Judge partially rejects claims over endangered falcon

ALBUQUERQUE, N.M. – A federal judge has rejected part of a challenge by environmental groups to a U.S. Fish and Wildlife Service decision to designate the northern aplomado falcon as a nonessential, experimental population in New Mexico and Arizona.

U.S. District Judge William Johnson last week denied claims that the agency violated the Endangered Species Act by not responding to a petition from the environmentalists within a set period and did not rely on the best science in designating the population in the two states as experimental.

Johnson, however, agreed with the environmentalists' argument that Fish and Wildlife unlawfully withheld or unreasonably delayed action on critical habitat for the bird in Texas.

He stressed that his decision meant only that Fish and Wildlife is required to answer the environmental groups' 2002 petition within 30 days. Johnson said Friday he was not requiring the agency to designate critical habitat in Texas.

WildEarth Guardians and several other groups sued the Fish and Wildlife Service and The Peregrine Fund in 2006, the same year Fish and Wildlife designated the falcons as an experimental population in New Mexico and Arizona.

The designation cleared the way for The Peregrine Fund to begin releasing captive-bred falcons in southern New Mexico in a reintroduction effort.

The environmentalists' challenge alleges the experimental designation violated federal policy and stripped the bird of needed protections under the Endangered Species Act. They want the judge to declare the designation illegal and force the agency to respond to their petition not only for critical habitat in Texas, but also in New Mexico and Arizona.

Johnson has not yet ruled on those claims.

Elizabeth Slown, spokeswoman for the Fish and Wildlife Service's Southwest Region, said Wednesday that although parts of the challenge remain, “We're pleased with the opinion and we're looking forward to the judge making his final decisions.”

Jay Tutchton, WildEarth Guardians' general counsel, said he was pleased by Johnson's ruling that the agency must respond to the critical habitat request in Texas.

“That's a good thing because most of the falcons that are known are in Texas,” he said.

Tutchton said he wasn't surprised by the rest of the ruling. “The claims we lost are claims we didn't particularly argue or are duplicative. So I am eagerly awaiting the rest of the decision,” he said.

He argued at a May 20 hearing that Fish and Wildlife's decision to designate the population as nonessential stemmed from “political, top-down pressure.”

Attorneys for the federal government and The Peregrine Fund responded that political pressure is part of the National Environmental Policy Act process and that the agency considered all comments before making a decision.

They also said it is allowed to have a preferred alternative – in this case, the nonessential, experimental designation.

Environmentalists have argued that reintroduced animals can be designated as experimental only if they're outside a species' current range. They contend there were more than two dozen falcon sightings in the two years before falcons were released in August 2006, meaning New Mexico had a population.

The government has said sightings of falcons in New Mexico didn't mean there was a breeding population.

The bird, identified by a white stripe above the eye and a brown vest, was listed as endangered in 1986. Fish and Wildlife said then that critical habitat was not prudent because there had not been any active nesting sites in the previous 25 years.

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

The species' range once covered much of the Southwest and northern Mexico. Experts have said its numbers dwindled due to pesticides, human activities and habitat change.