April 5, 2017
Jason Rylander

Arizona federal Court calls on U.S. Fish and Wildlife Service to reconsider listing the pygmy-owl; sets a precedent for ESA listing decisions

Defenders has been fighting for the cactus ferruginous pygmy-owl for decades, but a recent a court victory gives the tiny bird a new chance for endangered species protection.

The History of our Fight

The cactus ferruginous pygmy-owl once ranged from southern Mexico up through Arizona and Texas. Now the little bird is almost extinct in the United States. The species is threatened by habitat loss, particularly the loss of at least 85% of Arizona’s riparian areas due to development, livestock grazing, water withdrawal and other factors. Climate change is another major threat to the owl as it may put them at greater risk from the spread of invasive species and an increase in wild fires.

Because of these threats, the U.S. Fish and Wildlife Service (FWS) listed the pygmy-owl in Arizona as endangered in 1997. That protection was short-lived, however. Developers challenged the listing, and in 2006, the FWS withdrew protections before they could help the bird recover. Defenders of Wildlife promptly filed suit and petitioned the FWS to relist the species both in Arizona’s Sonoran Desert and in portions of Mexico. But in 2011, the FWS refused, saying that the small number of cactus ferruginous pygmy-owls in the United States—there were fewer than 50 birds in Arizona— did not qualify for protection under the Endangered Species Act (ESA). They based that decision on a draft policy document that made it far more difficult for species at risk of extinction in important portions of their range to gain federal protection

In 2014, the Obama administration finalized that policy limiting the number of species that can receive protection. This policy specifically affects species, like the pygmy-owl, that are in grave peril in the U.S. portions of their ranges but may be more abundant in other countries.

So, Defenders of Wildlife and the Center for Biological Diversity filed a new lawsuit in federal court in Arizona against the FWS, challenging both the new policy and the decision to deny ESA protection to cactus ferruginous pygmy-owls.

This week, the Court decided that the FWS’s policy not to list the pygmy-owl was not in keeping with the ESA and, therefore, the FWS would have to reconsider this policy and reevaluate the decision not to give the bird protected status.

This decision marks not only an important victory for pygmy-owls, but for the ESA as well.

Why this case matters

Under the ESA, 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.

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, the FWS denied it protection because it may survive elsewhere (although it’s also facing long-term threats in other portions of its range).

The court’s recent decision found specifically that the Obama administration’s policy addressing a “significant portion of its range” violates the ESA, and that the policy’s reasoning could not be applied to deny protection to the pygmy-owl. In other words, if a species like the pygmy-owl is imperiled in a significant portion of its range, it should be listed—this sets a precedent for ESA listings going forward.

Under a proper reading of the ESA, this rare desert owl, and many other species, could again qualify for federal protection. We are delighted with this court victory and will, of course, continue to urge the FWS to protect this unique bird.

To learn more about our continuing work to protect the pygmy-owl and other imperiled wildlife, sign up for our emails where you will get all our latest news and action alerts. Don’t forget to follow us on social media to stay up-to-date on the status of other developments important to wildlife conservation and our work.


Jason Rylander headshot

Jason Rylander

Senior Endangered Species Counsel
Jason Rylander has litigated endangered species and habitat protection cases in federal courts across the country since joining Defenders in 2005.

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