After court challenge, DC federal judge keeps protections for southwestern willow flycatcher

(CN) — 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 always 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.”

Follow @KaylaGoggin_CNS

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