Bald eagle is set to lose 'threatened' tag

Protected since 1967 under the Endangered Species Act, the eagle may be delisted as soon as Thursday.

Bald eagles were once so reviled in Maine that settlers killed and fed them to hogs. Wrongly tarred as livestock predators, they were poisoned in South Dakota and shot from airplanes in California.

By 1963, eagles had dwindled from an estimated half a million birds to just 417 breeding pairs in the lower 48 states. But in one of the most remarkable comebacks by a US species close to extinction, the bald eagle has rebounded to more than 11,000 pairs.

As a result, the United States Fish and Wildlife Service (FWS) is expected as soon as Thursday to remove the bald eagle from the Endangered Species Act (ESA) list of threatened species. It's a step environmentalists generally support, along with enthusiastic property-rights advocates who fought hard to get the eagle delisted.

Even without ESA protection, however, the bald eagle numbers will be monitored by the FWS for the next five years, and the eagle will still be protected by at least three federal and numerous state laws - though none are as powerful as the ESA, legal experts say. In fact, it is the ESA itself that deserves much of the credit for the eagle's comeback, many say.

"The bald eagle represents one of the greatest endangered species recovery stories in US history," says Kieran Suckling, policy director of the Center for Biological Diversity, a national environmental group focused on endangered species preservation based in Tucson, Ariz. "But it's really a victory for the Endangered Species Act as much as anything else."

Although the eagle was prohibited by law from being killed as long ago as 1940, its 1967 designation as an endangered species for the first time protected key bald-eagle habitat from development. It also opened the way for funding four decades of tender support from thousands of biologists and volunteers who hatched chicks and monitored nests – and galvanized Congress to ban the pesticide DDT, which had increased eagle mortality.

With the ESA protecting key habitat, and DDT gone, the eagle soared from near elimination to a coast-to-coast presence. Without it, the eagle today would exist in just a handful of states, Mr. Suckling says. While habitat protection will be far less now, other key laws remain.

The Migratory Bird Treaty Act of 1918 prohibits the killing of migratory birds, including the eagle. State laws also continue to protect eagles, although they run the gamut from the stiff protections of Washington State to far weaker regulations in Arizona and Wyoming, experts say.

Perhaps the toughest remaining protection is the Bald Eagle and Golden Eagle Protection Act of 1940. Beside outright killing of eagles, that law also prohibits "disturbing" the eagle – although just what it means to disturb an eagle had never been defined until a few weeks ago.

Under an updated FWS's regulatory definition, disturbing now includes any human activity that drives the eagle away from its nests. So developers whose operations drive the birds away will now fit the definition of "disturbing" and be subject to federal sanctions.

That new definition rankles Edmund Contoski, a Minnesota developer, who, now that the eagle is to be delisted from the ESA, has his sights set on building a subdivision on property abutting the shore of Sullivan Lake in Minnesota. It was Mr. Contoski's successful federal lawsuit and court order that nudged the FWS toward delisting the eagle after an eight year-long delay.

Now his attorney says he'll sue again if the updated eagle protection act prevents him building on Sullivan Lake.

"It makes no sense why the wildlife service would afford the same level of protection before, as after the delisting," says Damien Schiff, a staff attorney for the Sacramento-based Pacific Legal Foundation, a property-rights advocacy group. "If the eagle is delisted, there should be some reduction in regulations. But the way the regulation has been drafted and finalized, we believe the protections will remain essentially the same."

That legal threat aimed at eagle habitat has some eagle watchers concerned. While eagle populations are up overall, some states now are seeing eagle numbers level off.

In Florida, where development pressures are intense, eagle populations have been flat with about 1,100 pairs for five years, because they have saturated their available habitat. Something similar is also happening in Washington state. And in a few areas, such as Vermont, eagles still aren't soaring.

"We want to make sure the eagle population stays stable and healthy now that it's recovered to an appropriate level," says Mike Dalton, director of conservation policy at the National Audubon Society in Washington. "The problem is that bald eagles like waterfronts, rivers, streams, and beaches that are popular for development. We need to make sure we don't sacrifice all the bald eagle habitat now that we're seeing their numbers recover."

While some question whether it was the act, or banning DDT, that saved the eagle, others say the eagle's success may be a harbinger of other wildlife recovery success stories. Among ESA listed species, 92 percent have seen populations increase or remain stable since going on the list, the Center for Biological Diversity reports.

"We hope and expect that the eagle's success is just a hint of things to come," Suckling says.

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