News your connection to The Boston Globe

Do not disturb

Under the Endangered Species Act, the bald eagle rebounded from 417 pairs to over 7,000 pairs. (Derrick Z. Jackson/globe staff)

IT IS TIME FOR the bald eagle to fledge from the federal endangered species list. The question is how much danger to return it to.

"Eagles are learning to coexist with people," said Tom French, acting commissioner for the Massachusetts Department of Fish and Game. "Some are pretty darn trusting, some are skittish. But no bald eagles are going to nest far away from water. Shoreline development is notoriously under pressure . . . Whether they are strong enough to withstand the pressure is the question.

"I think the numbers will continue to climb but individual pairs may lose under certain pressures. Whatever is decided does not really protect habitat the way the Endangered Species Act does. The question is, is just OK protection adequate? Most people say yes."

The bald eagle, which plummeted to 417 pairs in the lower 48 states in 1963 because of pesticide poisoning, has rebounded to over 7,000 nesting pairs according to US Fish and Wildlife Service. In 1998, Interior Secretary Bruce Babbitt went to Western Massachusetts, using the backdrop of eagles in a nest that French climbed to for several years to band chicks. Babbitt said the Endangered Species Act was working so well that the eagle and other endangered species "will be flying, splashing and leaping off the list." A year later, President Clinton proposed delisting the eagle from the Endangered Species Act.

The proposal languished until a Minnesota landowner who had an eagle nest on property he wanted to subdivide sued to force the government to delist the bird. The scheduled date for a final delisting decision is June 29 .

One reason delisting is taking so long is that environmentalists and biologists, including those inside the fish and wildlife service, are trying to fine-tune the law. The eagle would still be under the 1940 Bald and Golden Eagle Protection Act. But that act originally had in mind people who intentionally "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or disturb" the bird.

The act did not detail what constitutes "disturb." In a September internal memo, biologists at Fish and Wildlife said it was critical that the definition of "disturb" meant not just human behavior that directly causes injury or death or nest abandonment but is "likely" to cause such events.

Without the word "likely," biologists were concerned that "actual harm will have to be proven to have taken place, which would be very difficult to enforce without evidence of a dead or injured eagle." It would be difficult to prove because injured or scared eagles go off somewhere else to die. They were also concerned that "nests could be rendered unusable even though untouched" by developers and industries that manipulate or destroy the habitat immediately surrounding a nest.

The service hopes that it can balance a tougher definition of "disturb" with a permit program that would authorize the taking or moving of eagle nests "under limited circumstances and conditions." We will be sure to see those limits be tested by private home builders, land developers and loggers. But another reality is that the eagle has grown past previously assumed limits.

H. Dale Hall, director of the US Fish and Wildlife Service, recently said over the telephone, "We have to apply as much common sense as possible. I was in Jacksonville where I saw eagle nests right up against structures. I was standing on a developed lot and looking up at them. . .We thought 20 years ago that eagles needed to nest several miles apart. We now find eagles nesting in sight of each other. We're learning a lot about the adaptability of the animal."

In Massachusetts, where French says there are 24 occupied eagle territories, state protection laws will remain in place that are tougher than federal law. In New Hampshire, which had a record 21 fledged eagle chicks last year, state fish and game endangered wildlife coordinator John Kanter said his concern looking ahead would be development along eagle migratory routes and winter roosting sites where they do not have nests, but depend on the habitat for food.

"Eagles will never be like pigeons," Kanter said. "We have to remember that they are back due in large part to heroic efforts. It's not just the banning of DDT. People forget the heroics of birds being transferred from Alaska to places like New York and Massachusetts. Barring those heroics, we certainly would not be seeing eagles in our lifetime . . . moving with caution is well warranted."

Derrick Z. Jackson's e-mail address is