SAN FRANCISCO (CN) – Attorneys for the Center for Biological Diversity urged the Ninth Circuit on Monday to order the Fish and Wildlife Service to reexamine whether desert eagles are eligible for protection under the Endangered Species Act after the agency twice refused to extend it to them.
Despite the contentious nature of the case, the three-judge panel lobbed both parties softball questions at the hearing, indicating that it may have decided prior to oral argument how it will rule.
The case centers around the Fish and Wildlife Service’s 2012 finding that bald eagles that nest in the Sonora Desert in Arizona and northern Mexico aren’t eligible for a listing as endangered or threatened because they aren’t a “distinct population segment” of the bald eagle population that warrant protection.
Under federal wildlife policies, a population is distinct when it lives separately from the species’ general population and its survival is significant to the species as a whole.
With fewer than 500 breeding pairs left in the contiguous United States, wildlife officials in 1967 designated bald eagles in the southern part of the country as endangered, extending the listing to all bald eagles in 1978.
The protections allowed bald eagle populations to recover enough that by 1995, FWS reclassified the bird as threatened, and delisted it altogether in 2007 after it found an estimated 9,789 breeding pairs living in the lower 48 states.
However, the Center for Biological Diversity says the bald eagle population in the Sonora Desert hasn’t recovered as quickly as its cohorts, and in 2004 it petitioned FWS to designate the bird as a distinct population segment and keep it on the endangered species list.
FWS officials refused, finding in 2006 that the desert eagle population wasn’t significantly different from other bald eagle groups and wasn’t eligible for protection.
But U.S. District Judge Mary Murguia overturned the decision in 2008 and ordered the agency to review the issue. In her ruling, Murguia wrote that she had “no confidence in the objectivity of the agency’s decision-making process” following revelations that FWS officials in Washington, D.C. had ordered agency biologists in Phoenix to produce analysis that would support their decision to deny the desert eagle distinct population segment (DPS) status.
That same year, the inspector general of the Interior Department found that during the George W. Bush administration, Interior officials had interfered with the work of their scientists to justify limiting protections for endangered species.
The report identified 15 decisions related to endangered species in which they had interfered, including a decision to reduce the number of streams designated as critical habitats for the endangered bull trout and to remove them from industrial use.
In 2010, FWS again refused to grant DPS status to the desert eagle. The Center for Biological Diversity along with the Maricopa Audubon Society sued, and U.S. District Judge David Campbell set aside the agency’s decision the following year and ordered another review. Predictably, the agency once again determined in 2012 that the desert eagle was not a distinct population.
Campbell granted summary judgment to FWS two years later, nearly a decade after the fight began.
Although the appellate panel’s line of questioning on Monday seemed perfunctory, U.S. Circuit Judge Johnnie Rawlinson at one point expressed concerns over the political interference Murguia had raised in her decision, and asked Justice Department attorney Mark Haag to address the issue.
“The thing that bothered me most about this case was the history,” she told Haag. “One could come away with the impression that it had already been decided in the highest political circles that marching orders had been given to come to this conclusion.”
“It’s true that they identified cases where there was political influence, and they determined that there was no political influence here,” Haag responded.
He added that in the case of the desert eagle, “there was a dispute within the different levels of the department on how to approach this species,” but that it did not constitute interference.
The Center for Biological Diversity, however, wasn’t buying it. The group’s attorney Daniel Rohlf told the panel that FWS had suspiciously broken with its two-decade protocol for granting DPS status when considering the desert eagle.
Rohlf, who works for the Earthrise Law Center in Portland, Oregon, said that whenever the agency determined that a population met just one of four criteria, it deemed the population significant to the overall species and automatically granted it DPS status.
But according to him, the agency refused to grant the desert eagle DPS status even though it lives in an ecosystem unique to its species – which qualifies it as significant. It was the first time FWS withheld significance from a population after finding that it meets one of the agency’s criteria for the designation, he said.
“For the last 20 years the agency has said if a population meets one of these criteria, it’s significant. Now the agency is saying ‘significant is whatever we say it is,'” Rohlf added.
Rawlinson was joined on the panel by U.S. Circuit Judge William Fletcher and Senior U.S. District Judge Robert Pratt, who is sitting by designation from the Southern District of Iowa.