pygmy owl

Endangered species listings based on questionable science and lack of independent review

A report published December 15 by the U.S. House Committee on Natural Resources finds that Endangered Species listings of 13 species since July, 2013, were based on questionable science, lack of transparency, conflict of interest, and withholding information for public comment.

By law, the Endangered Species Act (ESA) requires that decisions on whether to list a species as threatened or endangered must be based on the “best scientific and commercial data available.” That has not been the case in many recent listings.

Here are the conclusions from the study:

The Fish & Wildlife Service (FWS) claims that the science used to justify ESA listing decisions is the best available science in large part because it has undergone peer review.

Committee Majority oversight staff found numerous documented examples that call into question the independence, transparency, and accountability of the FWS’ peer review process in recent ESA listing decisions. These findings include:

The FWS does not have clear or consistent policies and procedures in place across all Regions to ensure that peer reviewers with potential conflicts of interest are identified and screened.

The FWS generally seeks peer review of its proposed listing decisions at the same time they are made available for public comment, rather than earlier in the process when the peer reviewers may have more meaningful input.

The FWS regularly recruits the same scientists on whose work a listing decision is based to serve as peer reviewers, rather than truly independent scientists without any obvious connection to the species under review.

The FWS uses scientists as peer reviewers who have received grants or other financial assistance from the Department of the Interior and its bureaus and other agencies and who have known policy positions or affiliations with advocacy groups that support the listing decision.

The FWS routinely withholds from the public the identities of peer reviewers, qualifications of peer reviewers, instructions, and details about their comments.

Notwithstanding the myriad policies and guidance documents that the FWS has in place, the inconsistency across FWS Regions and overall lack of transparency about the FWS’ peer review process make it difficult for the public to assess the independence of those serving as peer reviewers and the merits of their comments or the FWS’ responses. Rather, the peer review process as currently employed by the FWS relies on a network of scientists who, if nothing else, have a professional and academic interest in the outcome of the ESA listing decisions they are being asked to review.
In recruiting peer reviewers, the FWS appears to favor scientists whose views on a species are already well known rather than more independent scientists in other academic or professional fields who would be able to bring a fresh perspective to the science the FWS is citing to support its ESA listing decisions.

Whether this approach to peer review is a result of the time and resource pressures the FWS itself has created because of the multi-species litigation deadlines settlements it has entered into with environmental groups, or other reasons, is murky, much like the details of the individual peer reviews being conducted by the FWS.

The report is entitled, “Under the Microscope: An examination of the questionable science and lack of independent peer review in Endangered Species Act listing decisions

This finding has implications for the renewed effort to list the (alleged) Cactus Ferruginous Pygmy Owl in southern Arizona.

The Cactus Ferruginous Pygmy Owl – is it a real species?

The Cactus Ferruginous Pygmy Owl (Glaucidium brasilianum cactorum) is an alleged subspecies of the Ferruginous Pygmy Owl (Glaucidium brasilianum). Usually when I write of birds, I seek information at the Cornell Lab of Ornithology. But in this case, search for “Cactus Ferruginous Pygmy Owl” or “Ferruginous Pygmy Owl” or “ferruginous owl” yielded no results. When I searched for “pygmy owl” I get an article on the “Northern Saw-whet Owl.” The Sibley Guide to Birds does have a brief article on the “Ferruginous Pygmy Owl” but nothing on the “cactus” variety. In a sense, the Cactus Ferruginous Pygmy Owl is not a species distinct from the Ferruginous Pygmy owl. The same situation holds true for the alleged “southwestern” or “southwest” Willow Flycatcher.

Pygmy owl USFS

The U.S. Forest Service published a long article entitled “Ecology and Conservation

of the Cactus Ferruginous Pygmy-Owl in Arizona.” (Link to report)

They described the owl: “The cactus ferruginous pygmy-owl is a small gray-brown or rufous-brown owl, approximately 16.5 to 18 cm [about 7 inches] long. Wingspan is about 12 inches. In comparison with G. b. brasilianum and G. b. ridgwayi, this subspecies exhibits shorter wings, a longer tail, and generally lighter coloration.” Female typically weigh 75g while males average 64g.

