The Ninth Circuit Court of Appeals recently ruled in National Association of Home Builders et al. v. Norton that the U.S. Fish and Wildlife Service’s 1997 listing of the Arizona population of the cactus ferruginous pygmy owl as endangered was "arbitrary and capricious" and violated FWS policies.

In sending the listing back to a lower court for review, the court also questioned a proposed critical habitat designation for the owl. That designation included land-use restrictions that could add $12,000 to the price of a new home in Tucson.

The NAHB, the Southern Arizona HBA and the HBA of Central Arizona successfully argued that the FWS failed to consider the number of pygmy owls in Mexico, where the bird is plentiful. The court also agreed that the FWS failed to present evidence that the Arizona pygmy owl is genetically different from populations in Mexico.

The FWS too often lists species first and tries to justify its decisions later. We need environmental protection based on solid scientific evidence.