D.C. federal judge keeps protections for southwestern willow flycatcher

The U.S. Fish and Wildlife Service was right in deciding the rare
southwestern willow flycatcher songbird is entitled to protection under
the Endangered Species Act, a Washington, D.C., federal judge ruled on
Wednesday.

The small bird is a valid endangered subspecies of a
broader willow flycatcher species that is not endangered, U.S. District
Judge Ana Reyes wrote in her decision, dismissing a 2021 lawsuit filed by the Pacific Legal Foundation on behalf of the New Mexico Cattle Growers’ Association.

The
association sued after the U.S. Fish and Wildlife Service denied its
petition to remove the bird from the federal list of threatened and
endangered species, claiming that new scientific data proved the
flycatcher is not a distinct subspecies. The association claimed that
the service’s denial violated the Administrative Procedure Act and the
Endangered Species Act.

Reyes ruled that the service identified
and discussed the best available scientific information from
taxonomists, including analyses of genetic sampling and variations in
birdsong, before finding that the data supported classifying the bird as
a subspecies.

“Courts are ill-equipped to make scientific
determinations or choose between competing scientific studies,” the
Biden appointee wrote. “That is why deference to agency reasoning is
strongest, in cases such as this, where an agency’s scientific and
technological expertise is at the forefront.”

Known for its
distinctive song and brownish-olive feathers, the southwestern willow
flycatcher has been listed as a federally endangered subspecies since
1995. The small migratory bird nests and breeds along desert streams in
the southwestern U.S. between May and September before migrating to
Latin America for the winter.

Widespread losses of dense, native
wetland habitats in the arid southwestern United States have contributed
to the decline of the species. The bird relies on streamside forests
for its nesting habitat — land that has been significantly reduced by
livestock grazing and dams.

Critical habitat has been designated
for the bird across Arizona and New Mexico as well as southern portions
of Utah, Nevada and California.

The New Mexico Cattle Growers’
Association includes members whose land overlaps with the bird’s
habitat. At least one New Mexican rancher and cattle grower claimed that
the flycatcher’s endangered status forces him to spend extra time and
money to keep cattle from grazing or watering in the bird’s nesting
areas.

A Pacific Legal Foundation attorney said the organization
disagrees with Reyes’s decision “to uphold the service’s ‘numbers game’
approach to listing subspecies under the Endangered Species Act.”

“By
upholding the service’s standardless decision to list the
‘southwestern’ willow flycatcher, the court signals that the service may
continue to make policy choices that dramatically affect the lives of
ordinary Americans, all the while insulating itself from any scrutiny
with the familiar retort of, ‘Trust us, we’re the experts,'” attorney
Charles Yates said in a statement provided to Courthouse News on
Thursday.

Charles Babbitt, conservation chair of the Maricopa
Audubon Society, applauded the defeat of “another bogus effort by
ranchers” to remove protections for the imperiled songbird. The Maricopa
Audubon Society and the Center for Biological Diversity had intervened
in the case to keep federal protections in place.

Meg Townsend,
senior freshwater attorney at the Center for Biological Diversity, said
she was happy with the outcome of the case.

 “Pacific Legal
Foundation has been making the same baseless arguments for years to
callously deprive imperiled wildlife like the flycatcher the protections
they need to survive,” Townsend said. “What a relief the court didn’t
buy it.”