US Court of Appeals: US wrongly put water tanks in Kofa National Wildlife Refuge
Water tanks illegally constructed in Wilderness-
Back to the issue of construction of wildlife facilities in designated Wilderness areas, although there are many more issues here than the one before the court. One must not lose sight of that.
US Court of Appeals: US wrongly put water tanks in Kofa National Wildlife Refuge. Tony Davis. Arizona Daily Star.
Dr. Ralph Maughan is professor emeritus of political science at Idaho State University. He was a Western Watersheds Project Board Member off and on for many years, and was also its President for several years. For a long time he produced Ralph Maughan's Wolf Report. He was a founder of the Greater Yellowstone Coalition. He and Jackie Johnson Maughan wrote three editions of "Hiking Idaho." He also wrote "Beyond the Tetons" and "Backpacking Wyoming's Teton and Washakie Wilderness." He created and is the administrator of The Wildlife News.
38 Responses to US Court of Appeals: US wrongly put water tanks in Kofa National Wildlife Refuge
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This is one of those cases where one really needs to read the opinion, rather than rely on some hack reporter’s version of what it means.
Three key facts from this opinion:
1. Tempuratures up to 120 degrees in summer; rainfall of 7 inches; 45 species surviving in these harsh conditions. Big horn sheep populations in flux and going down periodically.[Drought has become a reality in a climate changing world.]
2. President FDR established Kofa Game Range by executive order in 1939, expressly designated for the “conservation and development of natural wildlife resources,” and it was understood that preservation of bighorn sheep was one of the principal reasons.
3. Congress established a wilderness area that includes 82 percent of Kofa in 1990.
With wilderness designation comes the very restrictive management for “wilderness character.” Kofa must be managed for its dual purposes as a refuge and wilderness designations.
That is the issue of the case, and whether FWS breached the Wilderness Act by building two largely underground water features to benefit wildlife – one just barely in the wilderness, and the other within two hundred yards of a designated road well in Wilderness. FWS, despite knowledge of wilderness values went ahead, apparently without sufficient justification, for its project including use of mechanized vehicles for a period of three freaking days to get the job done.
I understand the wilderness issues at stake and the reasons for challenging what FWS did. However, this is another one of those instances that arguably turns the Wilderness Act on its head, where motives are good. It also serves as a concrete example of why, in certain instances the purpose of the Equal Access to Justice Act (which reimburses groups like these environmental organizations) their legal fees if they win) is not always a good thing.
Maybe this was one of those cases that shouldn’t have been filed on common sense grounds in the first place.
Link to 9th Circuit opinion:
As I wrote in the post, you can’t really understand this case properly if you focus on the Wilderness issue.
From what I’ve gathered from past discussions, the tanks themselves are considered by many to be a big problem regardless of where they are located because
1. the bighorn sheep don’t use them, although that was the intent of constructing them
2. deer do use them, and the deer population has increased with the result that
3. cougar can now make a living in the area, and they prey on bighorn as well as the deer
Since WWP is a nominal plaintiff, you may have alot more facts than what appear in the opinion. I am not familiar with the matter, other than what I have read recently.
Other than a quick reference to the apparent conclusion that the sheep are not using the water sources as much as FWS had hoped (they have only been installed 3 or 4 years), I didn’t see references to the increased deer population or the reliance of cougar on them in the opinion. No hard conclusions were reached by FWS on the extent of cougar predation on sheep, from what I read.
This was a 2/1 decision. Judge Graber, who wrote for the majority is a good judge; Tashima (senior status) is considered one of the liberal wild cards the 9th Circuit is noted for (most cases over ruled by the US Supreme Ct.). Dissenter, Bybee, a Mormon, from UT at some time during his past, makes a decent argument that FWS, charged with managing the sheep for the last 70 years should have received deference, and their reasoning for supplemental water was soundly made – based on FWS documents which are pretty comprehensive and through.
If cougar are unwanted (apparently reinhabiting because of deer), it would seem their numbers could be controlled as a part of a the management program to protect sheep, which by the way are a significant translocation source for other sheep management programs and areas in and out of the state.
The legal analysis is pretty much confined to the Wilderness Act and whether FWS adequately justified their decision.
My information is based on past discussions on this blog. I know things are kind of hard to find in the archives, but I don’t have any special knowledge of the area. Ron Kearns seems to be our expert commenter on the issue.
