In a recently published opinion, the U.S. Ninth Circuit Court of Appeals allowed construction of a high school in Tucson, Arizona, despite contentions from environmentalists that the school would harm an endangered owl. The case involved differing opinions by experts and the trial judge's exclusion of testimony by two experts called by environmentalists. The Ninth Circuit ruled that Federal District Judge Frank Zapata did not rule unreasonably, and the three-judge appellate panel upheld the decision. The Ninth Circuit initially entered its decision last fall as a memorandum disposition. But the court on February 28 redesignated its ruling as an authored opinion by Chief Judge Proctor Hug Jr. In 1994, the Amphitheater School District purchased 73 acres in northwest Tucson as the site for a 2,100-student high school. After initial planning, the district purchased 17 more acres and shifted the proposed school site to avoid 30 acres containing three "dry washes." Construction in the seasonal waterways would have required an Army Corps of Engineers permit under the Clean Water Act and set off a consultation with the U.S. Fish and Wildlife Service regarding endangered species. When the district began clearing the remaining 60 acres in March 1998, the environmental group Defenders of Wildlife filed suit. The district court issued a temporary restraining order to halt the site work. During a three-day trial, Defenders of Wildlife argued that school construction would result in an unlawful "take" of a cactus ferruginous pygmy owl, an endangered species. But Judge Zapata ruled that there was inadequate evidence the rare bird would be harmed or harassed within the meaning of the Endangered Species Act (16 U.S.C. §§ 1531-1543). Zapata refused to grant the permanent injunction sought by Defenders of Wildlife, and he lifted the temporary restraining order. In reviewing the harm and harassment claims under the "clearly erroneous standard," the Ninth Circuit held that Zapata ruled correctly. "He [Zapata] observed that while the inference that an owl uses the 30 acre parcel is based on solid factual premises and well-founded expert opinion, the allegation that the construction of the high school will harm the owl lacks this support and is weakened by seemingly inconsistent facts," Hug wrote. "He noted that there was evidence that the owl can tolerate and even benefit from human activity, and that Defenders have only offered speculation that the activity associated with the school would harass the owl. He observed that the experts made little or no attempt to support their opinions with recorded observations of pygmy owls in similar circumstances or to draw analogies from other similar birds," Hug continued. Thus, Zapata's factual findings were not clearly erroneous, the court ruled. The court further ruled that Zapata acted appropriately in excluding testimony by a conservation biologist and by a Fish and Wildlife Service expert. The biologist conceded he could offer "an opinion as to the viability of the pygmy-owl population" but could not address this specific site. The Fish and Wildlife Service has a policy of preventing staff members from testifying in civil cases, and Zapata agreed that compelling testimony would place an undue burden on Fish and Wildlife Service employees. The court also ruled that the school district did not have to apply for an incidental take permit because applying for such a permit is not mandatory under the Endangered Species Act. Finally, the court ruled that Zapata correctly denied a motion for a new trial. Defenders of Wildlife sought a new trial under Federal Rules of Civil Procedure 59(a). The organization argued that the school district's last-minute pygmy owl survey was unscientific, that physical evidence was discovered after the trial that could indicate a pygmy owl presence, and that the court should have granted a continuance to allow Defenders to survey the site. The Ninth Circuit dismissed all three arguments. Defenders should have challenged the district's survey with their own expert during the trial and could have sought access to the sight during the pre-trial discovery period, the court ruled. "In addition, physical evidence that could indicate the presence of a pygmy owl on the site is not of the magnitude that would likely change the outcome of this case," Hug wrote. In a concurring opinion Circuit Judge Betty Fletcher warned others not to read too much into the decision. At the time of the lawsuit, the Fish and Wildlife Service had not designated critical habitat for the pygmy owl. Another lawsuit forced the Fish and Wildlife Service to act, and it designated 731,000 acres of critical habitat, including the school site, in July 1999. Federally permitted or federally funded projects within the area are affected by the designation. Fletcher noted this case was decided based on Defenders of Wildlife's evidence, not on the basis that a critical habitat designation does not apply to a private projects, such as the school. "We do not hold that the designation of critical habitat will never have any bearing on actions on private lands within designated critical habitat, and thus, our decision has limited value for any other case involving either the pygmy owl or private lands that lie within the mapped boundary of designated critical habitat," she wrote. The Case: Defenders of Wildlife v. Mike Bernal, No. 98-16099, 00 C.D.O.S. 1477, 2000 Daily Journal D.A.R. 2103, filed November 23, 1999, published February 28, 2000. The Lawyers: For Defenders of Wildlife: Eric Glitzenstein, Meyer & Glitzenstein, (202) 588-5206. For the school district: Denise Bainton, DeConcini, McDonald, Yetwin & Lacy, (520) 322-5000.