete a new finding based on information gathered during the status review ordered by Judge Murguia. Id at *14.
FWS issued its new finding on May 1, 2012, again finding that the desert eagle is not a DPS (the "2012 Finding"). 77 Fed. Reg. 25792-01 (May 1, 2012). FWS also found that desert eagles are not threatened or endangered. Id at 25828. In this lawsuit, Plaintiffs claim that the 2012 Finding, like FWS's previous actions on the desert eagle, is arbitrary and capricious.
II. DPS Policy and the 2012 Finding.
FWS has issued a formal policy on how DPS decisions are to be made (the "DPS Policy"). The DPS Policy reflects Congressional guidance that DPS designations should be used "sparingly" while "encouraging the conservation of genetic diversity." 61 Fed. Reg. 4725. The policy requires FWS to evaluate three elements in deciding whether a portion of a species constitutes a DPS entitled to protection under the ESA - discreteness, significance, and conservation status. 61 Fed. Reg. at 4725.
A population satisfies the first element - discreteness - if it is "markedly separated from other populations of the same taxon" by "physical, physiological, ecological, or behavioral factors, " or if it is "delimited by international boundaries within which differences [in species management] exist that are significant." Id. The 2012 Finding found the desert eagle population to be discrete because it is physically separated from other populations of bald eagles and because there is little or no immigration to and emigration from the surrounding populations. 77 Fed. Reg. at 25801-05. Plaintiffs agree with this finding and do not challenge it in this case.
In assessing the second element - significance - the DPS Policy requires FWS to "consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs." 61 Fed. Reg. at 4725. The DPS Policy identifies four factors to be considered in evaluating the significance of a population: (1) persistence of the population in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the population would result in a significant gap in the range of a taxon; (3) evidence that the population represents the only surviving natural occurrence of a taxon; and (4) evidence that the population differs markedly from other populations of the species in its genetic characteristics. Id. The DPS Policy makes clear that these factors are not exclusive. Id. The policy further instructs that "[b]ecause precise circumstances are likely to vary considerably from case to case, it is not possible to describe prospectively all the classes of information that might bear on the biological and ecological importance of a discrete population segment." Id.
In applying the first significance factor - "persistence of the population in an ecological setting that is unusual or unique for the taxon" - the 2012 Finding considered the broad variety of settings in which bald eagles live:
Bald eagles are highly adaptable, wide-ranging habitat generalists. Across the range of the species, there is no "usual" ecological setting, in terms of the elevation, temperature, prey species, nest tree species, or type of water source[.] The bald eagle is capable of inhabiting areas throughout North America, so long as a sufficient food source persists.
77 Fed. Reg. at 25806.
The 2012 Finding provided additional detail to support its conclusion that the bald eagle is a "habitat generalist" that can survive almost anywhere. It noted that the bald eagle is distributed across the North American continent, "from the Aleutian Islands to Baja California, Mexico, and from northeastern Canada to Florida." Id. It found that the bald eagle "breeds at elevations ranging from sea level to mountains as high as 10, 000 feet, " and occupies a wide range of aridity including "some of the driest areas in the United States and... some of the wettest." Id. The 2012 Finding noted that although bald eagles generally nest in trees along rivers, lakes, and seacoasts in proximity to a sufficient source of prey, they have also been documented to nest on cliffs, on the ground, in mangroves, in caves, and in man-made structures such as cell-phone towers. Bald eagles are not limited to eating any particular species of or even class of prey. Id.
Because the bald eagle lives in such a wide range of settings, FWS concluded that it could not find the desert eagle significant to the species as a whole merely because it lives in the desert. "Though the Sonoran Desert Area may represent a unique set of habitat characteristics, we cannot say it is unusual or unique for the bald eagle such that persistence there is significant to the bald eagle species as a whole." Id.
To determine whether the desert eagle is significant to the species as a whole, FWS asked whether it has adapted in ways that could benefit the species in times of stress or catastrophic loss. Id. at 25806-07. For example, FWS considered the relatively small size of the desert eagle, but found no evidence that its size resulted from a unique adaptation to the desert. Id. FWS instead found that its size was likely due to the latitude at which it lives. Id. at 25807. FWS cited studies showing that bald eagle size generally increases with more northerly latitudes, "consistent with Bergmann's Rule, which holds that animal size increases with increasing latitude due to changes in climate." Id. FWS noted studies finding that bald eagles in Florida, which is farther south than Arizona, are the smallest, and that their size decreases from north to south within the State of Florida. Id. FWS thus concluded that "small size is not an adaptation unique to the Sonoran Desert but is rather part of the natural variability of the taxon as a whole." Id.
FWS considered the porosity of the desert eagle's egg shells, a factor cited by some in arguing that the desert eagle has adapted uniquely to the hot desert environment. FWS found only one study that addressed egg shell porosity - a 1992 study by Hunt et al. The study did not draw any conclusions about the significance of porosity and was based on an extremely small sample size of only four eggs. Id. FWS concluded that "it would not be scientifically robust to draw any conclusions" from such a limited study. Id.
FWS examined differences in life history traits of the desert eagle, including the timing of breeding, feeding habits, nest-site selection, and juvenile migration. Id. at 25807-08. As with size, however, studies reviewed by FWS suggested that variations were likely due to differences in latitude. Id. For example, "the breeding chronology of Florida birds (further south than ...