An environmental group is challenging the federal government’s decision to exempt common farm activities from the prohibition against “taking” streaked horned larks.
In 2013, the U.S. Fish and Wildlife Service listed the lark as “threatened,” which would usually disallow “take” of the species by killing, harming or harassing the birds.
However, the agency enacted a special “4(d) rule” under the Endangered Species Act that exempted “normal farming and ranching activities” from the “take” prohibition in Oregon’s Willamette Valley. Those activities include planting, mowing, spraying, tilling and harvesting.
Streaked horned larks were once common in the Pacific Northwest but have disappeared from 90 percent of their range and now inhabit the Willamette Valley, islands on the Columbia River and portions of the coast and Puget Sound in Washington.
Because the species prefers flat ground with little vegetation, activities such as plowing, mowing and burning fields can actually create habitat for the birds.
However, these practices can also kill or injure streaked horned larks during their nesting and breeding season, which lasts from April until August.
Farm operations in the Willamette Valley, where the majority of the birds live, were broadly exempted from the “take” prohibition because the federal government wanted to “allow landowners to continue those activities without additional regulation.”
For that reason, the Fish and Wildlife Service decided against modifying the 4(d) rule to require farmers to avoid disturbing streaked horned lark habitat during the sensitive nesting and breeding season.
“We believe that imposing a timing restriction would likely reduce the utility of the special rule for land managers, and could have the unintended side effect of causing landowners to discontinue their habitat creation activities,” the agency said.
According to the Center for Biological Diversity’s lawsuit, the government failed to explain why the exemption would help conserve the species when its population had declined while these “routine” activities were occurring.
The complaint also alleges the Fish and Wildlife Service didn’t provide evidence that without the exemption, landowners would convert their property to be unsuitable habitat for the lark.
The agency “irrationally eliminated any incentive for agricultural and other interests to take the needs of the lark into consideration” in violation of the Endangered Species Act and the Administrative Procedure Act, the lawsuit claims.
Aside from asking a federal judge to invalidate the 4(d) special rule, the environmental group has requested the species be upgraded to “endangered” status, under which such an exemption isn’t permissible.
Unless current farm practices are protected under the 4(d) rule, farmers may be more likely to switch to crops like hazelnuts or blueberries, which don’t provide habitat for the bird, said Mary Anne Cooper, public policy counsel for the Oregon Farm Bureau.
Growers can’t be forced to actively create habitat by mowing or plowing, she said.
Environmental groups are generally opposed to exemptions for agriculture under the 4(d) rule, not only for the lark but also for other species, Cooper said.
“They don’t like the tool,” she said.