I spent two days there in March 2009.
I am beginning to understand your earlier direction. I just pulled up a site in which Mr. Kearns listed a chronology of cougar activity at Kofa from 2003-2008 (stops there). This is bigger now than the FWS Executive Order Refuge mandate of 1939 to protect sheep, and the use of supplemental water over the last forty years, to do so. It seems it is now every bit as much about protecting new cougar populations snacking on the sheep, and drawing down their population.
Now that cougar are appearing here, apparently through habitat improvement by adding water, animal rights activism (don’t kill the cougar) is playing a bigger role. Cougar presence has an impact on sheep populationn, AZFG and FWS now say. Conflicting wildlife management objectives are in play again.
Perhaps Mr. Kearns (retired former Kofa Wildlife Refuge biologist and disinfranchised volunteer) can enlighten us (me), how things stand if he is monitoring this discussion.
– Proposal to remove individual mountain lions for depredation on sheep NEPA EA scoping document:
– News article 9/2/09discussing lethal removal of a particular mountain lion responsible for killing 15 sheep, and developing an average kill rate of one every 10 days: http://www.yumasun.com/articles/lion-52539-management-kofa.html
-News article 5/30/10 – “Mountain Lion Plan Angers Conservationists” : http://www.yumasun.com/news/conservationists-61347-lion-angers.html
This Kofa NWR is one place that I have always wanted to visit. I am not up to the particulars of this but do know that the Kofa NWR and Wilderness is not the only area in this Southern Arizona landscape to have these water facilities. There is also the North and South Maricopa Wildernesses outside of Phoenix that has these same water facilities in the area and supposeldy for the same reasons. So this court decision might have implications beyond just the Kofa NWR. I know people in the Phoenis Area who have told me of these water facilities that are in the Maricopas.
Ralph Maughan et al.
Thank you for posting the Kofa National Wildlife Refuge Wilderness-related article. The ruling was favorable, although the 9th Circuit Court of Appeals remanded the case to the initial presiding U.S. District Court, District Court of Arizona Judge Mary Murguia for further action. I am not an attorney, so I cannot comment on what those actions might entail in a legalistic vein. This, however, is an excellent forum to discuss the case and the facts since the Western Watersheds Project is a plaintiff in the appeal. My comments that follow are exclusively mine. I am neither speaking for nor am I in current collaboration with any NGO or other persons regarding my statements.
As the then-retired 25.5-year Kofa NWR employee, I first exposed the June/July 2007 construction of these tanks to the original plaintiffs, although I have never been a plaintiff in the case. As a Life Member of both Wilderness Watch and The Sierra Club, I have provided facts relevant to the case. Additionally, as the former Kofa wildlife biologist and Life Member of PEER, I collaborated with PEER attorneys to complete an amicus curiae brief filed with the District Court of Arizona.
Thirty-two years ago, beginning in 1978, I first performed official duties as a Kofa NWR employee working on the original developed watering hole known as (old) McPherson Tank, which is 1.1 miles upstream from the new tank; therefore, it is not a redevelopment of the existing tank as the USFWS/AGFD claim. Furthermore, the USFWS falsely states in the Categorical Exclusion (CE) that the new tank is 0.10 miles into wilderness, when in fact; it is an intrusion of 2.5 times that distance or about 0.25 miles (1/4 mile).
Incredibly, the AGFD biologist who is responsible for building these underground tanks for the Department, who entered false data within an official AGFD waterhole planning document, and who is the only person claiming—anecdotally—that he observed bighorn tracks at new Yaqui Tank soon after construction, gave the following reasoning for new McPherson Tank’s installation within wilderness. His justification turned on the hypothesized disturbance to wildlife the nearby legal road might cause via vehicle traffic. However, the other new artificial waterhole, called (new) Yaqui Tank, is directly adjacent to another legally designated cherry-stemmed road through wilderness. Additionally, the associated drinking trough at Yaqui directly overlays an old-established camping area that the FWS and the public have used for many decades, at least since 1978, based upon my direct knowledge.
