WHEN THE MONDAY edition of the Federal Register landed on government desks this week, the cactus ferruginous pygmy owl was listed as a new endangered species.
That designation may change the future of development in the Tucson basin. Measuring a mere 6-1/2 inches from beak to tail, the pygmy owl is the second smallest owl, next to the elf owl, in North America. But now, with an endangered species listing, it could exert a huge impact on its surroundings, which include most of the drainage systems around Tucson.
Members of the Southwest Center for Biological Diversity herald the listing as one of the last, best hopes for protecting desert riparian areas.
Tucson's Growth Lobby and its supporters see the listing as a monkey wrench in the cogs of economic development and a misuse of the Endangered Species Act.
Caught in the middle, the U.S. Fish and Wildlife Service, the federal agency that determines which species are endangered, floats in a bureaucratic purgatory. Both sides accuse the agency of working for the opposition. The agency seems neither to embrace the idea of commencing an all-out effort to save the owl, nor does it entirely derail that possibility.
It was the FWS that first outlined 290 miles of potentially critical habitat for the owl. On the other hand, the agency has been dragging its feet all the way in making the endangered determination. The FWS would be in dereliction of its duty without the encouragement of several lawsuits, says Southwest Center biologist Peter Galvin.
The Southwest Center launched a lawsuit in 1992 in order to get the FWS to speed up its listing of the pygmy owl, (Glaucidium brasilianum cactorum) and four other species, says Galvin. Four of those species are now listed: the Huachuca water umbel, the Canelo Hills lady's tresses (both plants), the Sonoran tiger salamander and, of course, the cactus ferruginous pygmy owl. The jaguar, recently spotted again in Arizona, has yet to be listed.
The lawsuit continues in Federal District Court in Phoenix, with Judge Roger Strand presiding. The Southwest Center folks want to see the jaguar listed and critical habitat designated for the salamander and owl.
The designation of critical habitat lays at the heart of this battle. If the pygmy owl lived in some far-removed creosote flat, it's unlikely any would raise opposition to its listing. Unfortunately for the owl, its preferred habitat is well-established desert riparian areas, like the cottonwood forests that once lined the Santa Cruz River. It also lives in xeric riparian areas, meaning desert washes and canyons with intermittent water, like Honeybee Canyon.
At this time, the pygmy owl is listed as an endangered species, but the FWS has decided it would be imprudent to designate critical habitat, says Jeff Humphrey, FWS Phoenix field office spokesman.
"This is never going to hold any water," Galvin complains.
He argues there are only two exemptions in the Endangered Species Act for not determining critical habitat. One is critical habitat is not determinable, meaning biologists are unsure of where the bird lives. That would be a hard assertion to make, since their own biologists have already suggested hundreds of miles.
The other exception covers situations where determining critical habitat would not be prudent, the option the FWS has chosen.
But Galvin says that kind of ruling is generally reserved for rare plants, like cactus and orchids, that live in small geographic areas and which are prized by unscrupulous collectors who would use government designations to guide them to their prey. Claiming the designation of several hundred miles of habitat creates a threat to the owl is ludicrous, Galvin says.
"Looking for a pygmy owl to go harass," Galvin says, "would be like looking for a needle in a haystack. There are 290 miles of desert rivers. Do they really think these maps are going to help some fanatic get out there and just start hiking until they find a pygmy owl? Any birdwatcher would just look in a range book, look at the description of habitat and start hiking. It wouldn't take a rocket scientist to figure out where to look.
"Besides, it's not birdwatchers who are going to harm pygmy owls. It's developers and their vigilantes, if anybody, and they already know exactly where they are because Arizona Game & Fish has to get permission from the landowners to go survey for them. All they're trying to do is buy more time with an implausible explanation. If it's not this, it's something else. We will not let this sleight-of-hand game go unchallenged. It's a pathetic effort to avoid their responsibility."
Galvin says the Southwest Center will file papers in its current lawsuit, if the judge allows it, to force a determination of the bird's critical habitat. If not, the group will immediately file a separate suit.
Before critical habitat can be designated, an analysis of the resulting social and economic impacts must be made. Whereas the endangered species listing is determined solely upon scientific data, economics play a role in deciding critical habitat.
Pima County is in the heart of the critical habitat originally proposed by the FWS biologists. The territory in question is as follows:
1. San Pedro River, 60 miles from Soza Canyon to the Gila River.
There are other stretches of river systems in Maricopa, Graham, Greenlee, Pima, Pinal and Cochise Counties, making a grand total of 290 miles.
