Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Sonoran Desert Population of the Bald Eagle as a Threatened or Endangered Distinct Population Segment, 8601-8621 [2010-3794]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Proposed Rules]
[Pages 8601-8621]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3794]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2008-0059; MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the Sonoran Desert Population of the Bald Eagle 
as a Threatened or Endangered Distinct Population Segment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the Sonoran Desert Area 
population of the bald eagle (Haliaeetus leucocephalus) as a distinct 
population segment (DPS). In the petition, we were asked that the DPS 
be recognized, listed as endangered, and that critical habitat be 
designated under the Endangered Species Act of 1973, as amended (Act). 
After review of all available scientific and commercial information, we 
find that the Sonoran Desert Area population of the bald eagle does not 
meet the definition of a DPS and, therefore, is not a listable entity 
under the Act. As a result, listing is not warranted, and we intend to 
publish a separate notice to remove this population from the List of 
Threatened and Endangered Wildlife once the District Court for the 
District of Arizona has been notified. We ask the public to continue to 
submit to us any new information that becomes available concerning the 
taxonomy, biology, ecology, and status of this population of the bald 
eagle and to support cooperative conservation of the bald eagle within 
the Sonoran Desert Area.

DATES: The finding announced in this document was made on February 25, 
2010.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket Number [FWS-R2-ES-2008-0044]. Supporting 
documentation for this finding is available for inspection, by 
appointment, during normal business hours at the Arizona Ecological 
Services Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 
85021-4951. Please submit any new information, materials, comments, or 
questions concerning this species or this finding to the above address, 
Attention: Sonoran Desert Area bald eagle.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office (see ADDRESSES); telephone, 602-242-
0210; facsimile, 602-242-2513. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires 
that, for any petition to revise the Lists of Endangered and Threatened 
Wildlife and Plants that contains substantial scientific or commercial 
information that listing may be warranted, we make a finding within 12 
months of the date of our receipt of the petition on whether the 
petitioned action is: (a) Not warranted, (b) warranted, or (c) 
warranted, but the immediate proposal of regulation implementing the 
petitioned action is precluded by other pending proposals to determine 
whether species are threatened or endangered, and expeditious progress 
is being made to add or remove qualified species from the List of 
Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of 
the Act requires that we treat a petition for which the requested 
action is found to be warranted but precluded as though resubmitted on 
the date of such finding, that is, requiring that we make a subsequent 
finding within 12 months. Such 12-month findings must be published in 
the Federal Register.
    This notice constitutes our 12-month finding on a petition to list 
the Sonoran Desert Area bald eagle. In this document, the Sonoran 
Desert Area population is the name given to the entity under evaluation 
for designation as a DPS. For the purposes of this assessment, the 
Sonoran Desert Area population includes all bald eagle territories 
within Arizona, the Copper Basin breeding area in California near the 
Colorado River, and the territories of interior Sonora, Mexico, that 
occur within the Sonoran Desert or adjacent, transitional communities. 
For more detail on the boundary of the DPS, see the discussion below 
under Determination of the Area for Analysis.

Previous Federal Action

    Bald eagles gained protection under the Bald Eagle Protection Act 
(16 U.S.C. 668-668d) in 1940 and the Migratory Bird Treaty Act (MBTA) 
(16 U.S.C. 703-712) in 1972. A 1962 amendment to the Bald Eagle 
Protection Act added protection for the golden eagle and the amended 
statute became known as the Bald and Golden Eagle Protection Act 
(BGEPA). On March 11, 1967 (32 FR 4001), the Secretary of the Interior 
listed bald eagles south of 40 north latitude as endangered under the 
Endangered Species Preservation Act of 1966 (Pub. L. 89-699, 80 Stat. 
926) due to a population decline caused by dichloro-
diphenyltrichloroethane (DDT) and other factors. On February 14, 1978, 
the Service listed the bald eagle as an endangered species under the 
Act (16 U.S.C. 1531 et seq.) in 43 of the contiguous States, and as a 
threatened species in the States of Michigan, Minnesota, Wisconsin, 
Oregon, and Washington (43 FR 6230). Sub-specific designations for 
northern and southern eagles were removed.

[[Page 8602]]

