With Full Recovery Comes Removal of U.S. Protection

By John Myers, Duluth News-Tribune, Minn.

Jun. 28–The federal government today will officially acknowledge what Northland residents have noticed for years: Bald eagles are back in a big way.

The U.S. Fish and Wildlife Service, under court order, will submit its final plan to remove bald eagles from protections under the Endangered Species Act.

Secretary of the Interior Dirk Kempthorne will make the announcement at the Jefferson Memorial in Washington. The rule becomes official after being published in the Federal Register next month.

Eagle numbers have rebounded more than anyone thought possible 40 years ago, from a low of about 420 nesting pairs in the contiguous 48 states in the 1960s to 11,040 pairs today.

That includes more than 1,312 pairs in Minnesota, the most of any state outside Alaska, and nearly 1,200 in Wisconsin.

Federal protection under the act made it illegal to shoot, poison or otherwise harass eagles, including destroying their nests and nearby habitat. And even more critical to the eagle comeback was a federal ban on DDT, enacted in 1972. The pesticide was accumulating in the fish and animals eagles ate and was rendering eagle eggs too thin to survive hatching.

While eagles won’t have the endangered species list behind them, they won’t be defenseless. On June 1, the federal government announced its plan to protect bald eagles by using the 1940 Bald and Golden Eagle Protection Act. Federal migratory bird treaties also afford protections for the big bird.

Many conservation groups say the eagle’s success shows the Endangered Species Act can work well.

“We have some concerns over the loss of eagle habitat now that they don’t have the Endangered Species Act to fall back on. We think we’ll lose some eagle habitat going forward,” said Kieran Suckling, director of the Center for Biological Diversity. “But we certainly agree that eagles are recovered at a national level. This is one of the greatest conservation success stories in U.S. history.”

Suckling and others, however, say Bush administration plans to change how the Endangered Species Act is enforced, first leaked to the public in March, could prevent future successes. The administration wants to change several aspects of the act, making it harder to list species and listing species only where they still exist as opposed to where they may have existed before declining.

It’s not clear if or when the new rules, which would face opposition in Congress and likely lawsuits from environmental groups, will be formally unveiled.

“If the Bush rules were in place before, the bald eagle wouldn’t be a success story today. We would have bald eagles only in 12 states where they were hanging on, and not in all 50 states,” Suckling said.

But Damien Schiff, attorney for the Pacific Legal Foundation, a property-rights group, said changes in endangered species regulations are long overdue.

“I really doubt that we’ll see anything meaningful happen any time soon. The Endangered Species Act has a lot of special interests and emotions around it,” Schiff said. “But we do believe that we need to balance environmental protection with concerns of property owners, and right now environmental policy is tilted” against property owners.

Schiff’s group says the federal government is going too far in maintaining protections for eagles, even after their population is fully recovered. The foundation is threatening to sue the government again, saying new restrictions will continue to prevent some landowners from fully using their property because of eagle nests.

Under the new federal plan, eagles will continue to be protected from human activity that could kill or harm the birds, destroy their nests or damage their eggs. The government also set up new rules for special permits that allow incidental taking of eagles and their nests — for example, if an eagle built a nest near an airport or construction zone that needed to be moved for public safety and to protect the bird itself.

The process of removing eagles from the Endangered Species Act protections first was proposed a decade ago by the Clinton administration but stalled. It was jump-started by a lawsuit filed by a Minnesota landowner who wants to develop seven acres of waterfront land on Sullivan Lake in Morrison County into a subdivision.

The land holds an active eagle nest, and state and federal wildlife officials turned down the development plan. The landowner filed suit, saying the eagle didn’t deserve protection as endangered when its population had recovered. The court essentially agreed, ordering the government to finish de-listing eagles by June 29.

Schiff said the landowner will lose about $400,000 if he is thwarted from developing the land as he chooses. While no one is suggesting it should be legal to kill eagles or destroy their nests, Schiff said, property owners should be able to develop nearby eagle nests.

“No one doubts that, biologically, eagles have fully recovered. So it would seem to make sense then that their protections would be at least modestly relaxed,” Schiff said. “Instead, we’re seeing de-facto endangered species protections continued under the new regulations.”

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