The Taos News

Court upholds protection­s for rare willow flycatcher

NM Cattle Growers will likely appeal

- By GEOFFREY PLANT gplant@taosnews.com

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

 ?? JIM RORABOUGH/USFWS ?? A federal court judge dismissed a lawsuit filed on behalf of the New Mexico Cattle Growers Associatio­n that sought to eliminate protection­s for the Southweste­rn willow flycatcher.
JIM RORABOUGH/USFWS A federal court judge dismissed a lawsuit filed on behalf of the New Mexico Cattle Growers Associatio­n that sought to eliminate protection­s for the Southweste­rn willow flycatcher.

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