    On February 7, 1990, we published an advance notice of proposed 
rulemaking (55 FR 4209) to reclassify the bald eagle from endangered to 
threatened in the 43 States where it had been listed as endangered and 
retain the threatened status for the other five States. On July 12, 
1994, we published a proposed rule to accomplish this reclassification 
(59 FR 35584), and the final rule was published on July 12, 1995 (60 FR 
36000).
    On July 6, 1999, we published a proposed rule to delist the bald 
eagle throughout the lower 48 States due to recovery (64 FR 36454). On 
February 16, 2006, we reopened the public comment period to consider 
new information received on our July 6, 1999 (71 FR 8238), proposed 
rule to delist the bald eagle in the lower 48 States. The reopening 
notice contained updated information on several State survey efforts 
and population numbers. Simultaneously with the reopening of the public 
comment period on the proposed delisting, we also published two Federal 
Register documents soliciting public comments on two new items intended 
to clarify the BGEPA protections for the bald eagle after delisting: 
(1) A proposed rule for a regulatory definition of ``disturb'' (71 FR 
8265), and (2) a notice of availability for draft National Bald Eagle 
Management Guidelines (71 FR 8309). On May 16, 2006, we published three 
separate notices in the Federal Register that extended the public 
comment period on the proposed delisting (71 FR 28293), the proposed 
regulatory definition of ``disturb'' (71 FR 28294), and the draft 
guidelines (71 FR 28369). The comment period for all three documents 
was extended to June 19, 2006.
    Between publication of the July 6, 1999, proposed rule to delist 
the bald eagle and the February 16, 2006, reopening of the comment 
period on the proposed rule to delist the bald eagle, we received a 
petition regarding bald eagles in the southwestern United States. On 
October 6, 2004, we received a petition from the Center for Biological 
Diversity (CBD), the Maricopa Audubon Society, and the Arizona Audubon 
Council requesting that the ``Southwestern desert nesting bald eagle 
population'' be classified as a DPS, that this DPS be reclassified from 
a threatened species to an endangered species, and that we concurrently 
designate critical habitat for the DPS under the Act.
    On March 27, 2006, the CBD and the Maricopa Audubon Society filed a 
lawsuit against the U.S. Department of the Interior and the Service for 
failing to make a timely finding on the petition. The parties reached a 
settlement, and the Service agreed to complete its petition finding by 
August 2006. We announced in our 90-day finding on August 30, 2006 (71 
FR 51549), that the petition did not present substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted.
    On January 5, 2007, the CBD and the Maricopa Audubon Society filed 
a lawsuit challenging the Service's 90-day finding that the ``Sonoran 
Desert population'' of the bald eagle did not qualify as a DPS, and 
further challenging the Service's 90-day finding that the population 
should not be uplisted to endangered status.
    On July 9, 2007 (72 FR 37346), we published the final delisting 
rule for bald eagles in the lower 48 States. This final delisting rule 
also constituted the Service's final determination on the status of the 
Sonoran Desert population of bald eagles. In that final delisting rule, 
we stated that our findings on the status of the Sonoran Desert 
population of bald eagles superseded our 90-day petition finding 
because the final delisting rule constituted a final decision on the 
DPS determination. This determination was based on a thorough review of 
the best available data, which indicated that the threats to the 
species had been eliminated or reduced to the point that the species 
had recovered and no longer met the definition of a threatened or 
endangered species under the Act. It addressed the same issues that the 
Service would have considered as part of a 12-month finding had the 
Service made a positive 90-day finding on the petition and then 
subsequently conducted the required status review. We determined that 
the final delisting rule therefore rendered moot any issues regarding 
the 90-day petition finding.
    On August 17, 2007, the CBD and the Maricopa Audubon Society filed 
a Motion for Summary Judgment, requesting the court to make a decision 
on their January 5, 2007, lawsuit. In early 2008, several Native 
American Tribes submitted amicus curiae (``friend of the court'') 
briefs in support of the August 17, 2007, Motion for Summary Judgment. 
The San Carlos Apache Tribe, Yavapai-Apache Nation, and Tonto Apache 
Tribe submitted an amicus curiae brief to the court on January 29, 
2008; the Salt River Pima-Maricopa Indian Community submitted an amicus 
curiae brief to the court on February 4, 2008; and the Fort McDowell 
Yavapai Nation submitted an amicus curiae brief to the court on 
February 7, 2008.
    On March 5, 2008, the U.S. District Court for the District of 
Arizona made a final decision in the case and ruled in favor of the CBD 
and the Maricopa Audubon Society. The court order (Center for 
Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)), was 
filed on March 6, 2008.
    The court:
    (1) Ordered the Service to conduct a status review of the Desert 
bald eagle population pursuant to the Act to determine whether listing 
that population as a DPS is warranted, and if so, whether listing that 
DPS as threatened or endangered pursuant to the Act is warranted;
    (2) Ordered the Service to issue a 12-month finding on whether 
listing the Desert bald eagle population as a DPS is warranted, and if 
so, whether listing that DPS as threatened or endangered is warranted;
    (3) Ordered the Service to issue the 12-month finding within 9 
months of the court order pursuant to 16 U.S.C. 1533(b)(3)(B), which 
translates to on or before December 5, 2008;
    (4) Enjoined the Service's application of the July 9, 2007 (72 FR 
37346), final delisting rule to the Sonoran Desert population of bald 
eagles pending the outcome of our status review and 12-month petition 
finding.
    On May 1, 2008, we published a final rule designating bald eagles 
within the Southwest as a DPS for purposes of conforming to the court-
ordered requirement to retain listing status as threatened for those 
bald eagles in the petitioned area (73 FR 23966). A map of the DPS for 
that action was included in the rule.
    On May 20, 2008, we published a Federal Register notice (73 FR 
29096) initiating a status review for the bald eagle in the Sonoran 
Desert Area of central Arizona and Northwestern Mexico. The information 
collection period remained open until July 7, 2008. Additional comments 
were received and considered beyond this date as discussed below.
    On August 27, 2008, the CBD and Maricopa Audubon Society filed an 
unopposed motion (CV07-0038-PHX-MHM) to amend the March 6, 2008, court 
order by extending the completion date of the status review of the 
Desert bald eagle population until October 12, 2009. Supporting 
declarations were filed by the Salt River Pima-Maricopa Indian 
Community, the Inter Tribal Council of Arizona, and Joe P. Sparks. The 
motion was granted on August 29, 2008.
    On September 14, 2009, the Service filed an unopposed motion to 
amend the March 6, 2008, court order by extending the completion date 
of the status review of the Sonoran Desert bald eagle population until 
February 12,

[[Page 8603]]

2010 (CV07-0038-PHX-MHM). The motion was granted on September 25, 2009, 
and a second extension was put in place.
    On February 11, 2010, the Service filed, and was granted, an 
unopposed motion for a one week extension, extending the completion 
date to February 19, 2010.

Public Information

    As noted above, on May 20, 2008, the Service published a notice to 
initiate a 12-month status review for the Sonoran Desert population of 
bald eagle in central Arizona and northwestern Mexico, and a 
solicitation for new information. To allow adequate time to consider 
the information, we requested that information be submitted on or 
before July 7, 2008. On January 15, 2009, a second Federal Register 
notice (74 FR 2465) was published announcing the continuation of 
information collection for the 12-month status review. In order to 
allow us adequate time to consider and incorporate submitted 
information, we requested that we receive information on or before July 
10, 2009. Between May 2008 and the time that we published this 
document, 31 responses were submitted to https://www.regulations.gov and 
5 letters were received by U.S. mail.

Tribal Information

    In accordance with Secretarial Order 3206, the Service acknowledges 
our responsibility to consult with Federally recognized Tribes on a 
government-to-government basis. Over the course of the bald eagle 
status review, we have corresponded and met with various Tribes in 
Arizona, all of whom support protection of the bald eagle under the 
Act. On July 2, 2008, the Service and Tribal representatives from four 
Western Apache Tribes and one Nation (White Mountain Apache, San Carlos 
Apache, Tonto Apache Tribes, and Yavapai-Apache Nation) met to hear 
testimony from cultural authorities on a variety of subjects including 
the history of the eagle in Arizona, and the importance of the eagle to 
the Apache people. At the request of Tribal representatives, this 
meeting was recorded and incorporated into the administrative record 
for the 12-month finding. On July 3, 2008, the Service met with members 
of the Salt River Pima-Maricopa Indian Community, Gila River Indian 
Community, Tohono O'Odham Nation, Ak-Chin Indian Community, Tonto 
Apache Tribe, Fort McDowell Yavapai Nation, the Hopi Tribe, Pascua 
Yaqui Tribe, Zuni Tribe, and the InterTribal Council of Arizona. This 
meeting was held in Phoenix, Arizona, and a court reporter was present 
recording the meeting minutes. Members of the Tribes and nations 
present, however, did not consider this meeting government-to-
government consultation pursuant to Secretarial Order 3206. On July 20, 
2009, an official consultation meeting between the Service and Salt 
River Pima-Maricopa Indian Community occurred. Written comments were 
provided by the Western Apache Tribes and Nation and the Salt River 
Pima-Maricopa Indian Community on July 10, 2009.
    Although comments from the Native American communities were 
provided in writing, much of the knowledge about the bald eagle was 
offered during the above-referenced face-to-face meetings. Native 
American knowledge about the eagle is passed down orally from one 
generation to the next, which is often referred to in the literature as 
traditional ecological knowledge. Traditional ecological knowledge 
refers to the knowledge base acquired by indigenous and local peoples 
over many hundreds of years through direct contact with the 
environment. Traditional knowledge is based in the ways of life, belief 
systems, perceptions, cognitive processes, and other means of 
organizing and transmitting information in a particular culture. 
Traditional ecological knowledge includes an intimate and detailed 
knowledge of plants, animals, and natural phenomena; the development 
and use of appropriate technologies for hunting, fishing, trapping, 
agriculture, and forestry; and a holistic knowledge, or ``world view,'' 
which parallels the scientific discipline of ecology (Inglis 1993, p. 
vi).
    Testimony by the Western Apache Tribes and Nation and Salt River 
Pima-Maricopa Indian Community clearly demonstrates the importance of 
the bald eagle to their culture, its relevance to their well-being, and 
their respect for its power. Their testimony also demonstrates the 
Western Apache and Salt-River Pima Maricopa knowledge base of the bald 
eagle and its habitat. The Native American relationship with the bald 
eagle in the Sonoran Desert Area predates modern Western scientific 
knowledge of the bald eagle by thousands of years (Lupe et al. pers. 
comm. 2008, p. 1). Given the expertise and traditional ecological 
knowledge about the bald eagle in the Southwest by the Western Apache 
Tribes and Nation and Salt-River Pima Maricopa Indian Community, we 
have attempted to incorporate their indigenous knowledge and 
information into our status review and 12-month finding.

