Date: 6/12/19 6:41 am
From: <clearwater...>
Subject: [obol] Re: Judge orders reconsideration of lark's 'threatened' status
Amid all of the other stuff in yesterday's OBOL digest, I appreciated Lars Norgren's forward of this news item from the Capital Press, on a court case concerning the status of the "Streaked" Horned Lark (the imperiled subspecies that's endemic to lowland areas of western Oregon and western Washington):

However I'm not sure if this is good news or bad news for the larks.

It's good that the US Fish & Wildlife Service will need to reconsider its listing of Streaked Horned Larks as "threatened" rather than "endangered." Judge Mosman's comments here certainly make sense for anyone who took time to read through the government's decision:

"Mosman said he agreed the record doesn't indicate the government originally intended a 'threatened' listing despite its final conclusions. 'I agree it's a post-hoc rationalization for what happened here,' he said, adding that the government's reasoning is 'murky enough' as to render it inadequate under the Endangered Species Act."

However, the Capital Press writer, the judge, and the attorneys for the government seem to take a much more narrow view of the Section 4(d) rule and what it implies for larks. It's correct that this rule, as written into the listing decision, "exempts accepted farming practices, including mowing, tilling and spraying, from the 'take' prohibition." The judge seems to have bought into the government attorney's argument that this would ensure continuation of crops such as grass-seed that are at least marginally favorable for lark nesting.

However the present version of the 4(d) rule also exempts much more drastic changes in habitat, including regrading of fields and wholesale conversion of grass-seed fields to other crops such as filberts/hazelnuts and vineyards.

I assume that the attorneys for the Center for Biological Diversity (which brought this case) were aware of this, but they may have have contributed to this misperception by focusing too much on agricultural practices associated with conventional grass-seed farming. At least, this article leaves that impression. The Capital Press and its reporters do generally take the perspective of agribusiness, so to some extent this might just reflect what the reporter gleaned from the oral arguments, perhaps being unaware of the broader scope of the 4(d) rule.

I'll give this a one-handed clap for now. We'll need to wait and see how the USF&WS responds, and whether the 4(d) rule in an updated listing will be narrower in scope than the present version.

Joel Geier
Camp Adair area north of Corvallis

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