As with its relative, the spotted owl of the Pacific Northwest, the pygmy owl's presence or potential presence will affect how federal land is used. But in the case of the pygmy owl, much of its habitat is on private land slated for development or already partially developed. Determining how this will affect landowners depends on who you talk to.
Humphrey explains that as long as a landowner does not kill, harm or harass an endangered species, the animal will not affect land use.
When critical habitat is designated, it does not mean federal agents in unmarked helicopters start circling private property. Basically, if there are no pygmy owls present, a private landowner can turn his critical habitat into a parking lot. However, he'll receive no federal money to do it. For instance, a developer might call upon the Army Corps of Engineers to construct a bank stabilization project. If the project were determined not to damage critical habitat, then the Corps could move forward. If the project would cause damage, then the developer would have to foot the bill himself. If pygmy owls were actually present, and the project would result in harming, harassing or killing the birds, then the project would be illegal.
The most likely scenario: A developer and the FWS get together and attempt to work out a mitigation plan, says Humphrey. This could result in the plan being modified, so as not to adversely affect the pygmy owl. Or the landowner could propose some mitigation. For example, critical habitat might be destroyed in location "A" but the landowner could purchase, protect or create critical habitat in location "B."
Unlawfully killing an endangered species can result in a one-year sentence and a $50,000 fine. The only exception is in cases of self-defense, which seems unlikely in a confrontation with the pygmy owl.
MUCH TO THE chagrin of developers, many miles of the critical habitat lie within sections of soon-to-be-developed top-dollar real estate.
When critical habitat is designated, the FWS is supposed to go about rehabilitating damaged habitat and protecting existing habitat. Of course, entities like Rancho Vistoso take a dim view of biologists traipsing around their bulldozers and commenting about things like habitat impact. When the FWS began moving toward listing the pygmy owl, the Growth Lobby looked into means of halting the listing.
One of the central arguments against the listing is that the owl's not really endangered--not in Mexico, anyway. Environmental consulting firms like Applied Ecosystem Management and law firms like Snell & Wilmer hired to chop at the proposal reasoned that most of the pygmy owl population is across the border. Any individuals spotted here are colonists on the fringe of their range and should not be considered critical to the species' survival.
The Growth Lobby's main contention is Galvin and the Southwest Center are not seeking to protect the owl, but rather, are out to halt growth and development around Tucson.
"It's bad science at best," says Alan Lurie, Southern Arizona Homebuilders Association executive vice president. "Their motives are other than preserving endangered species."
Lurie says his association is not opposed to endangered species listings when founded on good science, but he takes exception to the vast stretches of land proposed for critical habitat.
"The impact," Lurie says, "on anything that goes on in that riparian area with all the associated setbacks would be immense."
Mexico has one of the worst environmental records of any country, Galvin says. The range of the pygmy owl in Mexico is the northwestern part of the country. This is an area of rapid development with little or no environmental considerations. Counting on those owls to sustain the species is foolish optimism, he says. While the Tucson basin is close to the northern extent of the owl's range, it's not substandard habitat. In fact, it's one of the best areas for supporting a sustainable population, he claims. But the birds need elbow room.
"There is a high likelihood," Galvin says, "the pygmy owl will go extinct if critical habitat is not listed."
Tim Tibbits, a former FWS biologist who did much of the research determining the owl's status, agrees with Galvin.
Tibbits, currently a National Park Service biologist, says, "It would need its remaining habitat protected, which could be done, and it would need additional, high-quality habitat to be recovered. That would primarily be those cottonwood and mesquite woodlands along major rivers."
Galvin admits his organization has motives other than just saving the owl. Slowing growth in and around Arizona's most sensitive riparian areas is a good idea for many reasons, he argues.
"This is not about stopping things," Galvin says. "It's about starting things."
DURING A HIKE through Honeybee Canyon, Galvin argues that protecting the owl will not imperil the local economy. It merely requires that local industries take better care of the environment. "All we want," he says, "is to move the houses away from the canyon and take the cows out. Nobody's life is depending on whether they can graze a cow in this canyon bottom."
In fact, Galvin sees protecting the pygmy owl and its habitat as a boon to the economy and wildlife alike.
He outlines a possible future for Tucson in which its riparian areas are restored and water actually flows, as it did in the past, in its rivers. This blending of urban and wildlife environments could generate income, Galvin explains. Tourism will increase in an aesthetically and ecologically beautiful city. The quality of life would improve for residents, who could picnic and let their children play in the cool environs of a cottonwood forest.
