Center for Biological Diversity

Protecting endangered species and wild places of western North America
and the Pacific through science, policy, education, and environmental law.

July 25, 2001
CONTACT: Kieran Suckling, 520-623-5252 x304
More Information: Cuckoo page, USFWS "Warranted, But Precluded" decision


Listing of the Western Yellow-billed Cuckoo as an Endangered Species Would Protect Rivers in 12 Western States: Delay Could Spell Extinction

After repeated delays and two federal lawsuits, the Bush administration published a decision on July 25, 2001 to yet again delay Endangered Species Act (ESA) protection for the western yellow-billed cuckoo. Exploiting a controversial loophole in the ESA, the U.S. Fish & Wildlife Service declared that the cuckoo "warrants" listing as a threatened species, but that it will not issue a listing proposal because it is making "expeditious progress" on "higher priority" listings. Instead, the cuckoo will be placed on the "warranted-but-precluded" list.

"While we applaud the Fish & Wildlife Service for documenting the endangerment of the cuckoo, we are very disappointed that it is once again delaying protection for the species," said Kieran Suckling, executive director of the Center for Biological Diversity, "The yellow-billed cuckoo is already gone from most of the West if the Bush administration keeps delaying protection, it will soon be extinct."

Species on the warranted-but-precluded list receive no legal protection. Nor is there any limit on how long a species may be left on the list. Of the 24 species currently on the warranted-but-precluded list, the average length of time since they were petitioned for listing is 10 years, including a 19 year delay for the sheath-tailed bat, a 15 year delay for six New Mexico springsnails, and 12 year delays for the Columbia and Oregon spotted frogs. "This loophole is killing endangered species," said Suckling, "it needs to be closed immediately and permanently."

The western yellow-billed cuckoo has been under review for federal protection since 1986. It was extirpated from British Columbia in the 1920's, from Washington in the 1930's, and has not been known to nest in Oregon since the1940's. There are only 40 pairs remaining in California and even fewer in Nevada, Utah, Idaho, Montana, Wyoming, and Colorado. The only substantial populations remaining are in Arizona, and the western portions of New Mexico and Texas which may have two hundred pairs each.

The cuckoo requires large stands of streamside forests, especially willows and cottonwoods, to nest in. Its population has plummeted by over 95% as western rivers have been dammed and diverted, streamside forests cut down, developed over, or grazed back by livestock. It has also been impacted by pesticide spraying of caterpillars (its favorite food source) and oil and gas drilling.

Federal courts have repeatedly ruled that the Fish & Wildlife Service has illegally stuck gravely imperiled species on the warranted-but-precluded list as delay tactic to avoid angering powerful industry lobbyists. The placement of the bull trout and Canada lynx on the warranted-but-precluded list were both overturned by federal judges. The Center for Biological Diversity will file suit over this delay in protection for the cuckoo's as well.

The Endangered Species Act allows the Fish & Wildlife Service to place a species on the warranted-but-precluded list only if it can demonstrate that it is working on the listing of higher priority species and that it is making "expeditious progress" in listing other species. The Fish & Wildlife Service, however, has listed only one species since Bush was inaugurated president. "For the Bush administration to claim it is making expeditious progress doesn't pass the laugh test. The Fish & Wildlife Service has listed just one endangered species since Bush was elected, while it listed 50 in the same amount of time under Clinton."

The Fish & Wildlife Service's insistence that its attempts to designate critical habitat should permit it to delay listing species is a ruse: 1) the ESA clearly allows the use of the warranted-but-precluded list only when other listings are being made rapidly, not critical habitat designation; 2) the cuckoo decision states that the Fish & Wildlife Service has money available to make emergency listings even though Bush has made none; and 3) the Bush administration fought against increasing the ESA listing budget in FY2002 and refused to ask for more listing money in its supplemental appropriation request to Congress. Bush is purposefully starving the endangered species listing program.

Interestingly, the 16 page finding is longer than any previous warranted-but-precluded finding. The bull trout finding was two pages, the Canada lynx finding was four and half, and the black-tailed prairie dog finding was 13 pages. It is longer and more comprehensive than most of the last 300 proposed listing rules issued by the U.S. Fish & Wildlife Service. It is ludicrous for the Bush administration to say it doesn't have the resources to issue a proposed listing rule, when the warranted-but-precluded rule has already done the vast majority of the work.

The Center for Biological Diversity lead a coalition of 22 environmental groups from across the West in a 1998 petition to list the western yellow-billed cuckoo as an endangered species. The Center's previous efforts have resulted in the federal listing of 117 species under the Endangered Species Act and the designation of over 35 million acres of protected critical habitat areas.

The Center has over 5,000 members and offices in New Mexico, Arizona, California, and Washington State. It is one the nation's premier endangered species and habitat advocates.


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