Questioning the science behind the U.S. Fish and Wildlife Service's designation of the cactus ferruginous pygmy owl as an endangered species, a federal appeals court Aug. 19 overturned a lower court's decision two years ago that affirmed the bird was deserving of protected status.
The unanimous ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco created more ambiguity over the status of the owl and left developers and environmentalists with different interpretations of its meaning and divergent predictions for the pace of growth in the Northwest.
The Southern Arizona Home Builders Association hailed the decision as a victory that could loosen regulations they say have tied up 1.2 million acres of Arizona land in red tape, restricted development and raised the cost of housing.
Environmentalists and the Fish and Wildlife Service say studies are available to provide the scientific argument for the bird's listing as an endangered species, and hope a way can be found to introduce the information that will meet the court's requirements. Stripping the owl of its endangered species status will doom it to extinction, they claim.
The decision is sure to prolong the string of suits, counter-suits and appeals that have raged between the home builders and conservationists for more than six years.
Appellate Judge A. Wallace Tashima, who wrote the opinion on behalf of the panel, concluded the lower court's decision in September 2001 did not take into account the Fish and Wildlife Service's failure in 1997 to offer scientific evidence that the 18 adult owls believed to remain in Arizona are a distinctly different and genetically separate population from the more numerous birds in Mexico.
The pygmy owl was granted endangered status by the service in 1997 after environmental groups sued to have the bird listed as endangered and protected by the federal government.
The court 's ruling did not erase the owl's endangered species status, and in fact, confirmed that the owl populations could be considered separately. But as a matter of procedure, the lack of evidence presented by the Fish and Wildlife in its assertion of genetic differences will return the case to District Court where the bird could lose its protected status.
The appellate ruling specifically cited four problems centered on the Fish and Wildlife Service's failure to offer evidence during the listing process that the Arizona birds were a genetically separate species from those in Mexico, or that the loss of the Arizona owls would have a substantial effect on the population as a whole.
"…The Fish and Wildlife Service did not articulate a rational basis in the listing rule for its finding that the discrete Arizona population was significant because its loss would create gap in the range … and because it differed markedly in its genetic characteristics from the northwestern Mexico pygmy owls. Thus, we conclude that the Fish and Wildlife Service acted arbitrarily and capriciously in designating the Arizona pygmy owl as a distinct population segment," Tashima wrote in the opinion.
Scott Richardson, a Fish and Wildlife Service biologist, said a "preliminary" study conducted in 2001 may help make the case that the birds in Mexico and Arizona are distinctly different species
"The studies looked primarily at the difference between the populations in Arizona and Texas, but it also did a little work on the differences between (the owls in) western Mexico and Arizona as well. It was really just enough information to tease us, but it showed a pretty significant genetic difference between Arizona and Texas. It's probably enough to warrant a separate subspecies designation. And while the focus was not on the Mexico-Arizona difference, it pointed out there may be a difference in the birds in northwest Tucson," Richardson said.
Further studies are underway that place the scientific focus exclusively on the genetic make-up of the Arizona and Mexico birds, but they have yet to be completed, Richardson said.
Steve Spangle, Arizona field supervisor for the Fish and Wildlife Service, said his agency was considering its options and he expected the service would have a response formulated by next week.
Phoenix attorney Norm James, who argued the case before the appellate court on behalf of SAHBA, the Home Builders Association of Central Arizona and the National Association of Home Builders, said the failure of the Fish and Wildlife Service to initially provide a scientific rational for its listing made the bird's status a moot point.
James said, essentially, the more important matter in the decision deals with federal procedure - the Fish and Wildlife Service cannot introduce studies on the bird's genetics or other evidence that supports an argument for separate populations that was developed after the service made its initial proposal in 1997.
"It goes back to the way decisions made by federal agencies are reviewed by the courts. The rule that was published in the Federal Register in 1997 listing the pygmy owl as endangered in Arizona, the home builders made their appeal based on that administrative record," James said. "If (the owl) is listed again, they're going to have to begin the process again and a new decision will have to be made based on all the information that's available today."
Jeffrey Keohane, an attorney with the U.S. Department of Justice who argued the case before the 9th Circuit on behalf of the Fish and Wildlife Service, was out of his Washington, D.C. office until Aug. 28 and could not be reached for comment.
Kieran Suckling, Tucson director of the Center for Biological Diversity which filed the 1997 suit that listed the bird as endangered and intervened in last week's appeal, said he was confident enough scientific material exists to meet the court's requirements.
He said he doubted the newer evidence would be totally disallowed at the district court level.
Instead, Suckling fears political pressure thatmay be exerted on the Fish and Wildlife Service by the White House which could have an effect on the case. The Bush administration has sought a moratorium on new endangered species listings.
"I don't want to get in to the business of predicting what the Bush administration will do about protecting the environment, but my general thought is if this was just a standard case, I'd bet against the owl. But it's not a standard case. A lot of county, state and regional federal agencies have invested a lot in the pygmy owl and it's important to several conservation efforts underway. I expect they'll fight valiantly to make sure the decision is made based on science, not politics," Suckling said.
Potentially, the appellate court's decision could have its greatest effect on other suits and administrative matters concerning the pygmy owl that are pending.
Conservationists received another setback Aug. 18 when a federal court in Tucson struck down arguments by Defenders of Wildlife and other environmental groups challenging a variety of permits and policies of the the U.S. Corps of Engineers. The environmentalists claim the policies have a detrimental impact on endangered species - primarily the pygmy owl.
The environmental groups plan to appeal the ruling, Suckling said.
The 9th U.S. Circuit Court is also currently considering a direct appeal in a case brought by environmentalists challenging the Environmental Protection Agency's transfer of some permitting authority to state environmental regulators. The owl is again the primary issue in the case.
The Fish and Wildlife Service is also in the process of creating a recovery plan and redrafting the habitat designation for the pygmy owl that the district court rejected in 2001.
"All these cases are based on the argument that the owl is endangered. To the extent that these claims are based on impacts to pygmy owls or pygmy owl habitat, it renders those claims moot," James said.