Court says USFWS must tell where the species are

From National Homebuilders Association
as printed in eco-logic


In a victory that could bring better protection for endangered species, smarter growth, reduced housing costs and more open government, the U.S. Court of Appeals for the District of Columbia ruled November 5th, that the U.S. Fish and Wildlife Service (FWS) must tell Arizona builders and the National Association of Home Builders (NAHB) where endangered cactus ferruginous pygmy owls may be found on private lands. NAHB had requested the information under the Freedom of Information Act (FOIA), but the federal agency had resisted, arguing that disclosing the location of the birds' habitat would cause birdwatchers to trespass on private property.

"With this court decision, builders can finally get vital information on where endangered species are -- and are not -- located, and provide better protection for them," said NAHB President Gary Garczynski, a builder/developer from Woodbridge, Va. "If the Service would give us this information, we would know which areas to avoid. This decision will bring more protection for the owls and more certainty for builders. The decision will also will keep new homes affordable for consumers by removing needless development delays and costs for measures that do nothing to protect endangered species."

For decades, a central element of the Endangered Species Act (ESA) has been protection measures for areas where a threatened or endangered species is likely to be found. Unfortunately, federal agencies have not always been forthcoming on the exact locations of these areas.

As part of a comprehensive ESA reform strategy, NAHB launched an effort in 1998 to force government agencies to provide specific information to landowners on where species were - and were not - located. By sharing this information with builders, NAHB reasoned that federal agencies could continue to protect species while allowing or even accelerating development plans that can meet housing demand. This would also help keep that housing affordable for American consumers.

As part of that effort, NAHB submitted a FOIA request to the U.S. Fish and Wildlife Service to determine the location of critical habitat for the cactus ferruginous pygmy owl, a bird whose range may cover as much as 731,000 acres of land in Arizona's Pima, Pinal, Maricopa and Cochise Counties.

The FWS initially rebuffed NAHB's request, and in litigation, argued that protecting the property interests of landowners from the possibility of trespassing birdwatchers justified withholding the pygmy owls' locations. NAHB responded by pointing out that knowing the location of owl habitat would provide more valuable protection and facilitate better land use decisions, because landowners would have a better sense of where ESA restrictions would apply.

The ruling in the pygmy owl case is important, because it finally allows members of the public to see the specific locations of endangered species habitat based on Fish and Wildlife Service data. In the past, the Service has denied landowners and other citizens access to such information.

"With this decision, the court will make ESA protection more open by forcing government agencies to share information and show us where we can build - and where we can't build - based on where birds and other creatures are found," Garczynski said. "We need more education and less speculation fueled by the withholding of information. Protecting pygmy owls and other threatened or endangered species is important, but so are land development processes based on good science and sound environmental protection. This decision means we can protect pygmy owls, develop land in a more expedient manner and keep new housing affordable."


The National Association of Home Builders is a Washington-based trade association representing more than 205,000 members involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing and other aspects of residential and light commercial construction. Known as "the voice of the housing industry," NAHB is affiliated with more than 800 state and local home builders associations around the country. NAHB's builder members will construct about 80 percent of the almost 1.6 million new housing units projected for 2002, making housing one of the largest and most powerful engines of economic growth in the country.


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