Subject: FW: SW BIODIVERSITY ALERT #81

Subject: SW BIODIVERSITY ALERT #81

   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
              SOUTHWEST BIODIVERSITY ALERT #81
                           6/16/97          

          SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY
           silver city, tucson, phoenix, san diego
   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

COURT OVERTURNS DECISION NOT TO LIST GOSHAWK AS ENDANGERED IN WEST-
THROWS OUT CLINTON ESA POLICY

For the second time in 16 months, a federal judge has thrown
out a U.S. Fish and Wildlife Service decision denying Endangered
Species Act protection for the western U.S. population of the
northern goshawk. On June 6, 1997, Tucson Federal Judge Richard
Bilby also threw out the Clinton used to justify the illegal
decision.

Three goshawk subspecies occur in the 11 western states (Queen
Charlotte (AK, WA), Apache (AZ, NM), and northern (all western
states)). Goshawks in the lower 48 have declined because of
logging of old growth forests, especially ponderosa pine. The
Queen Charlotte goshawk has declined because of logging of old
growth coastal rainforests and also the subject of a separate
petition and lawsuit. Since the goshawk lives in essentially
every old growth forest not covered by the three spotted owl
subspecies, its listing under the ESA will have dramatic effects
on old growth protection in the West.

A petition to list the goshawk as endangered in the western
states was filed by the Southwest Center for Biological Diversity
in 1991. The suit was brought by the Southwest Center and
environmental groups from every western state including ONRC,
Alliance for the Wild Rockies, the Ecology Center, Idaho Sporting
Congress, and EPIC.

On February 22, 1996, Judge Richard Bilby rejected U.S. Fish
and Wildlife Service arguments that the goshawk in the "west"
does not constitute a "distinct population" because western
goshawks are not "genetically isolated" from goshawks in the
eastern U.S. The agency returned with another negative finding,
this time claiming that goshawks in the West do not constitute
a distinct population, because they are so genetically isolated,
they form three distinct subspecies. A population, the Service
argued, can not contain birds from more than one subspecies.
Bilby threw out this denial on June 6, 1997, simultaneously
throwing out the nationwide policy arbitrarily limiting population
status to imperiled species.

In his decision, Bilby called the agency arbitrary and capricious
for using contradictory arguments in its two denials:

"In other words, Southwest Center's petition was first rejected
because the goshawks are too homogeneous throughout North
America, and then rejected [a second time] because there are
too many variations of goshawks to justify a DPS (distinct
population segment) in the west."

Bilby also noted that Fish and Wildlife Service biologists at the
Field Office proposed in both cases to accept the petition, but
were overruled by the Regional Office. He scolded the agency
for taking "an action which was sure to guarantee future
litigation." Bilby cited studies by the USFWS and others,
showing that the goshawk is declining in the western states,
scolding the agency for delaying the listing process for so long.

The goshawk was represented in this case by Dan Rolf (Lewis
& Clark College, Portland) and Matt Kenna (Kenna &
Associates, Durango).


________________________ !!! NEW ADDRESS !!!  ______________________________

Kieran Suckling                               ksuckling@sw-center.org
Executive Director                            520.623.5252 phone
Southwest Center for Biological Diversity     520.623.9797 fax
http://www.envirolink.org/orgs/sw-center      pob 710, tucson, az 85702-710