Species Information

    The bald eagle (Haliaeetus leucocephalus) is the only species of 
sea eagle regularly occurring in North America (60 FR 35999; July 12, 
1995). Literally translated, H. leucocephalus means white-headed sea 
eagle. Bald eagles are birds of prey of the Order Falconiformes and 
Family Accipitridae. They vary in length from 28 to 38 inches (in) (71 
to 96 centimeters (cm)), weigh between 6.6 and 13.9 pounds (lbs) (3.0 
and 6.3 kilograms (kg)), and have a 66- to 96-in (168- to 244-cm) 
wingspan. Distinguishing features of adult bald eagles include a white 
head, tail, and upper- and lowertail-coverts; a dark brown body and 
wings; and a yellow iris, beak, leg, and foot. Immature bald eagles are 
mostly dark brown and lack a white head and tail until they reach 
approximately 5 years of age (Buehler 2000, p. 2).

Biology and Distribution

    Though once considered endangered, the bald eagle population in the 
lower 48 States has increased considerably in recent years. Regional 
bald eagle populations in the Northwest, Great Lakes, Chesapeake Bay, 
and Florida have increased five-fold in the past 20 years. Bald eagles 
are now repopulating areas throughout much of the species' historical 
range that were unoccupied only a few years ago.
    The bald eagle ranges throughout much of North America, nesting on 
both coasts from Florida to Baja California, Mexico in the south, and 
from Labrador to the western Aleutian Islands, Alaska, in the north. 
Fossil records indicate that bald eagles inhabited North America 
approximately 1 million years ago, but they may have been present 
before that (Stahlmaster 1987, p. 5). An estimated quarter to a half 
million bald eagles lived on the North American continent before the 
first Europeans arrived.
    In many Western Apache groups, the bald eagle is called 
Istlg[aacute][iacute], which translates to ``the white eagle'' and is 
distinguished from the golden eagle, which is called Itsa Cho or ``the 
big eagle.'' The bald eagle was first described in Western culture in 
1766 as Falco leucocephalus by Linnaeus. This South Carolina specimen 
was later renamed as the southern bald eagle, subspecies Haliaeetus 
leucocephalus leucocephalus (Linnaeus) when Townsend identified the 
northern bald eagle as Haliaeetus leucocephalus alascanus in 1897 
(Buehler 2000, p. 4). By the time the bald eagle was listed throughout 
the lower 48 States under the Endangered Species Act in 1978, 
ornithologists no longer recognized the

[[Page 8604]]

subspecies (American Ornithologists Union 1983, p. 106).
    The bald eagle is a bird of aquatic ecosystems. It frequents 
estuaries, large lakes, reservoirs, major rivers, and some seacoast 
habitats. Fish is the major component of its diet, but waterfowl, 
gulls, and carrion are also eaten. The species may also use prairies if 
adequate food is available. Bald eagles usually nest in trees near 
water, but are known to nest on cliffs and (rarely) on the ground. The 
trees must be sturdy and open to support a nest that is often 5 feet 
(ft) (1.52 meters (m)) wide and 3 ft (0.91 m) deep. Adults tend to use 
the same breeding areas year after year, and often the same nest, 
though a breeding area may include one or more alternate nests. Nest 
shape and size vary, but typical nests are approximately 4.9 to 5.9 ft 
(1.5 to 1.8 m) in diameter and 2.3 to 4.3 ft (0.7 to 1.2 m) tall 
(Stahlmaster 1987, p. 53). In winter, bald eagles often congregate at 
specific wintering sites that are generally close to open water and 
offer good perch trees and night roosts.
    Bald eagles are long-lived. One of the longest-living bald eagles 
known in the wild was reported near Haines, Alaska, as 28 years old 
(Schempf 1997, p. 150). In 2009, a female eagle nesting at Alamo Lake 
in Arizona turned 30 years old (J. Driscoll, Arizona Game and Fish 
Department (AGFD), pers. comm. 2009). In captivity, bald eagles may 
live 40 or more years. It is presumed that once they mate, the bond is 
long-term. Variations in pair bonding are known to occur. If one mate 
dies or disappears, the other will accept a new partner.
    Bald eagle pairs begin courtship about a month before egg-laying. 
In the south, courtship occurs as early as September, and in the north, 
as late as May. The nesting season lasts about 6 months. Incubation 
lasts approximately 35 days, and fledging takes place at 11 to 12 weeks 
of age. Parental care may extend 4 to 11 weeks after fledging (Hunt et 
al. 1992, p. C9; Wood et al. 1998, pp. 336-338). The fledgling bald 
eagle is generally dark brown except the underwing linings, which are 
primarily white. Between fledging and adulthood, the bald eagle's 
appearance changes with feather replacement each summer. Young, dark 
bald eagles may be confused with the golden eagle, Aquila chrysaetos. 
The bald eagle's distinctive white head and tail are not apparent until 
the bird fully matures, usually at 4 to 5 years of age.
    The migration strategies for breeding, nonbreeding, and juvenile or 
subadult age classes of bald eagles will vary depending on geographic 
location. Young eagles may wander widely for years before returning to 
nest in natal areas. Northern bald eagles winter in areas such as the 
Upper Mississippi River, Great Lakes shorelines, and river mouths in 
the Great Lakes area. For midcontinent bald eagles, wintering grounds 
may be the southern States, and for southern bald eagles, whose nesting 
may begin in the winter months, the nonbreeding season foraging areas 
may be the Chesapeake Bay or Yellowstone National Park during the 
summer. Eagles seek wintering (nonnesting) areas offering an abundant 
and readily available food supply with suitable night roosts. Night 
roosts typically offer isolation and thermal protection from winds. 
Carrion and easily scavenged prey provide important sources of winter 
food in terrestrial habitats far from open water.
    The first major decline in the bald eagle population probably began 
in the mid to late 1800s. Widespread shooting for feathers and trophies 
led to extirpation of eagles in some areas. Shooting also reduced part 
of the bald eagle's prey base. Big game animals like bison, which were 
seasonally important to eagles as carrion, were decimated. Hunters also 
reduced the numbers of waterfowl, shorebirds, and small mammals. 
Ranchers used carrion treated with strychnine, thallium sulfate, and 
other poisons as bait to kill livestock predators and ultimately killed 
many eagles as well. These were the major factors, in addition to loss 
of nesting habitat from forest clearing and development, which 
contributed to a reduction in bald eagle numbers through the 1940s. In 
1940, Congress passed the Bald Eagle Protection Act (16 U.S.C. 668-
668d). This law prohibits the take, possession, sale, purchase, barter, 
or offer to sell, purchase or barter, transport, export or import, of 
any bald eagle, alive or dead, including any part, nest, or egg, unless 
allowed by permit (16 U.S.C. 668(a)). ``Take'' includes pursue, shoot, 
shoot at, poison, wound, kill, capture, trap, collect, molest or 
disturb (16 U.S.C. 668c; 50 CFR 22.3). The Bald Eagle Protection Act 
and increased public awareness of the bald eagle's status resulted in 
partial recovery or at least a slower rate of decline of the species in 
most areas of the country.
    In the late 1940s, the use of dichloro-diphenyltrichloroethane 
(DDT) and other organochlorine compounds became widespread. Initially, 
DDT was sprayed extensively along coastal and other wetland areas to 
control mosquitoes (Carson 1962, pp. 28-29, 45-55). Later farmers used 
it as a general crop insecticide. As DDT accumulated in individual bald 
eagles from ingesting prey containing DDT and its metabolites, 
reproductive success plummeted. In the late 1960s and early 1970s, it 
was determined that dichlorophenyl-dichloroethylene (DDE), the 
principal breakdown product of DDT, accumulated in the fatty tissues of 
adult female bald eagles. DDE impaired calcium release necessary for 
normal eggshell formation, resulting in thin shells and reproductive 
failure.
    In response to this decline, the Secretary of the Interior, on 
March 11, 1967 (32 FR 4001), listed bald eagles south of the 40th 
parallel as endangered under the Endangered Species Preservation Act of 
1966 (16 U.S.C. 668aa-668cc). Bald eagles north of this line were not 
included in that action primarily because the Alaskan and Canadian 
populations were not considered endangered in 1967. On December 31, 
1972, the Environmental Protection Agency banned the use of DDT in the 
United States. The following year, Congress passed the Endangered 
Species Act of 1973 (16 U.S.C. 1531- 1544).
    Nationwide bald eagle surveys, conducted in 1973 and 1974 by the 
Service, other cooperating agencies, and conservation organizations, 
revealed that the eagle population throughout the lower 48 States was 
declining. We responded in 1978 by listing the bald eagle throughout 
the lower 48 States as endangered except in Michigan, Minnesota, 
Wisconsin, Washington, and Oregon, where it was designated as 
threatened (43 FR 6233, February 14, 1978).
    To facilitate the recovery of the bald eagle and the ecosystems 
upon which it depends, we divided the lower 48 States into five 
recovery regions. Separate recovery teams composed of experts in each 
geographic area prepared recovery plans for their region. The teams 
established goals for recovery and identified tasks to achieve those 
goals. Coordination meetings were held regularly among the five teams 
to exchange data and other information. We used these five recovery 
plans to provide guidance to the Service, States, and other partners on 
methods to minimize and reduce the threats to the bald eagle and to 
provide measurable criteria that would be used to help determine when 
the threats to the bald eagle had been reduced so that the bald eagle 
could be removed from the Federal List of Endangered and Threatened 
Wildlife and Plants.
    Recovery plans in general are not regulatory documents and are 
instead intended to provide a guide on how to achieve recovery. There 
are many paths to accomplishing recovery of a species.

