Pygmy owls and property rights

The political history of the Cactus Ferruginous Pygmy Owl plays large in Pima County, Arizona. Once again, radical environmental groups are trying to get the owl listed as an endangered species.

The Defenders of Wildlife and the Tucson-based Center for Biological Diversity are suing the U.S. Fish & Wildlife Service (FWS) to list the owl as endangered (See story in Arizona Capitol Times). They tried the same gambit two years ago (See Arizona Daily Independent story).

The pygmy owl is a natural resident of Mexico with an occasional fringe population in Southern Arizona. I will write more on its natural history in a future article.

Our story begins in the 1990s. The Amphitheater School District purchased land in March, 1994, to build a new high school in northwest Tucson to relieve overcrowding. Groundbreaking was scheduled for October 1997. But, the school district ran into a double whammy from the Endangered Species Act.

A dry wash on the property, which had water two or three days a year, was deemed a “wetland” which required a “404” permit from the Corps of Engineers. The pygmy owl was listed as endangered April, 1997, after a lawsuit brought by the Center for Biological Diversity (then called the Southwest Center for Biological Diversity). The FWS put a hold on the 404 by demanding an impact statement.

In 1997, we saw the following headline in the (now defunct) Tucson Citizen: “Owl habitat expanded across city, virtually every vacant lot affected.” The FWS issued “guidelines” covering the Tucson area which would require private land owners to obtain a biological assessment and a federal permit costing over $3,000 before any land clearing could take place. The FWS guidelines recommend that developers start surveying for owls if their property lies below 4,000 feet and has saguaros, ironwoods, mesquite or palo verde at specified heights and diameters. If a survey finds owls in or near a property, the owner should contact the FWS for mitigation requirements. The government says the guidelines aren’t mandatory, but federal officials warn that those who don’t follow them face lawsuits or prosecution if any owls are harmed.

Pima County supervisors refused to issue building permits for private land in the area, until their lawyer told them that the ban was illegal.

By the way, no owls were observed on the school land, but it was “potential habitat” requiring all the expensive surveys. USFWS admitted in the Federal Register that “he total number of pygmy-owls and their distribution in Arizona are unknown. Survey and monitoring work in Arizona resulted in documenting 41 adult pygmy-owls in 1999, 34 in 2000, 36 in 2001, and, most recently, 18 in 2002.”

The Amphitheater high school was eventually built after two years of litigation and expenditure of about $1 million in taxpayer money.

USFWS maintained that the endangerment finding was warranted because the Arizona population of pygmy owls was a “discrete population” which ignored the main population in Mexico. Lawsuits by the National Association of Home Builders and the Southern Arizona Home Builder Association sued FWS. The court found that the listing rule did not articulate a rational basis for finding that the discrete population was significant to the whole subspecies. The Cactus Ferruginous Pygmy Owl was removed from the Endangered Species List in 2006.

The Amphitheater high school was eventually built after two years of litigation costing about $1 million in taxpayer money.

That’s only half the story.

In 1998, Pima County used the endangerment listing of the owl as an excuse to institute its very ambitious, but scientifically flawed, Sonoran Desert Conservation Plan. The legal idea behind SDCP was to obtain dispensation from FWS in the form of an Incidental Take Permit under section 10 of the Endangered Species Act. This allow county public works to proceed even if they would incidentally harm some endangered species. To do that the County had to specify which species it was going to protect and how it would do so. SDCP would allow private land owners to opt into the plan and come under its umbrella, but there were strict requirements for land use.

Pima County has yet to obtain a Section 10 permit, but they have incorporated many of the Plan’s land use restrictions into County Code. Property owners are left with the restrictions, but none of the alleged benefits. The County has spend millions of dollars acquiring private land to use as “mitigation” areas. As far as I can tell, there is no action by FWS or Pima County to proceed with the formal Conservation plan.