The New Mexico Cattle Growers’ Association (NMCGA) has sued the Biden administration on behalf of one of their rancher members, claiming that listing the southwestern willow flycatcher under the Endangered Species Act (ESA) has caused harm to their member’s property values and livelihood.
The association’s case against the U.S. Fish and Wildlife Service (USFWS), Department of the Interior, Secretary of the Interior Deb Haaland and USFWS Acting Director Martha Williams calls specific attention to listing a subspecies under the ESA, as there is no USFWS rule defining the term. NMCGA points out that as USFWS denied a 2017 petition requesting a regulatory definition, “the Service maintained its commitment to leaving that term undefined.”
New Mexico rancher and landowner Hugh McKeen owns a 700-acre cattle ranch in Catron County, NM, and holds grazing rights on an adjacent 11,467-acre allotment within the Gila National Forest. McKeen also owns adjudicated water rights from existing wells and ditches diverted from the San Francisco River. The ranch and allotment overlap substantially with designated critical habitat for the flycatcher, according to the lawsuit.
“The listing and designation impose significant regulatory burdens on the use of Mr. McKeen’s ranch property and adjoining grazing allotment. The direct effect of these regulatory burdens has been a substantial diminution in the appraised value of Mr. McKeen’s ranch,” the lawsuit read.
It continues that the flycatcher subspecies listing and critical habitat designation also subjects McKeen to the risk of citizen suits and agency enforcement actions under the ESA.
“It is therefore crucially important that federal decision-makers are guided by sound data-driven science and objective, publicly disclosed standards,” the suit asserted. “Yet, in many instances the Service is guided by no such standards when making key decisions that impact landowners.”
NMCGA said that in 2015, the association, along with other groups, petitioned USFWS to remove the southwestern willow flycatcher from the federal list of threatened and endangered species. The petition asserted that the flycatcher is not a distinct subspecies and is ineligible for ESA listing. USFWS denied the petition, which NMCGA said was illegal, as there is no definition of “subspecies.”
Background
The flycatcher is a small migrant bird that can be found in the Southwest during its breeding season (May to September). This includes parts of California, Nevada, Utah, Colorado, Arizona, New Mexico and Texas.
USFWS considers the southwestern willow flycatcher to be a subspecies of the willow flycatcher, which the lawsuit says is a common species and is not threatened or endangered. The endangered designation was given based on “subtle differences in color and morphology.”
The southwestern willow flycatcher was listed as an endangered species in 1995. In 2013, USFWS designated 1,227 stream miles and 208,973 acres of revised critical habitat for the flycatcher.
In its lawsuit, the NMCGA calls for an injunction, for the USFWS to determine a regulatory definition for “subspecies” and a review of whether the southwestern willow flycatcher fits that definition. — Anna Miller, WLJ managing editor
