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Groups Promise Legal Challenge
Santa Fe, NM - The U.S Fish and Wildlife Service issued a final reintroduction plan today for the Northern Aplomado Falcon designating all of New Mexico and Arizona as an experimental area, where Aplomado Falcons will no longer enjoy habitat protections under the Endangered Species Act. All falcons within the two-state area will be considered “experimental, non-essential” under Section 10(j) of the Endangered Species Act. The final rule’s removal of habitat protections for falcons comes at a time when there is more evidence that wild falcons exist in New Mexico than at any point since the Northern Aplomado Falcon was listed under the Endangered Species Act in 1986.
“We will challenge the Service’s decision to strip away vital habitat protections for wild Aplomado falcons,” stated John Horning of WildEarth Guardians. Horning stated, “With more evidence than ever before for a wild falcon population existing in New Mexico and escalating threats from oil and gas, the falcon desperately needs the safety net provided by the Endangered Species Act.”
The Endangered Species Act requires that reintroduced animals designated as experimental, non-essential be geographically separate and not intermix with wild individuals. Conservation groups contend that the Service unlawfully used Section 10(j) in today’s rule due to the presence of a wild falcon population in New Mexico and Chihuahua. Over the past two years, scientific articles published in North American Birds and the Journal of Raptor Research have indicated that a wild falcon population spans northern Chihuahua and southern New Mexico. There have been 26 credible falcon sightings in New Mexico over the past eighteen months, more than any eighteen-month period since the falcon was federally listed. For the first time in fifty years, wild falcons successfully fledged young in New Mexico in the summer of 2002. The Luna County territory has been occupied since 2000, possibly by the same female falcon that successfully bred in 2002.
Nine of the 26 sightings have been outside the Luna territory, most of which have been on Otero Mesa, an area slated for oil and gas drilling. The Service has long considered Otero Mesa to be important falcon recovery habitat, but the reintroduction rule would help pave the way for drilling. Governor Richardsonand conservation groups have challenged the Otero Mesa drilling plan in federal court, and a decision on that case is expected this summer.
“The oil and gas threat is looming large for the falcon on Otero Mesa, and this flawed reintroduction rule would take away important habitat protections currently standing between Aplomado falcons and oil rigs,” stated Horning.
While conservation groups do not oppose the reintroduction effort, they oppose its design and urge full Endangered Species Act protections for falcons, including those reintroduced into the state. Captive-bred falcons may be released into New Mexico as early as the first week in August. Conservation groups plan to challenge the reintroduction rule in federal court and will argue that both wild and released falcons need to be provided with full protections as an endangered species under federal law.
“Rushing ahead isn’t the answer, and if the Service chooses to release any falcons, we will push very hard for both wild and released falcons to be considered fully endangered under the Endangered Species Act,” stated Horning. “While the Service and The Peregrine Fund are aiming to strip away legal habitatprotections for falcons, their plan may backfire.”
Conservation groups opposing the design of the Aplomado falcon reintroduction effort include WildEarth Guardians, Chihuahuan Desert Conservation Alliance, Public Employees for Environmental Responsibility, New Mexico Audubon Council, Southwest Environmental Center, and the Sierra Club. The groups are represented by James J. Tutchton of the University of Denver Environmental Law Clinical Partnership.
WildEarth Guardians, Chihuahuan Desert Conservation Alliance, and Public Employees for Environmental Responsibility filed suit in March 2006 seeking a finding on their 2002 petition to designate critical habitat for the Northern Aplomado Falcon. Today’s reintroduction rule would prohibit critical habitat designation within New Mexico or Arizona. Critical habitat provides protection of areas not currently occupied by the species and protects critical habitat from habitat degradation. A peer-reviewed study in the April 2005 issue of BioScience, “The Effectiveness of the Endangered Species Act: A Quantitative Analysis,” concludes that species with critical habitat designated for two or more years are more than twice as likely to have improving population trends than species without the designation.
The Service has long considered habitat destruction to be a primary threat to Aplomado Falcons. A 2004 study in The Journal of Raptor Research, partially funded by the Service, concluded that “Grassland conservation is paramount in conserving Aplomado Falcons and other grassland birds in the Chihuahuan Desert.” Currently, federal agencies must ensure that their actions, such as permitting oil and gas drilling and livestock grazing, not harm falcons or destroy their habitat. These protections would be eliminated by the reintroduction rule. Escalating threats to falcon habitat in New Mexico include the BLM’s drilling plan for Otero Mesa, as well as the Department of Defense’s plan to greatly increase overflights on Otero Mesa and off-road maneuvering on Fort Bliss.
Aplomado Falcon reintroductions have been ongoing in Texas for more than a decade. Those reintroduction efforts have been successful, with dozens of falcons breeding in the wild. The Texas reintroduction occurred without the use of Section 10(j). Rather, in that instance, “safe harbor” agreements were reached with private landowners, as provided under the Endangered Species Act’s Section 10(a). Conservation groups have suggested that safe harbor agreements be used in New Mexico in order to avoid stripping away safeguards for wild falcons and to preserve their full protections on federal lands.
The scientific rigor of the proposal has long been in question. WildEarth Guardians obtained an electronic copy of the draft Environmental Assessment for the proposal, which contained the Service’s editing remarks. The comments demonstrated attempts by the agency to mask the environmental consequences of removing the falcon’s habitat protection. For more than a decade, state and federal agencies (including the Service itself) have criticized a section 10(j) reintroduction for falcons into New Mexico due to the presence of wild falcons in the state. While the Service requested scientists to peer-review the Aplomado Falcon reintroduction proposal, only two of the scientists who responded were independent. Neithersupported the proposal. The other two scientists who responded to the peer-review request were affiliated with The Peregrine Fund, which itself developed the reintroduction proposal. One of these scientists noted that he could not peer-review the proposal due to this affiliation and his consequence lack ofindependence.
Other species that have been designated as “experimental, non-essential” under Section 10(j) of the Endangered Species Act include the Black-footed Ferret and the Mexican Wolf. Partly as a result of this erosion of federal protections, the recovery of both mammals has faltered. The 10(j) rule for ferrets allows for continued poisoning of prairie dogs, which comprise over 90% of the ferret’s diet and provide the burrows which the ferret inhabits. Because of this diminishment in legal protections, the federal government has poisoned thousands of acres of prairie dogs since 2004 in the only clearly successful reintroduction area for the ferret (Conata Basin, Buffalo Gap National Grassland, South Dakota). The10(j) rule for the Mexican Wolf reduces its protection from livestock ranching, which continues to threaten the survival of this native carnivore. Livestock carcasses on Forest Service land attract wolves, often leading to lethal control or removal of wolves from key habitats. As a result, in 2006 the Service has been able to confirm the existence of a total of only 25 Mexican Wolves in the wild, including only five known breeding pairs.
For more background information, including the list of the 26 sightings that have occurred in 2005 and 2006, contact John Horning at firstname.lastname@example.org or 505-988-9126x153.
Additional contact: Tom Jervis, New Mexico Audubon Council, (505) 988-1708