Ruling: Army Corps acted correctly on endangered owl

Arizona Daily Sun-
Thursday, July 14, 2005
Ruling: Army Corps acted correctly on endangered owl
07/13/2005

TUCSON (AP) — The Army Corps of Engineers correctly declined an endangered species consultation over the impact of two planned developments on a small Arizona owl, an appellate court ruled Tuesday.
The 9th U.S. Circuit Court of Appeals upheld a lower court decision that the corps had not acted arbitrarily or capriciously in finding that the developments would have no impact on the cactus ferruginous pygmy owl, which environmentalists had argued was a distinct population group.
In an earlier ruling, the 9th Circuit had found that the U.S. Fish and Wildlife Service had not shown a rational basis for finding and listing the pygmy owl as a discrete, or distinct, population segment from pygmy owls in Mexico and Texas.
The District Court had granted a summary judgment in the corps’
favor on a lawsuit brought by Defenders of Wildlife and the Center for Biological Diversity.

Fish and Wildlife had objected to the Corps of Engineers’
preliminary determination that a master-planned community in Marana, Ariz., called the Continental Reserve project would not affect the owl, stating that the project area amounted to "a movement corridor"
for the owl and "likely provides nesting, roosting and foraging habitat."
The agency also objected later to a similar stance by the Corps of Engineers concerning the Entrada de Oro master planned community in Pinal County.
The corps noted that after the area was no longer designated critical habitat for the owl, it withdrew its request for consultation with the Fish and Wildlife Service.
A majority of three-judge panel noted that its earlier decision cast doubt on the status of the Arizona pygmy owl "and would seem to require its delisting" as a discrete population segment.
While the court could have relied on that ruling in affirming its judgment, two judges said that "out of an abundance of caution" they reviewed the lower court’s decision from scratch "and hold that the decision rested on the firm foundation that no pygmy owls had been found to live within either project area."

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