A recent court ruling that put additional skids on the already stalled Rosemont Mine is turning out to be at least a partial victory for the jaguar and a clear defeat for a federal biologist who became an environmentalist hero a year ago when he blew the whistle on another big Southern Arizona issue.
The reason? Most of U.S. District Judge James Sotoβs February ruling that overturned the Fish and Wildlife Serviceβs biological opinion allowing the mine to go through is not being appealed to a higher court. Thatβs unlike his July 2019 ruling that overturned a Forest Service decision approving the mine, which the feds and Rosemont proponent Hudbay Minerals Inc. are appealing.
βDue to current litigation over the topic, we do not provide any comment,β Alejandro Morales, a Fish and Wildlife Service spokesman, emailed Friday.
Soto cited the jaguar as one of three factors for why he overturned the 2016 biological opinion that led directly to the approval by the Forest Service a year later. He faulted how ex-Fish and Wildlife supervisor Steve Spangle, who ultimately signed off on the opinion, defined the word βlikely,β in determining the mine wouldnβt illegally damage critical habitat for the large cat. Soto also faulted findings in the opinion affecting the threatened northern Mexican garter snake and six other imperiled fish, frog and bird species.
The almost certain result of Sotoβs ruling is that the wildlife service will have to revise those three sections. The ruling stemmed from a lawsuit filed by the Tucson-based Center for Biological Diversity.
The only part of Sotoβs ruling being appealed is a section upholding an earlier wildlife service decision to put the mine site and surrounding lands into jaguar critical habitat.
Hudbay is expecting that the 9th Circuit Court of Appeals in San Francisco will go along with a recent opinion by the 10th Circuit Court of Appeals in Denver overturning a service decision designating 103,000 acres in southwest New Mexico as jaguar critical habitat. That decision used the same grounds to toss out the critical habitat as Hudbay has raised, the company said in a statement.
Meanwhile, Spangle now acknowledges that βin hindsight,β he erred in a section of the 2016 opinion that made it harder to conclude the mine will illegally damage that habitat.
In that opinion, now-retired Spangle, then supervisor of the serviceβs Arizona offices, used a Merriam Websterβs dictionary definition of βlikelyβ to conclude the mine β a $2 billion construction project β probably wonβt destroy or illegally modify jaguar critical habitat that includes the mine site.
Judge Sotoβs ruling called Spangleβs definition βarbitrary and capriciousβ because it conflicted with past definitions the service had used for βlikely.β
Despite that, Spangle said that now, he thinks that βwith a little wordsmithing,β the biological opinion can be revised to meet the judgeβs objections on the jaguar and gartersnake.
Hudbay officials also said βit is our expectation that the remaining three issues from Judge Sotoβs decision can easily be addressedβ in a revised biological opinion.
But Spangle and another former wildlife service official, Jeanne Calhoun, said the fix for the third issue Soto ruled on β impacts to imperiled fish, frogs and birds β will be very tough.
On that issue, the judge faulted how the wildlife service established standards for determining if the mine would illegally kill, harm or harass the species β practices known formally as βtake.β
Whistleblowerβs different role
Sotoβs ruling offers a starkly different perspective on retired wildlife service official Spangle from what emerged a year ago.
Thatβs when Spangle made national news, by speaking out against what he said was political pressure from Interior Department higher-ups that led him to reverse a decision he made requiring a detailed environmental analysis of a 28,000-home Benson development. Before backing off, he had required the Army Corps of Engineers to evaluate whether groundwater pumping for the Villages at Vigneto could dry up the neighboring San Pedro River. That whole case, like Rosemont, is still being argued in federal court.
Spangleβs original decision on Vigneto came in the fall of 2016, just a few months after the wildlife service signed off on the biological opinion allowing Rosemont to go forward β the opinion that Soto has now thrown out.
First, the longtime wildlife service biologist, who retired in March 2018, was dinged by the judge for his definition of βlikely,β in connection with the opinionβs conclusion that the mine wasnβt likely to destroy or βadversely modifyβ jaguar habitat, which is forbidden by the Endangered Species Act. Spangleβs conclusion overturned a finding from the serviceβs Tucson office that the mine would adversely impact this habitat.
Spangle relied on Merriam Websterβs 10th Edition dictionary to define βlikelyβ as βhaving a high probability of occurring or being true; very probable,β the judge wrote.
The Center for Biological Diversity correctly cited βpast regulations, rules and litigation whereby both the FWS, and the National Marine Fisheries Service appropriately defined βlikelyβ as: βmore likely than not,β βprobability of 50% or greaterβ and βprobable,β β the judge wrote.
βWhen an agency changes their position, as it did in this case, it must provide a reasoned explanation,β Soto wrote. βThe record does not reflect any reasonable basis as to why the FWS applied a heightened standard that conflicts with the ESAβs institutionalized caution in favor of protecting listed species.β
In an interview last week, Spangle didnβt disagree with the judgeβs finding.
