A federal judge has agreed with an environmental group that the U.S. Fish and Wildlife Service must reconsider the “threatened” status of the streaked horned lark.
However, Chief U.S. District Judge Michael Mosman will leave in place a special rule that shields farmers in Oregon’s Willamette Valley from liability for harming the bird during common farming activities.
The Center for Biological Diversity, an environmental non-profit, claimed that data about rapidly declining streaked horned lark populations actually supported a more stringent “endangered” listing for the species.
At the conclusion of oral arguments in Portland on June 10, Mosman said he agreed the record doesn’t indicate the government originally intended a “threatened” listing despite its final conclusions.
“I agree it’s a post-hoc rationalization for what happened here,” he said, adding that the government’s reasoning is “murky enough” as to render it inadequate under the Endangered Species Act.
The bird will still be considered threatened while the government reconsiders its decision, Mosman said.
In 2013, the bird was listed as threatened by the U.S. Fish and Wildlife Service, which would normally prohibit “take” by killing, harming or harassing the species.
However, the agency implemented a special 4(d) rule that exempts accepted farming practices, including mowing, tilling and spraying, from the “take” prohibition.
The exemption was created because streaked horned larks inhabit flat fields that are largely free of thick vegetation and the rule will discourage large swaths of land from being converted to other uses.
The positive impact of some farm practices has the effect of “almost turning on its head” the typical Endangered Species Act analysis, said Mosman.
Because it’s “sensible enough” that maintaining current agricultural practices may prevent farmers from switching from grass to another crop that’s less beneficial, the 4(d) rule will remain in effect while the government reconsiders its analysis, he said.
The Center for Biological Diversity claims the 4(d) rule is inadequate because the birds aren’t protected from farm practices that would destroy their nests and young during breeding season.
“Keeping that 4(d) rule in place with no added protections would be contrary to the aims of the Act,” said Eric Glitzenstein, attorney for the environmental plaintiff.
If the government upgrades the bird to “endangered” status, protections for farm activities may be lost anyway.
Under the Endangered Species Act, the 4(d) rule would no longer be available to exempt agricultural practices from the “take” of the lark if it was listed as endangered.
“The 4(d) rule is contingent on there being a threatened determination,” Glitzenstein said.
The Fish and Wildlife Service countered that its decision to list the species as threatened and to enact a 4(d) rule was reasonable, with the agency properly weighing various factors and relying on the best available information.
“I think what you see here, your honor, is an agency that is grappling with some very thorny questions of policy and law,” said Hubert Yang, attorney for the government.
Currently, the streaked horned lark has a population of about 1,170 to 1,610 birds that primarily live in the Willamette Valley but which are also found along the Columbia River and Washington’s Puget Sound.
The Willamette Valley population is considered to be the largest and most stable while still facing threats.
If the bird’s threatened status remains effective while the government reconsider the decision, it would be make sense if the protections for agricultural activities stay effective, Yang said.
“It would actually be prudent that the 4(d) rule also remain in place,” he said.