[[Page 8605]]

The main goal is to remove the threats to a species, which may occur 
without meeting all recovery criteria contained in a recovery plan. For 
example, one or more criteria may have been exceeded while other 
criteria may not have been accomplished. In that instance, the Service 
may judge that, overall, the threats have been reduced sufficiently, 
and the species is robust enough, to reclassify the species from 
endangered to threatened or perhaps to delist the species. In other 
cases, recovery opportunities may be recognized that were not known at 
the time the recovery plan was finalized. Achievement of these 
opportunities may be counted as progress toward recovery in lieu of 
methods identified in the recovery plan. Likewise, we may learn 
information about the species that was not known at the time the 
recovery plan was finalized. The new information may change the extent 
that criteria need to be met for recognizing recovery of the species. 
Overall, recovery of species is a dynamic process requiring adaptive 
management, and judging the degree of recovery of a species is also an 
adaptive management process that may, or may not, fully follow the 
guidance provided in a recovery plan.
    Recovery of the bald eagle has been a dynamic process. During the 
recovery implementation process the Service used new information as it 
became available, to help determine whether recovery was on track. For 
instance, after the bald eagle was downlisted in 1995, the Southeastern 
Recovery Plan did not have specific delisting goals, and the Service 
used the recovery team to help determine the appropriate goal. This new 
delisting goal, developed by a team of individuals with bald eagle 
expertise, was the best guidance available to the Service for use in 
determining whether threats had been removed and whether to move 
forward with delisting was appropriate.
    Between 1990 and 2000, the bald eagle population had a national 
average productivity of at least one fledgling per nesting pair per 
year. As a result, the bald eagle's nesting population increased at a 
rate of about eight percent per year during this time period. Since 
1963, when the Audubon Society estimated that there were 487 nesting 
pairs, bald eagle breeding in the lower 48 States has expanded to more 
than 9,789 nesting pairs (Service 1995, p. 36001; Service 1999, p. 
36457). By 2007, the bald eagles bred in each of the lower 48 States, 
with the greatest number of breeding pairs occurring in Minnesota 
(1,313), Florida (1,133), Wisconsin (1,065), and Washington (848) 
(Service 2007, p. 37349).
    Regional bald eagle populations in the Northwest, Great Lakes, 
Chesapeake Bay, and Florida have increased five-fold from the late 
1970s to the late 1990s. Bald eagles are now repopulating areas 
throughout much of the species' historical range that were unoccupied 
only a few years ago (64 FR 36454; July 6, 1999). The nationwide 
recovery of the bald eagle is due in part to the reduction in levels of 
persistent organochlorine pesticides (such as DDT) and habitat 
protection and management actions.