“The vocal repertoire of the cactus ferruginous pygmy-owl comprises several calls, some of which appear to be specific to age or sex of the owl. The advertising call of the adult male is heard primarily at dawn and dusk but also during daylight and even moon rise, especially during the courtship period. It is ventriloquial and consists of a prolonged and monotonous series of clear, mellow, whistling notes… During the breeding season, females utter a rapid chitter, possibly a contact call with the male and juveniles and also for food begging.”

Habitat for the ferruginous pygmy owl is variable. ” Partly because of this species’ plasticity

and partly due to the lack of detailed habitat studies, the habitat requirements of cactorum remain poorly understood.”

“In the eastern part of the range, plant communities supporting the cactus ferruginous pygmy-owl are coastal-plain oak associations, mesquite bosques, and Tamaulipan thornscrub in south Texas …, lowland thickets, thornscrub associations, riparian woodlands and second-growth forests in northeastern Mexico.”

“In western Mexico, the owl may occur in Sonoran desertscrub, Sinaloan thornscrub, Sinaloan deciduous forest, riverbottom woodlands, cactus forests, and thornforests…. In Arizona, the owl is historically associated with cottonwood (Populus fremontii) and mesquite (Prosopis velutina) riparian woodlands …and Sonoran desertscrub.”

Pygmy owls are fierce hunters and frequently attack birds larger than themselves including mourning doves and chickens. They also hunt spiny lizards and rats.

The cactus ferruginous pygmy-owl was first described in the Tucson area in 1872 and naturalists described ” the subspecies as common or fairly common along some streams and rivers of central and southern Arizona.” Some authorities claims there was a sharp decline sometime before 1950, cause unknown, but it is speculated that the decline was due to changes in riparian areas. Some naturalists, however, noted expansion along irrigation canals. The story is also complicated by the fact that early naturalists lumped the Cactus Ferruginous Pygmy owl in with the Northern pygmy owl.

However, according to an exhaustive review of the literature by Attorneys opposing a 2008 petition by the Center for Biological Diversity, the owl was, and is, only a sporadic and localized visitor in Arizona and its population has actually increased slightly over the past 136 years. The claim of a sharp decline in population is unsupported by any documentation. Furthermore, because there is no difference between owls in Arizona and those in Mexico, the establishment of a “distinct population segment” in Arizona is unwarranted.

The range maps below put some perspective on the significance of the Arizona population relative to the population as a whole. However, environmentalists are still trying to get the Arizona population of pygmy owls listed as an endangered species.

Cactus ferruginous owl range map

Ferrugious owl range map

See also:

Pygmy owls and property rights

Whatever happened to Pima County’s Sonoran Desert Conservation Plan?

The Flaws in the Endangered Species Act



Pygmy owls and property rights

The political history of the Cactus Ferruginous Pygmy Owl plays large in Pima County, Arizona. Once again, radical environmental groups are trying to get the owl listed as an endangered species.

The Defenders of Wildlife and the Tucson-based Center for Biological Diversity are suing the U.S. Fish & Wildlife Service (FWS) to list the owl as endangered (See story in Arizona Capitol Times). They tried the same gambit two years ago (See Arizona Daily Independent story).

The pygmy owl is a natural resident of Mexico with an occasional fringe population in Southern Arizona. I will write more on its natural history in a future article.

Our story begins in the 1990s. The Amphitheater School District purchased land in March, 1994, to build a new high school in northwest Tucson to relieve overcrowding. Groundbreaking was scheduled for October 1997. But, the school district ran into a double whammy from the Endangered Species Act.

A dry wash on the property, which had water two or three days a year, was deemed a “wetland” which required a “404” permit from the Corps of Engineers. The pygmy owl was listed as endangered April, 1997, after a lawsuit brought by the Center for Biological Diversity (then called the Southwest Center for Biological Diversity). The FWS put a hold on the 404 by demanding an impact statement.

