[Federal Register Volume 73, Number 85 (Thursday, May 1, 2008)]
[Rules and Regulations]
[Pages 23966-23970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1203]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS--R2--ES--2008--0044; 40120--1113--0000-B3]
RIN 1018--AW12


Endangered and Threatened Wildlife and Plants; Listing the 
Potential Sonoran Desert Bald Eagle Distinct Population Segment as 
Threatened Under the Endangered Species Act

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 amend the regulations for the Federal List of 
Endangered and Threatened Wildlife at 50 CFR 17.11 by designating bald 
eagles (Haliaeetus leucocephalus) in the Sonoran Desert area of central 
Arizona as threatened under the authority of the Endangered Species Act 
of 1973, as amended (Act). We are also reinstating and clarifying the 
former special rule at 50 CFR 17.41 that applied to threatened members 
of this species. This action revises the CFR to reflect a March 6, 
2008, court order.

DATES: This action is effective May 1, 2008. However, the court order 
had legal effect immediately upon being filed on March 6, 2008.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 85021; telephone 
602-242-0210; facsimile 602-242-2513; http://www.fws.gov/southwest/es/arizona/.

SUPPLEMENTARY INFORMATION:

Background

    Information about the bald eagle's life history can be found in our 
July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the 
lower 48 States.

Previous Federal Action

    Information about previous Federal actions was provided in our July 
9, 2007 (72 FR 37346), final delisting rule for bald eagles in the 
lower 48 States.
    On October 6, 2004, we received a petition, dated October 6, 2004, 
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), 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.
    On March 27, 2006, the CBD and the Maricopa Audubon Society filed a 
lawsuit against the U.S. Department of the Interior and the Service for 
failing to make a timely finding on the petition. The parties reached a 
settlement and the Service agreed to complete its petition finding by 
August 2006. We announced our 90-day finding, required under 16 U.S.C. 
1533(b)(3)(A), 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 filed 
a lawsuit challenging the Service's 90-day finding that the ``Sonoran 
Desert population'' of the bald eagle did not qualify as a DPS, and 
further challenging the Service's 90-day finding that the population 
should not be up-listed to endangered status.
    On July 9, 2007 (72 FR 37346), we published the final delisting 
rule for bald eagles in the lower 48 States. In that final delisting 
rule, we stated that our findings on the status of the Sonoran Desert 
population of bald eagles superseded our 90-day petition finding 
because the final delisting rule constituted a final decision on 
whether the Sonoran Desert population of bald eagles qualified for 
listing as a DPS under the Act.
    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. On March 5, 2008, the U.S. District 
Court for the District of Arizona 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)), was filed on 
March 6, 2008.
    The court ruled for the plaintiffs and found that the Service:
    (1) Finding on the status of the Sonoran Desert population of bald 
eagles in our July 9, 2007 (72 FR 37346), final delisting rule did not 
moot the plaintiff's challenge to the August 30, 2006, negative 90-day 
petition finding;
    (2) Applied an inappropriately strict evidentiary burden on the 
petition at the 90-day review stage and thus arbitrarily and 
capriciously concluded that the petition did not present substantial 
information that listing the ``Desert bald eagle population'' may be 
warranted; and
    (3) Arbitrarily and capriciously conducted the 90-day review of the 
petition by soliciting information and opinions from a limited outside 
source.
    The court provided the following remedies and ordered the Service 
to:
    (1) Conduct a status review of the Desert bald eagle population 
pursuant to the Act to determine whether listing that population as a 
DPS is warranted, and if so, whether listing that DPS as threatened or 
endangered pursuant to the Act is warranted;
    (2) Issue a 12-month finding, pursuant to 16 U.S.C. 1533(b)(3)(B), 
on whether listing the Desert bald eagle population as a DPS is 
warranted, and if so, whether listing that DPS as threatened or 
endangered is warranted; and

[[Page 23967]]

