Freed by court, Amphi clears its school site

Saturday, 4 December 1999
http://www.azstarnet.com/public/dnews/1204N04.html
Aaron Latham,
The Arizona Daily Star

By Pila Martínez
The Arizona Daily Star

Construction vehicles rolled into Amphitheater's two-year legal battle with environmentalists shortly after dawn yesterday when they began clearing the desert habitat of the endangered pygmy owl.
The controversial location at North Shannon Road and West Naranja Drive is where the district plans to build its third high school.
``We saw the first tree make room for our children,'' said Esther Underwood, whose son, an eighth-grader, will attend the new school when it opens in 2001.
Underwood gathered at the site along with other parents and district officials around 7 a.m., steam escaping from their smiling lips as the dense desert scene was steadily turned into smooth dirt.
``We came out,'' she said, ``because this has been a long two-year process.''
It was a quick start to a project that has been stalled since March 1998, when environmental groups were granted an injunction that stopped work until they could make their case that the construction would harm the pygmy owl.
Those environmental groups - Defenders of Wildlife and Center for Biological Diversity - objected to yesterday's work and sought a court order to stop it. Their request was rejected on a technicality.
The most recent action was sparked Thursday afternoon when district officials learned a three-judge panel of the 9th U.S. Circuit Court of Appeals had lifted the injunction, the signal they needed to start work.
``We said we would proceed as soon as possible and that's what we've done,'' said Rob Raine, a district spokesman.
While pygmy owls have not been spotted on the site, the Arizona Game and Fish Department said in January 1997 that they had been seen often within a quarter-mile of it.
Defenders of Wildlife and the Center for Biological Diversity sued the district. But in June 1997, U.S. District Court Judge Frank Zapata ruled that evidence showed the owls could handle low-density development and associated activities.
The groups then appealed to the circuit court, which on Nov. 23 issued a finding upholding Zapata's ruling.
Yesterday, the environmental groups said there were still unresolved issues.
``I think it's an incredible act of bad faith to be clearing the land,'' Bill Snape, legal director of Defenders of Wildlife, said from his office in Washington, D.C. ``I find that unconscionable.''
Craig Miller, the southwest representative for Defenders of Wildlife, accused Amphi of rushing into construction to make preservation moot.
``Amphitheater is more interested in doing as much damage as they can to further justify pushing ahead with this,'' Miller said.
They accused the district of jumping the gun, saying the U.S. Environmental Protection Agency had failed to resolve concerns about the water permit issued for the construction in May 1998.
The groups filed a motion in U.S. District Court in Tucson yesterday afternoon seeking an emergency hearing on their request for a temporary restraining order that would bar Amphi from doing any further work.
In the motion, the groups alleged the EPA had failed to carry out its duties under the Endangered Species Act by ``unlawfully failing to analyze - and consult the Fish and Wildlife Service on - the adverse environmental impacts of issuing stormwater discharge permits and associated developments in the range of the critically endangered cactus ferruginous pygmy owl population in Arizona - in particular habitat that has been designated as critical to the survival and recovery of the species by the FWS.''
Stormwater discharge permits are issued for construction projects.
Zapata refused to consider the request because of a technicality. Kieran Suckling, director of the Center for Biological Diversity, said he planned to file another request today, if a judge would hear it.
The EPA permit is under review but a decision was not expected before Monday, said David Schmidt, a spokesman for the EPA's regional office in San Francisco.
In a letter sent yesterday to the district's construction manager, Michael Orr, the EPA said the permit might be invalid because paper work filed at the time it was requested said the drainage was ``unlikely to adversely affect listed species or critical habitat.''
The director of the EPA's water division, Alexis Strauss, further wrote that any discharge at the site ``might not be authorized'' and that Orr could present more information if the district believed it was still eligible for the permit.
Superintendent Robert Smith could not be reached for comment.
Raine said the district was unaware of any review or concerns about the permit.
``We've got authorization from the court to build on the site. So that's what we're doing,'' he said.
The district needs the school, which will be able to take up to 2,500 students, to ease crowding at Canyon del Oro High School.


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