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| For people who may not know the story of the Pygmy Owl. The Center for biological diversity and others had it listed in the Tucson area in the mid 90s. In 1998, the possible existence of a tiny owl halted construction of a Pima County, Arizona, high school and many more projects. Everyone - attached is a copy of the opinion issued earlier by the Ninth Circuit Court of Appeals holding that the Fish and Wildlife Service acted arbitrarily and capriciously in designating the Arizona pygmy-owl population as a distinct population segment (DPS) and listing the population as endangered under the ESA. In summary, the court held that the Service to consider the significance of the Arizona population to the taxon cactus ferruginous pygmy-owl. Instead, once the Service determined that the Arizona population is discrete, the agency ignored the much larger, contiguous population in Mexico, which is the primary range of the pygmy-owl. This violated the Service's formal policy, published in the Federal Register in 1996, establishing the criteria for determining when a population of animals may be treated as a distinct population segment. Because the Arizona pygmy-owl population does not satisfy the criteria in the policy, it is not eligible to be treated as a \"species\" and be listed under the ESA. The judges on the Ninth Circuit panel were Noonan, Tashima and Wardlaw. Tashima wrote the opinion. There was no dissent. |
I have the complete decision saved, but it's too much to post here. This is the conclusion and if anyone is interested in the whole thing, send me an email and I'll email it back to you
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| [16] We hold that the FWS did not arbitrarily find the Ari-
zona pygmy-owl population to be discrete because differences in conservation status exist across the international boundary between the United States and Mexico. We also hold, how- ever, that FWS did not articulate a rational basis in the Listing Rule for its finding that the discrete Arizona pygmy-owl pop- ulation was significant because its loss would create a signifi- cant gap in the range of its taxon or because it differed markedly in its genetic characteristics from the northwestern Mexico pygmy-owls. Thus, we conclude that the FWS acted arbitrarily and capreciously in designating the Arizona pygmy-owl population as a DPS under the DPS Policy. The judgment of the district court is reversed and the case is remanded to the district court for further proceedigns consi- tent with this opinion. |