A Federal Judge Tells The Endangered Pygmy Owl To Drop Dead. By Jim Nintzel FEDERAL JUDGE FRANK Zapata ruled last week that the Amphitheater School District could build a new high school on property which local biologists believe is prime habitat for the endangered cactus ferruginous pygmy owl. The national group Defenders of Wildlife had sued the district, arguing that the construction would violate the Endangered Species Act by destroying the owl's habitat. In his preliminary ruling, Zapata wrote that he believed the testimony of state, federal and private biologists established that a pygmy owl was using a portion of Amphi's property. But he said the plaintiffs had failed to prove that construction of the school would harm the owl, especially since Amphi had promised to not develop the area the bird evidently frequents. "We're very happy with the ruling," says attorney Lisa Anne Smith of DeConcini-McDonald, the law firm which represented Amphi. "We think it was right. Based on what the legal standard is, they didn't--and they don't--have the evidence to prove an owl was actually going to be harmed by the district's project." Amphi officials moved ahead on the plans to build the school. At an Amphi Board meeting on Tuesday, May 11, the board was scheduled to accept a bid to begin grading the land. But it could be some time before the bulldozers have a chance to roll. First comes a paperwork exchange that could take up to 15 days, which will be followed by the court's Memorandum of Opinion and Findings of Fact and Conclusions of Law. With that final ruling, Zapata will presumably lift the injunction which is now preventing Amphi from beginning construction. But the environmental organization that filed the suit say the fight isn't over yet. William Snape, legal affairs director for Defenders of Wildlife, says the group is working on its legal strategy in the face of the defeat. "Obviously, an appeal is first and foremost leaping to our minds, but there are a lot of issues and potential motions that can still and probably will still take place at the trial court level," Snape says. "I'm not in a position to share all the details with you, but suffice it to say we are looking exhaustively at all our legal options and we continue to think, ironically, what the judge concluded--while we don't agree with his conclusions--some of the facts he acknowledged really do greatly cut in our favor." Snape says Zapata's ruling that an owl is using part of Amphi's property could give the Defenders of Wildlife a vital issue in the appeals process. If the group decides to appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco, it will have to seek another injunction to prevent Amphi from building the school and destroying the habitat. If they're successful in getting that injunction, the school's construction could be tied up for months or even a year. Smith said Amphi would strenuously fight further attempts to delay construction. "We would object that, because kids need someplace to go to school and the district needs to get moving on the project," Smith says. Snipe says he's still not certain Defenders of Wildlife will file an appeal. "It seems very likely, but we have not make any final decisions yet," says Snipe, who promises that if an appeal comes, it will be quick on the heels of Judge Zapata's final ruling. "The issue is not whether we have the inclination or the gumption or the guts to do this. There's a number of strategic issues we're looking at. We continue to strongly believe building a school on this site is highly inappropriate."

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