The foregoing description is important because one of the first comments during the oral arguments from Judge Bybee (the one dissenting judge out of the 3-judge panel) was that the tank (new McPherson) was only about 1/10 of a mile into wilderness. Therefore, I guess he thinks it only violated wilderness a little bit. Judge Graber correctly countered by stating that the distance did not matter, the 1/10 mile was still a violation of the statute. The false location of 0.10 miles, instead of 0.25 miles still occurs in the appeal’s opinion. I think the government wants this false distance to persist because human nature is such that—as displayed by Judge Bybee’s reasoning and remarks—a partial violation is likely easier to explain away and then allow room for a dissenting vote or some other mitigating allowances afforded to the government. I am unsure if the fact of the distance discrepancy can be relayed/reiterated to Judge Murguia or not, or of its legal relevancy at this stage of the legal process. There is an Internet-accessible audio copy of the oral arguments (December 2009) available for listening to the exact words; I can post a link if there is an interest.
To document my experience with Kofa NWR and environs, in addition to my 25.5-year employment there, I first camped and hiked on Kofa in 1971, I moved to the general area in 1974 following military service, and I have lived here permanently since 1976, for 34 years. I have extensive knowledge of Sonoran Desert flora and fauna and I am a noted authority on desert vegetation, having conducted hundreds of vegetation transects for the government and an environmental company before my continuous employment at Kofa NWR.
I am open to discussing the facts and the false data and information that the AGFD and USFWS used to justify installing these tanks and their subsequent actions/comments. The urgent and secretive nature of these tanks’ emergency construction was unnecessary because bighorn have not used them, as evidenced by thousands of photos from cameras installed at the tanks. (Note; to date, we do not have access to the 2010 camera data.)
This ongoing 3.5-year lawsuit has been a protracted ‘trial’ for me personally, since I spent my entire FWS career working on Kofa NWR. I was a principal contributor in all areas of wilderness planning and law enforcement. This included serving as the principal employee painstakingly verifying the maps and collaborating with the Region 2 Regional Surveyor to delineate the final wilderness boundaries thereby deriving an accurate acreage figure of Kofa wilderness. I performed the final cartographical proofing while volunteering 3 months after my retirement.
The Kofa NWR staff, including the current refuge manager, violated many of the Kofa wilderness protections I helped to establish in the 1996 Kofa wilderness plan, many of which Kofa staffs have followed as de facto wilderness safeguards since 1976.
Bighorns Shun Desert Water Tanks
Thank you for your comments. I will attempt to answer any questions you and others posit.
Retired Kofa NWR Wildlife Biologist, USFWS
Former Federal Collateral Duty Refuge Law Enforcement Officer, USFWS
If you feel comfortable discussing it, what is your belief regarding the FWS and AGFD motivation for putting in these watering aids in arguably illegal areas, which the sheep will not use? Do they regularly use the aids/tanks/whatever in other areas of the refuge?
I am just trying to make sense out of the activities, and the (aviodable?) tension caused by their location inside Wilderness.
Also, apparently there is an inherent legal conflict created by augmenting water supply within the Wilderness portion specifically, in the FWS effort to manage the sheep for higher numbers, while feeling the need to control mountain lions for their feared impacts on sheep?
Also, has there been an increase in wildlife diversity and popoulation overall, which is a direct or indirect result of the water aids that have been developed over your 34 years observing activities in the Refuge?
What do you see for the future, if mountain lion populations are not managed in such a way that the sheep population increases? As I understand from the opinion there are about 9 hunter sheep tags issued as against a sheep population of 400-600. A single mountian lion will take at least that many in a year. How many mountain lions are there now and what is a likely projection if none are removed, and what impacts to sheep?
Sorry for the rambling questions, but this is a really interesting resource management topic with fascinating legal conflicts, and a most refreshing break from discussing wolves.
400-600 sheep per lion per year? I just did some checking, and while I didn’t find sheep specific figures, I did find something by FWS that estimated that a lion could kill as many as two deer a week. Would love to know where the figures came from…
The other question…given the proven impacts of domestic sheep disease on wild sheep as documented on this website, which is the bigger problem…lions or sheep?
The 400-600 sheep is the total number of sheep living within refuge, down from a high of 800+ as recently as 2000. Latest survey from Nov. 10, is 402.
Maybe Ron can tell us whether disease is impacting them as much as other herds, in other locations such as the Yakima – Ellensburg Canyon sheep.
Jim, in California we use 1 deer per week as a maximum lion impact and then it depends upon the ready availability of other prey which could significantly reduce that.
No. A major disease outbreak is not occurring within the Kofa herd as within other areas’ herds noted throughout this blog. The Service and AGFD are conducting disease studies and the results might be released this year.
