Continued protection of the bald eagle after delisting.

• Author: Martin, Susan Roeder

The dramatic recovery of the bald eagle over the past 35 years has been one of the greatest conservation success stories of our nation. (1) The bald eagle population increased from its 1963 low of 487 breeding pairs in the lower 48 states to 9,789 breeding pairs in 2007. (2) Florida had 1,133 of these breeding pairs. Using best available scientific and commercial data, the U.S. Fish and Wildlife Service (USFWS) determined that the bald eagle has recovered sufficiently so that it no longer meets the definition of threatened or endangered under the Endangered Species Act of 1973 (ESA) as amended. (3) The recovery has been attributed to the reduction in the use of pesticides known to impair reproductive success (such as DDT), habitat protection, and management plans. A species is endangered under the ESA if it is in danger of extinction through all or significant portions of its range. It is threatened if it is likely to become endangered within the foreseeable future. (4) While the bald eagle has been delisted under the ESA, as discussed below, it continues to be protected under the Bald and Golden Eagle Protection Act (BGEPA) (5) and the Migratory Bird Treaty Act (MBTA). (6)

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Effective August 8, 2007, the USFWS delisted the bald eagle in the lower 48 states. (7) (Relisting of bald eagles nesting in Arizona's Sonoran Desert subsequently occurred. (8)) This revises 50 CFR 17.11(h) to remove the bald eagle from the federal list of endangered and threatened species and removes the special rule for the bald eagle at 50 CFR 17.41(a). This means federal agencies will no longer be required to consult under [section] 7 of the ESA in regard to the bald eagle. Since critical habitat was not designated for the bald eagle, delisting will not affect the ESA's habitat provisions.

The USFWS determined that habitat availability is not currently preventing the growth of the bald eagle population in the lower 48 states. (9) Since the population continues generally to increase in most states, the USFWS determined that the carrying capacity has not been reached in many parts of the eagle's range. It is expected that the population in the lower 48 states will generally continue to increase, but at a declining rate until the population gradually stabilizes, with fluctuations. Therefore, "the immediate concern with habitat loss has dissipated." (10) In Florida and the Chesapeake Bay region, however, there continues to be heavy development pressures and important eagle habitat overlaps. (11) As explained below, the USFWS believes that other regulatory mechanisms will protect the species, even in these areas of concern.

Continued Protection of the Bald Eagle

Even though it was delisted under the ESA, the bald eagle continues to be protected under the BGEPA and the MBTA. The original Bald Eagle Protection Act was enacted in 1940, and thereafter amended in 1978 to include golden eagles, as the original primary vehicle to protect the bald eagle and its habitat. This statute prohibits the "taking" of a bald eagle without a permit from the Secretary of the Interior, and this includes nests and eggs. "Take" is defined as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb." (12)

The habitat protection under the BGEPA is not identical to the ESA. However, there is overlap in the definition of "take" under both statutes. (13) Additionally, the terms "harm" and "harass" utilized under the ESA further to define "take" are similar to the definition of disturb under the BGEPA.

In considering the relationship between the ESA and the BGEPA, both prohibit the taking of bald eagles, and the respective definitions of "take" do not suggest that the ESA provides more protection for bald eagles than the BGEPA. The meaning of the term "disturb" is at least as broad as the term "harm," and both terms are broad enough to include adverse habitat modification. (14) A main distinction between the ESA and the BGEPA is that the BGEPA does not contain a private right of action. The BGEPA does, however, contain civil and criminal penalties. (15)

Since the BGEPA will now be the primary federal law protecting the bald eagles, the USFWS determined that the language on taking a bald eagle should be clarified. A final rule became effective on June 5, 2007, which defined the word "disturb" as follows:

To agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with...