defenders of wildlife v. usfs

8/10/2019 Defenders of Wildlife v. USFS

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James Jay Tutchton (CO Bar # 21138) (Application for Pro Hac Vice to be filed)McCrystie Adams (CO Bar # 34121) (Application for Pro Hac Vice pending) Defenders of Wildlife535 16 th Street, Suite 310Denver, CO 80202Email: [email protected]

[email protected]: (720) 943-0457 (Tutchton)

(720) 943-0459 (Adams)

Roger Flynn (CO Bar # 21078) (Application for Pro Hac Vice to be filed) Western Mining Action ProjectP.O. Box 349440 Main Street, #2Lyons, CO 80540

Email: [email protected]: (303) 823-5738Fax: (303) 823-5732

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA

Defenders of Wildlife, and ) Case No:

Patagonia Area Resource Alliance, ) )Plaintiffs, )

)v. ) COMPLAINT

)United States Forest Service, and )United States Fish and Wildlife Service, )

)Defendants. )

)

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 1 of 43


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Introduction

1. The Patagonia Mountains are one of the most biologically diverse mountain

ranges in southern Arizona. These mountains provide important habitat for several

species protected under the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. ,

including the jaguar, ocelot, lesser long-nosed bat, Mexican spotted owl, and yellow-

billed cuckoo.

2. The Patagonia Mountains also contain the headwaters of Harshaw Creek

and Alum Gulch, tributaries of Sonoita Creek, and part of the Sonoita Creek watershed.

The approximately 900 residents of the town of Patagonia, and approximately 300

individual water well users in surrounding communities, are dependent on the water

supply originating from this watershed.

3. Defendant, the United States Forest Service (USFS) has approved a mineral

exploration drilling project, called the Sunnyside Project, in the Coronado National

Forest in the Alum Gulch drainage of the Patagonia Mountains. A canyon, locally known

as Humboldt Canyon, contains an ephemeral creek, which drains into Alum Gulch.

Alum Gulch is an intermittent creek.

4. The Sunnyside Project involves drilling multiple exploratory bore holes up

to 6,500 feet deep and will run continuously 24 hours a day, seven days a week. The

round the clock drilling and associated heavy equipment operation and truck traffic will

produce significant noise and require artificial lighting at night. Because of the narrow

canyon topography of the project area, noise created by the Project may be magnified.

The narrow canyon topography also necessities the placement of drilling pads in canyon



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bottoms adjacent to the watercourse. The drilling will require 12,500 gallons of water per

day, an amount approximately equal to 10% of the daily water usage of the Town of

Patagonia.

5. The Alum Gulch area is designated as critical habitat for the jaguar and

Mexican spotted owl. Mexican spotted owls currently live in the project area. Jaguars

have been sighted relatively near the project area and this species may use the project

area as a travel corridor. The ocelot, lesser long-nosed bat, and yellow-billed cuckoo lack

officially designated critical habitat; however, suitable habitat for all three species exists

in the project area. The ocelot, lesser long-nosed bat, and yellow-billed cuckoo have

been observed relatively near the project area.

6. The Alum Gulch area also contains a Mexican spotted owl Protected

Activity Center (PAC), a sub-designation of critical habitat which is supposed to enjoy

the greatest protection. A breeding pair of Mexican spotted owls resides in the

Humboldt Canyon PAC in Alum Gulch. One of the Projects proposed drilling sites is

only one-tenth of a mile from the nesting core area of this PAC.

7. The jaguar, ocelot, lesser long-nosed bat, Mexican spotted owl and yellow-

billed cuckoo are adversely affected by nocturnal lighting and noise. Agaves, a principle

food source of the lesser long-nosed bat, exist in the project area, and may be destroyed

by the Project.

8. Despite the existence of, and impacts to, these endangered and threatened

species and their habitat in the project area, and the Projects location in the municipal

watershed of the town of Patagonia, USFS categorically excluded the Sunnyside



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Project from detailed environmental analysis under the National Environmental Policy

Act (NEPA), 42 U.S.C. 4321 et seq. To do so, USFS determined that the Project

would take less than one year to complete. The USFS also found that there were no

extraordinary circumstances that would preclude the agencys use of the categorical

exclusion for the Project.