“…if mountain lion populations are not managed…”
The AGFD & FWS are collaring mountain lions and removing offending lions, “one that has killed at least two sheep within a six-month period.”
“Also, has there been an increase in wildlife diversity…?”
The substantial increase in Kofa waterhole developments/improvements over those 3 decades has very likely allowed an increase in the mountain lion population within Kofa NWR and environs.
I’d love to listen to the oral arguments if they are conveniently available to you.
There is a .wma file at the following link. I learned a lot from listening to the audio. Since it is only 33 minutes long, I encourage everyone interested in this case to listen to it.
Who did the arguments? And is there a opinion here that oral argument would make a difference? My experience in arguing appeals is that briefs are the key element; only if the case is close do the orals make a difference in persuading judges.
Please give a listen to the oral arguments and give us your opinion, which I would like to hear. Then we can go from there. Thanks.
I will attempt to answer your questions today, although I might be somewhat delayed. I do not consider your questions as rambling and this widely respected blog is a good forum to discuss them. To set the stage for further discussions, know that I am a strong advocate for regulated hunting within all national wildlife refuges and I am a member of the NRA, a group that intervened in this case on the government’s behalf.
Interesting tension between helping wildlife survive climate change and drought in Wilderness, and complying with the wishes and intent of the crafters of the Wilderness Act. And an interesting discussion. Will these cases become more common as we continually head into this drought? (Boulder and Denver just had its FIRST measurable snowfall last week, and it was only in the 4-5 inch range..and a dry snow at that). As habitats outside Wilderness continue to be threatened by solar and wind projects, will there be pressure on land and species advocates to accept more man-made aides to the survival of species, especially in a time of high species extinction? Somehow , I don’t think the authors of the Wilderness Act or some of its strongest proponents like Stegner, anticipated these types of facts during their lifetimes.Which is more important–the concept of untrammeled lands, or species health and diversity within those lands aided by man’s efforts? What are ethical concerns given that climate change is causing or accelerating natural processes of drought, and it is, by consensus of scientific research, man-caused?
Jim, I think you have it upon a serious issue: wilderness areas (as originally defined) cannot exist in the long term as mere islands of wilderness surrounded by high use developed areas. What we risk creating is merely a fenceless zoo with all the loss of the “wild” from the wilderness that the very designation sought to preserve.
This is all new to me and this exchange has been very informative. This is one of the best examples of rational, fact filled, courteous and educated discourse I have seen in a while and I applaud all the contributors so far. I look forward to the rest of the discussion.
WM had several questions that I can best answer by separating them out individually and allowing others to reply under each paragraph and I can further expound, as needed.
Motivation for the tanks:
I think the motivation behind these tanks’ installations derives from the AGFD’s aggressive game management style and wilderness is an impediment to that goal. Two principal actors were responsible for the decision to place McPherson Tank within wilderness. I have given their names in other essays and public documents so I will include them here. They are Mr. John Hervert, AGFD Region IV Wildlife Program Manager, and Mrs. Susanna Henry, then-Assistant Refuge Manager Kofa NWR, now refuge manager. During my years at Kofa, I had conflicts with both individuals regarding wilderness issues that I will not discuss now. Suffice to say that both have displayed disrespect for wilderness. Prior to my retirement, I was able to prevent new waterholes within wilderness. As the refuge biologist, I was the lead employee tasked with the duties to determine the best construction sites for new waters within Kofa. My main guidance was that construction would not occur in wilderness because there were other nonwilderness areas available and we must ensure the necessity of any new waters through a scientific approach.
Within 1.5 years of my retirement, the AGFD/FWS constructed the new Yaqui and McPherson Tanks. The constructions were secretive with local hunting club members assisting and without any other input from the public, including from me. Had they conferred with knowledgeable people, others and I could have told them that the areas of construction were not viable bighorn habitat, largely because there was insufficient escape terrain that bighorn require for predator avoidance. Prior to any photographic or other evidence whatsoever, I corresponded in several public documents that these were not bighorn waters but instead were mule deer water sources. The photo evidence clearly corroborated my claims and refuted those of Mr. Hervert, who justified the need for the McPherson wilderness tank because it would have 90% bighorn use and 10% mule deer use (90 bighorn : 10 mule deer). In fact, the evidentiary result was 100% mule deer use.