Historical and Current Status of the Sonoran Desert Area Population

    Below we discuss the status of eagles in the Sonoran Desert Area 
population and in the States surrounding the Sonoran Desert Area 
population because it provides a context for our evaluation of whether 
the Sonoran Desert Area is a distinct population segment of bald 
eagles. As described above, the Sonoran Desert Area refers to all 
Sonoran Desert bald eagle territories within Arizona, the Copper Basin 
breeding area along the Colorado River just into California, and the 
territories of interior Sonora, Mexico. Bald eagles in Baja California 
are not included in our definition of the Sonoran Desert Area 
population because (1) they are associated with a marine, rather than 
inland, environment (Figure 1), (2) there is no documentation of Baja 
bald eagles interchanging with those in the Sonoran Desert Area, and 
(3) currently extant nests in Baja are limited to the Magdalena Bay 
region along the coast of the Pacific Ocean (Arnaud et al. 2001, p. 
136; and King 2006, p. 4), in a coastal, rather than inland, climate.
Arizona
    Hunt et al. (1992, pp. A11-A12) summarized the earliest records 
from the literature for bald eagles in Arizona. Coues noted bald eagles 
in the vicinity of Fort Whipple (now Prescott) in 1866, and Henshaw 
reported bald eagles south of Fort Apache in 1875. Bent (1937, pp. 321-
333) reported breeding eagles at Fort Whipple in 1866 and on the Salt 
River Bird Reservation (since inundated by Roosevelt Lake) in 1911. 
Breeding eagle information was also recorded in 1890 near Stoneman Lake 
by S.A. Mearns. Additionally, there are reports of bald eagles along 
rivers in the White Mountains from 1937, and reports of nesting bald 
eagles along the Salt and Verde Rivers as early as 1930. Hunt et al. 
(1992, pp. D41-D46, D291-D326, Figures D4.0-1, D5.0-1, F3, F4, and F5) 
determined from reports and personal communications dating back to 1866 
that historically there were 28 known breeding areas, 22 known and 
probable nest sites, and at least 60 unverified reports of possible 
nests/nest sites and unverified reports of bald eagles located across 
the State of Arizona. Many of the 60 possible nests/nest sites reported 
by Hunt et al. (1992) could be a collection of nests belonging to the 
same breeding territory. These reported locations ranged to the 
boundaries of the State from the Grand Canyon near Lake Powell, to the 
lower Colorado River where it separates Arizona and California, to the 
upper San Pedro River near the international border with Mexico, and 
east near the boundary with New Mexico (Hunt et al. 1992, Figures D4.0-
1, D5.0-1, F3, F4, and F5).
    More recent survey and monitoring efforts have increased our 
knowledge of bald eagle distribution in Arizona. The number of known 
breeding areas in Arizona in 1971 was 3; the number known in 2009 is 
59. The number of bald eagle pairs occupying these sites increased from 
3 in 1971 to 48 in 2009. The number of young hatched increased from a 
low of zero in 1972 to a high of 55 in 2006 (Driscoll et al. 2006, pp. 
48-49; McCarty and Johnson 2009, p. 8, in draft). Productivity has also 
changed at the bald eagle breeding areas since the 1970s. Between 1975 
and 1984, average annual productivity was 0.95 young per occupied 
breeding area. Between 1987 and 2005, average annual productivity was 
0.78 young per occupied breeding area (derived from Table 7, pp. 48-50 
in Driscoll et al. 2006). (These data take into account productivity 
for breeding areas throughout Arizona, and are not restricted to the 
Sonoran Desert population of bald eagles evaluated under the petition.)
    Hunt et al. (1992, p. A155) conclude that it is likely that bald 
eagles nested on rivers throughout the Southwest in more pristine 
times, as reports on the nature of river systems and the assemblage of 
prey fishes both seem conducive to nesting success and suggest ``richer 
and more extensive habitat in the lower desert'' than would have been 
available on the Mogollon Plateau, where bald eagles are known to have 
occurred historically. Recent reoccupation of some of these historical 
breeding areas by bald eagles lends credibility to these reports. We 
evaluated a subset of the Allison et al. (2008, pp. 17-18) data to 
determine the status of 43 breeding areas within the Sonoran Desert 
Area of Arizona and concluded that 16 (37 percent) were pioneer 
breeding areas, or occupied for the first time. An additional 27 (63 
percent) were either reoccupied, meaning they were known to have been 
occupied in the past, then vacated, and

[[Page 8606]]

subsequently reoccupied, or are considered to have been existing before 
their discovery (Allison et al. 2008, pp. 15-16).
    The Salt River Pima-Maricopa Indian Community states that the 
O'odham have inhabited the Sonoran Desert and have known eagles since 
``time immemorial'' (Anton and Garcia-Lewis 2009, p. 1). Although 
anthropologists debate what this means, at least one noted 
archaeologist has documented detailed evidence of cultural remains in 
the nearby Pinacate area that date back more than 40,000 years (Hayden 
and Dykinga 1988, p. XIV). A local, informal consensus of 10,000 years 
is less controversial (Toupal 2003, p. 11). Bald eagles have been 
documented historically within the culture of the Four Southern Tribes 
of Arizona, which includes the Salt River Pima-Maricopa Indian 
Community, Ak-Chin Indian Community, Gila River Indian Community, and 
Tohono O'odham Nation (Anton and Garcia-Lewis 2009, p. 2). Because 
eagles are considered to have equal or greater standing to humans, 
eagle burials were carried out identical to human burial practices 
(Anton and Garcia-Lewis 2009, p. 2), and bald eagle burials have been 
recovered from archaeological sites ancestral to the O'odham culture. 
In addition, eagles are extremely prominent in the O'odham song culture 
(Anton and Garcia-Lewis 2009, p. 2). A paired set of songs recorded by 
Underhill (1938, p. 109) for a Tohono O'odham eagle purification 
ceremony recognized the bald eagle as the ``white-headed eagle.''
    More recent evidence exists to demonstrate the importance and use 
of bald eagles in Apache culture. Herrington et al. (1939, pp. 13-15) 
noted the use of eagle feathers in religious practices and ceremonial 
dances. The Apache Tribes have documented numerous artifacts that were 
collected from the Tribes at Cibecue and East Fork/Whiteriver on the 
White Mountain Apache Reservation and on the San Carlos Reservation 
between 1901 and 1945. These Tribes note that these artifacts were 
made, in part, with eagle feathers, and include hats or caps; shields; 
medicine rings, shirts, and strings; amulets; war bonnets; armbands; 
hair ornaments; and wooden figurines and crosses. The Tribes note that 
these ceremonial items are of deep historical and ongoing importance, 
such that they are actively pursuing their return from the museums to 
the Tribes. The existence of these items demonstrates the use of eagle 
feathers by the Tribes for at least the last 100 years (Apache Tribes 
2009, Tabs 6-10).
    Traditional ecological knowledge from the Apache Tribes report more 
breeding bald eagles 150 years ago than are present today. 
Specifically, Tribal representatives note that many areas that were 
considered nesting sites on the San Carlos Apache Reservation such as 
Warm Springs Canyon, Black River Canyon, and Salt Creek Canyon no 
longer contain active bald eagle nests. Bald eagles are no longer found 
at four out of seven areas that have Apache place-names that reference 
bald eagles (Lupe et al. pers. comm. 2008, p. 4). The traditional 
ecological knowledge shared by the Tribes at a July 2, 2008, meeting 
indicate that more bald eagles were observed below Coolidge Dam and at 
Talkalai Lake than currently exist.
Nevada
    There are few historical or current breeding records for the State 
of Nevada. The lone historical record describes bald eagles that nested 
in a cave on an island at Pyramid Lake in northwestern Washoe County in 
northwestern Nevada in 1866 (Service 1986, p. 7; Detrich 1986, p. 11; 
S. Abele, Service, pers. comm. 2008a; 2008b). Over 100 years later, the 
next verified nesting record occurred in 1985 along Salmon Falls Creek 
in Elko County in northeastern Nevada near the Idaho border. More 
modern nesting records are limited to approximately five breeding sites 
associated with human-made water impoundments. Reproductive performance 
and persistence of bald eagle pairs in Nevada has been varied. No 
breeding has been observed at the Salmon Falls site since 1985.
Colorado
    According to the Northern Bald Eagle Recovery Plan, bald eagles in 
Colorado historically nested in the mountainous regions up to 10,000 ft 
(3,048 m). Successful nesting records exist for nests found in 
southwestern and west-central Colorado. Bald eagles were considered 
common residents in the 1940s and 1950s in and around Rocky Mountain 
National Park (Service 1983, p. 12). For southwestern Colorado, there 
were no verified records of nesting bald eagles in the 1960s (Bailey 
and Niedrach 1965 in Stahlecker and Brady 2004, p. 2). The first 
confirmed record for southwestern Colorado occurred in 1974 at Electra 
Lake (Winternitz 1998 in Stahlecker and Brady 2004, p. 2). In 1974, the 
Colorado Division of Wildlife reported that only a single nesting pair 
was known (Colorado Division of Wildlife 2008, p. 1). However, by 1981, 
there were five known occupied bald eagle territories in the State of 
Colorado (Service 1983, p. 23), and from the early 1980s to 2008, the 
known bald eagle population increased to nearly 80 territories, of 
which 60 are currently known to be active. Concentrations of breeding 
eagles are found east of the Continental Divide within the South Platte 
River watershed, on the Yampa River, on the White River, and on the 
Colorado River. Greater than 40 territories are monitored annually, 
with near 70 percent nest success, 1.19 young fledged per occupied 
site, and 1.72 young fledged per successful site (Colorado Division of 
Wildlife 2008, p. 1).
New Mexico
    Available information indicates there was no specific, first-hand 
information on bald eagles nesting in New Mexico prior to 1979. 
Unverified reports (Bailey 1928, p. 180; Ligon 1961, p. 75) suggest one 
or two pairs may have nested in southwestern New Mexico, on the upper 
Gila River and possibly the San Francisco River, prior to 1928. These 
second-hand reports lacked specifics and may have referred to other 
species (Williams 2000, p. 1).
    Since completion of the 1982 Recovery Plan, seven bald eagle 
territories have been discovered, five in northern New Mexico in Colfax 
and Rio Arriba Counties and two in southwest New Mexico in Sierra and 
Catron Counties. Four have been recently occupied and productivity has 
been fair with young produced in at least 6 to 15 years, depending on 
the territory (H. Walker, New Mexico Department of Game and Fish, pers. 
comm. 2008).
Southern California
    In southern California, historical bald eagle records are known 
from the Channel Islands and mainland counties along the Pacific Ocean 
(Detrich 1986, pp. 9-27). Prior to 1900, three bald eagle territory 
records were known (Detrich 1986, pp. 10-13). From 1900 to 1940, 
reports of 24 to 60 nest sites existed on islands off the coast of 
California, and are believed to have been extirpated from the islands 
soon after 1958 (Detrich 1986, pp. 18, 24). In inland areas in southern 
California, at least eight bald eagle pairs were known from Santa 
Barbara, Ventura, Los Angeles, Orange, and San Diego counties between 
1900 and 1940, with indications of presence prior to this timeframe 
(Detrich 1986, pp. 13-19). By 1981, largely due to adverse changes to 
bald eagle habitat and the effects of the pesticide DDT on 
reproduction, no breeding eagles were detected on the southern 
California mainland (Detrich

