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New Ruling Strengthens Case for Delisting Pygmy Owl
 Delivering good news for an area of the country where residential development has been constrained by a controversial 1977 Endangered Species Act listing of the pygmy owl, a recent court decision has helped to remove a regulatory barrier to development in Tucson, Ariz., in the process bolstering NAHB’s ongoing efforts to promote solid science as the basis for the federal listing of threatened or endangered species.
This favorable ruling builds on past decisions on the pygmy owl, which have vacated the bird’s critical habitat designation and have found that the federal government violated its own policies by listing the owls living in Arizona as a “distinct population segment” (DPS) under the Endangered Species Act.
Successful litigation, combined with ongoing regulatory efforts, has strengthened NAHB’s position that the U.S. Fish and Wildlife Service should delist the pygmy owl.
In its July 12 ruling in the case of Defenders of Wildlife v. Flowers, the United States Court of Appeals for the Ninth Circuit ruled that the U.S. Army Corps of Engineers had acted lawfully in issuing Section 404 permits for an NAHB member’s housing project that, it found, will have no effect on the pygmy owl.
The court also indicated that its decision “puts in doubt the status of the Arizona pygmy-owl” and would seem to require its delisting.
Environmental plaintiffs argued that the permits should have been subject to costly and time-consuming consultation with the Fish and Wildlife Service because the development had the potential for affecting pygmy owl habitat or the owls themselves.
In a friend-of-the-court brief, NAHB said that there was no need for consultation in an area where the species is not present.
In a 2-1 ruling, the court found that the Corps was not “arbitrary or capricious” in determining that the development would not affect the pygmy owl.
For more information, e-mail Tom Ward at NAHB, or call him at 800-368-5242 x8230.
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