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Federal Judge in N.M. To Consider Legality of Falcon Decision

F&WS designation stripped the falcon of needed protections under the Endangered Species Act

A decision by the U.S. Fish and Wildlife Service to designate the northern aplomado falcon as a nonessential, experimental population in two Western states stemmed from "political, top-down pressure," a lawyer for an environmental group argued in federal court.

WildEarth Guardians, along with a handful of other groups, is suing the Fish and Wildlife Service and The Peregrine Fund, saying the designation violated federal policy and stripped the bird of needed protections under the Endangered Species Act.

The environmentalists are asking U.S. District Judge William Johnson to declare the designation illegal and make the agency reconsider the bird's status in New Mexico and Arizona. They also want Johnson to force the agency to respond to a petition seeking critical habitat in New Mexico, Arizona and Texas.

The falcon was listed as endangered in 1986. It's range once covered much of the Southwest and northern Mexico but experts have said its numbers dwindled due to pesticides, human activities and habitat change.

The Fish and Wildlife Service designated the falcons as an experimental population in New Mexico and Arizona in 2006, clearing the way for The Peregrine Fund to begin releasing captive-bred falcons in the Chihuahuan grasslands of southern New Mexico as part of a reintroduction effort.

Under the reintroduction rule, any birds in New Mexico or Arizona are not considered endangered but they continue to have some protections. For example, it's still illegal to shoot or harass the birds or to take their eggs.

Environmentalists contend that reintroduced animals can be designated as experimental only if they are outside the species' current range. They argue that there had been more than two dozen falcon sightings in the two years leading up to the first release, meaning there was a population in New Mexico.

Jay Tutchton, WildEarth Guardians' general counsel, said Tuesday the Fish and Wildlife Service should have excluded the wild falcons in southern New Mexico when creating the special designation.

"Our quarrel is where they didn't draw the line. Their decision was arbitrary," Tutchton told Johnson. "We believe it was political and there was top-down pressure."

Tutchton pointed to several e-mails and letters between agency employees that raised concerns about whether the agency could legally designate the population as experimental since wild falcons had been spotted in the region.

He said other documents indicated that regional Fish and Wildlife officials had decided on the designation before collecting public comment and reviewing the potential impacts of the designation as required by the National Environmental Policy Act.

The New Mexico Game and Fish Department, the Bureau of Land Management and other independent researchers who reviewed the designation proposal also voiced concerns about the legality of the designation and what it would mean for the wild falcons in the region, he said.

Attorneys representing the federal government and The Peregrine Fund argued that political pressure is part of the NEPA process and that the agency considered all of the comments before making a decision. The attorneys also said that under the law, the agency is allowed to have a preferred alternative - in this case, the nonessential, experimental designation for birds in New Mexico and Arizona.

Both sides also argued over the falcon's range and whether there has to be a certain number of breeding pairs in the area to classify the birds as a population.

Defense attorneys said sightings of falcons in New Mexico didn't mean there was a breeding population.

"The Fish and Wildlife Service appropriately came to the conclusion that there was not a population. It was not arbitrary and it certainly wasn't capricious," Frank Bond, an attorney for The Peregrine Fund, said of the agency's decision.

Johnson repeatedly asked both parties why they were on opposite sides of the table considering that they both want to see the falcon succeed.Tutchton answered that critical habitat is necessary for the bird's success and the agency has failed to address the issue. He said The Peregrine Fund has released 1,250 falcons in Texas over the years and only 115 have survived, leading him to believe that there's a problem with the bird's habitat.

"You can grow birds, release them and have a 90 percent death rate," he said. "But unless we circle back around to this habitat problem, we are never going to get off this treadmill of releasing these birds and letting them die."

Bond argued that the natural attrition rate for the birds of prey is high due to predators and other factors and that there is a lack of understanding about what makes the most desirable habitat for the birds. He added that designating the birds as an experimental population ensures that other agencies, states and private landowners are more willing to participate in the reintroduction and that the birds can choose which habitat works best for them.

Johnson said he plans to make a decision in the case in the next two weeks.

If he decides that the agency must reconsider the experimental designation, Bond said that could bring the reintroduction program to a halt. The Peregrine Fund plans to release more captive-bred falcons in New Mexico this summer.

The reintroduction effort kicked into gear in August 2006 with a release of 11 falcons on media mogul Ted Turner's Armendaris Ranch east of Truth or Consequences. That release went on to produce at least one nesting pair the next year and some wild-born chicks. In all, The Peregrine Fund has released 50 birds in New Mexico.

Copyright 2008 Albuquerque Journal - Reprinted with permission


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