Court upholds protections for rare willow flycatcher
NM Cattle Growers will likely appeal
A federal court last week dismissed a lawsuit that sought to strip the Southwestern willow flycatcher of Endangered Species Act protections. The lawsuit was brought by the conservative nonprofit law firm Pacific Legal Foundation on behalf of the New Mexico Cattle Growers Association in the U.S. District Court for the District of Columbia.
Alleging it was not a distinct willow flycatcher subspecies, the New Mexico Cattle Growers first petitioned the U.S. Fish and Wildlife Service to remove the bird from the federal list of protected species almost 10 years ago. The broader willow flycatcher is not protected.
“Ornithologists have identified and reaffirmed the southwestern willow flycatcher as a valid subspecies since 1948. But in 2015, an outlier reanalysis of existing data concluded the opposite,” and the Cattle Growers Association seized the opportunity to challenge the listing, according to an opinion filed in the U.S. District Court for the District of Columbia.
Thomas Paterson, presidentelect of the New Mexico Cattle Growers Association, told the Taos News the group is “disappointed with the court’s decision and is evaluating the opinion for next steps.”
“The court basically deferred to Fish and Wildlife to resolve the dispute,” Paterson said. “At a fundamental level, by deferring to the Fish and Wildlife Service, the court’s essentially allowing Fish and Wildlife to make an unchecked policy choice that negatively impacts the lives of ordinary Americans.”
In a 2013 fact sheet, the U.S Fish and Wildlife Service said, “One of the primary reasons for the decline of this species is the loss and degradation of dense, native riparian habitats. Water impoundment (dams), water diversion for agriculture, and groundwater pumping all have altered streamflow and thus riparian vegetation. Other impacts to riparian habitat are caused by stream bank stabilization, riparian vegetation control, livestock grazing, off-road vehicle use, increased fires and urban development.”
New Mexico Cattle Growers disputes the assertion that ranchers allow cattle to degrade riparian areas. Paterson pointed to the experience of Hugh and Margie McKeen, whose annual “Ranch Days” in Catron County have offered students from Southern New Mexico and Arizona an agricultural education experience for generations.
The McKeens believe the flycatcher’s protected status harms and burdens them and diminishes their property value because their ranch’s “grazing allotment and private land overlap substantially with designated critical habitat” for the Southwestern willow flycatcher, according to the court opinion.
“The same rule will apply wherever this species is found,” Paterson said. “If that’s in Taos County, they’ll have to abide the same rules.”
Birder Jeff Donaldson, who monitors hundreds of bird species in Taos County, portions of which the federal government has identified critical habitat for the Southwestern willow flycatcher, said he’s observed the rare subspecies among willows in wetland areas of the Taos Valley and from Pilar to Orilla Verde.
But where there’s grazing, “they wouldn’t be able to exist
there,” Donaldson said. “They don’t just move into any place.”
The Maricopa Audubon Society and the Center for Biological Diversity intervened in the case to retain federal protections for the birds. In its ruling last week, the court found the U.S. Fish and Wildlife Service correctly applied the science when it decided to retain Endangered Species Act protections for the bird.
“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,” Meg Townsend, senior freshwater attorney for the Center, said in a
press release. “What a relief the court didn’t buy it.”
“Thank goodness we’ve defeated another bogus effort by ranchers to remove protection for this imperiled songbird,” said Charles Babbitt, conservation chair of Maricopa Audubon Society. “That protection is problematic for ranchers whose unsustainable business model requires that their cows continue to destroy the country’s few surviving desert riparian areas.”
The small migratory songbirds have grayish-green wings and travel from Latin America each spring to the southwestern United States to nest and breed along desert streams.
“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.” Meg Townsend, senior freshwater attorney, Center for Biological Diversity