Defenders to Sue for Failure to Respond to Petition to Protect Pinyon Jay

Defenders of Wildlife today notified the U.S. Fish and Wildlife Service that it intends to sue the agency for its delay in deciding whether the pinyon jay — an iconic songbird of the Southwest — needs protection under the Endangered Species Act.  

FWS has yet to make a final determination in response to the listing petition Defenders filed more than two years ago. Defenders asserts that this delay is a clear violation of the ESA’s mandatory deadline for a 12-month finding.  

“The scientific framework needed to make this decision is already in place,” said Peggy Darr, Defenders of Wildlife New Mexico representative, “so it is deeply concerning that the agency has taken every opportunity to delay the process.”

The pinyon jay’s alarming decline is undisputed. In fact, an internal FWS email acknowledged that it “seems very possible” the pinyon jay population will decline by at least 50% by the end of the century. This species has already sustained dramatic loss  — more than 80% by some estimates.  

Yet, internal documents acquired by Defenders showed a lack of concern with worsening conditions to the species’ status while it waits in limbo. An internal FWS email referenced considering “how far down the road we can kick” the 12-month finding.  

“The ESA sets a strict deadline that reflects the inherent urgency in a listing petition like Defenders’,” said Lisa Saltzburg, senior attorney for the Defenders of Wildlife Biodiversity Law Center. “We are challenging FWS’s failure to act with the diligence demanded by the pinyon jay’s dire situation and by federal law.”

Under the ESA, the FWS is obligated to determine whether a species warrants endangered or threatened protections within 12 months of receiving a petition presenting substantial information showing such a determination may be warranted. Defenders of Wildlife petitioned for the pinyon jay to be listed under the ESA in April 2022; unfortunately, the agency spent more than 15 months to make its initial 90-day finding.  

In August 2023, the FWS agreed that Defenders had provided information to support a “positive” finding, meaning the pinyon jay may require ESA protections.  Then, the FWS punted the next phase to federally protect the pinyon jay to 2028. The agency will not begin formal work on the species status assessment intended for the determination until FY2025.