9. In an ESA Section 7, informal consultation between USFS and the

United States Fish and Wildlife Service (FWS), USFS concluded that the Project may

affect, but is not likely to adversely affect these ESA listed species and their

designated critical habitat. FWS concurred with this conclusion.

10. The Project may affect the jaguar, ocelot, lesser long-nosed bat, Mexican

spotted owl, and yellow-billed cuckoo, and may affect designated critical habitat for the

Mexican spotted owl and jaguar.

11. Additionally, in categorically excluding the Sunnyside Project from

detailed review under NEPA, USFS determined the Project would not adversely affect

any floodplains or wetlands, and that the town of Patagonias municipal water supply

may be affected.

12. The Project may affect floodplains and the municipal watershed of the town

of Patagonia.

13. Plaintiffs, Defenders of Wildlife and the Patagonia Area Resource Alliance

(collectively Defenders) allege that in approving the Sunnyside Project, USFS violated

NEPA within the meaning of the Administrative Procedure Act (APA), 5 U.S.C.

701 et seq.



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14. Defenders further alleges that in concurring with USFSs conclusion that

the Project was not likely to adversely affect the jaguar, ocelot, lesser long-nosed bat,

Mexican spotted owl, or yellow-billed cuckoo, FWS violated the ESA within the

meaning of the APA.

15. Defenders seeks declaratory relief that USFS violated NEPA and the APA

and that FWS violated the ESA and APA. Pursuant to the APA, Defenders requests that

this Court vacate and set aside the challenged agency actions.

Jurisdiction

16. This Court has jurisdiction pursuant to 28 U.S.C. 1331 because this

lawsuit presents a federal question under the laws of the United States, including NEPA,

the ESA, the APA, the Declaratory Judgment Act (DJA), 28 U.S.C. 2201 et seq. , and

the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. This Court also has

jurisdiction under 28 U.S.C. 1346 (United States as defendant).

17. Defenders request for declaratory and injunctive relief is authorized by 28

U.S.C. 2201(a) and 2202 (DJA) and 5 U.S.C. 706(2)(A) (APA). An actual

controversy, within the meaning of the DJA, exists between Plaintiffs and Defendants.

Plaintiffs have exhausted all administrative remedies available to them as required by the

APA.

Venue

18. Venue properly rests in the District of Arizona pursuant to 28 U.S.C.

1391(e) because a substantial part of the events or omissions giving rise to Defenders



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claims occur in this district and the federal public land involved in the Sunnyside Project

is located within this District.

Intra-District Venue

19. This case should be assigned to the Tucson Division of this Court because

the Sunnyside Project is located in Santa Cruz County, Arizona. LRCiv. 77.1(a).

Parties

20. Plaintiff Defenders of Wildlife is a national, nonprofit, membership

organization dedicated to the protection of all native animals and plants in their natural

communities. Defenders of Wildlife has a long standing program committed to

protecting wild lands and wildlife in Arizona. Its southwest regional office is located in

Tucson, Arizona.

21. Plaintiff Patagonia Area Resource Alliance (PARA) is a grassroots

organization of community members committed to protecting and preserving the

Patagonia, Arizona area. PARA is a watchdog organization that monitors the activities of

industrial developers, such as mining corporations, as well as government agencies, to

make sure their actions have long-term sustainable benefits to the areas public lands,

watershed, and the town of Patagonia. PARAs office is in the town of Patagonia in

Santa Cruz County, Arizona.

22. Plaintiffs have long-standing interests in the proper and lawful management

of the National Forests, especially the Coronado National Forest adjacent to the town of

Patagonia. Plaintiffs also have long-standing interests in the proper implementation of

NEPA and the ESA and in the protection of endangered or threatened species such as the



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jaguar, ocelot, lesser long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo.

Members, officers, staff, and supporters of Plaintiffs participate in a wide range of

aesthetic, scientific research, and recreational activities on the Coronado National Forest,

including on the specific lands involved in the Sunnyside Project in Alum Gulch.