[[Page 8607]]

1986, pp. 32, 33, 36, 39; California Department of Fish and Game 2008, 
p. 2).
    Beginning in 1980, bald eagles were translocated to Santa Catalina 
Island as chicks or eggs from wild nests on the mainland, or from 
captive breeding. Pairs of bald eagles have been breeding on the island 
since 1987. In a subsequent relocation effort between 1987 and 1995 in 
the central coast mountains of Monterey Bay, 66 eaglets were 
translocated and released. A nesting pair first formed from those 
releases in 1993, and there are currently three nesting pairs 
(California Department of Fish and Game 2008, pp. 2-3). Releases of 
birds occurred through 2000, with no releases conducted between 2002 
and 2008 (Ventana Wildlife Society 2009, p. 1). Currently, there are 
approximately six pairs of bald eagles on Catalina Island, with an 
additional three pairs at Santa Cruz Island, and one pair at Santa Rosa 
Island. There are approximately 35 to 40 bald eagles around the 
Northern Channel Islands, and another 20 birds around Catalina, for a 
total of approximately 60 birds among the Channel Islands (A. Little, 
pers. comm. 2008).
    Presently, mainland southern California nesting bald eagles occur 
at inland isolated manmade reservoirs. Bald eagle breeding sites can be 
found in northwestern San Luis Obispo County (San Antonio and 
Nacimiento Lakes), central Santa Barbara County (Lake Cachuma), 
southwestern San Bernardino County (Silverwood Lake), extreme eastern 
San Bernardino County near the Colorado River (Copper Basin Lake), 
southwestern Riverside County (Hemet and Skinner lakes), and central 
San Diego County (Lake Henshaw) (AGFD 2008, California Department of 
Fish and Game 2008, pp. 2-3; Driscoll and Mesta in prep. 2005, p. 110; 
Ventana Wildlife Society 2008, p. 1).
    Nesting attempts at Silverwood and Hemet Lakes are considered 
sporadic (Service 2005, p. 110). At Skinner Lake, reproduction efforts 
in the mid-1990s were affected by DDT, and the nest area subsequently 
burned down (Driscoll and Mesta in prep. 2005; AGFD 2008). Nest sites 
in northwestern San Luis Obispo County appear to be very productive, 
producing eaglets in all but one year from 1993 to 2006 (Ventana 
Wildlife Society 2008, p. 7). For 2001 to 2008, two or three young have 
fledged annually from the Copper Basin breeding area, with the 
exception of 2004 when the nest was blown down (M. Melanson, 
Metropolitan Water District of Southern California, pers. comm. 2006a, 
2007, 2008). The blue aluminum leg bands of one of the adult bald 
eagles at the Copper Basin site indicate that the bird likely 
originated in Arizona (M. Melanson, Metropolitan Water District of 
Southern California, pers. comm. 2006b).
Utah
    Bald eagles were recorded as ``more or less frequent'' by Allen in 
1871 (p. 164) in the vicinity of Ogden in northern Utah. There are 
seven historical records for Utah between 1875 and 1928, with five 
records of nesting bald eagles, and two other records of nonbreeding 
bald eagle observations, all located between Great Salt Lake and Utah 
Lake in northern Utah. In 1967, a nest was found to the south in Wayne 
County at Bicknell, and in 1972, an additional nest was located at Joes 
Valley Reservoir in San Pete County in central Utah, but it has since 
fallen. Additional records from the 1970s were of nests along the 
Colorado River at Westwater Canyon in 1975, and at the head of 
Westwater Canyon between 1973 and 1977. Beginning in 1983, nesting 
attempts occurred at three nesting territories in southeast Utah. Two 
of the territories were along the Colorado River near the eastern 
border of Utah, with the third near Castle Dale in the center of the 
State (Boschen 1995, pp. 7-8). Three known nest sites (Cisco, Bitter 
Creek, and Castle Dale) were reported following survey work completed 
in 1994. These three nest sites produced an average of approximately 
1.4 nestlings, with 1.05 successfully fledged between 1983 and 1994 
(Boschen 1995, p. 103). Approximately 11 breeding areas were known, 
considered active, and monitored between 1983 and 2005 (Darnell, 
Service, pers. comm. 2008).
West Texas
    Historically, there were five nesting records for bald eagles west 
of the 100th Meridian in Texas. Lloyd (1887, p. 189) reported nesting 
in Tom Green and Concho counties in 1886. Oberholser (1974, p. 246) and 
Boal (2006, p. 46) reported eggs collected in Potter County near 
Amarillo by E.W. Gates in 1916. Oberholser (1974, in Service 1982, p. 
8) additionally reported eggs collected by Smissen in 1890 in Scurry 
County south of Lubbock. Oberholser also reported an undated sight 
record of breeding eagles in Armstrong County near Amarillo. Kirby 
(pers. comm., in Service 1982) reported an active nest in nearby 
Wheeler County in 1938, and indicated it had been active for 
approximately 20 years. Throughout the 1980s and early 1990s there were 
no known breeding bald eagles in western Texas (Mabie et al. 1994, p. 
215; Service 1982, p. 9). In 2004 and 2005, two adult bald eagles and a 
nestling were observed at a nest in the southern Great Plains of the 
Texas Panhandle. One young was produced in 2004, and two in 2005. No 
leg bands were readily observable on the adult eagles (Boal et al. 
2006, pp. 246-247).
Sonora, Mexico
    Bald eagle territories were first recorded in Sonora along the Rio 
Yaqui drainage in 1986 (Brown et al. 1986, pp. 7-14). Since that time, 
a total of seven bald eagle breeding areas were verified (Brown et al. 
1986, pp. 7-14; Brown et al. 1987b, pp. 1-2, 1987b, p. 279; Brown 1988, 
p. 30; Brown and Olivera 1988, pp. 13-16; Brown et al. 1989, pp. 13-15; 
Brown et al. 1990, pp. 7, 9; Mesta et al. 1993, pp. 8-12; Russell and 
Monson 1998, pp. 62-63; Driscoll and Mesta 2005 in prep., pp. 78-90). 
Four of these bald eagle breeding areas have remained occupied 
(Driscoll and Mesta, in prep., pp. 78-90). However, reproductive 
performance of these nests has been relatively poor. Only a single 
nestling was recorded fledging in 2000 and 2001, and no successful 
nests were observed in 1999, 2002, and 2005 (Driscoll and Mesta in 
prep., p. 43). In 2008, no occupancy was detected at bald eagle 
territories (R. Mesta, Service, pers. comm. 2008). A bald eagle pair 
was observed in 2009; however, the previously used cliff nest is gone, 
and a new nest was not confirmed. Illegal drug activity in the area has 
increased human presence, making survey work difficult to accomplish. 
The area is also affected by extensive water withdrawals, and drought 
and dam operations, leaving the future of this site uncertain (R. 
Mesta, Service, pers. comm. 2009).

