SAHBA Column: Mon., April 16, 2007
Despite Petition, Pygmy Owl Remains Delisted
By Norm James, Fennemore Craig
On March 12, U.S. District Judge Susan Bolton issued an order affirming the delisting of the Arizona pygmy owl population, as well as a judgment in favor of SAHBA, NAHB, and the Home Builders Association of Central Arizona.
This judgment ended nearly seven years of litigation over the owl's legal status – at least for now.
The Arizona pygmy owl population was listed as an “endangered species” in 1997, even though most of it's range is found in Mexico where the bird is common. After the Ninth Circuit Court of Appeals ruled in favor of SAHBA, the Fish and Wildlife Service (FWS) reconsidered whether the Arizona population is eligible to be listed under the Endangered Species Act (ESA).
Following public comment, FWS issued a final rule in April 2006 formally “delisting” the Arizona population.
Environmental organizations challenged that rule, arguing that it was not based on the best available science about the pygmy owl and conflicted with the ESA's “goal” of protecting wildlife in the U.S.
Judge Bolton rejected those arguments in her March 12 decision, concluding that the delisting rule is scientifically sound and consistent with the Ninth Circuit's earlier ruling, which required FWS to consider the Mexican pygmy owl population.
At present, the pygmy owl remains delisted. Consequently, there are no restrictions on development activities under the ESA.
However, a new petition to list the pygmy owl was submitted by environmental organizations on March 15, three days after Judge Bolton's decision. FWS must now determine whether this new petition presents substantial information supporting listing. The petition does not present any new scientific information about the pygmy owl, but instead is based on information that was rejected as insufficient by FWS and Judge Bolton.
A decision on the petition is expected in May. If the petition is accepted, FWS must issue a proposed rule within 12 months, and allow public comment on that proposal.
SAHBA will keep you updated.