Plaintiffs members, officers, staff, and supporters hike, picnic, appreciate scenery,

solitude, and quiet, engage in scientific research projects, and attempt to view wildlife,

including the jaguar, ocelot, lesser long-nosed bat, Mexican spotted owl, and yellow-

billed cuckoo in this specific area. Many of Plaintiffs members, officers, staff, and

supporters moved to the Patagonia area precisely to pursue these aesthetic and

recreational activities. Plaintiffs members, officers, staff, and supporters have concrete

plans to continue pursuing these activities in the Coronado National Forest and on the

specific lands involved in the Sunnyside Project. Many of Plaintiffs members live in the

town of Patagonia, which is approximately seven miles from the Sunnyside Project site,

and these members visit the area on a daily to weekly basis. The interests of Plaintiffs

and their members, officers, staff, and supporters in this matter are substantial and are

adversely affected by Defendants failure to comply with NEPA, the ESA, and APA.

The requested relief will redress the injuries of Defenders, PARA, and their members,

officers, staff, and supporters.

23. Defendant United States Forest Service (USFS), is a federal agency within

the U.S. Department of Agriculture. USFS is responsible for the management of the

National Forests, including the Coronado National Forest. As part of its management

responsibility USFS must insure that activities it authorizes on the Coronado National



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Forest comply with NEPA, the ESA, and the APA. USFS authorized the Sunnyside

Project.

24. Defendant United States Fish and Wildlife Service (FWS), is a federal

agency within the U.S. Department of the Interior. The Secretary of the Interior has

delegated to FWS responsibility for administration and implementation of the ESA.

Under Section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), FWS must engage in a process

known as consultation with other federal agencies, such as USFS, to insure that any

action authorized, funded, or carried out by such agency is not likely to jeopardize the

continued existence of any endangered or threatened species or result in the destruction

or adverse modification of any designated critical habitat of such species. In this case,

USFS engaged in consultation with FWS concerning the Sunnyside Project.

Governing Law

I. The National Environmental Policy Act

25. NEPA is our basic national charter for protection of the environment. 40

C.F.R. 1500.1(a).

26. NEPA has twin aims. First, it requires federal agencies to consider every

significant aspect of the environmental impact of a proposed action. Second, it ensures

that the agency will inform the public that it has indeed considered environmental

concerns in its decision-making process. Kern v. BLM, 284 F.3d 1062, 1066 (9 th Cir.

2002), quoting Baltimore Gas & Electric Co. v. Natural Res. Def. Council, 462 U.S. 87,

97 (1983).



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27. The primary purpose of the NEPA analysis is to serve as an action-forcing

device to insure that the policies and goals defined in [NEPA] are infused into the

ongoing programs and actions of the Federal Government. 40 C.F.R. 1502.1.

28. NEPA procedures must insure that environmental information is available

to public officials and citizens before decisions are made and before actions are taken

Accurate scientific analysis, expert agency comments, and public scrutiny are essential to

implementing NEPA. 40 C.F.R. 1500.1(b).

29. NEPA requires federal agencies to analyze the direct, indirect, and

cumulative impacts of proposed actions. 40 C.F.R. 1508.7 & 1508.8. NEPA also

requires federal agencies to take a hard look at the environmental effects of their

proposed action, even after the proposal has received initial approval. Marsh v. Oregon

Nat. Res. Council, 490 U.S. 360, 374 (1989).

30. The fundamental purpose of NEPA is to engender more informed decisions

by federal agencies and protect the environment as a result. Accordingly, NEPA requires

an agency to consider a reasonable range of alternatives to the proposed action. The

analysis of the differing environmental impacts of these alternatives is considered the

heart of the NEPA analysis and thus an action agency must rigorously explore and

objectively evaluate all reasonable alternatives to its initially proposed course of action.

40 C.F.R. 1502.14.

31. NEPA and its implementing regulations promulgated by the Council on

Environmental Quality require federal agencies to prepare an environmental impact



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statement (EIS) for major Federal actions significantly affecting the quality of the

human environment. 42 U.S.C. 4332(2)(C); 40 C.F.R. 1508.11.

