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The US Fish & Wildlife Service designated all northern aplomado falcons in New Mexico and Arizona as nonessential and experimental under the ESA
Contact: WildEarth Guardians

Additional Contacts: Jay Tutchton, University of Denver Environmental Law Clinic: 303-871-6034Dr. Tom Jervis: New Mexico Audubon Council, 505-988-1708

SANTA FE, NM – Sept. 12. WildEarth Guardians and a coalition of conservation groupsfiled suit in federal district court in Santa Fe yesterday against a reintroduction rule which removes most habitat protections under the Endangered Species Act for Aplomado Falcons in New Mexico and Arizona. Under a rule issued by the U.S. Fish and Wildlife Service in late July, all falcons within the two-state area were designated “experimental, non-essential” under Section 10(j) of the Endangered Species Act. The rule’s removal of habitat protections for falcons comes at a time when there is more evidence that wild falcons exist in New Mexico than at any point since the Northern Aplomado Falcon was listed under the Endangered Species Act in 1986.

“We’ve been warning the Service for over four years that this removal of key protections unlawfully strips away the safety net for falcons in the wild. In that time, there has been a steady increase in falcon sightings in New Mexico, with more evidence than ever before that our state is their home,” stated Dr. Nicole Rosmarino of WildEarth Guardians. Rosmarino said, “By taking legal action, we aim to give the wild falcons a fighting chance against escalating threats, such as oil and gas drilling on Otero Mesa.”

The Endangered Species Act requires that reintroduced animals designated asexperimental, non-essential be outside the current range of the species. The group’s lawsuit contends that the falcon reintroduction rule is illegal due to the presence of wild falcons in New Mexico. Over the past two years, scientific articles published in North American Birds and the Journal of Raptor Research have indicated that a wild falcon population spans northern Chihuahua and southern New Mexico. For the first time in fifty years, wild falcons successfully fledged young in New Mexico, in the summer of 2002. The Luna County territory has been occupied from 2000 to the present, possibly by the same female falcon that successfully bred in 2002. Altogether, there have been 26 credible falcon sightings in New Mexico over the past eighteen months, more than any eighteen-month period since the falcon was federally listed. These sightings have included pairs, adult, and young falcons and have occurred across several counties in New Mexico, especially Luna and Otero Counties.

“This is a misuse of the experimental non-essential population provisions of theESA. Wrapped up in happy sounding rhetoric from the Secretary of Interior and other politicians, the reintroduction rule is bad for wild falcons, bad for the concept of what it means to be wild, and bad for those who support the public interest in wildlife and lands,” stated Jay Tutchton, the lead attorney representing the groups.

Nine of the 26 sightings have been outside the Luna territory, most of which have been on Otero Mesa, an area slated for oil and gas drilling. The Service has long considered Otero Mesa to be important falcon recovery habitat, but the reintroduction rule intentionally seeks to limit protections for the falcons from oil and gas impacts. Governor Richardson and conservation groups have challenged the Otero Mesa drilling plan in federal court, and a decision on that case has been pending for several months. A report was released last week by the Coalition for Otero Mesa, entitled “Hollow Promises in Our Land of Enchantment: Why the Bureau of Land Management Can’t Be Trusted to Protect Otero Mesa.” The report includes a profile of how the BLM’s oil and gas program fails to protect Aplomado falcons and other endangered wildlife and plants.

“The oil and gas threat is looming large for the falcon on Otero Mesa, and this flawed reintroduction rule intentionally undermines important habitat protections currently standing between Aplomado falcons and oil rigs,” stated Rosmarino.

While conservation groups do not oppose the reintroduction effort, they oppose its design and urge full ESA protections for falcons, including those reintroduced into the state. 11 captive-bred falcons were released into New Mexico in early August. The groups aim through their lawsuit to reinstate enforceable habitat protections to protect both wild falcons and help ensure that reintroduced birds become established in the wild.

Conservation groups filing suit on Monday to preserve falcon protections were WildEarth Guardians, Chihuahuan Desert Conservation Alliance, Public Employees forEnvironmental Responsibility, New Mexico Audubon Council, Southwest EnvironmentalCenter, and the Sierra Club. The groups are represented by James J. Tutchton of the University of Denver Environmental Law Clinical Partnership and Richard Mietz of New Mexico.

For more information, including the list of the 26 sightings that have occurred in 2005 and 2006, scientists’ criticisms of the reintroduction rule, agency correspondence critiquing use of section 10(j) for falcons, and the “Hollow Promises” report, contact Nicole Rosmarino at nrosmarino@fguardians.org or 505-988-9126×156.

Background Information

WildEarth Guardians, Chihuahuan Desert Conservation Alliance, and Public Employees for Environmental Responsibility filed suit in March 2006 seeking a finding on their 2002 petition to designate critical habitat for the Northern Aplomado Falcon. July’s reintroduction rule prohibits critical habitat designation within New Mexico or Arizona. Critical habitat provides protection of areas not currently occupied by the species and protects critical habitat from adverse modification. A peer-reviewed study in the April 2005 issue of BioScience, “The Effectiveness of the Endangered Species Act: A Quantitative Analysis,” concludes that species with critical habitat designated for two or more years are more than twice as likely to have improving population trends than species without.

The Service has long considered habitat destruction to be a primary threat to aplomado falcons. A 2004 in The Journal of Raptor Research, partially funded by the Service, concluded that “Grassland conservation is paramount in conserving Aplomado Falcons and other grassland birds in the Chihuahuan Desert.” Previous to the reintroduction rule, federal agencies were required to ensure that their actions, such as permitting oil and gas drilling and livestock grazing, would not harm falcons or destroy their habitat. These protections are undermined by the reintroduction rule. Escalating threats to falcon habitat in New Mexico include the BLM’s drilling plan for Otero Mesa, as well as the Department of Defense’s plan to greatly increase overflights on Otero Mesa and off-road maneuvering on Fort Bliss.

The scientific rigor of the proposal has long been in question. WildEarth Guardians obtained an electronic copy of the draft Environmental Assessment for the proposal, which contained the Service’s editing remarks. The comments demonstrated attempts by the agency to mask the environmental consequences of removing the falcon’s habitat protection. For more than a decade, state and federal agencies (including the Service itself) have criticized a section 10(j) reintroduction for falcons into New Mexico due to the presence of wild falcons in the state. While the Service requested scientists to peerreview the Aplomado falcon reintroduction proposal, only two of the scientists who responded were independent. Neither supported the proposal. During the public comment period on the proposed reintroduction rule, several independent scientists submitted comments critical of the proposal. The groups filing yesterday’s lawsuit contend that the reintroduction places political convenience above science and conservation, to the detriment of both wild and reintroduced birds.

Aplomado falcon reintroductions have been ongoing in Texas for more than a decade. Reintroduction efforts in south Texas have been successful, with dozens of falcons breeding in the wild. The Texas reintroduction occurred without the use of Section 10(j). Rather, in that instance, “safe harbor” agreements were reached with private landowners, as provided under the Endangered Species Act’s Section 10(a). New Mexico Audubon Council and others have suggested that safe harbor agreements be used in New Mexico in order to avoid stripping away safeguards for wild falcons and to preserve their full protections on federal lands.