Suit Also Targets Recent Obama Administration Policy That Will Cause Loss of Species in United States
TUCSON, Ariz.—(ENEWSPF)–December 2, 2014. The Center for Biological Diversity and Defenders of Wildlife today filed a lawsuit in federal court in Arizona against the U.S. Fish and Wildlife Service and U.S. Interior Department for denying Endangered Species Act protection to cactus ferruginous pygmy owls, which have dwindled to fewer than 50 birds in Arizona. The fierce little owl was denied protection under a new Obama administration policy that makes it far more difficult for species at risk of extinction in important portions of their range to gain federal protection. The groups argued in a 2007 petition that the owl should be protected because it is endangered across the Sonoran Desert of Arizona and northern Mexico.
“The pygmy owl could easily vanish from the Sonoran Desert in our lifetime — protecting it under the Endangered Species Act should’ve been a no-brainer,” said Noah Greenwald, endangered species director with the Center and primary author of the petition. “Instead these pygmy owls were wrongfully denied protection on the grounds that they may survive elsewhere, so it apparently doesn’t matter if they go extinct in the Sonoran Desert. But that’s not how the Endangered Species Act is supposed to work.”
Under the Endangered Species Act, an endangered species is defined as any species that is “in danger of extinction in all or a significant of portion of its range,” meaning that a species need not be at risk everywhere it occurs to qualify for protection. The new policy enacted in July, however, sets a higher bar by requiring not only that a species be endangered in a portion of its range, but also that the loss of that portion threatens the survival of the species as a whole. In the case of pygmy owls, this meant that even though there is no disagreement that the species is at risk of being lost in the Sonoran Desert, it was denied protection because it may survive elsewhere (although it’s also facing long-term threats in other portions of its range). The new policy has already limited, and will continue to sharply limit, the number of species to receive protection, especially species that are in grave peril in the U.S. portions of their ranges but may be more abundant in other countries.
“This policy wrongly delays protection for species until they are on the very brink of extinction throughout the entirety of their ranges, making recovery even more challenging and costly,” said Jason Rylander, a staff attorney with Defenders of Wildlife. “There’s no good reason to allow the pygmy owl to disappear from Arizona and Sonora, Mexico, especially when the Endangered Species Act was created to ensure that our nation’s wildlife heritage is conserved for the American public. We should not be outsourcing to other countries our stewardship responsibility for preserving our natural heritage.”
Prior to development of the new policy, the Fish and Wildlife Service’s biologists were on course to protect the pygmy owl. In a draft finding obtained through a Freedom of Information Act request, agency scientists initially determined that the Sonoran Desert qualified as a “significant portion of its range” and therefore the pygmy owl warranted protection. In particular Service biologists found that Sonoran Desert pygmy owls are important to the conservation and adaptability of the species because they occur in a hotter, drier setting and thus may be better able to adapt to a warming world than pygmy owls in other portions of the range. Following development of the new policy, however, the agency reversed course and determined that, because the loss of pygmy owls from the Sonoran Desert would not necessarily cause the extinction of the species as a whole, listing was not warranted.
“Sonoran Desert pygmy owls are unique and deserve our care,” said Greenwald. “And the protection of pygmy owls has proven to be a benefit to southern Arizona’s people — it’s helping to preserve native Sonoran desert habitats that are a source of solace and joy for many.”
The groups are represented by Meyer Glitzenstein & Crystal, a public-interest law firm in Washington, D.C.
In response to a 1992 petition from the Center for Biological Diversity, the pygmy owl was protected as an endangered species in Arizona from 1997 to 2006. In 2003 a federal court ordered the Fish and Wildlife Service to better explain its decision that the Arizona population is “distinct” from birds in Mexico, resulting in the agency removing protections; the Center and Defenders filed a new petition in 2007, seeking protection of the species in the Sonoran Desert in both Arizona and Mexico.
The groups have sued over the Fish and Wildlife Service’s 2011 denial of that petition before, but agreed to drop the suit based on agency assertions that finalization of the policy on “significant portion of range” might change its thinking on the pygmy owl. The policy has now been finalized, and not only has the Service done nothing to provide protection for the species, but the final policy suffers from the same fatal flaw that the agency applied in denying protection for the owl.
The population of pygmy owls in Arizona is perilously small, likely numbering fewer than 50 birds. Likewise, in northern Sonora, surveys demonstrate that pygmy owls have been declining. As acknowledged by the Service, threats across the Sonoran Desert from urban sprawl, invasive species, fire, drought and other factors are severe.