32. If an agency is unsure whether a proposed action will have significant

environmental effects, it may prepare a shorter document called an environmental

assessment (EA) to determine if the proposed action will have significant environmental

effects and whether an EIS is necessary. 40 C.F.R. 1501.4(b).

33. In narrow situations, neither an EA nor an EIS is required and federal

agencies may invoke a categorical exclusion (CE) from NEPA. 40 C.F.R. 1508.4.

34. A categorical exclusion is defined as a category of actions which do not

individually or cumulatively have a significant effect on the human environment and

which have been found to have no such effect in procedures adopted by a Federal agency

in implementation of these regulations . 40 C.F.R. 1508.4.

35. Each federal agency must develop specific criteria for and identification

of actions that qualify for a categorical exclusion. 40 C.F.R. 1507.3.

36. Federal agencies are required to provide for extraordinary circumstances

in which a normally excluded action may have a significant environmental effect. 40

C.F.R. 1508.4.

37. The USFSs categorical exclusion regulations require scoping prior to the

use of a categorical exclusion. If the responsible official determines, based on scoping,

that it is uncertain whether the proposed action may have a significant effect on the

environment, prepare an EA. If the responsible official determines, based on scoping,



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that the proposed action may have a significant environmental effect, prepare an EIS.

36 C.F.R. 220.6(c).

38. NEPAs statutory framework, as well as USFSs own regulatory policies

enumerated in the Forest Service Handbook (FSH), Section 1909.15 et seq. , require the

agency to consider potentially significant environmental effects, including cumulative

impacts, before deciding to invoke a categorical exclusion and moving forward with a

proposed action in the absence of an EA or EIS. If the proposed action may have a

significant effect, USFS must prepare an EIS. See 36 C.F.R. 220.6(c). If, in contrast,

USFS is uncertain whether the proposed action may have a significant effect, it must

prepare an EA. Id.

39. As provided in the FSH:

If the responsible official determines, based on scoping, that it is uncertainwhether the proposed action may have a significant effect on theenvironment, prepare an EA. If the responsible official determines, based

on scoping, that the proposed action may have a significant environmentaleffect, prepare an EIS. (36 C.F.R. 220.6(c))

FSH 1909.5, Section 31.3.

Scoping is required for all Forest Service proposed actions, including thosethat would appear to be categorically excluded []. Scoping is importantto discover information that could point to the need for an EA or EIS versusa CE. Scoping is the means to identify the presence or absence of anyextraordinary circumstances that would warrant further documentation inan EA or EIS. Scoping should also reveal any past, present, or reasonablyforeseeable future actions with the potential to create uncertainty over thesignificance of cumulative effects.

Id.



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40. Thus, only where the potential effect on the resource condition is known to

be insignificant, and scoping does not reveal otherwise or raise uncertainty, does the

action comply with USFSs policy on extraordinary circumstances. Accordingly, only

where the potential effects of a proposed action are certain to be insignificant may USFS

invoke a categorical exclusion. The determination of the significance of the potential

effects requires USFS to consider the cumulative effects and impacts of past, present, and

reasonably foreseeable future actions. See FSH 1909.5, Section 31.3.

41. USFS has identified [s]hort-term (1 year or less) mineral, energy, or

geophysical investigations and their incidental support activities as a type of action

generally appropriate for a categorical exclusion from further NEPA analysis. 36 C.F.R.

220.6(e)(8).

42. Prior to categorically excluding a proposed project from detailed NEPA

review, an agency must first conduct public scoping, consider all relevant factors,

consider whether there may still be significant environmental impacts, and consider

whether there may be extraordinary circumstances related to the proposal. 40 C.F.R.

1508.4.

43. USFS has developed criteria specifying resource conditions that should be

considered in determining whether extraordinary circumstances related to a proposed

action make the use of a categorical exclusion inappropriate and whether the proposed

action warrants further analysis in an EA or EIS. Forest Service Handbook 1909.15,

Chapter 31.2.