In 1997, we saw the following headline in the (now defunct) Tucson Citizen: “Owl habitat expanded across city, virtually every vacant lot affected.” The FWS issued “guidelines” covering the Tucson area which would require private land owners to obtain a biological assessment and a federal permit costing over $3,000 before any land clearing could take place. The FWS guidelines recommend that developers start surveying for owls if their property lies below 4,000 feet and has saguaros, ironwoods, mesquite or palo verde at specified heights and diameters. If a survey finds owls in or near a property, the owner should contact the FWS for mitigation requirements. The government says the guidelines aren’t mandatory, but federal officials warn that those who don’t follow them face lawsuits or prosecution if any owls are harmed.

Pima County supervisors refused to issue building permits for private land in the area, until their lawyer told them that the ban was illegal.

By the way, no owls were observed on the school land, but it was “potential habitat” requiring all the expensive surveys. USFWS admitted in the Federal Register that “he total number of pygmy-owls and their distribution in Arizona are unknown. Survey and monitoring work in Arizona resulted in documenting 41 adult pygmy-owls in 1999, 34 in 2000, 36 in 2001, and, most recently, 18 in 2002.”

USFWS maintained that the endangerment finding was warranted because the Arizona population of pygmy owls was a “discrete population” which ignored the main population in Mexico. Lawsuits by the National Association of Home Builders and the Southern Arizona Home Builder Association sued FWS. The court found that the listing rule did not articulate a rational basis for finding that the discrete population was significant to the whole subspecies. The Cactus Ferruginous Pygmy Owl was removed from the Endangered Species List in 2006.

The Amphitheater high school was eventually built after two years of litigation costing about $1 million in taxpayer money.

That’s only half the story.

In 1998, Pima County used the endangerment listing of the owl as an excuse to institute its very ambitious, but scientifically flawed, Sonoran Desert Conservation Plan. The legal idea behind SDCP was to obtain dispensation from FWS in the form of an Incidental Take Permit under section 10 of the Endangered Species Act. This allow county public works to proceed even if they would incidentally harm some endangered species. To do that the County had to specify which species it was going to protect and how it would do so. SDCP would allow private land owners to opt into the plan and come under its umbrella, but there were strict requirements for land use.

Pima County has yet to obtain a Section 10 permit, but they have incorporated many of the Plan’s land use restrictions into County Code. Property owners are left with the restrictions, but none of the alleged benefits. The County has spend millions of dollars acquiring private land to use as “mitigation” areas. As far as I can tell, there is no action by FWS or Pima County to proceed with the formal Conservation plan.

See Also:

Whatever happened to Pima County’s Sonoran Desert Conservation Plan?

The Flaws in the Endangered Species Act

Repeal the Endangered Species Act

The Endangered Species Act (ESA) should be repealed because it provides no positive incentive for conservation, it tramples on property rights, it destroys industries, it is very expensive, and it is ineffective. The ESA should be replaced with a voluntary, non-regulatory, incentive-based act. Make conservation profitable.

Currently 1,160 animals and 796 plants are listed as threatened or endangered. An additional 248 species are candidates for listing, and 47 more species have been proposed for listing, according to the U.S Fish & Wildlife Service (FWS) (aren’t fish wildlife?). After 37 years and billions of dollars, of all the species that were listed, only 47 have been removed from the list, of which 18 were removed due to erroneous original data, nine became extinct, and the remaining 20 are considered recovered. Those recoveries, however, were due to factors that were either not related to, or predated ESA. For instance, recovery of the American peregrine falcon, arctic peregrine falcon, and brown pelican is attributed to the banning of DDT according to the FWS.

The fundamental problem with ESA is that the FWS has no legal requirement nor incentive to consider economic consequences or private property rights. The ESA is administered as an “absolute” law, holding precedence over all other land usage and in the process “taking” private property rights. The law forbids the killing, trapping, harming or harassing of endangered species, and the courts have broadly interpreted those prohibitions. The FWS could regard the entire country as critical habitat for something because there is no incentive not to, and to do so, just increases their power. This lack of accountability is a recipe for abuse by a bureaucracy run amok. The ESA tramples on private property rights more than any other federal statute. Under the ESA, individual Americans have been prevented from building homes, plowing fields, filling ditches, cutting trees, clearing brush, and repairing fences, all on private land. The federal government has even barred private landowners from clearing firebreaks to protect their homes from fire hazards or defending themselves against invasion by wild animals such as grizzly bears.

