On June 29th the federal government removed the bald
eagle from the endangered species list. It is great news that bald eagle
populations in the contiguous 48 states have done so well, where now there are
more than 11,000 breeding pairs.
Unfortunately some serious problems remain. First, the story is
not being told of how many different factors led to the recovery of the bald
eagle. Second, the Endangered Species Act's role has been significantly
overstated. Third, the Act may well have caused more harm than good to the
eagle. Fourth, the bald eagle will be removed from the endangered list in name
only because despite the species' much hailed recovery, recent implementation
rules of the Bald and Golden Eagle Protection Act (Eagle Act) essentially cut-and-pasted
the Endangered Species Act (ESA) land-use regulations-the "teeth"
that make the law so broadly powerful.
The recovery of the bald eagle is a more complex story than you
might think. Contrary to claims by a number of prominent ESA boosters, the bald
eagle was never in danger of extinction because the vast majority of the
species' population (around 75%) has lived in Alaska and British Columbia,
Canada where the combination of superb habitat and lack of DDT has kept them
safe. Alaskan eagles have never been listed under the ESA.
In fact banning DDT in 1972, not the passage of the ESA a year
later, is widely acknowledged as the paramount reason for the bald eagle's
resurgence. Seventy percent of the bald eagle population in the 48 contiguous
states were not even listed under the ESA, and therefore not afforded the
purported benefits of its protection, until 1978, several years after DDT was
banned.
Habitat conservation and creation is far more nuanced than
portrayed by the ESA's boosters. The ESA may well have done more harm than good
on private land, where most of the listed eagles exist. In addition, the
tolerance of some eagles to human activity and habitat creation by humans
undermine the portrayal of the eagle as a wilderness denizen.
At the same time, releasing young eagles in areas where the
species had been extirpated proved to be very effective in the recovery effort,
but these captive breeding programs were carried out primarily by states and
private organizations, not federal agencies. The main contribution of the
federal ESA was to provide funding for these efforts, though given the eagle's
charisma, state and private entities proved able to raise substantial funds for
these projects.
Public attitudes about eagles have changed and people are much
more inclined to respect and admire eagles and avoid bothering them. The ESA's
land-use regulations were not necessary to curtail shooting, and penalties for
shooting got their biggest boost from the 1987 Criminal Fines Improvement Act,
not the ESA. The ESA played little role in people's increasing environmental
consciences and attitude towards eagles.
Given all of this, it is outrageous that the Bald and Golden Eagle
Protection Act continues so many of the ESA's draconian land use restrictions
and even expands them to the habitat of bald eagles in Alaska and golden eagles
nationwide, which are also not endangered and have not before been subject to
such provisions.
Under the ESA and the Eagle Act, land use restrictions are the centerpiece
of the strategy to protect bald eagles. These land use restrictions did more harm
than good, leading many landowners to make their land inhospitable to eagles.
History shows that the Fish and Wildlife Service (FWS) does not
confine itself to measures that ensure the eagle's recover. In the mid-1990s
the bald eagle population in the 48 contiguous states reached over 3,000
breeding pairs which met the goal for recovery of the species under the ESA.
But the FWS was in no hurry to remove the eagle from the endangered list until
2005 when Minnesota landowner Edmund Contoski sued the FWS for failing to
delist the eagle in a timely manner. He won his case, and the court ordered the
FWS to remove the bald eagle from the endangered list. As of now there are at least
11,137 pairs, which exceeds the recovery goal by 371%.
The land use restrictions in the Eagle Act can be used to encumber
huge amounts of habitat. Applying FWS nest protection guidelines under the Eagle
Act means that the 11,137 pairs in the 48 contiguous states occupy 5.6 million acres
(roughly the size of New Hampshire or New Jersey)-524,834 acres of which will
be the most stringently regulated because it is closest to nest sites. Keep in
mind, these figures don't account for regulations protecting nesting birds in the
outer extent of their ranges, non-nesting eagles, wintering eagles that migrate
across the Canadian border, the Alaskan population of bald eagles, or golden
eagles-all also potentially subject to the revised Eagle Act.
If the bald eagle were removed from the endangered list without
increasing the land use restrictions of the Eagle Act, the population of bald
eagles would certainly continue to increase. The combination of the bald
eagle's symbolic importance and state and private conservation efforts will
ensure the eagle prospers into the future. The time is long overdue for the
bald eagle to fly free of the Endangered Species Act's land use controls, and
that means Congress needs to change the Eagle Act.