April 11, 2000

TO: Bruce Babbitt, Secretary of Interior

Jamie Clark, Director, U.S. Fish & Wildlife Service

FROM: Kieran Suckling on behalf of Center for Biological Diversity, Maricopa Audubon Society, Oregon Natural Desert Association, Wildlife Damage Review, Sky Island Alliance, Biodiversity Legal Foundation, Wetlands Action Network, Klamath-Siskiyou Wildands Center, and ONRC Fund

RE: Sixty-Day Notice of Intent to Sue Over Negative 90-Day Finding on Petition to List the Yellow-billed Cuckoo as an Endangered Species

With this letter we provide the Secretary of Interior and the U.S. Fish & Wildlife Service (Service) with formal 60-day notice of our intent to sue over the Secretary's 2-17-00 finding that information in the Service's possession does not present substantial evidence that the Yellow-billed cuckoo, as a species, may be threatened or endangered in a significant portion of its range.

The Service's finding was arbitrary and capricious. It is not based on the best available scientific and commercial information available as required by the Endangered Species Act. We will filed suit to invalidate the finding in sixty days unless the Service either 1) publishes a new finding in the federal register concluding that it possesses substantial scientific information indicating the Yellow-billed cuckoo, as a species, may be threatened or endangered in a significant portion of its range, or 2) responds to this letter in writing, indicating that the 90-day finding was not intended to preclude a full review of the possibility of listing the species based on imperilment in a significant portion of its range, that such a review will be part of the Yellow-billed Cuckoo Status Review, and that the12-month finding will include a decision on whether the Yellow-billed cuckoo, as a species, is threatened or endangered in a significant portion of its range.

Background. The Service concluded that the western population of the Yellow-billed cuckoo has declined dramatically and may qualify for Endangered Species Act protection if it is determined to be a valid subspecies or distinct population (Federal Register Finding at 8106-8107). The Service acknowledges that cuckoos are "uncommon" in some areas east of the Continental Divide (Ibid. at 8105), and have declined significantly in the eastern region as whole over the last 30 years with the decline rate increasing in the last 15 years (Administrative Finding at 13). Nonetheless, the Service concluded that the petition and information in the Service's possession do not provide substantial evidence that the species as a whole is threatened or endangered in a significant portion of its range (Federal Register Finding at 8016). This conclusion is based on the allegations that:

Eastern Status. Oberholser and Kincaid (1974) and Rappole and Blacklock (1994) only discuss the cuckoo's distribution in Texas, they provide no information at all on its status in the vast majority of North America east of the Continental Divide. While Hughes (1998) states cuckoos are "generally common" in the Southeast, she does not conclude that the cuckoo is "relatively common...in much of the eastern United States". To the contrary she states:

Three of the Service's four references, therefore, are either selectively utilized or relevant to only a very small portion Eastern Northern America. The fourth reference (BBS 1999) is also selectively utilized.

BBS (1999) reports on breeding bird surveys conducted annually between 1966 and 1996. While the 90-day published in the Federal Register fails to discuss any of the data from the surveys, the Administrative Finding (at 13) acknowledges that BBS (1999) demonstrates dramatic recent declines east of the Continental Divide:

If the decline continues at its current rate (2.8% per year) for another 30 years, cuckoos will have declined 76.0% in the East as a whole between 1966 and 2026. If the current rate of decline continues for 100 years (a horizon commonly used in Service listing decisions, see Queen Charlotte goshawk 12-month finding) cuckoos will be virtually if not completely extinct in large portions of eastern North America.

Unfortunately, the situation is even worse than presented in the administrative finding, because the Service selectively used partial data from its Breeding Bird Survey source document (BBS 1999). The following analysis is based on data presented in Table 1, which is an extract of data from BBS (1999):

In sum, the best available scientific and commercial information possessed by the Service is substantial evidence that the cuckoo may be threatened in large portions of eastern North America. When these areas are combined with the Service-acknowledged western areas of imperilment, it is apparent that the cuckoo is likely threatened in well over 50% of its total range. To avoid this conclusion, the Service selectively used BBS (1999) and Hughes (1998), and arbitrarily lumping all eastern states together, obscuring the total area for which there is substantial evidence that the cuckoo is imperiled. Its conclusion that the cuckoo is not threatened or endangered in a significant portion of its range, therefore, is arbitrary, capricious, and not based on the best available scientific and commercial information.

Finally, we note that the Service used BBS data current to 1996. It downloaded the data from the NBS web page <www.mbr.nbs.gov/cgi-bin/trendsel2.pl> on 3-20-99 (see BBS 1999). These data were out-of-date well and removed from the NBS web page before the Service published its 90-day finding. The NBS posted data current to 1998 on or before 12-3-99 (see web page update notice). The Service ignored the newer, more complete data, possibly because they demonstrate even greater declines than the 1966-1996 data. The Service has violated the Endangered Species Act by not using the best available scientific and commercial information.

SIGNIFICANCE OF WESTERN RANGE. Even if the cuckoo were stable in all states and provinces east of the Continental Divide, its historic western extent of itself is a significant portion of the species' range. The Service miscalculated the size of western North America relative to the cuckoo's entire breeding range. The correct figure is between 30 and 40%, not 27%. To avoid even this figure, however, the Service conflates the accepted scientific distinction between "range" and "habitat" in order to conclude that only 5% of the cuckoos' range lies east of the Continental Divide.

In its analysis, the Service equates "significant portion" with "areal extent". Nowhere does it consider the biological significance of western birds. This is contrary to other findings were the Service expressly considered biological, ecological and genetic factors in determining whether a portion of a species range is significant or not.

The Service provides no rational or criteria for why it believes that either 27% or 5% of the cuckoos' range is not "significant" to the species. It merely asserts this to be the case. The lack of criteria renders the Service's decision arbitrary and capricious. Its conclusion is not based on the best available scientific and commercial information.

Sincerely,

Kieran Suckling

Table 1. Eastern States With Significant (P <= 0.05) Cuckoo Declines or Low Cuckoo Populations (< 3 Detections Per Survey Route) Between 1966-1996. All data taken from BBS (1999).

  1966-1996 1966-1979 1980-1996
Mean Yearly Decline Total Decline1 Relative Abundance < 3.0 Mean Yearly Decline Total Decline Mean Yearly Decline Total Decline(2)
Alabama 2.1% 47.1%     4.0% 48.0%
Connecticut 15.8% 99.4% 0.57 23.5% 34.6% 99.9%
Florida   2.88      
Georgia 2.5% 53.2%     4.9% 55.2%
Illinois 3.5% 65.7%     4.0% 48.0%
Indiana 2.9% 58.6%     5.3% 58.2%
Iowa   1.11      
Kansas         4.1% 48.8%
Kentucky 2.0% 45.5%     1.8% 25.2%
Michigan 5.5% 87.1% 0.57      
Minnesota   0.12      
Missouri 1.1% 28.2%     4.7% 53.7%
Nebraska   0.85   10.8% 83.9%
New Jersey   1.73      
New York   0.31   7.1% 69.2%
North Carolina         3.3% 41.5%
Ohio 2.2% 48.7% 1.53   9.8% 80.8%
Ontario 0.06      
Pennsylvania 1.51   5.9% 62.2%
Tennessee 1.6% 38.4%        
Texas 2.0% 45.5%     3.4% 42.5%
West Virginia 2.17      
Wisconsin 4.1% 71.5% 0.53   17.5% 95.4%
Average 3.8%       8.1%

1. The total decline was not presented in the finding, we calculated it from the mean annual decline.

2. Calculated from reported mean yearly decline.