Judge Punts Pygmy Owl De-listing Decision to Fish & Wildlife Service



On June 25, 2004, Arizona Federal District Court Judge Susan Bolton punted the decision to remove the pygmy owl from the Endangered Species list to the U.S. Fish and Wildlife Service (FWS), leaving the substantially flawed listing in place until the agency revisits it.

“NAHB [National Association of Home Builders] is disappointed that Judge Bolton failed to follow the letter of the law,” said NAHB President Bobby Rayburn. “The judge is required to set aside any listing that is unlawful, and in this case, leaving the owl’s listing in place was clearly wrong.”

Judge Bolton failed to act on a ruling by the Ninth Circuit Court of Appeals last August that found the listing “arbitrary and capricious,” which means that it should have been set aside under the federal Administrative Procedure Act when the circuit court returned the matter to Bolton for an appropriate legal remedy.

Responding to the Ninth Circuit’s decision, NAHB filed papers in October requesting the owl’s de-listing. The Fish and Wildlife Service made a similar request. The agency’s own data show that there is a well-established owl population in Mexico and that the owls in Arizona, which is at the northern edge of the bird’s range, are not significant for the survival of the species.

FWS must now report back to the court on the status of pygmy owl by Jan. 30, according to Bolton’s decision.

“We will aggressively pursue this case to ensure that the judge follows the directive of the appeals court and vacates the owl’s listing,” said Rayburn.

For further information, e-mail Duane Desiderio at NAHB, or call him at 800-368-5242 x8146.
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