βIβm not aware that we had defined βlikelyβ differently in the past,β he said. βIf we used different standards, thatβs arbitrary and capricious.β
To explain how he came up with his definition, Spangle recalled that back then, βI started thinking Iβve never seen a real definition of βlikely.β I reached for my only definition on my bookshelf.
βI quoted the dictionary on my bookshelf and quoted it verbatim. It seemed like a decent definition. In hindsight, based on what the court ruled, it was an inappropriate thing to do,β Spangle added.
A lawyer for the service reviewed Spangleβs action before the opinion was finished, βand he told me that that was not an inappropriate use of the dictionary,β Spangle said.
But since the Center for Biological Diversityβs attorneys could find out about the serviceβs previous definitions of βlikely,β wildlife service officials had to have known them, too, countered Randy Serraglio, a conservation advocate for the center.
βWeβve seen this pattern over and over with the service, where science and law are trumped by politics. Thatβs how these decisions get made,β Serraglio said.
Tipping points
Sotoβs ruling also faulted the Rosemont biological opinion for failing to determine whether the mineβs presence would become a βtipping point,β pushing the garter snake toward extinction.
The ruling centered on the concerns raised by environmentalists, outside biologists and many others that groundwater pumping to create the mineβs half-mile- deep open pit would reduce water flows in Cienega Creek, to the mineβs east, where the snake lives.
Soto wrote that the 9th Circuit Court of Appeals has found that to determine if a project will jeopardize a species chances of survival and recovery, βan agency must logically know the rough survival and recovery needs β i.e. tipping points β to evaluate if a species will be jeopardized.β
He noted that an Interior Department attorney specifically advised the wildlife service staff that βtipping points need to be addressed, and internally consistent.
βUnfortunately, the FWS did not heed the advice of agency counsel,β Soto wrote.
Such an analysis is often needed to prevent a βdeath by a thousand pinpricks,β in which one action with a small effect will push a species toward eventual extinction, or past the point where recovery is impossible, Soto wrote.
Spangle, while not disagreeing with Soto, stood by his opinionβs finding that the mine wouldnβt jeopardize the garter snake. Yet he acknowledged the service didnβt analyze specifically for a βtipping point.β
βWe did look at the mineβs effect on recovery, but what we may not have done, and this is always a very tough thing to call, is what is the point of no return for a species,β Spangle said. βIt is hard to pick the one point at which a species cannot recover.β
He said the opinion clearly laid out five or six points on why service biologists didnβt believe the mine would jeopardize the garter snake. Among them was Hudbayβs commitment to buying and preserving a 1,200-acre ranch near Sonoita that has flowing water and upgrading Cienega Creek by buying water rights from a nearby golf course.
Fish and frogs
On the βtakeβ issue, the judge found that the serviceβs failed to set forth a clear trigger that, when reached, results in unacceptable take, Soto wrote.
The βtakeβ issue starts with the conclusion reached by wildlife service biologists β disputed by Hudbayβs biologists β that the mineβs groundwater pumping to create its half-mile-deep open pit will reduce flows of water that support the flows in Cienega Creek.
For Rosemont, the service found that while the mine wouldnβt jeopardize these species, it would cause some individual animals to be killed, harmed or harassed. But the service found it wasnβt practical to set a numerical limit for how much βtakeβ the species can handle.
So it relied on estimates of water table decline that would create unacceptable impacts to the species, requiring additional review and conservation measures. Besides the snake, the species include the Gila chub and Gila topminnow, the desert pupfish and the southwestern willow flycatcher.
But the estimated amounts for lowering the water table were generally so little, as low as .1 foot, that they fell below the minimum 5- foot groundwater decline that the Forest Service says can be reliably predicted by computer models. Also, groundwater levels in that area fluctuate so much naturally that the Forest Service has found βthere is no reliable method for separating out ongoing seasonal or annual variation from impacts from the mine,β Soto wrote.
Spangle said it was hard for him to say if he agreed or disagreed with that part of Sotoβs ruling. βAll I know is that this is a very difficult thing to come up with,β determining how much damage is legally acceptable.
βNeither the judge nor the plaintiffs came up with acceptable criteria,β he said. βIβm sure there are greater minds than I that will come up with something, but itβs not going to be easy.β
Calhoun declined to comment specifically on Sotoβs ruling, since she still works for the federal government, as Grand Canyon National Parkβs science and resource management division chief. But she agreed that modeling to determine how much βthe extreme amounts of water Rosemont would be usingβ was very difficult β βthere were multiple different models, none of which was very satisfactory. Itβs probably a good idea that this time, given additional information about the area, to redo that.β