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44. The extraordinary circumstances that must be considered by USFS before

using a categorical exclusion include, but are not limited to, consideration of whether

Federally listed threatened or endangered species or designated critical habitat, species

proposed for Federal listing or proposed critical habitat, or Forest Service sensitive

species are in the project area, and whether the project area contains [f]lood plains,

wetlands, or municipal watersheds. Forest Service Handbook 1909.15, Chapter

31.2(1) & (2).

45. When a project area contains extraordinary circumstances related to the

proposed action, the use of a categorical exclusion may be inappropriate and USFS

should consider preparing an EA or EIS instead.

46. The mere presence of one or more of the extraordinary circumstances

resource conditions does not preclude the use of a categorical exclusion. Rather it is the

existence of a cause and effect relationship between a proposed action and the potential

effect on these resource conditions. If such a cause and effect relationship exists, the

degree of the potential effect of the proposed action on these resource conditions

determines whether extraordinary circumstances exist. 36 C.F.R. 220.6(b)(2).

II. The Endangered Species Act

47. The purpose of the ESA is to provide a means whereby the ecosystems

upon which endangered species and threatened species depend may be conserved, [and]

to provide a program for the conservation of such endangered and threatened species .

16 U.S.C. 1531(b). Through the ESA, Congress declared its policy that all Federal

departments and agencies shall seek to conserve endangered and threatened species and



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shall utilize their authorities in furtherance of the purposes of [the] Act. 16 U.S.C.

1531(c).

48. The ESA defines conserve as the use of all methods and procedures

which are necessary to bring any endangered species or threatened species to the point at

which the measures provided pursuant to [the ESA] are no longer necessary. 16 U.S.C.

1532(3). Accordingly, the goal of the ESA is not only to temporarily save endangered

and threatened species from extinction, but also to recover these species to the point

where they are no longer in danger of extinction, and thus no longer in need of ESA

protection.

49. Pursuant to the ESA, a species is listed as endangered if it is in danger

of extinction throughout all or a significant portion of its range. 16 U.S.C. 1532(6). A

species is listed as threatened if it is likely to become an endangered species within

the foreseeable future throughout all or a significant portion of its range. 16 U.S.C.

1532(20).

50. An important benefit the ESA conveys to listed species in order to prompt

their recovery is the designation of protected critical habitat. See 16 U.S.C.

1533(a)(3)(A)(i).

51. Areas designated as critical habitat are essential to the conservation of the

species. 16 U.S.C. 1532(5)(A).

52. ESA Section 7(a)(2) requires federal agencies to consult with FWS to

insure that any action authorized, funded, or carried out by such agency is not likely

to jeopardize the continued existence of any endangered species or threatened species or



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result in the destruction or adverse modification of that species designated critical

habitat. 16 U.S.C. 1536(a)(2). Thus, regardless of whether critical habitat has been

designated, the action agency must consult with FWS regarding whether the action may

jeopardize the continued existence of any listed species. However, if critical habitat

has been designated, the ESA imposes an additional consultation requirement concerning

whether the action may result in the destruction or adverse modification of the species

designated critical habitat. Id.

53. To comply with ESA Section 7(a)(2) an action agency, such as USFS in the

present case, generally must prepare a document called a biological assessment. 16

U.S.C. 1536(c)(1). The biological assessment process begins with a request from the

action agency to FWS for information concerning whether any listed species or critical

habitat is present in the project area. See id. After FWS provides this information, the

action agency then determines, in the first instance, whether any listed species or critical

habitat is likely to be affected by the proposed action. See id. The biological assessment

then evaluates whether the species or critical habitat is likely to be adversely affected or

not likely to be adversely affected by the proposed project. 50 C.F.R. 402.12(a).

54. If the proposed agency action may affect a listed species or critical habitat,

the action agency must consult with FWS. 16 U.S.C. 1536(a)(2); 50 C.F.R.

402.14(a). If the agency action is likely to adversely affect a species or critical habitat,

the action agency must engage in formal consultation with FWS. 50 C.F.R.

