Two groups plan to sue over federal listing of Oregon and Washington songbird

Last month, the Center for Biological Diversity and Portland Audubon filed notice they intended to sue the U.S. Fish and Wildlife Service over its decision to list the streaked horned lark as threatened and a rule the agency finalized that exempts farming activities within its habitat. The two groups argue that the songbird, which inhabits the open grasslands and prairies of western Oregon and Washington, should be listed as endangered and not threatened. According to a population survey conducted more than a decade ago, there are an estimated 1100 to 1600 larks remaining. The USFWS first listed the streaked horned lark as threatened nearly a decade ago, and allowed for an exemption to farming activities on open fields and prairies the larks use for nesting. That agricultural exemption has now been extended to Washington state as well, with the agency arguing it will “meet both land management considerations and the conservation needs of the streaked horned lark.” Noah Greenwald is the endangered species director for the Center for Biological Diversity. Roger Beyer is the executive director of the Oregon Seed Council, a trade association that advocates on behalf of seed farmers and the seed industry in Oregon.

Editor’s note: The USFWS would not comment on pending litigation.

This transcript was created by a computer and edited by a volunteer.

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Last month, the Center for Biological Diversity and Portland Audubon filed notice that they intend to sue the US Fish and Wildlife Service. At issue is the streaked horned lark, a songbird once common in Western Oregon and Western Washington. Its population has plummeted over the last century because of a loss of habitat. The groups say they’re going to sue the agency because it’s not doing enough to protect these birds. That stems from the agency’s recent decision to, once again, list the birds as threatened as opposed to endangered. That highest level of protection would allow more restrictions on agriculture, including grass seed farms.

Noah Greenwald is the endangered species director for the Center for Biological Diversity. Roger Beyer is the executive director of the Oregon Seed Council – that’s a trade association that advocates on behalf of the seed industry in Oregon. They both join me now. It’s good to have both of you on Think Out Loud.

Noah Greenwald: Same.

Miller: Noah Greenwald first, what does the streaked horned lark look like?

Greenwald: The streaked horned lark is quite an attractive little bird. It’s colorful, it’s yellow and black and the most notable thing about it is that it has these feathery ‘horns’ as they’re referred to, which gives it quite a striking look.

Miller: So the horns in the name are not horns, but they’re sort of tufty feathers that stick up on either side of its head.

Greenwald: Exactly.

Miller: What is the lark’s natural habitat?

Greenwald: The lark is really what we would call an early successional species. It likes disturbed areas. In the Willamette Valley, it would have been found in areas that had flooded when the Willamette River flooded or areas that had burned. So it likes prairies, but it likes areas with a lot of bare ground.

Miller: Why is that?

Greenwald: Mostly, I think it’s a predator avoidance tactic. Essentially it’s a ground-nesting bird, so it builds its nest right on the ground. And if the ground is bare and there’s not a lot of tall vegetation, it can see predators and it can avoid those predators.

Miller: So if it likes flooded land, or land that has recently burned, how much flooding and how many prairie fires have there been for 80 or 90 years in the Willamette Valley?

Greenwald: The streaked horned lark, and actually the whole host of prairie species that once were widespread in the Willamette Valley, have largely disappeared. There’s less than 3% of the native prairies left. Instead, we’ve replaced it with cities and with farms and so that habitat is mostly gone. Then on top of that, we’ve dammed and diked the river, so it just doesn’t really flood or produce those habitats. And actually a whole other suite of species that were dependent on off-channel freshwater habitats, like Oregon spotted frogs and Oregon chub, have also disappeared with the loss of that flooding. We’ve wreaked tremendous changes in the Willamette Valley and I should mention, also the Puget lowlands in Washington. So with the disappearance of those habitats, many species have also disappeared.

Miller: If 97% or so of this habitat has disappeared, where are these birds found now?

Greenwald: It’s kind of an interesting situation and it’s unusual for an endangered species in that it now has adapted to these really, what we would call, anthropogenic habitats or human-made habitats, and one of those is grass seed farms. The other is airports where they mow to keep the vegetation down, in order not to attract larger birds like geese or things like that. Like the Corvallis Airport is one of the biggest remaining populations of streaked horned larks around that we know of.

Miller: So it’s superhuman places, not superheroes, but places that are extremely humanized, where these birds are most likely to be found now, sort of ironically?