    (3) Issue the 12-month finding within nine months of the court 
order, pursuant to 16 U.S.C. 1533(b)(3)(B), which translates to on or 
before December 5, 2008.
    Further, the court enjoined the Service's application of the July 
9, 2007 (72 FR 37346), final delisting rule to the Sonoran Desert 
population of bald eagles pending the outcome of our status review and 
12-month petition finding. The ``Desert bald eagle population'' 
referenced in the court order consists of those bald eagles in the 
Sonoran Desert of the southwest that reside in central Arizona and 
northwestern Mexico. Because these Sonoran Desert bald eagles were only 
listed under the Act in Arizona (and not in Mexico) at the time of the 
petition, the court's order enjoining our final delisting decision 
applies only to those bald eagles found in the Sonoran Desert region of 
the American Southwest. In other words, the court's order temporarily 
reinstated the listing of the bald eagle as a threatened species, but 
only with respect to the eagles that reside in the Sonoran Desert of 
central Arizona. The court order was effective as of March 6, 2008, the 
date it was filed.
    In order to determine the geographic area where the bald eagle 
would remain listed as threatened in Arizona, we examined the CBD's 
letter sent to us on March 5, 2005, clarifying their petitioned October 
2004 Distinct Population Segment boundary. We used the information 
provided by the CBD because the court found that their October 2004 90-
day petition ``may be warranted'' and, therefore, the petition 
represents the basis for determining the geographic extent of the area 
affected by this final rule.
    The CBD cited two documents describing vegetation communities 
(Brown 1973, 1994) and an Arizona Game and Fish Department (AGFD) bald 
eagle nest search report (Canaca et al. 2004). The CBD notes in the 
petition that information is provided to support listing a ``distinct 
population segment of Southwestern Desert Nesting Bald Eagle consistent 
with the geographical boundaries including the Sonoran Desert riparian 
areas of Central Arizona and northwestern Mexico.'' With regards to the 
Arizona portion, the petition notes that this area in central Arizona 
exists between 329 and 1719 meters (1080 and 5640 feet) in elevation, 
falling within the Upper and Lower Sonoran Life Zones and transition 
areas as described by Brown 1994. We used the above three references 
and the specific elevation text to define the geographic boundary of 
the petitioned DPS.
    Therefore, while we had specific clarification with respect to 
elevational boundaries, bald eagle breeding areas, the Upper and Lower 
Sonoran Life Zones, and the State of Arizona, we also received 
ambiguous direction with respect to the boundaries of ``central 
Arizona'' and which transition areas outside of the Upper and Lower 
Sonoran Life Zones to include. Because of these ambiguities and lack of 
a specific map in the petition, we were left to interpret their 
clarification, primarily at the perimeters of the boundary.
    We used all the factors provided by the CBD (i.e., bald eagle 
territories, elevation, life zones, and transition areas) and 
established a boundary that included all known bald eagle breeding 
areas within central Arizona. The boundary was difficult to interpret 
on the ground due to irregular lines or gaps in elevation from layers 
of electronic geographical data. Therefore, we used more identifiable 
and easily understood boundaries of county lines and highways that were 
found at the outer edges of the erratic boundaries. It is important to 
note that known bald eagle breeding habitat of the Sonoran Desert, as 
described in the petition, is not contiguous between Arizona and 
northwestern Mexico. The somewhat disjointed nature of bald eagle 
breeding habitat and its well known distribution in Arizona is likely 
why the petitioners specified ``central Arizona.'' Thus, the counties 
in the southern half of Arizona were not included in this final rule 
because they do not possess known bald eagle breeding areas, known 
suitable habitat for breeding eagles, and fall outside of the 
petitioner's geographic description.
    We determined that the affected area covers the following eight 
Arizona counties: (1) Yavapai, Gila, Graham, Pinal, and Maricopa 
Counties in their entirety; and (2) southern Mohave County (that 
portion south and east of the centerline of Interstate Highway 40 and 
east of Arizona Highway 95), eastern LaPaz County (that portion east of 
the centerline of U.S. and Arizona Highways 95), and northern Yuma 
County (that portion east of the centerline of U.S. Highway 95 and 
north of the centerline of Interstate Highway 8). All bald eagles found 
within this area are protected as a threatened species under the Act, 
with a special rule under our regulations at 50 CFR 17.41. Please refer 
to the following map for details of the geographic area affected by 
this action.
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[GRAPHIC] [TIFF OMITTED] TR01MY08.005

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Administrative Procedure

    This rulemaking is necessary to comply with a March 6, 2008, court 
order. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d), the 
agency has good cause to make this rule effective upon publication and 
require compliance retroactively to the date of the court order.