Defining a Species Under the Act

    Section 3(16) of the Act defines ``species'' to include ``any 
species or subspecies of fish and wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature'' (16 U.S.C. 1532(16)). To interpret and 
implement the distinct vertebrate population segment provisions of the 
Act and congressional guidance, the Service and the National Marine 
Fisheries Service (now the National Oceanic and Atmospheric 
Administration--Fisheries Service), published the Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments (DPS Policy) in 
the Federal Register on February 7, 1996 (61 FR 4722). The DPS Policy 
sets forth a three-step process: First, the Policy requires the Service 
to determine that a vertebrate population is discrete

[[Page 8608]]

and, if the population is discrete, then a determination is made as to 
whether the population is significant. Lastly, if the population is 
determined to be both discrete and significant then the Policy requires 
a conservation-status determination to determine if the DPS is an 
endangered or threatened species.

Distinct Vertebrate Population Segment Analysis

    In accordance with our DPS Policy, this section details our 
analysis of whether the vertebrate population segment under 
consideration for listing may qualify as a DPS. Specifically, we 
determine (1) the population segment's discreteness from the remainder 
of the species to which it belongs and (2) the significance of the 
population segment to the species to which it belongs. Discreteness 
refers to the ability to delineate a population segment from other 
members of a taxon based on either (1) physical, physiological, 
ecological, or behavioral factors, or (2) international boundaries that 
result in significant differences in control of exploitation, 
management, or habitat conservation status, or regulatory mechanisms 
that are significant in light of section 4(a)(1)(B) of the Act.
    Under our DPS Policy, if we have determined that a population 
segment is discrete under one or more of the discreteness conditions, 
we consider its significance to the larger taxon to which it belongs in 
light of congressional guidance (see Senate Report 151, 96th Congress, 
1st Session) that the authority to list DPSs be used ``sparingly'' 
while encouraging the conservation of genetic diversity. In carrying 
out this examination, we consider available scientific evidence of the 
population's importance to the taxon to which it belongs. This 
consideration may include, but is not limited to the following: (1) The 
persistence of the population segment in an ecological setting that is 
unique or unusual for the taxon; (2) evidence that loss of the 
population segment would result in a significant gap in the range of 
the taxon; (3) evidence that the population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside of its historic range; 
and (4) evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    The first step in our DPS analysis was to identify populations of 
the Sonoran Desert Area population to evaluate. The petition from CBD, 
the Maricopa Audubon Society, and the Arizona Audubon Council requested 
that the ``Southwestern desert nesting bald eagle population'' be 
classified as a DPS, that this DPS be reclassified from a threatened 
species to an endangered species, and that we concurrently designate 
critical habitat for the DPS under the Act.

Determination of the Area for Analysis

    The March 6, 2008, court order directed the Service to conduct a 
status review of the ``Desert bald eagle population.'' The population 
referenced in the court order consists of those bald eagles in the 
Sonoran Desert of the southwest that reside in central Arizona and 
northwestern Mexico. While we had specific clarification from the 
petitioners with respect to elevational boundaries, bald eagle breeding 
areas, the Upper and Lower Sonoran Life Zones, and the State of 
Arizona, they provided ambiguous clarification with respect to the 
boundaries of ``central Arizona'' and which transition areas outside of 
the Upper and Lower Sonoran Life Zones to include. Because of these 
ambiguities and lack of a specific map in the petition, we were left to 
interpret them, primarily at the perimeters of the boundary.
    In responding to the court order, we published a rule on May 1, 
2008, reinstating threatened status under the Act to the bald eagle in 
the Sonoran Desert Area of Central Arizona in eight Arizona counties: 
(1) Yavapai, Gila, Graham, Pinal, and Maricopa Counties in their 
entirety; and (2) southern Mohave County (that portion south and east 
of the centerline of Interstate Highway 40 and east of Arizona Highway 
95), eastern LaPaz County (that portion east of the centerline of U.S. 
and Arizona Highways 95), and northern Yuma County (that portion east 
of the centerline of U.S. Highway 95 and north of the centerline of 
Interstate Highway 8). We limited the reinstatement of threatened 
status to these areas because Sonoran Desert bald eagles were only 
listed under the Act in Arizona (and not in Mexico) at the time of the 
petition. Therefore, the court's order enjoining our final delisting 
decision applied only to those eagles that reside in the Sonoran Desert 
of central Arizona.
    For this status review, we revisited the issue of defining the 
potential DPS based on a more in-depth review of information received 
from the public, Tribes, and information in our files. We determined 
that an appropriate delineation for this analysis includes all Sonoran 
Desert bald eagle territories within Arizona, the Copper Basin breeding 
area along the Colorado River just into California, and the territories 
of Sonora, Mexico. This expanded boundary was developed using 
vegetation community boundaries, elevation, and breeding bald eagle 
movement. This interpretation combines geographic proximity and 
recognized Sonoran Desert vegetation and transition life zones. We 
determined the transition areas based on our knowledge of their 
proximity to the Sonoran Desert itself, excluding territories more 
properly classified as montane or grassland habitat. Bald eagles in 
Baja California, Mexico, occur in an area where the Sonoran Desert 
vegetation community abuts a coastal environment. We excluded bald 
eagles in this area because they depend on marine resources rather than 
inland fisheries. We based delineation of the potential DPS on the best 
available scientific information, including the parameters provided by 
CBD (i.e., bald eagle territories, elevation, life zones, and 
transition areas), and the resulting expanded boundary includes known 
bald eagle breeding areas within the Sonoran Desert vegetation 
community and transition areas, as defined by Brown (1994, pp. 181-
221), except Baja California.
    As noted above, we included Sonora, Mexico, in the potential DPS 
because both areas have the same vegetation and climate. Bald eagles in 
Sonora use Sonoran Desert and transition vegetation communities as do 
bald eagles in the Sonoran Desert areas of Arizona and southern 
California. In addition, breeding season chronology in both areas 
appears to be similar (Driscoll et al. 2005 in prep., pp. 31-32), 
occurring between December and June. Bald eagles in Sonora also nest in 
riparian trees and cliffs, as they do in Arizona (Driscoll et al. 2005 
in prep., p. 31).
    When based strictly on vegetation or elevation lines, the expanded 
boundary is irregular and complex, and would be difficult to interpret. 
For this reason, we delineated the boundary with more easily 
identifiable road, county, and State lines.

