Elise Rindfleisch

October 3, 2006

U.S. Fish and Wildlife Service May Delist Bald Eagle from Endangered Species Act by February 2007

On August 10th the United States District Court for the District of Minnesota, ordered the U.S. Fish and Wildlife Service (USFWS) to make a final determination, by February, whether to delist the bald eagle from the threatened species list of the Endangered Species Act (ESA).

Since its listing in 1978, the bald eagle population has significantly increased. Their recovery spurred the USFWS to propose a rule to delist the bald eagle in 1999 and, after this proposal failed, again in 2006. The USFWS has yet to issue a final determination.

In Contoski v. Scarlett, a private land developer brought suit against Lynn Scarlett, Acting Secretary of the Department of the Interior, USFWS, and H. Dale Hall, in his official capacity as director of the USFWS, alleging violations of the ESA and the Administrative Procedure Act for failure to perform a non-discretionary duty. The court held that the defendants' failure to make a final determination on the delisting of the bald eagle constituted a failure to comply with the ESA's mandatory one-year deadline for final determinations. Furthermore, the court found that the plaintiff has standing to sue under the Administrative Procedure Act; under the act a plaintiff may seek a court order to compel agency action if "unlawfully withheld or unreasonably delayed." On this basis, the court is "compelling" defendants to act. Considering the ESA's "best scientific and commercial data available" standard, the court ordered defendants to issue a final determination on the delisting of the bald eagle by February 16, 2007.

What does this mean for our country's beloved national bird? The bald eagle may be negatively impacted as previously enjoined development projects ensue. However, the federal Eagle Protection Act, the Migratory Bird Treaty Act of 1918, the Lacey Act, and various state wildlife laws will continue to protect the bald eagle.

For more information, see:

Contoski v. Scarlett, No. 05-2528, 2006 WL 2331180 (D. Minn. Aug. 10, 2006).