Circuit Upholds Release of Falcons Into New Mexico

(CN) - The 10th Circuit upheld the U.S. Fish and Wildlife Service's decision to release captive-bred northern aplomado falcons into southern New Mexico to help the endangered species repopulate the southwest.

Forest Guardians challenged the release plan because it favored allowing the colorful bird of prey to repopulate the country naturally, with the full protection of a designated critical habitat.

The group's view clashed with that of the Fish and Wildlife Service and The Peregrine Fund, which pushed for the release of captive-bred falcons, a move that the Forest Guardians said would weaken the falcons' protection under the Endangered Species Act.

The aplomado subspecies has historically lived in savannas, coastal prairies and higher grasslands across the U.S. southwest through Mexico and into Guatemala and Nicaragua. It was listed as an endangered species in 1986, after the use of pesticides and brush degradation pushed the species out of the United States and northern Mexico. The endangered falcons nest primarily in Chihuahua, Mexico.

The Fish and Wildlife Service never designated a critical habitat for the birds, because its authority to do so does not extend into Mexico. Forest Guardians petitioned for such a designation after a pair of falcons were found to have successfully nested and bred in Luna County, N.M., in 2001.

But the agency never acted on the petition, instead adopting a plan to reintroduce falcons bred in captivity into New Mexico and Arizona to help them repopulate the United States.

The Peregrine Fund says it released 11 falcons in 2006, 39 in 2007 and 70 in 2008.

Forest Guardians challenged the action, saying the Fish and Wildlife Service violated environmental laws by releasing an experimental population into an existing wild population. It also criticized the agency's allegedly "biased" environmental analysis and accused the government of trying to avoid ruling on the critical habitat petition.

A three-judge panel in Denver sided with the Fish and Wildlife Service, saying "substantial evidence" backed up the agency's conclusion that a single pair of nesting falcons does not constitute a wild population, and that the Mexican falcons were not likely to recolonize the southwestern United States.

"Although the evidence also contains evidence to support Forest Guardians' argument," Judge Jerome Holmes wrote, "we are not free to displace the FWS's choice between two fairly conflicting views."

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