A ruling in an endangered species case from Arizona demonstrates how sharply divided federal judges are regarding the legal protections afforded to rare animals and plants.

In an extremely short opinion, a Ninth U.S. Circuit Court of Appeals panel ruled 2-1 that the Army Corps of Engineers was not obliged to consult with the U.S. Fish and Wildlife Service (USFWS) regarding the impacts of two proposed housing developments on the ferruginous pygmy owl. The court majority indicated that it was not convinced the owl was deserving of special protection, and that the Corps had no duty to consult with USFWS because the sites were not designated critical habitat.

The decision drew an extremely sharp dissent from Judge Warren Ferguson, who said the ruling drives the owls “closer to extinction.”

In 2001, the Corps of Engineers issued Clean Water Act § 404 permits for a 600-acre development in Marana, Arizona, and for a 440-acre project in Pinal County. The Corps determined that the housing subdivisions would have no effect on the ferruginous pygmy owl, and declined to consult with the Fish and Wildlife Service despite USFWS requests under Section 7 of the Endangered Species Act.

The Defenders of Wildlife and the Center for Biological Diversity sued the Corps of Engineers, charging that the Corps had violated the Endangered Species Act and the Administrative Procedures Act. U.S. District Court Judge Cindy Jorgenson ruled for the Corps of Engineers. With a five-paragraph analysis, the Ninth Circuit upheld the lower court.

Although the Fish and Wildlife Service can request Section 7 consultation, “[n]othing in the regulations mandates the action agency to enter into consultation after it receives such a request,” Judge John Noonan wrote for the two-judge majority. Noonan cited federal regulations from 1986 that say a federal agency (in this case, the Corps of Engineers) has “the ultimate duty” to ensure its actions do not jeopardize listed species or modify critical habitat. The federal agency also makes the final decision regarding consultation, the court ruled.

Noonan also pointed out that one day after the district court ruled, the Ninth Circuit issued its decision in National Ass’n of Home Builders v. Norton, 340 F.3d 835 (2003.) InAss’n of Home Builders, the Ninth Circuit ordered the Fish and Wildlife Service to reconsider its determination that the Arizona pygmy owl was a “distinct population segment” different from pygmy owls in Texas and Mexico and deserving of listing under the Endangered Species Act. In the case at hand, Noonan noted that the district court never followed up on the Ass’n of Home Builders decision by setting aside the USFWS listing decision, that the Service has not set a timetable for reconsideration, and that “a listing rule that this court found to be arbitrary and capricious on August 19, 2003, is still alive in Arizona in April 2005 with no foreseeable termination in sight.”

Although obviously disturbed that its 2003 decision appeared to be having little effect, the court said it was upholding Judge Jorgenson’s decision in the present case because it “rested on the firm foundation that no pygmy owls had been found to live within either project area.” The Pinal County project site had been designated as critical habitat, but the Ass’n of Home Builders decision vacated the critical habitat designation and the Service has not since redesignated it, Noonan wrote.

In his dissent, Judge Ferguson got right to the point: “In tersely affirming the District Court’s judgment, the majority ignores the plain language of the Endangered Species Act’s implementing regulations, trivializes the vital process of inter-agency consultation, and ultimately drives closer to extinctions the few existing Arizona pygmy owls. The Army Corps of Engineers’ decision to forego consultation with the Fish and Wildlife Service was both arbitrary and capricious given the Service’s persistent and persuasive objections to the two real estate developments at issue.”

According to Ferguson, the threshold for requiring Section 7 consultation is low. Any activity that “may affect” a listed species or critical habitat triggers the formal consultation requirement. There was evidence that both projects may affect the pygmy owls and their habitat, Ferguson wrote.

“It may be that further discussion and investigation could vindicate the Corps’ present position, but the Corps cannot be permitted to risk endangering the Arizona pygmy owl by foregoing any consultation with the service,” Ferguson wrote.

The Ass’n of Home Builders case “has no bearing” because the Arizona pygmy owl remains protected under the Endangered Species Act, wrote Ferguson.

The Case:
Defenders of Wildlife v. Flowers, No. 03-16884, 05 C.D.O.S. 6115, 2005 DJDAR 8375. Filed July 12, 2005.
The Lawyers:
For Defenders of Wildlife: Michael Senatore, (202) 682-9400.
For Flowers: Todd Aagaard, U.S. Department of Justice, (202) 514-2217.