_{Environmental Law Update}

 

Environmental Law Update Editor: Rafe Petersen, Holland & Knight LLP, 2099 Pennsylvania Ave., N.W., Suite 100, Washington, DC 20006–6801, rafe.petersen@hklaw.com. Guest Editor: Julia A. Jones, Holland & Knight LLP, 2099 Pennsylvania Ave., N.W., Suite 100, Washington, DC 20006-6801, julia.jones@hklaw.com.

 

Environmental Law Update provides information on developments in environmental law as it applies to property, probate, and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

Delisting the Bald Eagle

The U.S. Fish and Wildlife Service (FWS) has published a rule proposing to remove the bald eagle from the list of “threatened” and “endangered” species under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. The bald eagle, the nation’s symbol, has had a remarkable recovery since the federal government first determined to provide it with protection under ESA and other laws. Yet, with ESA delisting, some interesting questions arise about the legal status of the bald eagle and the scope of the FWS’s authority to provide bald eagle protection. Because many more species have recovered to the point where they should no longer be on the list of protected species, delisting the bald eagle raises broad implications for the laws providing protection for wildlife.

History of Protection of the Bald Eagle

FWS has estimated that as many as 100,000 bald eagles may have nested in the lower 48 states when the bird was adopted as our national symbol in 1782. Since then, the eagle population has declined sharply as a result of habitat loss, hunting, and, most importantly, contamination of its food source by the pesticide DDT. Eagles absorb DDT when they consume fish, which produces weak egg shells and results in nest failures from broken eggs during incubation. Consequently, FWS estimates that by 1963 only 417 bald eagle pairs nested in the lower 48 states.

In 1940, noting that the bald eagle was “threatened with extinction,” Congress passed the Bald Eagle Protection Act prohibiting, except under certain specified conditions, the taking or possession of, or commerce in, bald eagles. A 1962 amendment to this Act added the golden eagle, and the amended law became known as the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. §§ 668–668d. In 1967, bald eagles were added to the list of ESA “endangered” species in 43 of the lower 48 states and on the list of “threatened” species in Michigan, Minnesota, Oregon, Washington, and Wisconsin. An “endangered” species is one that “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species is defined as “threatened” when it is “likely to become an endangered species within the foreseeable future.” 16 U.S.C. § 1532(20).

With the ban on DDT and ESA protections in place, the bald eagle began to recover. By 1995, FWS announced the species had “recovered” to the point that it could be down-listed to “threatened” status throughout all of the lower 48 states. Then, in 1999, the FWS proposed to remove the species from the list altogether. That proposal, however, stalled.

FWS’s Proposed Delisting

On February 16, 2006, FWS again issued a proposed rule that removes the bald eagle from the ESA list of endangered and threatened wildlife in the lower 48 states. 71 Fed. Reg. 8,238 (Feb. 16, 2006). In anticipation of bald eagle delisting, FWS simultaneously proposed enhancing bald eagle protection under the less well-known BGEPA. Should the bald eagle be delisted under ESA, the primary law protecting bald eagles would be BGEPA. Similar in some respects to ESA, BGEPA prohibits the “take” of a bald eagle. Unlike the ESA, however, the statutory definition of “take” under BGEPA includes a prohibition of “disturb,” which FWS now proposes to define. 71 Fed. Reg. 8,265 (Feb. 16, 2006). Absent the ESA legal regime, FWS also proposed new public guidance for activities in the vicinity of bald eagles or their nests by developing draft National Bald Eagle Management Guidelines (Guidelines) under the new BGEPA definition of “disturb.” 71 Fed. Reg. 8,309 (Feb. 16, 2006). The comment period on all three of these proposed federal actions closed on June 19, 2006.

If asked, most in the regulated and environmental communities alike would probably support the delisting of the bald eagle. Having recovered from near extinction, its recovery is celebrated and represents an important milestone under ESA. The combined effect, however, of the proposed delisting of the bald eagle, with the new definition of “disturb,” and the proposed Guidelines would result in a problematic legal environment in which bald eagle protection would be greater under BGEPA than under ESA. This outcome would be at odds with the common sense expectation that delisting would mean less protection and would contradict the statutory purpose of BGEPA.

The proposed definition of “disturb” and the Guidelines would impose greater limits on activities that may occur near a bald eagle, and they lack a permitting system for authorized “takes” of the bald eagle associated with land management or development. As currently worded, the definition of “disturb” is overly broad and would apply not only to the protection of individual bald eagles but also to bald eagle habitat. For example, under BGEPA the proposed definition of “disturb” includes “nest abandonment” as a “take.” This “nest abandonment” concept incorporates habitat modification as if it were drafted to comport with the law under ESA. Protection of habitat, and the insulation of the bald eagle from all human activities, however, clearly departs from the statutory intent of BGEPA. As the legislative history indicates, BGEPA was enacted to protect the bald eagle only from direct acts of “wanton destruction” of individual eagles. The proposed definition of “disturb” therefore exceeds the scope of BGEPA.

The draft Guidelines associated with the proposed “disturb” definition also run the risk of being more restrictive than the current regulatory regime under the ESA. Greatly affecting land managers and landowners, the Guidelines would impose strict limits on activities that may occur in the vicinity of a bald eagle. For example, the Guidelines would prohibit any building within 660 feet of a bald eagle nest tree. Without any type of exception or permit authorization requirement to build within a 660-foot buffer zone of a bald eagle nest, FWS proposes to create a more stringent
regulatory regime under BGEPA than under ESA.

Conclusion

FWS has received extensive public comments expressing concern that the delisting of the bald eagle may well create unforeseen regulatory hurdles. On the one hand, support for the delisting may be eroding as many in the regulated community make the argument that the current ESA regulatory regime should not be replaced if the proposal results in a more restrictive, complicated, and uncertain legal regime for managing bald eagles. On the other hand, many in the environmental community are concerned that adequate protections be in place once the bald eagle no longer is protected under ESA. Obviously, delisting would be an empty process if the species has to be put back on the list in the future. Consequently, to address these problems with the proposed rules, FWS needs to reevaluate and rewrite the proposed BGEPA definition of “disturb” as well as revisit key components of the Guidelines. The definition and the Guidelines should reflect the statutory intent of BGEPA, not ESA, provide more flexibility in its implementation, and improve regulatory certainty. Depending on how FWS balances these interests, the final rules are certain to create considerable debate and possibly even litigation over the degree of protection afforded to the bald eagle under BGEPA.