Inconvenient Eagle Truths

The Endangered Species Act may have done more harm than good to the bald eagle

The Endangered Species Act’s 40th anniversary is fast approaching. Unfortunately its proponents and many in the media are giving it undue credit for recovering species, foremost among them the bald eagle. “The bald eagle is making a spectacular comeback from near-extinction thanks to the Endangered Species Act,” according to American Rivers, Center for Biological Diversity, Defenders of Wildlife, Earthjustice, Endangered Species Coalition, Natural Resources Defense Council, National Wildlife Federation, and U.S. PIRG.

In reality, the bald eagle has never been on the verge of extinction, the Endangered Species Act (ESA) can’t be credited with the most important factor in the eagle’s conservation, and the act may have caused more harm than good. Here’s what you won’t hear from proponents about the bald eagle’s conservation and tenure under the Endangered Species Act (ESA).

First, the eagle was never in danger of extinction because the vast majority of the species, around 75%, lives in Alaska and British Columbia. There were concerns about the bald eagle being extirpated from large portions of the lower 48 states, but this very different than extinction, which means a species over its entire range is gone forever. That ESA advocates claim the bald eagle was in danger of extinction provides a telling indication of their commitment to accuracy.

Second, the ESA cannot claim credit for the overwhelming cause of the eagle’s rebound in large portions of the lower 48. “Nearly everyone agrees that the key to the eagle’s resurgence-even more so than the Endangered Species Act-was the banning of the use of the insecticide DDT in this country in 1972,” states the National Audubon Society. DDT led to widespread reproductive failures by causing females to lay thin-shelled eggs susceptible to breaking and infertility. But the ESA was not responsible for the DDT ban, passed a year before the ESA was even enacted.

Third, 70% of the eagles in the lower 48 states were not protected under the Endangered Species Act for over four years after the act’s passage. Yet according to ESA advocates this is when the bald eagle was on the edge of extinction and therefore most in need of the act’s protection. But the federal government chose not to protect these eagles, which lived north of 40 degrees latitude, an enormous region that stretches from Philadelphia to northern California. No matter, these “northern” eagles thrived and their population increased markedly without the “benefit” of the ESA’s protection. For example, between 1974 and 1978, Minnesota’s bald eagle population increased by 32%, from 127 to 168 pairs, and Wisconsin’s by 31%, from 107 to 140 pairs.

Fourth, habitat protection is a mixed bag. It appears the ESA helped protect the eagle on public lands. However, the Act likely harmed the eagle on private lands, which is where most endangered species, including bald eagles, live, because the law’s harsh penalties-$100,000 fine and/or 1 year in jail for killing or harming an eagle, chick, egg and even habitat-turned eagles into financial liabilities. As a result, landowners sought to rid their property of eagles and their habitat: otherwise known as the “shoot, shove, and shut-up” and “scorched earth” strategies. “I’ve seen eagle’s nests where people climbed up the trees and knocked them out,” stated Jodi Millar, longtime federal bald eagle recovery coordinator. Bald eagles and other endangered species need more friends and landowners willing to harbor them. Turning them into liabilities is a surefire way to fail.

Fifth, federal habitat protection standards for normal and lawful activities like home building and timber harvest, which could result in land-use restrictions up to one mile from a nest, were excessive in many cases. ESA advocates portray the eagle as highly intolerant of human-related activities-hence the need for habitat restrictions. In reality, “the bald eagle is a lot more tolerant of human disturbance than we ever anticipated,” according to Linda Finger, U.S. Fish & Wildlife Service biologist. When the eagle was delisted from the ESA in 2007, research showed at least 28% of the population in the lower 48 (in Florida, Minnesota and Washington) was much more tolerant of human-related activities than previously thought. “As long as people aren’t shooting at them or bothering them, as long as everybody is minding their own business, the eagles basically accept humans are part of the natural environment,” stated James Grier, professor of biology and leading bald eagle expert.

Despite this, when the federal government declared the eagle recovered in 2007, and removed it from the endangered species list, the feds pulled a stunning move-they transferred as much of the Endangered Species Act’s land-use controls as possible to the Bald & Golden Eagle Protection Act, another federal statute that was never intended to take on this role. In so doing, the Fish & Wildlife Service essentially rewrote the Eagle Protection Act, something Congress only has the legal authority to do but didn’t in this case because they were asleep at the switch. As a result, the feds can continue to apply essentially the same excessive land-use restrictions employed under the ESA to the Eagle Protection Act, and this applies to the golden eagle as well, which represents a massive expansion of the law. This is bad news not only for landowners but also for the bald and golden eagles because the eagles will again become unwanted guests and financial liabilities for landowners, which will lead to more “shoot, shovel and shut-up” and scorched earth.

Another factor in the eagle’s conservation is that reintroduction of captive-reared eagles in various regions of the country provided a population boost, but this painstaking work was almost totally due to states and private organizations, not the federal government. About 80% of the 1,383 young eagles and eggs came from the massive, healthy Alaska population, and the other 20% “have come mostly from wild eggs collected in Florida and hatched in captivity at the Sutton Avian Research Center in Oklahoma,” according to Pete Nye, long time bald eagle coordinator for New York state. Reintroduction efforts, which began in the mid-1970s, were possible because populations in states like Florida were so large and healthy they could spare 277 eagles. Yet according to ESA proponents this was when the eagle in the lower 48 was flirting with extinction. The federal government did play a positive role in reintroductions by supplying funds, but given the eagle’s charisma it is very likely state and private sources could easily have made up the difference.

