A coalition of 28 national, regional and local conservation organizations notified the U.S. Fish and Wildlife Service (FWS) in February that the agency has violated the Endangered Species Act by failing to respond appropriately to the coalition’s petition to list the Cerulean Warbler as a threatened species.
The groups, including Appalachian Voices and the National Audubon Society, say the agency has failed to initiate the steps required under the law to respond to the petition filed in October 2000. The Act requires that before filing a lawsuit, citizens must give the agency 60 days notice, which the coalition did in a letter sent today.
The cerulean warbler is one of the fastest disappearing songbirds in the country. The bird, known for its brilliant blue plumage and distinctive song, has declined an average of 4% a year throughout its eastern U.S. range, for a total loss of 70% over the last three decades.
Experts attribute this dramatic decline to the destruction and fragmentation of large native forests in the U.S., which the Cerulean needs to reproduce in the summer, and deforestation in the Andean mountains of South America, where it spends the winter. In the U.S., the Cerulean’s decline has been the worst in the core of its range in the Southeast and Midwest, where its population has plummeted by about 80%.
“If the Fish and Wildlife Service would do what it is supposed to do under the law, we would be moving forward toward listing this songbird and protecting the forests it needs to survive,” said Doug Ruley, an attorney with the Southern Environmental Law Center, which represents the coalition.
“We need to act now, before the cerulean population declines further and it becomes harder to save the species,” said Lois Schiffer, a senior vice-president of Audubon.
Under the Endangered Species Act, the FWS is required to (1) determine within 90 days whether the citizens’ petition presented substantial information indicating that the listing may be warranted, (2) if so, conduct a status review of the species, and (3) make a final determination concerning the listing within 12 months of the petition. The FWS has taken none of these steps since the conservation groups filed their petition to list the Cerulean.
Ruley said the coalition did not take legal action sooner because the FWS undertook an informal consideration of the cerulean’s status that could have led to a listing decision. However, in a letter dated December 21, 2001, the FWS told the coalition that it would not proceed with a formal review process at this time.
The FWS letter questioned the use of Breeding Bird Survey (BBS) data to determine the extent of the cerulean’s decline, even though the BBS has been widely recognized for many years as the primary source for determining avian population trends.
The FWS also claimed that it lacked information about threats to the bird, even though the FWS is directly involved in studies of destructive activities, such as mountaintop removal mining, in several of the remaining forests that retain concentrations of this songbird.
“They’re playing Catch 22 with the cerulean,” said Ruley. “We know this songbird has declined precipitously, that we’ve lost much of its forest habitat here and in South America, and that the remaining forests face significant threats. To the extent more information would be helpful, a listing is the best way to insure that the needed research occurs.”
The FWS letter indicated the agency will seek funding in FY2002 to prepare a 90-day finding and, based on the outcome, the full status review as required under the Act.
However, “moving forward as required under the law should be a certainty, not a maybe,” said Ruley. “Protection under the Endangered Species Act is the Cerulean’s best chance to survive,” added Schiffer.
If the FWS does not meet the terms of the Act as outlined in the notice filed by the groups today, after 60 days the coalition may go to court to enforce the law.