Effects of the Rule

    Any and all bald eagles, including migrants, found within the 
boundaries of the Sonoran Desert area of central Arizona, as delineated 
by the map included as part of this rule, are hereby listed as a 
threatened species under the Act, with a special rule found at 50 CFR 
17.41.
    The provisions of the special rule at 50 CFR 17.41 that we are 
adding here under the Act are the same as those in the prior special 
rule that was removed per our July 9, 2007 (72 FR 37346), final 
delisting rule removing the threatened status for bald eagles in the 
lower 48 States. This special rule now applies only to bald eagles in 
the Sonoran Desert area of central Arizona, the only such population of 
bald eagles so listed under the Act. Under this special rule, bald 
eagle banding and marking permits issued under the Migratory Bird 
Treaty Act (MBTA) (16 U.S.C. 703-712) and its implementing regulations 
at 50 CFR 21.22, and also under the Bald and Golden Eagle Protection 
Act (BGEPA) (16 U.S.C. 668-668d) and its implementing regulations at 50 
CFR part 22, will be deemed to also satisfy the requirements for a 
permit under the Act and its implementing regulations at 50 CFR 17.31 
and 17.32. The BGEPA regulations at 50 CFR part 22 authorize permits 
for taking, possession, and transportation within the United States for 
scientific, educational, and depredation control purposes and for the 
religious purposes of American Indian tribes. This part also governs 
the transportation into or out of the United States of bald and golden 
eagle parts for scientific, educational, and Indian religious purposes. 
Under this special rule, it will not be necessary to obtain a separate 
permit under the Act for the same activities already authorized under 
the MBTA and BGEPA permits described above.
    Although the petition also included Sonoran Desert bald eagles in 
northwestern Mexico, these bald eagles remain unlisted because bald 
eagles in this area were not previously listed pursuant to the Act and 
thus their status was unaffected by the court order limiting the 
effects of our July 9, 2007 (72 FR 37346), final delisting rule.
    Consistent with the court's March 6, 2008 order, this rule will be 
in effect ``pending the outcome of the status review and 12-month 
finding.'' However, we will immediately remove the bald eagle in the 
Sonoran Desert area of central Arizona from the List of Endangered and 
Threatened Wildlife if the court's March 6, 2008, order is stayed or 
reversed in any subsequent judicial proceeding, or if, after completion 
of the status review, we publish a 12-month finding that listing the 
Sonoran Desert bald eagle is not warranted. No decision has been made 
as to whether the government will appeal that order.
    We will publish a notice requesting public input for the status 
review required under the March 6, 2008, court order in the Federal 
Register in the near future. This status review will consider the 
population of bald eagles as described in the October 6, 2004, petition 
and any other relevant information received during the public comment 
period and will be based upon the best scientific and commercial data 
available, pursuant to the Act.
    Under this final rule, the prohibitions and conservation measures 
provided by the Act, particularly sections 7, 9, and 10, apply to bald 
eagles in the Sonoran Desert area of central Arizona. Federal agencies 
are required under the court order and this final rule to consult with 
us under section 7 of the Act in the event that activities they 
authorize, fund, or carry out may affect listed bald eagles.
    In addition to the conservation measures provided by the Act, 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 AGFD 
supporting the implementation of the AGFD's CAS. The Memorandum of 
Understanding was also signed by the following Federal agencies: Bureau 
of Reclamation, Bureau of Land Management, National Park Service, 
Forest Service, and the Department of Defense, including the U.S. Army 
Corps of Engineers. The CAS provides additional valuable guidance for 
protecting bald eagles in Arizona, and we support using it in 
conjunction with our Bald Eagle National Management Guidelines to 
protect bald eagles in Arizona.
    All bald eagles, of course, will continue to be protected under the 
BGEPA and MBTA. 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 
violating the protections afforded to all bald eagles under these 
various Acts and their respective implementing regulations. The 
Guidelines include suggestions for protecting bald eagles and their 
habitat while they are nesting, feeding, and roosting. While eagles 
originating in the Sonoran Desert area of central Arizona would not be 
protected by the Act if they traveled to other parts of the United 
States, they would still be afforded the protections under the BGEPA 
and MBTA.
    This rule will not affect the bald eagle's status 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).
    Additionally, pursuant to section 6 of the Act, we are able to 
grant available funds to the State of Arizona for management actions 
promoting the protection of bald eagles in the Sonoran Desert area of 
central Arizona.

