VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
April 17, 2002
Ms. Gale Norton
Secretary of Interior
U.S. Department of the Interior
1849 C Street NW
Washington DC 20240
Mr. Steve Williams
U.S. Fish and Wildlife Service
1849 C Street NW Room 3012
Washington D.C. 20240-0001
Ms. Nancy Kaufman
Southwest Region 2
U.S. Fish and Wildlife Service
P.O. Box 1306
Albuquerque NM 87103-1306
RE: Notice of Violation the Endangered Species Act; Failure to develop a recovery plan for the Cactus ferruginous pygmy-owl
This letter is provided on behalf of the Center for Biological Diversity, Center for Wildlife Connections, Defenders of Wildlife, Desert Watch, Sky Island Alliance and Tucson Audubon.
The purpose of this letter is to provide notice of the intent of our organizations to sue the U.S. Fish and Wildlife Service ("Service") over violations of the Endangered Species Act, 16 U.S.C. §§1531-1544 ("ESA"). The Service has failed to develop a recovery plan for the Cactus ferruginous pygmy-owl ("pygmy-owl") as required by Section 4 of the ESA. The Service must develop a recovery plan so as to ensure conservation of the species and to fulfill the intent of Congress. This letter is provided pursuant to the sixty day notice requirement of the citizen suit provision of the ESA, to the extent such notice is deemed necessary by a court. 16 U.S.C. §1540(g).
Section 4 of the ESA provides that the Service shall develop and implement "recovery plans" for the conservation of listed species. 16 U.S.C. §1533(f)(1). In developing recovery plans, the Service "shall, to the maximum extent practicable" give priority to those listed species that are "most likely to benefit from such plans," particularly "those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity." 16 U.S.C. §1533(f)(1)(A).
The Secretary of Interior and Fish and Wildlife Service are now in violation of the ESA for failure to develop a recovery plan for the pygmy-owl. This failure is particularly egregious given the extremely tenuous status of the endangered Arizona pygmy-owl population, the high rate of urban development occurring in the last, best pygmy-owl habitat, and a great need for clear conservation standards to guide the nascent Sonoran Desert Conservation Plan HCP and section 7 consultations.
Five years ago, the Service concluded that the Arizona population of the pygmy-owl faced imminent extinction.
In Arizona, the pygmy-owl exists in extremely low numbers, the vast majority of its former habitat can no longer support the species, and much of the remaining habitat is under immediate and significant threat. The Service thus determines that the cactus ferruginous pygmy-owl faces imminent extinction . . .
62 Federal Register 10744 (March 10, 1997).
The conservation status of the pygmy-owl has only worsened since the Service reached this conclusion. In the last five years, dozens of housing and commercial developments have been approved in the heart of the largest breeding population, that located on the alluvial fan of the Tortolita Mountains. So much development has occurred in this area that a leading pygmy-owl biologist has recently concluded this population is close to extirpation.
Given the low number of [pygmy-owls] known to occur in northwest Tucson, their potential isolation from source populations, the fact that inbreeding is known to occur there (3 documented cases), and the potential pressure from urban development, the Technical Group is concerned that this portion of the population in Arizona may be close to extirpation.
December 2001 Letter from R. William Mannan, leader of Pygmy-Owl Recovery Team Technical Group, to Pygmy-Owl Recovery Team members.
The Service's failure to develop a recovery plan also means that important recovery information will continue to be withheld from agencies in need of expert pygmy-owl conservation guidance. For example, Pima County government has made progress in its effort to craft a regional multiple species habitat conservation plan. But the County is significantly hindered by the absence of federal pygmy-owl recovery standards and conservation information on which to guide preparation of the HCP, and must single-handedly fend off claims that it lacks scientific credibility and who oppose any conservation planning. Federal recovery standards would provide a strong tool to improve and defend the HCP.
The absence of final recovery standards and conservation guidance also greatly limits the ability of the Service and other federal agencies to consistently and coherently implement ESA section 7 conservation and consultation obligations.
Members and employees of our organizations are deeply concerned about and actively involved in the conservation of the pygmy-owl and its habitat. Our organizations have many members living near and within the current and historic range of the species. On behalf of these adversely affected members we urge you to immediately develop a pygmy-owl recovery plan as required by the ESA.
If the Service does not act within sixty days to correct the above violations, our organizations plan to pursue legal action. An appropriate remedy would be to immediately publish a draft pygmy-owl recovery plan, solicit public comment, then promptly publish a final plan. Any further delay withholds crucial conservation guidance to local agencies, and frustrates the intent of the ESA. If you have any questions, or would like to discuss this matter further, please contact me at 619 523-1498.
Center for Biological Diversity
Center for Wildlife Connections
Defenders of Wildlife
Sky Island Alliance