A darling of developers, consultant gets five years’ probation and $5,000 fine

TUCSON, ARIZONA — It seemed like a novel money-making idea in the high-flying world of Arizona real estate: Take endangered cacti from a patch of ground about to be bulldozed, and transport them somewhere else — to a piece of land where their presence might actually raise the real estate value.

But more than two years after a helicopter airlifted 30 Pima pineapple cacti from land near suburban Green Valley to a ranch outside of Tucson, the consultant who helped engineer the transplant has pleaded guilty to doing it illegally. Mary Darling, 48, admitted to violating the federal Lacey Act when she moved the endangered plants without a state permit.

Darling has long been involved in high-profile issues, generally on behalf of the business community. But on Nov. 12, she agreed to stop calling herself an environmental consultant, and to stop performing environmental consulting work for five years. She also agreed to a $5,000 fine, 90 days of home confinement, five years of probation and 250 hours of community service.

The case dates back to July 2001, when Tucson real estate broker Philip Aries hired Darling to prepare a biological assessment for the Winter Haven Ranch, a 1,700-acre property about 35 miles southwest of Tucson. He hoped the cacti would raise the property’s value by making it eligible for federal certification as a “mitigation bank,” according to an investigation by the Arizona Department of Agriculture. Mitigation banks allow developers who buy credits on preserved land containing endangered species to destroy such species on other property.

Darling, who has a law degree and two degrees in biological sciences, told Aries that it was illegal to drive the plants off the property without a permit, but that she believed they could fly the plants without a permit, Aries recalls. Aries says he realizes in hindsight that Darling’s claim was silly, “but she was the absolute authority in the market. She told me and several other people that she had researched it with the FAA and other attorneys.”

Aries denies that he was trying to raise the property’s value; he says he was simply trying to make it viable as a mitigation bank. He later turned Darling in to the authorities.

How complicated can it be?

Mary Darling has worked for developers, the Pima County government and Amphitheater Public Schools. She was a biological consultant for Amphitheater in 1997, when the U.S. Fish and Wildlife Service put the district’s construction of a new high school on hold to protect the endangered pygmy-owl.

In a letter written that September, Darling told the district that she hoped to work with it “to change the course of events positively. Misuse of the Endangered Species Act by a federal agency and a certain private segment of our society is counterproductive to the true purpose of the act.”

With Darling’s help, the district later won a two-year legal battle, clearing the way for the construction of the high school in pygmy-owl habitat. She opposed the 1997 pygmy-owl listing that soon could be reversed by an August 2003 court decision (HCN, 10/13/03: Pygmy-owl may lose protection). She argued that, among other reasons, the pygmy-owl in Arizona didn’t warrant federal protection because Arizona lies at the northern edge of the bird’s range, which dips far into Mexico.

The cactus-moving case calls into question her credibility as a biologist, critics say. The pineapple cactus lives only in southern Arizona and northern Sonora, Mexico. All but 1,500 of 3,800 cacti found in the wild in the United States have been removed for development and other reasons, according to the Fish and Wildlife Service.

“We are trying to find a way to recover the species, and the movement of them is contrary to its survival and recovery,” says Sherry Barrett, the U.S. Fish and Wildlife Service’s southern Arizona field supervisor. The ranch wasn’t suitable pineapple cactus habitat because other plant species commonly associated with the cactus were missing and because it didn’t contain the right soil type, said Mima Falk, a plant ecologist for the service: “It just didn’t look right to me.”

Darling wrote to her clients on Nov. 18, acknowledging a serious error in judgment. While she will no longer act as an environmental consultant, she assured clients that her company, Darling Environmental and Surveying, will continue operating.

“It wasn’t a bad deed. It wasn’t like she dug up and killed the cacti,” says Michael Piccarreta, Darling’s lawyer. “She made a mistake and she owned up to it.”

In a prepared statement, Southern Arizona Homebuilders Association executive vice president Edward Taczanowsky said that Darling has been a great asset to the community as an environmental consultant: “The Endangered Species Act has become so complex, we understand how someone could violate it.”

Craig Miller, southwest director for Defenders of Wildlife, begs to differ: “The (Endangered Species Act) is very straightforward in its attempt to balance wildlife with human activities. The complexity arises when people attempt to circumvent the law for profit or personal gain.”

Tony Davis writes for the Arizona Daily Star in Tucson.

Darling Environmental and Surveying 520-298-2725
Fish and Wildlife Service Sherry Barrett, Southern Arizona Field Supervisor, 520-670-4617