402.14(a). On the other hand, if the action agency determines that its action is not likely

to adversely affect a species or critical habitat it may engage in informal consultation



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with FWS. 50 C.F.R. 402.13(a); 50 C.F.R.. 402.14(b)(1). If, as a result of informal

consultation, FWS issues a written concurrence to the action agency that its proposed

action is not likely to adversely affect a listed species or critical habitat, the consultation

process ends. 50 C.F.R. 402.13(a); 50 C.F.R. 402.14(b)(1).

55. If FWS makes a determination that the agency action is likely to adversely

affect a species or its critical habitat, the action agency and FWS must engage in formal

consultation. In formal consultation FWS prepares a document known as a biological

opinion to evaluate whether the proposed action is likely to jeopardize the continued

existence of a listed species or destroy or adversely modify its critical habitat. 50 C.F.R.

402.14.

56. During either informal or formal consultation, FWS may suggest to the

action agency modifications to the proposed project to avoid adverse effects to listed

species or critical habitat. 50 C.F.R. 402.13(b) (informal consultation); 50 C.F.R.

402.14(g)(5) (formal consultation).

57. In evaluating the potential for a proposed action to adversely modify

critical habitat, FWS must consider effects on either the survival or recovery of the listed

species. FWSs regulatory definition for adverse modification of critical habitat found

in 50 C.F.R. 402.02, which purports to limit the meaning of adverse modification to

effects on critical habitat impacting both the survival and recovery of a listed species, is

facially inconsistent with the ESA and has been stuck down by the Ninth Circuit. Gifford

Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1069-70 (9 th Cir.

2004), amended by 387 F.3d 968 (9 th Cir. 2004).



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58. If FWS concludes that the proposed action will jeopardize the continued

existence of a listed species, or result in the destruction or adverse modification of

designated critical habitat, the biological opinion must outline reasonable and prudent

alternatives which FWS believes will avoid jeopardy or the destruction or adverse

modification of designated critical habitat. 16 U.S.C. 1536(b)(3)(A).

III. The Administrative Procedure Act

59. The APA governs the scope of review of Plaintiffs NEPA claims against

USFS and ESA claims against FWS. Because these statutes contain no internal standards

of review, section 706 of the APA, 5 U.S.C. 706, also provides the standard of review

for the agency actions concerned. Village of False Pass v. Clark, 733 F.2d 605, 609 (9 th

Cir. 1984).

60. The APA provides [a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof. 5 U.S.C. 702.

61. The APA provides the reviewing court shall hold unlawful and set

aside agency actions, findings, and conclusions found to be arbitrary, capricious, or an

abuse of discretion or otherwise not in accordance with law, 5 U.S.C. 706(2)(A), or

which have been taken without observance of procedure required by law. 5 U.S.C.

706(2)(D).



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Facts Giving Rise to Plaintiffs Claims

I. The Sunnyside Project

62. On November 2, 2011, USFS published an initial scoping notice for the

Sunnyside Project. The scoping notice was issued in response to the mining Plan of

Operations (PoO) submitted by the Project Manager for the Sunnyside Project dated

April 1, 2011. The PoO described the Sunnyside Project as proposed to USFS.

63. On December 16, 2011, Defenders submitted comments to USFS in

response to this initial scoping notice. Defenders comments, and those of other

concerned citizens, explained to USFS that threatened, endangered, or sensitive species

occurred in the project area and would be adversely affected by the Project. Defenders

comments, and those of other concerned citizens, explained to USFS that the Project

could also adversely affect floodplains and the water supply used by the town of

Patagonia. Defenders comments, and those of other concerned citizens, explained to

USFS that the Project would not be completed in one year.

64. On July 11, 2013, USFS published a second scoping notice for the

Sunnyside Project. On August 15, 2013, Defenders submitted comments to USFS in

response to this second scoping notice. Defenders comments, and those of other

concerned citizens, explained to USFS that threatened, endangered, or sensitive species

occurred in the project area and would be adversely affected by the Project. Defenders

comments, and those of other concerned citizens, explained to USFS that the Project

could also adversely affect floodplains and the watershed of the town of Patagonia.

