TUCSON, Ariz. - As a bulldozer rolled across a patch of desert, Esther Underwood smiled. It was a brisk, windy December day at the edge of one of Tucson's rapidly growing suburbs as the dozer scooped up desert scrub and knocked over prickly pear and cholla cacti.


"Isn't that pretty?" Underwood said of the bulldozer. "It's the prettiest thing I've ever seen. This is a good day for the children, for the entire community. It's our holiday gift."


Underwood had led a group of parents backing Amphitheater School District's plans to build a new high school here, within the habitat of the endangered cactus ferruginous pygmy owl. The district's existing schools are jammed beyond capacity.


On Nov. 23, the 9th Circuit Court of Appeals in San Francisco gave the district (-Amphi" for short) what it wanted. The court ruled that environmental groups had failed to prove that building the high school would harm the owl. The following week, the court lifted an injunction that had halted construction for over a year.


Within two days, bulldozers had cleared 85 to 90 percent of the school site. Workers left behind huge saguaros and palo verde and ironwood trees standing amid bare dirt.


The clearing marked Tucson-area environmentalists' single biggest defeat since their efforts to save the Sonoran Desert went into high gear three years ago. It was a particularly bitter pill for the Center for Biological Diversity (formerly the Southwest Center for Biological Diversity), which had won a string of lawsuits over the owl against developers and local and federal agencies (HCN, 8/30/99).


For the school district, which had endured a bruising internal conflict over the high school, it was a huge boost. As Underwood watched the crew work, she envisioned watching her son graduating from the new school, walking down the aisle with his diploma and "seeing his mother and father sitting in the audience and congratulating themselves on a job well done."





Owls vs. kids


It started in April 1997, about one month after the U.S. Fish and Wildlife Service listed the pygmy owl as endangered. That month, local newspapers reported that state Game and Fish Department biologists had seen an owl "consistently and persistently" in an adjacent old-growth forest of saguaro cacti and ironwood trees. At the time, only a dozen or so of the pygmy owls were known to live in Arizona. Biologists have since raised their count to about 80.


Five months after the owl was listed, the Fish and Wildlife Service put a hold on school construction while it studied the project's effect on the owl. School officials feared that they would lose the $1.78 million they had spent buying the site, along with hundreds of thousands more already spent on engineering and design work.


Underwood and a handful of other organizers formed a group called Citizens Committed to Kids' Education. They attended hearing after hearing to show their support for the district, and wore yellow ribbons to drive home their point that they felt their school was being held hostage to the owl.


The district sidestepped federal regulation by shifting the school site to avoid a huge wash. That allowed it to drop its application to the U.S. Army Corps of Engineers for a federal wash-crossing permit, and removed the hook that allowed the Fish and Wildlife Service to stall the project.


But the Center for Biological Diversity kept the project tangled in the courtrooms, and in July 1998, the school's construction was indefinitely shuttered when the 9th Circuit Court issued an injunction pending a final hearing. The district's legal bills rose to more than $200,000, and it laid out another $200,000 for security guards to patrol the vacant school site, saying it feared saboteurs might plant owls there. In all, the delay cost the district about $3 million.


School board member Nancy Young Wright and other dissenters urged the district to cut its losses and find another site. But Underwood and her allies held their ground. "You don't throw away millions of taxpayer money because an eco-freako group says don't build there," Underwood said. "The environmentalists do this on purpose to raise costs to make it harder for us to fight."





An open door for development


The November ruling by the 9th Circuit Court of Appeals was a victory for the school district and developers both, according to Jonathan DuHamel, who heads the Tucson-area chapter of People for the USA. "It may take some pressure off the property owners," he said. "Before the Amphi case came down, the perception was that if there were owls on or near a site it was completely restricted. But now, maybe we can live with the owl."


Kieran Suckling with the Center for Biological Diversity called the ruling "a moral defeat for the environment." The courts were asking environmentalists to "show me a dead body" of an owl before they would stop construction of a project, he added, and "that is a standard of evidence we can't possibly meet until it's too late."


In each of the past two years, the State Game and Fish Department has radio-tracked four owls living close to the school site, said Scott Richardson, the department's urban wildlife biologist. "The biggest threat facing pygmy owls is the loss of and fragmentation of habitat," he said. "Any activity that contributes to that has a significant effect."


Environmentalists made a last-ditch effort to stop school construction. They asked a judge to issue another restraining order on the district because the U.S. Environmental Protection Agency had issued Amphi's rainwater discharge permit before the federal government designated the school site as critical owl habitat in July 1999.


The day crews started clearing the site, the EPA sent the district a letter warning that the school construction might no longer be legal. But two judges turned down requests for injunctions. Meanwhile, Amphi officials declared an emergency, which allowed them to start work without school board approval.


The district hopes to open the high school by fall 2001. "The sooner we can start, the better, and the sooner we can get kids in school, the better," said spokesman Rob Raine.


"I guess they (district officials) think the end always justifies the means," said school board member Nancy Young Wright. "I don't agree. I think we set a very poor example for the future."


* Tony Davis





The author reports for the Tucson Arizona Daily Star.





You can contact ...


* Rob Raine with the Amphitheater School District, 520/696-5151;


* Kieran Suckling with the Center for Biological Diversity, 520/623-5252;


* Jonathan DuHamel with People for the USA, 520/743-9415.