For the Birds

In matters of appearance, the southwestern willow flycatcher is no dodo: Barely half an ounce, with pale yellow and gray feathers, it's as photogenic as any sparrow. But when it comes to Darwinian fitness, the flycatcher comes up short.

Consider its relationship with the brown-headed cowbird. The cowbird, a far craftier species, is fond of laying its eggs in flycatcher nests. And cowbird moms typically give their young a jump on that whole survival thing -- by pushing flycatcher eggs out of the nest and to a certain death.

A smart bird wouldn't put up with it. But flycatchers don't even seem to notice. They just raise the cowbird chicks as their own.

Not surprisingly, cowbirds are flourishing, while flycatchers -- who used to nest in a region that spanned from California to Texas -- have earned a spot on the endangered species list. Scientists at the U.S. Fish and Wildlife Service believe this country's flycatcher population has fallen to less than 1,000 pairs.

Last year, 18 flycatchers nested at Horseshoe Lake, the basin created in 1946 by damming the Verde River north of Phoenix. While the lake has been dry in recent summers, making for ideal flycatcher habitat, Salt River Project uses it in wet seasons as a reservoir.

And so when the rains came this spring, the trouble began. For while the flycatcher can't seem to take care of itself, it's attracted a powerful protector: the Center for Biological Diversity.

While the Center is one of the most litigious environmental groups in the nation, this time, it clearly has a point: SRP does not have the proper permit to flood the flycatchers' habitat at Horseshoe. And that, oddly enough, has nothing to do with birds -- it's all about fish. (More on that later.)

But even though the Center for Biological Diversity may be right, it's making an argument that, in this dry desert, couldn't be more contentious. The Center says, protect the flycatcher at all costs, even if that means dumping water. That would be sacrilege even if it was a small amount. But SRP insists it would have to dump nearly half the contents of Horseshoe Lake, thereby wasting enough water to supply the population of Scottsdale for a year.

In any case, the Center says that if SRP doesn't figure out a way to dry out the flycatchers' home, the utility will have destroyed the habitat of a beleaguered bird.

And that means violating the Endangered Species Act.

And that means big trouble.

The Center for Biological Diversity is no fan of compromise. The Tucson-based activist group is known for suing first and asking questions later. Thanks to the Endangered Species Act, the strategy has been wildly successful.

Inspired by the near-demise of a much bigger bird, the whooping crane, Congress authorized the act as we know it in 1973. Ironically, it gave a near-unanimous vote to legislation that would prove incredibly controversial.

The law didn't just provide funding to preserve vanishing species, although U.S. Fish and Wildlife was given $123 million for that task in 2003. A much bigger impact has come from the act's teeth -- namely, a provision that made it illegal to "take" an endangered species.

By "taking," Congress didn't just mean killing. The law specifically barred harming and harassing a species, or even destroying its habitat, a cornucopia of possibilities that's stopped many a Western development. Plus, the Center for Biological Diversity found that it could sue the U.S. Fish and Wildlife Service any time it failed to properly protect a species -- and get the government to pay its legal fees.

The act has made critics on both sides of the political aisle. Conservatives, angry about how even seemingly insignificant animals like frogs or snails trump property rights, push for reform, even as environmentalists insist that the government still isn't doing enough to protect the endangered animals. (More than 1,200 species are now listed as endangered; only nine have "recovered" under the government's ministrations.) Fish and Wildlife staffers, meanwhile, have complained to the General Accounting Office that they're too busy responding to lawsuits to do much good.

To some Fish and Wildlife staffers and businessmen alike, one of the biggest villains has been the Center. And the flycatcher has been one of the Center's particular favorites. In 1993, the group successfully sued Fish and Wildlife to get it listed as an endangered species, says Michelle Harrington, the center's rivers program director.

The listing, made official two years later, opened up the government to a host of lawsuits. The Center sued twice to force Fish and Wildlife to mark areas as the flycatcher's critical habitat. Because flycatchers like to nest near dams, the Center subsequently sued the U.S. Army Corps of Engineers over activity at Lake Isabella in southern California, the Bureau of Reclamation over its actions at Lake Mead on the Arizona/Nevada border, and the Secretary of the Interior over dam expansion at Lake Roosevelt, which is east of Phoenix on the Salt River. The final suit ended with the feds coughing up $20 million to purchase and maintain flycatcher-friendly zones elsewhere in Arizona, compensating for the habitat lost to dam expansion.

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Sarah Fenske
Contact: Sarah Fenske