Therefore, I think Mr. Hervert, who builds these structures with hunting clubs throughout southwestern Arizona in nonwilderness areas where they primarily benefit desert mule deer, saw the opportunity to test wilderness and improve mule deer hunting opportunities by ostensibly using declining bighorn sheep as the justification for this tank. Mrs. Henry drafted the Categorical Exclusion, which contained the distance error of McPherson Tank’s location within wilderness. Both persons made site visits and determined the tanks’ locations. They know how to use GPS units and their colleagues have the latest high-end GIS/Arc Info computers. A GPS location fix onsite would have rendered a lat/long within 10 meters RMS, or less. A GIS refinement using accurate maps would confirm that location and a 3-meter RMS location or less might have been obtainable.
Something is amiss when the government’s official documents—those that the District and Appellate Court judges had to rely upon for factual accuracy—were errant by a full 0.15 miles or 241 meters (264 yards) deeper into wilderness, among other errors. The error is additionally curious since LEOs on Kofa NWR write citations for vehicular violations of wilderness when visitors drive more than a few feet into wilderness and outside of the 200’ nonwilderness corridor, 100’ either side of the 300+ miles of designated roads.
It sounds like a typica;l fish and game operation to bring in more income in the form of tags and licese fees.
I disagree with your support for hunting in all wildlife refuges. I have been trying to photograph wildlife here in the Jackson Wyoming area, while the Wyoming game and fish, the National Elk Refuge administration and the National Park Service have been conducting an “Elk Reduction Program”.
This is just slob hunting on a grand scale which involves the shooting of migrating elk and wintering elk by road hunters.
I suspect that most of the “hunting” on other wildlife refuges is conducted in a similar fashion.
Larry, how would you propose to deal with excess (ecosystem damaging) populations in a refuge? I can remember years ago when the mule deer turned the Grand Canyon into a moon scape with not a scrap of vegitation to be found on the ground and up to 6′ on a tree or shrub because there were not enough predators and no hunting.
Thanks for a very thorough “motivation” answer.
I hope you can answer the following question which arises as a result of your answer, when you get to the others.
Q: If muledeer hunting opportunities (through increased populations) are a likely motivation for these tanks, with improper placement for bighorns, is there forage competition between the species in what appears to be a pretty fragile range? Are the agencies also tracking increases in other species, including muledeer and lions, to evaluate for this?
Here is a statement from the ADFG news release (previously cited in a post of mine above) on the low sheep numbers hovering around 400 for the last couple of years (down from 600, or even 800+ in 2010, and in which FWS has an almost monotheistic interest in keeping sheep population at higher levels based on the purpose for creation of the Refuge – protecting the sheep):
++Once a very robust population, the size of the herd on the refuge has dropped significantly since 2000. Wildlife experts attribute the decline to a variety of potential factor including drought, predation, water availability, disease and human disturbance. Due to the significance of this sheep population, the U.S. Fish and Wildlife Service (USFW) and Arizona Game and Fish Department (AGFD) are conducting an ongoing, joint study to collect data on these and other suspected causes of the population’s decline.++
Did both agencies shoot themselves in the foot?
I also read last night, some very interesting language found in the “KOFA and New Water Wilderness Interagency Plan” (October 1996), [at pdf pages 34-43/140].
It illustarates the “tension” between historic management of Kofa water sources/impundments/tanks/hauling and the newly imposed wilderness designation of 1990, and enhancing sheep populations in Kofa and an apparantly important lambing area in the newly designated New Water Wilderness under BLM management)
Q: Why have BLM administering New Water Wilderness adjacent to a much larger FWS KOFA Refuge/Wilderness? Wouldn’t it have made more sense to expand Kofa and its related wilderness, putting it under FWS management?
Your interest, and that of others here, is welcome. You are obviously researching the issues. One problem with trying to answer some of the most recent Kofa-related questions is that the AGFD is 8 months behind with updating their Kofa website that was supposed to be a compromise with the public to keep us informed in a timely manner. The site’s last update was on May 04, 2010. I have tried to get the site updated and I am currently working directly with others to assist in that effort. Additionally, the USFWS has not released updates to their ongoing bighorn research.
I certainly did not anticipate this level of interest and detailed questions. As you are aware, life often gets in the way of one’s ability to post within a blog. I will endeavor to answer when I can since you deserve answers to your questions.
