Endangered Species Law & Policy

On July 20, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (“Owl”) as a threatened subspecies with a 4(d) rule under the Endangered Species Act (ESA). The 4(d) rule prohibits the same activities prohibited for endangered species, but allows exemptions for certain education and outreach activities permitted under a Migratory Bird Treaty Act permit, surveying and monitoring in Arizona under a state scientific activity permit, and habitat restoration and enhancement activities that improve the subspecies’ habitat conditions. The Service is also planning to designate critical habitat for the Owl, but will do so in a separate rulemaking.

The Service cited habitat loss and fragmentation from urbanization, invasive species, and agricultural or forest production, along with climate change, as threats to the Owl that make the subspecies likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The subspecies is found in hot, arid climates including Mexico, southern Arizona, and southern Texas.

This listing comes after years of litigation over the subspecies’ status. In 2007, the Service received a petition from the Center for Biological Diversity (CBD) and Defenders of Wildlife requesting the agency list the Owl as an endangered or threatened subspecies under the ESA. After the Service issued a 12-month finding in 2011 determining that listing the pygmy-owl (Glaucidium brasilianum cactorum) was not warranted throughout all or a significant portion of its range, CBD sued the Service, ultimately leading to a settlement where the Service agreed to submit a new 12-month finding to the Federal Register. In December 2021, the Service proposed to list the Owl as threatened, the precursor to the final rule issued last week.