Defenders of Wildlife and the Southwest Center for Biological Diversity (Defenders) appealed a decision of the District Court for the District of Arizona, holding that the proposed construction of a Tucson, Arizona high school would not result in a "take" of the cactus ferruginous pygmy owl (pygmy owl) in violation of section 9 of the Endangered Species Act (ESA).[1] The district court denied Defenders' request for a permanent injunction of Amphitheater School District's (the District) construction and lifted a temporary restraining order granted pending trial. On appeal to the Ninth Circuit, Defenders asserted that the district court: 1) erroneously found that Defenders had failed to meet their burden of proof to establish a "take" of the owl; 2) improperly refused to require the District to apply for an section 10 incidental take permit; 3) incorrectly excluded expert testimony; and 4) inappropriately denied Defender's motion for a new trial. The Ninth Circuit affirmed the district court on all grounds.

Defenders claimed that, under the section 9 definition of "take," construction of the school would "harm" or "harass" the pygmy owls that inhabited the site.[2] The Ninth Circuit relied heavily on the district judge's division of the analysis into two issues: 1) does the pygmy owl occupy any part of the school site; and 2) will the construction result in a section 9 take through harm or harassment of the owl? Based on expert opinion, evidence presented as to the owl's habits, and "recent aural detection of the bird," the district judge inferred that the pygmy owl occupied a thirty-acre "arroyo area" near the northern and western boundaries of the school site, where no construction was to take place.[3] Thus, the district court judge answered the first question in the affirmative.

The district judge further bifurcated his analysis in consideration of the second concern (i.e., whether the construction would harm or harass the owl). Here, the judge inquired: 1) whether clearance of the portion of the school site not occupied by pygmy owls would take any owls; and 2) what proof was offered that construction and operation of the school would harm or harass the owl. The judge concluded that the lack of owl sightings and the failure of surveys to detect the presence of the owl outside of the thirty-acre arroyo parcel established little factual basis for an inference that the pygmy owl occupied any portion of the school site where construction was to take place. The Ninth Circuit affirmed the trial judge's finding that clearance of the portion of the site unoccupied by the owl would not result in a take of the owl.

Defenders also contended that the increased human activity at the school site would harm or harass the pygmy owl. Defenders' experts testified that the pygmy owl could tolerate minor human activity, but the magnitude of the proposed construction activity would drive the owl from the school site. The district court judge stated that, because Defenders' experts offered little evidence to support their assertions, and because Arizona Game and Fish Department had reported specific instances of the owl's occupation and adaptation to urban areas, the record did not support the conclusion that the owl would be harassed by human activity. Accordingly, because the pygmy owl did not occupy the portions of the school site scheduled for construction, and the owl would not otherwise be harmed by the construction, the district court held that the proposed activity would not result in a take of the owl under section 9 of the ESA. The Ninth Circuit reviewed the district court under the clearly erroneous standard of review and upheld the district court's judgment.

Defenders also challenged the district court's ruling that the District was not required to apply for an incidental take permit under section 10 of the ESA. The District maintained that it had not applied for a permit because the school construction would not result in a take of the owl. The Ninth Circuit reviewed the judgment of the district court de novo, concluded that application for a section 10 permit was a voluntary action, and affirmed the decision.

Next, the Ninth Circuit reviewed Defenders' claim that the district court had improperly excluded critical evidence and testimony. Specifically, Defenders challenged the exclusion of the testimony of Dr. Anthony Povilitis regarding general pygmy owl and conservation biology background information. The Ninth Circuit reviewed this exclusion for abuse of discretion and prejudicial effect. The court held that, because the exclusion of Dr. Povilitis' testimony did not prejudice Defenders' claim, the district court had not abused its discretion.

Additionally, Defenders appealed the exclusion of the deposition of Fish and Wildlife Service (FWS) pygmy owl expert, Mary Richardson. Defenders maintained that Richardson could have testified both as to whether the pygmy owl used any area other than the thirty-acre arroyo area and the likelihood that the construction would harm or harass the owl. The district court granted the District's motion to quash Richardson's deposition based on an affidavit by Richardson's superior. The affidavit stated that office policy prohibits FWS biologists from testifying in private litigation. The Ninth Circuit recognized the burden that this type of testimony would place on FWS resources and found that the district court's exclusion was not an abuse of discretion.

After the district court's denial of Defenders' claims regarding the take of the pygmy owl, Defenders filed a motion for a new trial based on 1) allegations that the school site surveys were unscientific; 2) the discovery of new evidence that indicated pygmy owl presence; and 3) the district court's failure to grant Defenders a continuance to survey the site for indications of pygmy owls. Defenders based their claims on an affidavit from Michael Terrio, a coworker of the District's consultant who was hired to survey the site for pygmy owls. Terrio claimed that the surveys conducted prior to trial were unscientific and that subsequent surveys could indicate the presence of pygmy owls near the construction site. The district court denied the motion because 1) both Terrio's testimony and the newly discovered evidence could have been obtained prior to trial, and 2) the evidence was unlikely to affect the outcome of a new trial.

Similarly, Defenders asserted that they should have been granted a continuance to survey the site independently, especially in light of Terrio's affidavit. The district court denied the continuance and reiterated that Defenders had possessed an opportunity to conduct this survey prior to trial. Based on the district court's reasoning, the Ninth Circuit found that the district court had not abused its discretion in denying the motion for a new trial.

Finally, while Defenders' claim was on appeal, Defenders filed a motion for the district court to consider the newly discovered evidence. The Ninth Circuit delayed consideration of the appeal until the district court decided whether to examine the evidence. The district court denied Defenders' motion, and the Ninth Circuit held that this issue was not reviewable on appeal because the denial was not a final judgment.

In a concurring opinion, Judge Fletcher sought to clarify the Ninth Circuit's ruling that critical habitat designation played no role in this case. At the time of appeal, FWS had not yet made a critical habitat designation for the pygmy owl. The Ninth Circuit found that the insufficiency of plaintiff's evidence was the dispositive issue, and any critical habitat designation would not have altered the outcome of the case. Judge Fletcher stated that the decision should not be read to hold that critical habitat designation "will never have any bearing on actions on private lands within designated critical habitat."[4]