In a unanimous decision, a three-judge panel from the Ninth U.S. Circuit Court of Appeals ruled that the U.S. Fish and Wildlife Service erred when it listed the pygmy owl as endangered in 1997. The judges kicked the case back down to federal district court in Phoenix for further review.
Sherry Barrett, an assistant field supervisor with Fish and Wildlife who has specialized in pygmy owl recovery efforts, says she doesn't know what happens next.
"The lawyers are still reviewing the court ruling," says Barrett.
Kieran Suckling, executive director of the Center for Biological Diversity, which first sued the Fish and Wildlife Service to force it to list the bird as an endangered species, says recent genetic studies should satisfy the concerns of the appellate court regarding whether the Arizona owl has a significant population.
Although the developers are arguing that the Fish and Wildlife Service should be limited to presenting evidence that was available in 1997, Suckling says the agency should take into account more recent reports.
"Why would you ignore six years of science?" Suckling asks. "It doesn't make any sense. And the data we have today supports listing."
But, he adds, politics are sure to play a role.
"The Bush Administration has the worst record of listing species in the history of the Endangered Species Act," Suckling says.
Whatever the next legal twist is, the decision isn't going to slow down Pima County's work on the Sonoran Desert Conservation Plan, says County Administrator Chuck Huckelberry, who calls such suggestions "pretty silly."
"This particular hiccup will have no effect on our conservation efforts," says Huckelberry.
The county was careful to craft the conservation plan around 54 different threatened or endangered species, so even if the pygmy loses its endangered status, work on the plan will continue, according to Huckelberry.
County officials are in the final stages of creating the conservation plan and expect to have a draft for review at a public meeting on Oct. 4.
"This community has a long history of protecting its open spaces and its environment, and that's not going to change simply because of a technical quirk in a listing activity for an endangered species," says Huckelberry.
Ed Taczanowski, the new executive vice president of the Southern Arizona Homebuilders Association, which filed the suit to strike the owl's Endangered Species listing, agreed with Huckelberry's analysis.
"I think it will have little effect because they have 54 other species that they are trying to cover with that plan," says Taczanowski.
Taczanowski hopes the ruling means there will be less red tape for developers, particularly on Tucson's northwest side, which he says will lead to more affordable housing.
"This is something that strengthens private property rights here," Taczanowski says.
A legal decision earlier in the week may have had just as big a legal effect on the pygmy owl. On Monday, Aug. 18, one day before the Ninth Circuit's decision, Federal District Court Judge Cindy Jorgenson ruled that the Army Corps of Engineers is not required to consult with the U.S. Fish and Wildlife Service before issuing developers permits relating to storm water run-off in owl habitat.
Although the Corps of Engineers had been consulting with Fish and Wildlife, that ended two years ago after another federal court struck down Fish and Wildlife's original critical habitat designation. Fish and Wildlife had been preparing a new, larger area of critical habitat, but that process will likely end up on hold until the owl's endangered status is resolved, according to Suckling.
Without the consultation process, developers have an easier time blading potential habitat, says Suckling, whose organization had joined with Defenders of Wildlife to file the federal suit against the Corps of Engineers.
"You can't save the species unless you're protecting the habitat that they're going to expand into," says Suckling. "It's a terrible ruling, and we're definitely going to appeal it."
The legal rulings come as the pygmy owl numbers are in sharp decline, according to wildlife surveys. While there were 41 known owls in 1999, the number had declined to 18 owls last year, according to Suckling.
"This year, for the first time ever, there were no nesting attempts in northwest Tucson," Suckling says. "It's in bad shape."