Discreteness

    Under the DPS Policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation,

[[Page 8609]]

management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the Act.

Boundaries of the Potential DPS

    Many terms have been used in describing the bald eagles that occupy 
the desert southwest, and we identify here the geographic area covered 
by the various terms. At the broadest geographic scale, bald eagles 
were managed under the Southwest Bald Eagle Recovery Region, which 
encompassed Oklahoma, Texas west of the 100th meridian, all of New 
Mexico and Arizona, and those portions of southeastern California that 
border the lower Colorado River. Bald eagles within this area were 
called ``southwestern bald eagles'' (Service 1982, p. 1). Much of the 
data used in the development of the potential DPS boundary for this 
discreteness analysis came from those eagles within the boundaries of 
the State of Arizona. The petition that initiated this 12-month status 
review referred to the Southwestern Desert Nesting Bald Eagle 
Population, which included those eagles that breed predominantly in the 
upper and lower Sonoran life zone habitat. In our August 30, 2006, 
analysis at the 90-day petition finding stage (71 FR 51549), we 
evaluated ``Sonoran Desert bald eagles,'' which included those bald 
eagles in the Sonoran Desert of central Arizona and northwest Mexico.
    In analyzing the potential DPS under this 12-month status review, 
we considered habitat use by bald eagles breeding in the Southwest, 
vegetation communities in which breeding areas occur, and elevation 
levels at which breeding areas occur, as we did at the 90-day petition 
finding stage. However, we have reevaluated all potential areas 
including those considered in the 90-day finding to include any areas 
that meet the criteria described below. As a result, in this review, we 
did not restrict the boundary to the State of Arizona and have expanded 
the area covered by our previous analysis to include portions of 
southeastern California along the Colorado River, Arizona, and Sonora, 
Mexico. We now refer to this expanded potential DPS area as the Sonoran 
Desert Area population, which replaces the term ``Sonoran Desert Area 
of central Arizona,'' as described in our May 1, 2008, Federal Register 
rule (73 FR 23966) to list the Sonoran Desert bald eagle as threatened.
    To determine which areas should be included within the expanded 
boundary for the Sonoran Desert Area, we considered three factors: (1) 
The Sonoran Desert vegetation community (Brown 1994, pp. 180-221; Brown 
and Lowe 1994, map), (2) an elevational range for known breeding areas 
within the Sonoran Desert (excluding Baja California), and (3) movement 
patterns of breeding bald eagles both into and out of the Sonoran 
Desert Area. We included within the boundary portions of the Sonoran 
Desert, including its subdivisions and ``transition areas.'' 
Subdivisions of the Sonoran Desert include the Lower Colorado River 
Valley, Arizona Upland, Vizcaino, Central Gulf Coast, Plains of Sonora, 
and Magdalena (Brown 1994, pp. 190-221). Transition areas are those 
vegetation communities adjacent to the Sonoran Desert community. Brown 
(1994, p. 181) includes as transition areas semidesert grasslands, 
Sinaloan thornscrub, and chaparral. The majority of the breeding areas 
within the boundary occur in the Arizona Upland Subdivision of the 
Sonoran Desert. Exceptions include those breeding areas in the 
transition communities (where 14 of 61 breeding areas are located) of 
Interior Chaparral, Plains & Great Basin Grassland, Semidesert 
Grassland, and Sinaloan Thornscrub (Brown 1994). These communities are 
most often adjacent to the Arizona Upland Subdivision of the Sonoran 
Desert, where bald eagles in these areas forage at least partially 
within the desertscrub.
    We also based the boundary on those portions of the Southwest 
within the elevational range of 984 to 5,643 ft (300 to 1,720 m). This 
elevational range encompasses all known bald eagle breeding areas 
within the Sonoran Desert in the United States and Sonora, Mexico. 
Using Geographic Information Systems, the appropriate elevational 
ranges were overlapped with the Sonoran Desert vegetation community to 
determine where both criteria were met.
    We also considered information on movement of bald eagles into and 
out of the Sonoran Desert, as determined through banding and monitoring 
information. Specifically, we included within the boundary those bald 
eagles known to originate in or breed in the Sonoran Desert and 
transition areas, excluding Baja California. The banding and monitoring 
information used to determine eagles originating or breeding in the 
Sonoran Desert Area is described in detail below.
    Figure 1 below illustrates the boundary developed based on 
vegetation community, elevation, and breeding bald eagle movement. The 
boundary was modified from following strictly elevational or vegetation 
lines to follow more easily identifiable road, county, and State lines.
BILLING CODE 4310-55-P

[[Page 8610]]

[GRAPHIC] [TIFF OMITTED] TP25FE10.000

BILLING CODE 4310-55-C
    The northern perimeter of the expanded potential DPS boundary in 
Arizona is the same as the potential DPS boundary that we used in our 
May 1, 2008, Federal Register notice (73 FR 23966) to list the Sonoran 
Desert bald eagle DPS as threatened. This boundary follows the southern 
edges of Coconino, Navajo, and portions of Apache Counties. It follows 
the Graham County line south on the east side until it reaches the 
Cochise County boundary.
    On the west, the boundary drops south along the Mohave-Yavapai 
boundary until it reaches Interstate 40. The discreteness boundary then 
follows Interstate 40 west until its intersection with the State 
boundary. It continues west 5 miles (mi) (8 kilometers (km)) and then 
south along a line drawn 5 mi (8 km) west of and parallel to the 
Colorado River until it reaches Highway 2 in Sonora, Mexico.
    The southern boundary of the expanded potential DPS follows Highway 
2 in Mexico east until its intersection with Highway 15. It follows 
Highway 15 until its intersection with Highway 16. The southern 
boundary continues along Highway 16 until it reaches the State boundary 
between Sonora and Chihuahua. The eastern boundary of the expanded 
potential DPS follows the State line between Sonora and Chihuahua north 
until it reaches the international boundary b