Lawsuit Launched to Restore Endangered Species Protections to Arizona’s Cactus Ferruginous Pygmy Owl

For Immediate Release

September 22, 2014

Contacts:         Noah Greenwald, Center for Biological Diversity, (503) 484-7495

                        Courtney Sexton, Defenders of Wildlife, (202) 772-0253, csexton@defenders.org

Lawsuit Launched to Restore Endangered Species Protections to Arizona’s Cactus Ferruginous Pygmy Owl

Also Challenges Flawed New Policy Sharply Limiting Which Species Get Protection

TUCSON, Ariz. — The Center for Biological Diversity and Defenders of Wildlife today filed a formal notice of intent to sue the U.S. Fish and Wildlife Service (Service) over the agency’s denial of Endangered Species Act (ESA) protection to the cactus ferruginous pygmy owl. The owl was originally listed as endangered from 1997 until 2006 and then improperly removed from the endangered species list by the Service. The groups petitioned to have the pygmy owl’s endangered status restored across the Sonoran Desert of Arizona and Mexico in 2007. Although the Service acknowledged that pygmy owls still faced many threats in the Sonoran Desert and that the region is important to the species as a whole, it denied the petition under a new policy that will make it far more difficult for imperiled species to gain federal protection.

“With fewer than 50 birds in Arizona and steep declines in Mexico, there’s no question pygmy owls need Endangered Species Act protection to survive in the Sonoran Desert,” said Noah Greenwald, endangered species director with the Center and primary author of the petition. “Instead these pygmy owls were wrongfully denied protection because they survive elsewhere. That’s not how the Endangered Species Act was meant to work.”

The agency’s most recent denial of protection for pygmy owls is based on a new policy that limits when species that are endangered in a portion of their range can receive protection under the ESA. The ESA defines an endangered species as any species “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. Under the new policy, species that are endangered in portions of their range, like the pygmy owl, only qualify for protection if loss of that portion threatens the survival of the species as a whole. This is a much higher threshold than has been used before for listing species under the ESA and sets a dangerous precedent for species in need of protection because of threats in, or loss of, portions of their range.

“This wrongheaded decision denying protection to the highly endangered pygmy owl should be reversed,” said Jason Rylander, a staff attorney with Defenders of Wildlife. “It also shows that the Service’s policy change will result in denial of protection to species that clearly need them. The policy will wrongly delay protection until species are in absolutely dire straits and on the very brink of extinction, making recovery even more challenging and costly.”

Although the policy defining what constituted a “significant” portion of a species range had not yet been finalized when the decision was made, the agency relied on its reasoning to reverse course and deny the pygmy owl protection. In a draft finding obtained through a Freedom of Information Act request, the agency initially determined that the Sonoran Desert qualified for the pygmy owl as a “significant portion of its range” and therefore the species warranted protection as a listed species. In particular it found that Sonoran Desert pygmy owls are important to the adaptability of the species because they occur in a hotter, drier setting and thus may be better able to adapt to a warming world. Following adoption of the new policy, however, the agency reversed course and determined that loss of pygmy owls from the Sonoran Desert would not endanger the species as a whole.

“Sonoran Desert pygmy owls are unique and deserve our care,” said Greenwald. “And protection of the pygmy owl has proven to be a benefit to the people of southern Arizona by 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.

Background

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 Service to better explain its decision that the Arizona population is “distinct” from birds in Mexico. Instead, the Service ultimately reversed itself completely and removed the pygmy owl from the endangered species list. The Center and Defenders again petitioned to list the owl in 2007, seeking protection of the species in the Sonoran Desert in both Arizona and Mexico.

The groups previously sued over the Service's 2011 denial of the 2007 petition, but dropped the suit based on the agency stating that finalization of the policy on significant portion of range may change its thinking on the pygmy owl. The policy has now been finalized and the agency has done nothing to relist the species and provide protection for the pygmy 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 Fish and Wildlife, threats across the Sonoran Desert from urban sprawl, invasive species, fire, drought and other factors are severe.

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