Current Program Update (AGFD):
This is the Wilderness Watch link regarding the opinion with additional links to previous Kofa articles:
“Why have BLM administering New Water Wilderness…?”
The DOI disapproved a proposal to include that area within the KNWR boundary/wilderness.
Q: If muledeer hunting opportunities…?”
Mule deer and bighorn habitats overlap from the basal contour level of relief throughout the lower third of most Kofa mountain ranges, depending on percent slope. Both species use the associated drainages (slope washes, arroyos, et cetera).
I do not think there is research occurring relative to the specific new water development sites. The AGFD and FWS are collaring mountain lions (1 is now collared) to document lion-killed bighorn. There are annual fixed-wing and helicopter surveys (Jan/Feb) to derive desert mule deer population estimates.
“Did both agencies shoot themselves in the foot?”
We made mistakes. Some aspects of wildlife management are characterized as “more art than science.”
Do bighorn regularly use the aids/tanks/whatever in other areas of the refuge?
(And other water-related and population considerations)
Documentation of bighorn using waterholes occurs with the most frequency during the period from the late spring drought until the monsoonal rains that typically begin in early July, usually by the first week. Up until a discontinuation of summer waterhole counts in the early 1990s, Kofa staff performed the annual survey during the last week in June, the driest and third-hottest month, because the slightest amount of rainfall would result in bighorn not using any waterhole. Based on my experience and observations, I think that bighorn do not require freestanding water sources if their forage resources contain a sufficient amount of preformed water (the water contained in forage/food). Bighorn ewes are able to suckle and rear lambs in an area consisting of two isolated ridges providing one of the premier lambing grounds within Kofa NWR, although there is no known water source in the entire area. Other radio-collared bighorn have remained in the area even during the hot summer months. If forage conditions are minimal, no amount of artificially supplied freestanding water is going to save bighorn from malnutrition. Therefore, if an area receives adequate rainfall to increase the nutritive value of bighorn forage, then desert sheep do not ‘require’ freestanding water from artificial waterholes. Traditionally, bighorn move out of an area when the vegetation quality declines from lack of rainfall.
Since the 1970s, I have had many discussions with hunters, hunting guides, hunting club members who assisted with Kofa waterhole developments, and other biologists regarding the freestanding water requirements of desert bighorn. My common statement early on was that bighorn might thrive on supplemental water but they did not need it to meet their basic maintenance requirements. Clearly, we built and improved existing water sources (including natural tinajas) with the expectation of increasing bighorn populations (a thriving herd) for increased consumptive uses. These uses included hunting rams and translocations of ewes, lambs, yearlings, and young rams to other habitats once inhabited by bighorn or for supplementing existing bighorn populations. I do not think that the improved water developments beginning in the 1980s were necessary for the maintenance of a healthy Kofa bighorn herd and their benefit remains largely unanswered.
It is impossible to quantify the number of bighorn increases that might have occurred from the increased water developments because of concurrent favorable rainfall patterns in the 1980s and early 1990s during the major thrust to improve Kofa water sources. I think that those 80s/90s rainfall conditions resulted in a period of enhanced forage growth leading to a boom in the Kofa population (others agree with my last sentence and have posited similar ideas before me). Then through excessive translocations, we consistently removed too many genetically and ecologically fit reproductive ewes—the most important segment of the population. Continued hunting of rams was an additive factor in the dilution of the genetic/ecological fitness of the Kofa herd. I think we simply over managed the population and will take a decade or more (decades) for it to rebound to around 800 bighorn; however, there is a very good chance such a full recovery will never occur. If any recovery occurs in whatever timeframe, it will result from very favorable rainfall patterns and not from increased artificial water developments. In today’s world, a Kofa herd size of 400-500 bighorn might realistically be the appropriate size limit for which managers should strive.
Importantly, I have always stated that since our extensive water management practices have most likely resulted in some habituation of bighorn to certain waterholes, that it would be irresponsible not to continue maintaining those bighorn water sources. However, I strongly oppose the most recent practices of hauling water via trucks and helicopters to waterholes which we traditionally did not water haul. I also oppose new water sources within Kofa nonwilderness unless backed by sound scientific reasoning and I definitely oppose new developments in wilderness.
The Kofa bighorn population decline is multifactorial and difficult to understand. I certainly do not have all the answers. However, I think that the current managers and biologists should adopt a very conservative management strategy to include a cessation of bighorn ram hunting—or only allowing the take of the most advanced-aged (senescent/moribund) rams—until the population exhibits a quantifiable and statistically significant rebound.
