ELR Citation: 41 ELR 20350
No(s). 10-2130-PHX-DGC (D. Ariz. Nov 30, 2011) (Campbell)

A district court set aside and remanded the FWS' 12-month finding that the desert bald eagle does not qualify as a distinct population segment (DPS) of bald eagles entitled to statutory protection under the ESA. In 2004, an environmental group petitioned the FWS to list desert eagles as a DPS, but the FWS issued a negative 90-day finding and the group filed suit. In 2007, before the court ruled in the group's case, the FWS issued a rule removing all bald eagles in the United States from the ESA's threatened species list. The 2007 delisting rule included a finding that the desert eagle is not a DPS. The FWS argued that the delisting rule rendered the group's suit moot, but the court disagreed and enjoined FWS from applying its 2007 delisting rule to the desert eagle until it conducted a full status review and issued a 12-month finding. In 2010, the FWS issued its 12-month finding that the desert eagle was "discrete" but not "significant" to the species as a whole, and therefore not entitled to DPS treatment. The group again filed suit, this time challenging the 12-month finding. This court agreed that the FWS' finding was flawed. The FWS disregarded the uniform view of biologists and its own staff that the desert eagle qualified for DPS status, and instead arbitrarily stood by its 2007 delisting rule, making it the de facto final decision unless compelling evidence to the contrary was found. But the 2007 delisting rule was not a valid status review for the desert eagle since the Service did not comply with the necessary notice, comment, and consultation requirements. Findings reached without appropriate notice, comment, and consultation should not become an agency's presumptive decision. Accordingly, the 2007 delisting rule should not have become FWS' de facto decision on the DPS issue. The court therefore set aside the 12-month finding and required FWS to complete a new one.