Seventh, while the ESA did help enact the 1991 federal ban on lead shot for waterfowl hunting (eagles were dying of poisoning from ingested lead) the ban was of relatively minor importance compared with other factors, especially the DDT ban. Even after the ban, lead continues to be a problem. Of the 634 bald eagles treated at the University of Minnesota’s world famous Raptor Center from 1980-1995, 22% suffered from lead poisoning, but the rate of poisoning pre and post-ban remained the same. This indicates eagles are picking up lead from other sources, probably bullet fragments from hunted game such as deer.

Eighth, some ESA advocates, led by the Center for Biological Diversity (CBD), refuse to let the eagle fly free of the ESA and are pursuing a bizarre effort to get the eagle re-listed in Arizona because of purported threats from human-related activities. It’s bizarre because it is completely unnecessary. Arizona’s historic population of 22 pairs has more than doubled to 54 pairs, thanks to human development of dams which has created additional habitat, and bald eagles in Arizona represent 0.5% of the species’ population in the lower 48 states. Bald eagles will always be very scarce in state like Arizona that is dominated arid habitat because eagles need to live near water.

Furthermore, there is already a highly effective program in place in Arizona to watch, monitor and protect nesting pairs of eagles. The Arizona Bald Eagle Nestwatch Program has been in place since 1978, and run by the state of Arizona has since 1991. Between 1983 and 2005 the Nestwatch Program was responsible for saving 9.4% of all bald eagles fledged by keeping intruders away from nests, as well as helping to protect eaglets that left the nest prematurely. The state has committed to continuing it even though the bald eagle was removed from the endangered species list in 2007. In 2006 the state of Arizona, in anticipation of the bald eagle’s delisting, published its “Conservation Assessment and Strategy for the Bald Eagle in Arizona,” a highly detailed 81-page document that lays out how the state and others with significant jurisdiction in Arizona, such as the U.S. Forest Service, plan to conserve the eagle. Lastly, many of these conservation activities are coordinated through the Southwestern Bald Eagle Management Committee, a federal, state, tribal and county body formed in 1984. In sum, there has been considerable effort to conserve the bald eagle, both before and after its tenure under the ESA.

Bald eagles in Arizona are healthy and well cared for, yet the latest effort by the Center for Biological Diversity (CBD) is just the latest in a string of battles over bald eagles’ inclusion in the ESA, not anything to do with meaningful conservation. Though the species was de-listed in 2007, unfortunately the following year a credulous judge ruled in favor of the CBD, and the eagle in Arizona was re-listed. In 2010, the U.S. Fish & Wildlife Service concluded the eagle did not warrant the ESA’s protection, and in 2011 the agency issued a final rule to that effect. But in 2012, CBD sued yet again. If the CBD truly wanted to conserve the eagle, it would contribute its money towards on-the-ground conservation, such as the nest watch program, instead of spending it on frivolous lawsuits. The true reason for the lawsuits is as a public relations ploy, not meaningful conservation

Ninth, the bald eagle should have been delisted much earlier than 2007 but it took the government seven years plus a lawsuit to get around to the task. In 1999, the Fish & Wildlife Service proposed to delist the eagle, and should have issued a final decision in one year, as mandated by the ESA. However, the federal government was content to leave the eagle listed because it was an effective public relations and land-use control tool.

But in 2005, Ed Contoski, a landowner in Minnesota, represented by the Pacific Legal Foundation, sued the Interior Department for failing to make a final decision, and won in 2006. Contoski co-owed with family members 18 acres in central Minnesota, and he had to sell his half-share because of declining health and to provide for his retirement. But a bald eagle nest made the 7.33 acres unsuitable for development, and the property’s value dropped from $425,000 to near worthless. This is the unfortunate situation that faces so many landowners across the country who are forced to bear the costs of harboring endangered species. So Contoski successfully sued to get the eagle off the endangered species list. As a result, Fish & Wildlife reissued the listing proposal in 2006, and finally delisted the eagle in 2007.

Tenth, even after de-listing the U.S. Fish & Wildlife Service imposed redundant and expensive monitoring of bald eagles. In 2009 Fish & Wildlife issued a post-delisting monitoring plan for the eagle, as mandated by the ESA, that consists of monitoring the eagle for a total of twenty years, in four, five-year intervals and issuing reports at the end of each interval. However, the eagle’s monitoring plan is absurdly excessive because the species is so healthy and because so many states continue to monitor and be heavily involved in conserving their bald eagle populations independently, most notably a number of states with the largest populations, including Florida (1,511 pairs), Wisconsin (1,337 pairs), and Virginia (more than 800 pairs).

The bald eagle’s rebound in much of the lower 48 states is reason to rejoice, but it is also a sad reminder of the lengths to which some will go to deceive, misrepresent and give the Endangered Species Act undue credit. The bald eagle’s conservation in the lower 48 states is far more nuanced and complex and has far less to do with the ESA than proponents of the Act admit. Most troubling is that the ESA may have done more harm than good to the eagle.