On June 28, the national government removed the bald eagle from the endangered species list. It is great news that bald eagle populations in the contiguous 48 states have done so well, where now there are more than 11,000 breeding pairs.
Unfortunately, some serious problems remain. The story is not being told of how many different factors led to the recovery of the bald eagle. The role of the Endangered Species Act (ESA) has been significantly overstated. Indeed, the ESA may well have caused more harm than good to the eagle.
The bald eagle will be removed from the endangered list in name only, because despite the species’ much-hailed recovery the U.S. Fish and Wildlife Service (FWS) has cut-and-pasted the ESA land-use regulations–the “teeth” that make the law so broadly powerful–into the Bald and Golden Eagle Protection Act (Eagle Act).
The Eagle Act was passed in 1940 and prohibits any form of possession or taking of either bald or golden eagles.
Brian Seasholes has written for the Reason Foundation a report on the many factors that led to the recovery of the bald eagle and the limited role the ESA played. His second short report looks at how first the ESA and now the Eagle Act pit landowners against eagles.
Many Reasons for Recovery
The recovery of the bald eagle is a more complex story than you might think.
Contrary to claims by a number of prominent ESA boosters, the bald eagle was never in danger of extinction. The vast majority of the species’ population (around 75 percent) has lived in Alaska and British Columbia, Canada, where the combination of superb habitat and lack of DDT has kept them safe. Alaskan eagles have never been listed under the ESA.
According to Seasholes, banning DDT in 1972, not passage of the ESA a year later, is widely acknowledged as the reason for the eagle’s resurgence. Seventy percent of the bald eagle population in the 48 contiguous states were not even listed under the ESA, and therefore not afforded the purported benefits of its protection, until 1978, several years after DDT was banned.
Habitat conservation and creation is a far more nuanced process than is portrayed by the ESA’s boosters. The ESA may well have done more harm than good on private land, where most of the listed eagles exist.
Effective State, Private Efforts
Releasing young eagles in areas where the species had been considered locally extinct proved to be very effective in the recovery effort, but these captive breeding programs were carried out primarily by states and private organizations, not federal agencies.
The main contribution of the federal ESA was to provide funding for these efforts, though given the eagle’s charisma, state and private entities proved able to raise substantial funds.
Public attitudes about eagles have changed, and people are much more inclined to respect and admire them and avoid bothering them. The ESA’s land-use regulations were not necessary to curtail shooting, and penalties for shooting actually got their biggest boost from the 1987 Criminal Fines Improvement Act, not the ESA.
Finally, the ESA played little role in people’s increasing environmental consciences and positive attitude towards eagles.
Draconian Land-Use Restrictions
Under the ESA and the Eagle Act, FWS has made land-use restrictions the centerpiece of the strategy to protect bald eagles. These land-use restrictions did more harm than good by leading many landowners to make their land inhospitable to eagles.
History shows FWS does not confine itself to measures that ensure the eagle’s recovery. In the mid-1990s the bald eagle population in the 48 contiguous states reached more than 3,000 breeding pairs, which met the goal for recovery of the species under the ESA. But FWS failed to take action to remove the eagle from the endangered list until 2005, when Minnesota landowner Edmund Contoski sued FWS for failing to delist the eagle in a timely manner.
Contoski won his case, and the court ordered FWS to remove the bald eagle from the endangered list. Now there are at least 11,137 pairs, exceeding the recovery goal by 371 percent.
Bureaucratic Overreach
Congress never intended for the Eagle Act to contain land-use control provisions. FWS used an administrative rulemaking process to add the ESA’s land-use control provisions to the Eagle Act beginning in the 1970s. In addition, FWS’s changes to the Eagle Act extend the ESA’s land-use regulations to bald eagles in Alaska and golden eagles in the contiguous 48 states and Alaska, both of which have never been covered by such regulations.
The land-use restrictions added by FWS to the Eagle Act can be used to encumber huge amounts of habitat. Applying FWS nest protection guidelines under the Eagle Act means the 11,137 pairs in the 48 contiguous states occupy 5.6 million acres (roughly the size of New Hampshire or New Jersey)–524,834 acres of which will be the most stringently regulated because they are closest to nest sites.
In addition, these figures don’t account for regulations protecting nesting birds in the outer extent of their ranges, non-nesting eagles, wintering eagles that migrate across the Canadian border, the Alaskan population of bald eagles, or golden eagles–all also potentially subject to the revised Eagle Act.
Unnecessary Rules
Even without increasing the land-use restrictions of the Eagle Act, the population of bald eagles will certainly continue to increase.
The combination of the bald eagle’s symbolic importance and state and private conservation efforts will ensure the eagle prospers into the future.
The time is long overdue for the bald eagle to fly free of the ESA’s land-use controls.
Adrian Moore ([email protected]) is vice president of research for the Reason Foundation.
For more information …
Two reports written for the Reason Foundation by Brian Seasholes are available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.policybot.org and search for:
“The Bald Eagle, DDT, and the Endangered Species Act,” Policy Brief No. 63, document #21737.
“The Bald Eagle’s Worst Enemy,” Policy Brief No. 64, document #21738.
