Oral arguments were heard in the U.S. District Court of Appeals for the District of Colombia on Feb. 3 regarding the U.S. Fish and Wildlife’s (USFWS) listing of the southwestern willow flycatcher on the Endangered Species Act (ESA).
The New Mexico Cattle Growers’ Association (NMCGA) contends the bird is not a valid subspecies and the broader willow flycatcher species is not protected under the ESA. The suit filed in 2021 further asserts that USFWS often makes decisions without clear, data-driven standards, such as determining whether a population qualifies as a “subspecies” under the ESA. This lack of clear standards is a cause for concern, as it can lead to arbitrary and unsupported regulations, such as the endangered listing of the southwestern willow flycatcher, impacting ranching families, the group said.
Pacific Legal Foundation attorney Charles Yates, representing NMCGA, said they are not requesting the court to order the delisting of the species. Instead, they are urging the court to send the matter back to USFWS for a new rulemaking process that applies a consistent and reasonable standard, according to Politico
Background
In 1995, USFWS listed the southwestern willow flycatcher as an endangered subspecies. In 2013, the agency designated 1,227 stream miles and 208,973 acres as revised critical habitat for the bird. The flycatcher is a small, neotropical migratory bird that breeds from May to September in riparian habitats across the southwestern U.S. including parts of California, Nevada, Utah, Colorado, Arizona, New Mexico and Texas.
A grayish-green back and wings, a whitish throat, a light gray olive breast and a pale yellowish belly characterize the bird. According to the suit, the agency initially classified the southwestern willow flycatcher as a distinct subspecies based on subtle differences in color and morphology. More recently, its classification has been based on morphological data collected from core areas within the bird’s range, vocalization patterns from areas that do not align with geographic divisions, and genetic differentiation that lacks clear geographic boundaries, NMCGA said.
In 2015, NMCGA and other interested parties petitioned to delist the southwestern willow flycatcher. The petition argued that the best available science, including DNA evidence, showed that the bird is not a distinct subspecies and should never have been listed as endangered.
USFWS denied the petition in 2017, citing a substantial body of scientific literature that has shaped the classification of the species and its subspecies. Independent, university, state and federal scientists reviewed and debated the findings. While not entirely uniform, this research has consistently supported the classification of the southwestern willow flycatcher as a distinct subspecies.
Suit details
The Pacific Legal Foundation, a nonprofit organization that defends individual liberty and property rights, is representing NMCGA in this case. They argue that while the ESA grants USFWS the authority to list “subspecies,” the statute does not define the term, nor is there a universally accepted definition among taxonomists. As a result, the agency must establish its own standard when determining whether to list or delist a subspecies.
USFWS has not adopted a consistent, generally applicable definition of “subspecies.” In denying the petition to delist the flycatcher, the agency selectively accepted certain studies while rejecting others without providing a clear standard for what constitutes an avian subspecies, the group said. Consequently, the suit continued, the agency failed to explain how the available morphological, genetic or other data support its classification of the flycatcher as a distinct subspecies.
The suit states that USFWS’ failure to consider relevant evidence and the best available scientific data was arbitrary, capricious and an abuse of discretion, in violation of the Administrative Procedure Act.
In May 2022, the court granted the Center for Biological Diversity and the Maricopa Audubon Society status as defendant-intervenors. This decision was based in part on their members’ recreational, aesthetic, scientific and professional interests in protecting and conserving the southwestern willow flycatcher.
In February 2024, the U.S. District Court for the District of Columbia ruled in favor of the environmental groups, stating that NMCGA did not show USFWS’ ruling was arbitrary and capricious.
The cattle group appealed the decision, and the Pacific Legal Foundation argued recently before the court in what Politico described as a back-and-forth that “challenged both sides.” — Charles Wallace, WLJ contributing editor
