“One flew east, one flew west, and one flew over the cuckoo’s nest.”
Thus begins the epigraph of Ken Kesey’s 1962 novel, One Flew Over the Cuckoo’s Nest. Undoubtedly, Mr. Kesey was not thinking of migratory songbirds when he used this fragment from an old children’s poem to begin his book. But as Oscar Wilde said “life imitates art.” Mr. Kesey unknowingly captured the life history of the yellow-billed cuckoo almost exactly.
The yellow-billed cuckoo is a neotropical migrant that winters in South America, primarily in the Amazon basin. But when spring comes, the birds fly north to breed largely in the United States. This is where Kesey had biology right. Some fly east and breed east of the Continental Divide, and some fly west, breeding west of the Continental Divide. While the two groups of birds freely intermingle in South America during the winter, once they fly to their breeding range in North America, they remain entirely separate – so much so that many scientists believe the two groups form separate subspecies. Though, according to the United States Fish and Wildlife Service, they are simply “Distinct Population Segments” of the same species.
Regardless of this scientific quarrel, it is very clear that the Western Distinct Population Segment of the yellow-billed cuckoo (to use the government’s legal lingo) is in trouble. As to who flew over the cuckoo’s nest – well, that would be the Fish and Wildlife Service, which has delayed protecting the “Western” yellow-billed cuckoo under the Endangered Species Act (ESA) for over a decade, despite finding on July 25, 2001, that these birds warranted legal protection. The agency claims it has been simply too busy ever since to get around to actually protecting the species. The wheels of justice grind slowly, but now, finally, the Service has proposed a rule to do what it said it should do some dozen years ago. Unfortunately, the agency isn’t acting out of the goodness of its heart or because it has seen the light, but only as a result of a legal settlement agreement that forces it to take final action.
Nonetheless, we at Defenders support the Service’s proposed rule to protect the western yellow-billed cuckoo. But because the Service has proposed listing the birds merely as “threatened,” we have urged the Service to list them under a more protective “endangered” designation.
This should be an easy conclusion for the Service to reach. There are very few of these rare birds left. They are vanishing because their breeding habitat, streamside riparian forests in the arid West, is vanishing. A hundred years of building dams, channelizing rivers, diverting water, and grazing livestock along streams have destroyed most of these vital riparian areas, which support the cuckoo and dozens of other species. Western yellow-billed cuckoos were last confirmed to breed in Oregon in the 1940s and in Washington in the 1930s. Scientists consider the species “extirpated” as a breeding species from adjacent Canada and Montana. Idaho supports, at most, ten to twenty pairs. Colorado and Wyoming have fewer than five pairs each, and Utah, Nevada and Texas have fewer than ten breeding pairs apiece. In California, the western yellow-billed cuckoo is listed as endangered under state law as a result of a 99% decline from historic levels. Today, only 40 to 50 breeding pairs exist in California, where there were historically 15,000 pairs. Only in Arizona and New Mexico do relatively sizable breeding populations survive. An estimated 170 to 250 pairs breed in Arizona, but even this hopeful number represents a 70% to 80% decline from just 30 years ago, and New Mexico supports an additional 100 to 155 pairs. In short, there may be fewer pairs of western yellow-billed cuckoos left than there are representatives and senators gathered in Congress. Certainly, the number of employees of the Fish and Wildlife Service exceeds the number of cuckoos by an order of magnitude.
So why has it taken the Service over a decade to get around to proposing protection for this species that it has long agreed is warranted? And why do they believe it is merely “threatened,” rather than “endangered?” The cynical answer is because listing species under the Endangered Species Act upsets powerful economic interests, and an “endangered,” rather than a “threatened,” listing would force the Service to regulate these interests with a heavier hand. However, this bird’s streamside habitats need immediate protection from water projects and cattle grazing in order for the bird to survive and recover – and we have told the Service so. The less cynical answer to these questions is that Congress has starved the Fish and Wildlife Service of the money necessary to do its job, and preventing extinction and recovering species from the edge of the abyss is an important and complicated undertaking that deserves better funding.
Regardless of whether one is a cynic or an optimist, we should all be pleased that the western yellow-billed cuckoo’s years in the unprotected legal wilderness appear to be ending. FWS must finalize its proposed rule to list the species within a year to 18 months. We hope they do so, and that they afford the species the full legal protection that an “endangered” listing would provide to help it recover more quickly. It would be a horrible shame if we had to change that old children’s poem quoted by Ken Kesey to read – “some flew east, but those that flew west – well they don’t ‘fly anymore – and we’ve all flown over the cuckoo’s nest.”
Jay Tuchton, Staff Attorney