[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Rules and Regulations]
[Pages 54711-54713]
From the Federal Register Online via the Government Publishing 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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