PORTLAND, Ore. (CN) – A distinctive songbird with feather “horns” will get another shot at being listed as endangered after a federal judge ruled Monday the government must explain why it listed the species only as threatened despite finding it could cease to exist in parts of its range within 20 years.
The streak-horned lark makes its nest in the valley meadows of Oregon and southern Washington state – the type that are rapidly disappearing, transformed into vast tracts of agricultural fields. Once ubiquitous, their population has dwindled to fewer than 1,600 in the two states, and only 300 birds in the Washington state portion of their range.
Despite its precipitous decline, the U.S. Fish & Wildlife Service listed the species only as threatened, rather than endangered, finding that even with the complete loss of the Washington state population, streak-horned larks would still exist south of the Columbia River in Oregon’s Willamette Valley. Therefore, the agency reasoned, the entire species is not in danger of extinction.
That prompted a lawsuit from the Center for Biological Diversity in February 2018. Not only did the agency’s listing contradict its own science, the center claimed, it also issued exemptions allowing the birds to be killed by grass seed farmers – in part, ironically, because their fields create the kind of habitat in which the birds prefer to nest.
Listing the birds as threatened rather than endangered allows the government to issue exemptions under Section 4(d) of the Endangered Species Act so they can be killed in certain circumstances, like by the actions of the area’s big agribusiness interests. Even so, the government could slow the birds’ decline with requirements that farmers mark their nests with flags and therefore avoid them when plowing and mowing. But the government has issued no such regulations.
Arguments at Monday’s hearing centered on what the agency knew and when. Center for Biological Diversity attorney Eric Glitzenstein argued the government’s evaluation was merely a justification for a predetermined outcome.
U.S. District Judge Michael Mosman told the government’s attorney, Hao-Chin Yang, that while the agency had decided the lark was only threatened, its outline of the bird’s decline “sounded like a description of an endangered species.”
Yang said Fish and Wildlife “was careful to explain that the risk of extinction would only occur within the century. So it was a description of a future risk not a current risk.”
Ruling from the bench, Mosman sided with the plaintiffs and found the decision to list the birds as merely threatened was arbitrary and capricious.
Mosman said he “fundamentally agreed” with the contention “that the record shows what the agency actually did – to decide that the species is endangered and then to go on to base its decision on whether that was in a significant portion of the range. And then to go on to say it was threatened only to buttress a weak finding on the significance question.”
Mosman said the agency must further analyze whether the lark is in decline in a significant portion of its range. He also ordered “an analysis, or at least a clearer explanation, on what the agency is relying on when it determined that the bird is only threatened.”
The judge gave the parties a week to come up with a schedule for compliance.