Thank you for your very thorough and thoughtful responses to my question. I (and I hope others) learned alot in a very short period of time. Much appreciated.
It will be interesting to see what the TC judge does with the appellate court instructions on remand. Like so many things we discuss here, there are lots of complexities that arise from man’s management of nature in a world of increasing population, with varied interests, and now climate change which affects habitats.
If Ralph agrees, please keep us posted on what happens at Kofa with the next round before the TC judge.
I am pleased I could offer my perspective within this widely read blog. You deserve credit for my responses because you asked several very direct, detailed, probing questions and based upon your personal research of the topic. When posting within an online blog one is never certain if an anonymous responder is going to remain fair-minded and civil. You have done both admirably.
Our exchange herein should illustrate the—often hidden—human and legal costs that occur in wildlife-related litigations. People must realize that false statements, false and/or ‘dry-labbed’ data, and yes, outright lies become embedded in the administrative record (AR) that each governmental body is required to maintain. This AR is largely what judges must rely upon regarding facts in the case. If the AR is incomplete, if facts are ‘deleted’ by the government employees because they would harm their case as defendants—even though they must submit the complete and factual AR to the courts under penalty of perjury—or if falsified facts exist, then judges can render unfair judgments in the case through no real fault of their own. Those ‘unjust’ decisions can have direct and persistent implications and ramifications throughout the wildlife management field—and unwarranted effects on wildlife professionals who have dedicated their lives and careers to wildlife that have no ‘voice’ but through our efforts to protect their intrinsic right to remain free and wild.
Again, I am not an attorney and I am often ignorant of the confusing, frustrating, protracted—although intriguing—mechanism known as the legal process. Nonetheless, I strongly suggest to plaintiffs and their counsel that when dealing with the government in litigation, if there ever is a time in the legal process when the administrative record is open to a legal challenge, that they should vigorously probe and attack it, if warranted. Such actions should help ensure that the statements and facts therein are *complete and accurate*. I think I have demonstrated here with just one example—among others not discussed—that the appellate judges were relying on false and/or incomplete information in this case when they rendered their opinion; to wit, the erroneous distance location of new McPherson Tank within wilderness that the judges discussed several times in the oral argument exchanges. Furthermore, from my reading of the District and Appellate courts’ opinions, and other documents released into the public domain, I know there are other factual errors or omissions upon which the government founded its case.
The only trust I have remaining to rely upon in this remanded case is that now-Appellate Judge Mary Murguia, Ninth Circuit Court of Appeals, will review this case thoroughly. She should consider the following items.
• The government was arbitrary and capricious through its misrepresentation of facts in this case and therefore with its decision to—secretively, without public input through NEPA—install these structures. Most importantly, the tanks violated the Wilderness Act.
• These structures have *not* been used by bighorn as claimed as their principal purpose; as the defendant’s attorney stated/reiterated the purpose in the oral arguments at time 15:12-13 (audio file):
“…necessary to restore bighorn sheep…”
How can bighorn be restored if they do not use the tanks, at all?
• The fact of the 0.10 distance to the tank was a false data point. Again, the defendant’s attorney makes a very misleading statement at time 15:09-12 when he lumps new Yaqui/McPherson Tanks:
“…nearby to existing roads…”
While new Yaqui is nearby, within about 100’ or less of the road, new McPherson is not. It is *1,320 feet* (13 times the distance of new Yaqui) from the nearest designated road.
Founded on the foregoing facts and others not disclosed herein, I think Judge Murguia should render a judgment requiring the removal and/or disablement of all the waterhole related structures, troughs, pipes, et cetera, regarding these two (2) tanks that are now within Kofa National Wildlife Refuge Wilderness.
For those readers, who like me are visually oriented, here are several photos of the new Yaqui and new McPherson Tanks. The help illustrate the flat terrain sites of these waterholes that are without the necessary adjacent high-relief escape terrain that bighorn require for predator avoidance.
Regarding predators, there are photos of coyotes and bobcats, both known to prey upon bighorn and mule deer.
Thank you for all of the good information and the pictures, very well done.
I appreciate your comment.
I mentioned in the last post above that District Court of Arizona Judge Murguia had become a 9th Circuit judge (nominated by President Obama). Here is the link to that information.