The result is that property owners regard endangered species as enemies and consciously manage their land, when they can, to eliminate or discourage a species’ presence. The Third Amendment to the Constitution explicitly forbids the federal government, even in the name of national defense, from requiring that a citizen quarter a soldier (that is, provide food and shelter for a soldier). Yet the government can require the same citizen to quarter a grizzly bear, certain plants, or a pygmy owl at the landowner’s expense. This proscription of use without compensation is seen by many to be contrary to the Fifth amendment which says in part “nor shall private property be taken for public use without just compensation.” But that is exactly what ESA does.

The cost of ESA goes beyond dollars. We have witnessed the virtual elimination of timbering on federal lands and the death of communities which depended on logging. Millions of acres have been put off-limits to grazing, mining, farming. The ESA is so powerful that even fraudulent data was sufficient to ruin many Klamath, Oregon, farmers when water was denied them due to an alleged danger to listed species.

More recently, farmers in California’s lush San Joaquin Valley were denied water because the pumps might harm a small fish, the delta smelt. Dams and irrigation projects had turned the area into some of the world’s richest farmland. “But today the San Joaquin Valley is being transformed into a dust bowl. Hundreds of thousands of acres are fallow, while almond and plum trees are being left to die in the scorching sun. Tens of thousands of people have been tossed out of work—the town of Mendota alone has an unemployment rate of about 40%—and the lines for food donations stretch down streets. The reason? There isn’t enough water to go around this year, and the Obama administration is drawing up new reasons to divert more of it from farms and people and into the San Francisco Bay.” (WSJ)

An example closer to home concerns the Southwestern Willow Flycatcher and the Salt River Project (SRP) in Phoenix. It illustrates both the power and lack of common sense in ESA administration. This flycatcher (Empidonax traillii extimus) is a subspecies not recognized in the two major birding books: Roger Tory Peterson’s Field Guide to Western Birds (1990 edition); and The Sibley Guide to Birds, published by the National Audubon Society (2000). The Salt River Project is a series of reservoirs, one of which is Roosevelt Lake, that supply water to and generate electricity for the Phoenix area. When this subspecies of flycatcher was declared endangered in 1995, there were only 55 reported at Roosevelt Lake. However, during several drought years, the lake level dropped and exposed more river bottom habitat use by the flycatchers and more appeared. FWS forbade the Salt River Project from refilling the reservoir since that would destroy habitat. To regain the use of its reservoir, SRP had to spend millions of dollars to acquire about 1,500 acres of suitable habitat elsewhere to offset what filling the reservoir would have taken. That cost about $15 million, about $9million will be to protect endangered species on the Verde River and Horseshoe Lake.

The ESA contributed to the death of fire fighters because Forest Service officials were worried about taking water from a stream that might harbor an “endangered” fish. The sad condition of our national forests and the devastation of raging wildfires are attributable to ESA’s affect on management decisions within federal agencies, and delays caused by hundreds of lawsuits by radical environmentalist. The ESA has even threatened the ability of our military to properly train.

The ESA is a boon to lawyers. According to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days. Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.” The act of responding to lawsuits causes government biologists to spend much less time on conservation work.

Bad science has characterized species listing under ESA. For instance, in southern Arizona, the listing of the pygmy owl ignored its abundance in its core area of Mexico and South America. Arizona riparian areas represent a fringe habitat. The owl’s true riparian habitat has not existed in Tucson for 100 years, and the little critters now seem to favor suburbia. While core habitat may deserve protection, splinter groups in peripheral areas are ephemeral and need not receive special attention to preserve the species.

The bad science is abetted by the definition of “endangered species” in the Act itself: “any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature.” This definition causes certain subspecies, such as the pygmy owl, to be legally listed as “endangered” when in fact, it is not.

Congress should repeal the Endangered Species Act and replace it with a program that respects property rights and provides a positive incentive for conservation. Stop associating conservation with penalties, instead make it profitable.