Greenwald: Yeah.

Miller: Roger Beyer, this gets to you. As I noted, you’re the executive director of the Oregon Seed Council. In 2018, when there was the first legal challenge against the Fish and Wildlife Service’s initial listing of the lark as threatened as opposed to endangered, the Oregon Seed Council signed on as an intervener, meaning not a party to the suit, but someone that the court recognized was weighing in on it. Why did the group take that stance?

Roger Beyer: Well, we took that stance because, as you just heard from Noah, the grass seed farms are really the stronghold of the streaked horned lark and the habitat left in the Willamette Valley. And it’s the practices of the farming that allowed the bird to continue to live in this area. And we just felt that we have a lot at stake, so it was important to get our message in front of the court to have them hear from the farmers.

Miller: How would you describe the relationship between grass seed farmers and these birds?

Beyer: That’s a great question, and I think for as many grass seed farmers as there are, there’s gonna be different attitudes toward all different numbers of species. But I think I’m hearing from a lot of farmers who live in the South Willamette Valley that they are concerned with this current intent to sue, for a couple of reasons. One, is that the lark seems to be increasing in numbers. If you look at the data from Fish and Wildlife Services for the past four/five years, the lark numbers [are] increasing everywhere, except for the Pacific Coast. So that’s one thing we’re concerned about.

The other thing is that we don’t believe that the US Fish and Wildlife Service is surveying all of the larks on private land. And they freely admit they are not, because they say they don’t have access. But yet none of the farmers I’ve talked to said they’ve been asked if they could have access. And the farmers are reporting an increased number of larks being seen in different areas that aren’t traditional survey areas. And they wonder if the larks are actually being found where they’re now living rather than where they may be used to live.

Miller: Noah Greenwald, I want to go back to you, then. What’s your response to these two separate but related points Roger Beyer just made? One, that lark numbers recently are increasing. And two, that there may be an undercount based on the way the agency has done these surveys?

Greenwald: There’s definitely an undercount. There’s no question about that because the only place that they’re surveying are essentially public lands, at the airports. And it’s questionable that they’ve even found an increase there. In justifying a threatened rather than endangered listing, there was a bit of ‘cooking of the books,’ on the part of the Fish and Wildlife Service, unfortunately. When you really look at the numbers, it doesn’t look like an increase. And certainly there were no statistics to show that.

There are surveys, which the USGS does, called the Breeding Bird Survey, that happen every year, and those have consistently shown a 4% to 5% decline in the Willamette Valley of streaked horned larks. So the only real data that there is shows a decline rather than an increase. In terms of surveys, for two years, there was a person that was employed in part by the Fish and Wildlife Service, in part by the NRCS, and in part by OSU and the American Bird Conservancy, whose job was to coordinate with farmers and and work towards getting cooperation on things like surveys and potentially conservation, and essentially had no success in working with farmers. There just was no willingness on the part of the grass seed farmers to work on conservation of the lark. And I’m encouraged to hear from Roger that there is willingness to have surveys because it’s badly needed.

Miller: I should note that a spokesperson for US Fish and Wildlife said that they have no comments on pending litigation. Roger Beyer, if I understand the US Fish and Wildlife Service’s overall argument here, in terms of at least, why they have exempted agricultural work and have listed the bird as threatened as opposed to endangered, one of the big reasons is they have said that restricting grass seed farmers could encourage some grass seed farmers to get out of the business, thereby leading to less habitat for these larks. If I understand correctly, something like a quarter of grass seed farmers in the Northwest have switched to other crops anyway, in recent years. Is that number right, first of all?

Beyer: No, I don’t think that’s a good number. The grass seed industry is very stable in the valley. And one of the things that you know in the proposed lawsuit from the Center for Biological Diversity is the 4(d) Rule. The current 4(d) Rule allows incidental ‘take’ of a bird by common agricultural practices. And I would like to point out that one of the things that the growers I’ve spoken with said they would encourage and allow US Fish and Wildlife surveys on their properties, providing that 4(d) Rule is in effect, because that protects them from incidental ‘take’ in their common practices. So that’s a very key part of this listing. And without that they will find less cooperation with the farmers.

Miller: Noah Greenwald, what exactly would satisfy you in terms of the particular rules, of what you think should be allowed and shouldn’t be allowed in terms of grass seed farming?

