Environmental groups have filed another federal lawsuit to try to force the government to extend protection to the pygmy owl under the Endangered Species Act.
The Center for Biological Diversity and Defenders of Wildlife filed the action in U.S. District Court in Tucson last week.
It says the U.S. Fish and Wildlife Service and Department of the Interior erred by removing the diminutive cactus-dwelling owl from the list of endangered species in 2006, and again in the service’s final policy earlier this year, which determined it was not endangered.
“We’re asking the court to throw that policy out,” said Noah Greenwald, endangered species director with the Center for Biological Diversity and primary author of the court petition.
The lawsuit seeks declarative and injunctive relief, asking the court to find delisting the bird a violation of Endangered Species Act. The claim also seeks attorneys’ fees.
Greenwald said the latest lawsuit seeks to force the Fish and Wildlife Service to recognize the Sonoran Desert as a whole as a significant portion of the animal’s range.
The service’s policy determined that Southern Arizona alone is not a significant portion of the owl’s range, and as such, even if the bird is rare in Arizona, it does not qualify for listing as an endangered species.
Environmental groups previously pressed the Fish and Wildlife Service to classify the pygmy owl, as found in Southern Arizona, a separate species, as opposed to simply the northernmost population of the bird commonly found in western Mexico.
The service declined, noting any differences between the population groups likely arose out of geographic, not genetic, factors.
“In summary, we find that there is considerable uncertainty as to whether the genetic differentiation found at the far ends of the pygmy owl’s distribution represented by Arizona and Texas are adequate to define the eastern and western distributions as separate subspecies,” a Fish and Wildlife Service report filed with the Federal Registry in 2011.
The service estimates as few as 20 adult pygmy owls are known to live in Arizona, while noting “there are a few large expanses of Arizona with suitable pygmy-owl habitat that have not been completely surveyed or for which pygmy-owl information is not available for evaluation.”
The pygmy owl still has protection under the Migratory Bird Treaty, which along other past actions offer some protection to the birds, their nests and eggs, but not necessarily large swaths of possible habitat.
Greenwald said the bird deserves the protection afforded under the Endangered Species Act.
“No one has ever disputed that the pygmy owl is endangered in the Sonoran Desert,” he said.
The cactus ferruginous pygmy owl, was the subject of years of public policy debates and several lawsuits in the region dating to the 1990s.
The brown and white owl measures about 6 inches and typically lives in mesquite trees and in holes in saguaro cactus.
The species is rare in Arizona, the northernmost portion of their range, but is more abundant throughout parts of Mexico and Central and South America.
The debate over the bird in 1990s and early 2000s pitted environmentalists against the development community. The latter often blamed the controversy for delayed construction projects and increased costs.
The Southern Arizona Home Builders Association (SAHBA) and national affiliates have been involved in the debate over the pygmy owl since the beginning.
“Obviously, we felt that the initial listing wasn’t correct,” said David Godlewski, president of SAHBA. “It’s difficult to see that we’re now reviving this pygmy owl issue.”
The group and others in the development community have argued including the bird on the Endangered Species list would needlessly hamper the regional economy.
“We think that relisting would impose land-use challenges,” Godlewski said.
Conservation polices enacted by regional governments in the years following the initial pygmy owl debates have required developers to acquire conservation parcels to offset development impacts, limit areas of land disturbance in areas being developed and require open space allotments in development areas, among others.
Lawsuits over the pygmy owl also delayed the building of Ironwood Ridge High School on the far northwest side in the 1990s over concerns its construction would kill or displace pygmy owls.
Environmentalists fear the gains made to protect the pygmy owl and other species will be lost if the court doesn’t force the Fish and Wildlife Service to reverse its policy, as the current lawsuit asks.