Finally, Galvin points out that when we damage our environment, we damage our future. Replacing a viable watershed will serve this desert city better than creating another golf course or housing development. Tucson needs housing and industry, but not in its washes and rivers, he says.
As far as the expense of restoring all this riparian habitat goes, Galvin sees it as money well spent.
"You'll be spending that money on other species as well," Galvin says, "because riparian areas are where almost all our imperiled wildlife lives. According to the Fish and Wildlife Service, 80 percent of our threatened and endangered species in Arizona require riparian areas for some portion of their life cycle.
"The U.S. spent more money last year on Domino's Pizza," says Galvin, in reference to international advertising subsidies, "than it did on critical habitat restoration."
He says what endangered species conflicts are really all about is a lack of planning. With a little foresight, housing could be constructed and industry could continue without unduly damaging wildlife. It's only when greedy individuals insist on destroying ecologically important habitat that lawsuits need to be filed, he says.
Humphrey says those kinds of lawsuits can be avoided. With a little flexibility and a few modifications most projects can go forward, he maintains.
"Records indicate less than one-tenth of one percent of projects are canceled altogether, and no projects have ever been canceled in Arizona," Humphrey says. "We try to be as inventive and creative as possible while still protecting the species."
But Galvin asserts the FWS is often too creative. He notes battle lines are being drawn in the foothills of the Tortolita Mountains, just north of Tucson. This is one of the Tucson basin's most rapidly growing areas, and the proposed location for the massive RedHawk development. It's also home to several pairs of nesting pygmy owls.
"The exact area you find the pygmy owls," says Galvin "is the area targeted for development. We're very nervous about the owl's future."
Dennis Parker, a biologist for Applied Ecosystem Management, says the evidence for determining what was historically important habitat for the owl is slim at best. Parker is the man the Southern Arizona Home Builders Association and the Arizona Mining Association refer reporters to when they inquire about the owl.
"Some of the area proposed for critical habitat, for instance Arivaca Creek, has no record of the owl," says Parker. "So the question would be why are they proposing critical habitat there?"
Parker believes it's simply a matter of using a fringe species to remove large sections of the state from possible development.
"The more of these fringe species they try to list," he says, "the more credibility they're going to lose."
Parker reasons that ultimately efforts like these will cause public opinion to move away from supporting the Endangered Species Act.
He suggests a reporter talk to the Arizona Game & Fish Department, because they're a government wildlife agency opposed to the listing. But a local AZGF biologist says he's been instructed to refer all information requests to the Phoenix office.
Galvin believes AZGF has been muzzled by Gov. J. Fife Symington III appointees and pro-growth officials.
"It's a shame," Galvin says, "because Arizona had one of the best game and fish departments in the country. They've been effectively neutered."
Nonsense, says James Burton, AZGF habitat chief in Phoenix and the man fielding media calls about the pygmy owl.
"I'm not muzzled or controlled by anybody," says Burton. "I guess Mr. Galvin has a problem with Arizona Game & Fish, but the bottom line is there is a single spokesman here. My job is to formulate opinion for the AZGF department on this issue. That is not the job of the local biologists."
When asked why AZGF opposed listing the pygmy owl, especially in light of the bird being on AZGF's own list of imperiled species, Burton said the agency is not opposed.
"I would not put it that way. I would say the Arizona Game & Fish Department did not support listing at this time.... There are mechanisms to protect that species with or without the listing."
Burton declined to be more specific regarding when and how AZGF will protect the owls threatened by the upcoming developments. He said the agency is working toward conservation strategies that may take a variety of forms.
Galvin says Parker and Burton are part of a whole army of "biostitutes" hired by the Growth Lobby and minions appointed by the anti-environmental state government. Galvin says he hopes once the public sees the result of protecting the owl, forested river banks, running streams and abundant wildlife, they'll agree the Endangered Species Act is doing its job.
"The Act was passed for a reason, and if it causes some people a little discomfort in their profit plans, that's the way it goes. Biologically, (the FWS) agreed with us every step of the way, but they had to be dragged kicking and screaming. It's possible it's too late for the pygmy owl, I have to admit, but I don't see that as a reason to give up."
Galvin predicts the FWS will bow to virtually any development pressure and will sell out the owl.
"The Fish and Wildlife Service," says Galvin, "is notoriously weak-kneed."
The Southwest Center plans to begin a "pygmy watch" to maintain a vigil over the owl's habitat. If the FWS fails to step in and protect the owl, Galvin says, Southwest Center lawyers stand ready to hurl lawsuits at them.
Photos By Sean Justice
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