Greenwald: I can just take it to 10,000 ft for just a second here, Dave. Scientists from around the world are warning that we’re in an extinction crisis, that we’re at risk of losing more than a million species in the coming decades. And the streaked horned lark is one of those species. The main cause of that is loss of habitat.

The streaked horned lark actually presents kind of an interesting situation, in that it has adapted to these grass seed farms and can survive there. It’s a ground nesting bird, and actually in North America, ground nesting birds are declining more than any other birds and that’s because there’s just so much disturbance to their nesting. So it would actually be really easy for grass seed farmers to help these birds. All they would need to do is allow surveys and then when the nests were found just flag off like a very small area, like a room sized area, for a few weeks in the spring, while the birds are sitting on the nest, and just not disturb that little area, and then that would be it. That’s all that would be required.

There’s been tremendous success with other endangered birds that are ground nesters. One is the Snowy plover that many people are probably familiar with. It occurs on beaches. Every year they go out and they find where their nests are on the beach. They flag them off and they tell people not to walk their dogs through that area or do whatever, anything else that would disturb them for that period of time. And Snowy plover numbers are coming back up. That’s really what the streaked horned lark needs.

Miller: Roger Beyer, what do you think that would mean for grass seed farmers? To let federal scientists look for these nests. If they find them, flag them and then say to the grass seed farmers, ‘just give a little bit of a space, a perimeter around these flags.’ What would that mean?

Beyer: I want to approach it a little bit differently. In the grass seed industries, the Southern Willamette Valley specifically, where these birds are most centered, tall fescue is one of the predominant grass seed crops. That crop is planted in the spring of the year and in the first year of a tall fescue rotation, the grass grows to about two or three inches tall by the nesting time, and then it is left set and is not disturbed until the following year.

Every year, right now in the Willamette Valley, according to OSU seed certification, there are more than 10,000 acres planted of this tall fescue crop that is ideal nesting habitat for these birds and that is not disturbed by any farmers. In Linn County alone, it is more than 3,000 acres. In Polk and Yamhill Counties each, it’s about 2,500 acres. So we are already providing the habitat and just what Noah said, it’s early seral habitat that is not disturbed, because for that first year, there is no harvest there. I don’t know why he thinks that they want to get rid of the 4(d) Rule, which protects the farmers, if there is an incidental ‘take’, when we’re already supplying tens of thousands of ideal habitats for the bird.

Miller: But couldn’t you argue the opposite direction? I mean, if you’re saying that we’re not disturbing these lands anyway, then what would the problem be if the rules said, ‘don’t disturb these lands?’

Beyer: Well, in those areas, I don’t think there’ll be any problem. But what he seems to be asking for is if they find a nest in a field that happens to be there when they’re harvesting it, then they’d have to avoid that area. And that puts a great challenge on the farmer.

Miller: Because you’d be taking small bits here and there out of production?

Beyer: Correct.

Miller: Noah Greenwald, what’s your response?

Greenwald: Again, well I think there’s a couple of things. One is, I think it’s a very small area, it’s for a short period of time. So it’s not a lot to ask to help save the species from extinction. Then again, there was an effort to try and get cooperation from farmers that didn’t succeed. There wasn’t any. So from my perspective, the regulation helps bring that cooperation, because all of a sudden there’s some requirements put in place. And then in terms of the solution, there’s flexibility there and there’s ways to find a solution that works for everybody.

One thing we haven’t talked about that I want to point out, Dave, is that the rule put in place by [the] Fish and Wildlife Service exempts all agricultural activities. So that includes converting your farm from grass seed to say, hazelnuts or blueberries, or vineyard, which is one of the primary threats to the streaked horned larks. The rule actually exempts quite a bit more than what actually provides habitat for the lark, which is one of the bigger problems we have with it. But also, there needs to be an effort and I don’t blame grass seed farmers, they’re not raising streaked horned larks. It’s not their expertise, it’s not their interest. So they need help and they need help from [the] Fish and Wildlife Service and they need rules in order to say, ‘hey, you need to care about this and you need to protect the species for the rest of us and for future generations.’

Miller: Noah Greenwald and Roger Beyer. Thanks for your time today.

Greenwald: Thanks David.

Beyer: Thank you.

Miller: Noah Greenwald is an endangered species director for the Center for Biological Diversity. Roger Beyer, the executive director of the Oregon Seed Council.

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