Required Determinations

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment, as defined in the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to consult with Federally recognized Tribes on a 
government-to-government basis. Accordingly, we will promptly consult 
with the affected Tribes regarding the effects of the court's March 6, 
2008, order and this final rule.

[[Page 23970]]

We will also consult with the affected tribes as we conduct our new 
status review concerning the Sonoran Desert nesting bald eagle 
population.

References Cited

Brown, D. 1973. The Natural Vegetative Communities of Arizona. 
Arizona Game and Fish Department, Phoenix, AZ.
Brown, D. (editor). 1994. Biotic Communities of the Southwestern 
United States and Northwestern New Mexico. The University of Utah 
Press, Salt Lake City, UT.
Canaca, J.S., K.V. Jacobson, and J.T. Driscoll. 2004. Arizona Bald 
Eagle 2003 Nest Survey, Nongame and Endangered Wildlife Program 
Technical Report 226. Arizona Game and Fish Department, Phoenix, AZ.
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 Program Technical 
Report 173. Arizona Game and Fish Department, Phoenix, Arizona.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Regulation Promulgation

0
Accordingly, we 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. In Sec.  17.11(h), an entry for ``Eagle, Bald'' is added under BIRDS 
to read as follows:

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                       Species                                                        Vertebrate population
-----------------------------------------------------        Historic range           where  endangered or       Status    When    Critical     Special
   Common name              Scientific name                                                threatened                     listed    habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Birds
 
                                                                      * * * * * * *
Eagle, bald.....  Haliaeetus leucocephalus..........  North Arizona: South to      Arizona: (1) Yavapai,       T........  ......  NA........  17.41(a).
                                                       northern Mexico.             Gila, Graham, Pinal, and
                                                                                    Maricopa, Counties; and
                                                                                   (2) Southern Mohave County
                                                                                    (that portion south and
                                                                                    east of the center of
                                                                                    Interstate Highway 40 and
                                                                                    east of Arizona Highway
                                                                                    95), eastern LaPaz County
                                                                                    (that portion east of the
                                                                                    centerline of U.S. and
                                                                                    Arizona Highways 95), and
                                                                                    north of the centerline
                                                                                    of Interstate Highway 8).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Section 17.41 is amended by adding paragraph (a) to read as follows:


Sec.  17.41  Special rules--birds.

    (a) Bald eagles (Haliaeetus leucocephalus) wherever listed as 
threatened under Sec.  17.11(h). All provisions of Sec. Sec.  17.31 and 
17.32 apply to any threatened bald eagle, with the following 
exceptions:
    (1) The Service will consider any permit that we issue for bald 
eagles under Sec.  21.22 (banding and marking permits) or part 22 of 
this chapter (permits for certain activities with bald or golden 
eagles) to satisfy all requirements of Sec.  17.31 and the permits we 
issue under Sec.  17.32.
    (2) The Service will not require a second permit under Sec.  17.32 
for any activity that is covered by a permit issued under Sec.  21.22 
or part 22 of this chapter.
    (3) The Service will require a permit under Sec.  17.32 for any 
activity that is not covered by a permit issued under Sec.  21.22 or 
part 22 of this chapter.
* * * * *

    Dated: April 18, 2008.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. 08-1203 Filed 4-28-08; 4:00 pm]
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