Defenders comments, and those of other concerned citizens, explained to USFS that the



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Project would not be completed in one year. Defenders comments, and those of other

concerned citizens, explained that USFS was required to review the cumulative effects

and impacts of all past, present, and reasonably foreseeable future actions in the project

area. These comments specifically included a description of these actions and potential

cumulative impacts which USFS failed to analyze in making its decision to categorically

exclude the Project from detailed NEPA review.

65. In May 2014, USFS prepared a biological assessment for the Sunnyside

Project. Defenders, and other concerned citizens, were never provided an opportunity to

comment on the biological assessment as part of the NEPA scoping process. The

biological assessment determined the Project may affect, but was not likely to adversely

affect the jaguar, ocelot, lesser long-nosed bat, or Mexican spotted owl and would not

affect the yellow-billed cuckoo. The biological assessment also determined the Project

was not likely to result in the destruction or adverse modification of jaguar critical habitat

and would have no effect on the designated critical habitat of the Mexican spotted owl.

66. On August 11, 2014, FWS issued a concurrence letter based on the

biological assessment and concurring with USFSs determination that the Project: is not

likely to adversely affect the jaguar or its designated critical habitat; is not likely to

adversely affect the ocelot; is not likely to adversely affect the lesser long-nosed bat; is

not likely to adversely affect the Mexican spotted owls designated critical habitat; and is

not likely to adversely affect the yellow-billed cuckoo. FWS failed to state directly

whether the Project would adversely affect the Mexican spotted owl, independently of

impacts to its designated critical habitat. Defenders, and other concerned citizens, were



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never provided an opportunity to comment on the FWS concurrence letter as part of the

NEPA scoping process.

67. On August 25, 2014, USFS published an initial Decision Memorandum

approving the Sunnyside Project and determining to categorically exclude the Project

from further NEPA analysis. In doing so, USFS concluded the Project would be

completed within one year, would not affect threatened or endangered species, and would

not affect floodplains, but that the town of Patagonias municipal water supply may be

affected.

68. On September 12, 2014, USFS published a second Decision Memorandum

again approving the Sunnyside Project and determining to categorically exclude the

Project from further NEPA analysis. In doing so, USFS concluded the Project would be

completed within one year, may affect, but was not likely to adversely affect threatened

or endangered species, and that the town of Patagonias water supply may be affected.

69. The Sunnyside Project contains six drill site locations with three alternative

site locations. As many as three drill holes may be drilled at each of the six locations.

Each drill hole may be up to 6,500 feet deep. The drill holes are expected to encounter

water at depths in excess of 1,000 feet. An abandoned drill hole, from an earlier

exploratory project, in the same area became an artesian well after its cap was broken.

The Project may also involve the drilling of additional drill holes, laterally off the main

bore holes, at various depths. The drilling of these additional holes increases the odds the

drilling will encounter groundwater.



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70. Five of the six drill site locations are along the road (Forest Road 4685) in

the bottom of Humboldt Canyon. The sixth drill site location is on an unnamed road

branching off Forest Road 812. Humboldt Canyon is a narrow steeply walled canyon.

Humboldt Canyon contains an ephemeral creek which flows into Alum Gulch. Alum

Gulch is an intermittent creek. Drill site locations require flat areas, cleared of

vegetation, for drilling pads and sumps. Because of the narrow nature of Humboldt

Canyon, some drill pads are located in the floodplain. Five of the six drill pads, those in

Humboldt Canyon, will be 15 feet wide by 90 feet long. The sixth, on the road branching

off Forest Road 812, will be 50 feet by 75 feet. Each drill site will require a sump

approximately 4 feet deep by 20 feet long and 3 feet wide. These sumps are supposed to

collect all drilling fluids, drilling wastes, and produced water. Narrow canyons in the

Patagonia Mountains, such as Humboldt Canyon, and Alum Gulch are subject to flash

floods. Within approximately the past month, heavy rains in the Patagonia Mountains

caused flooding in Alum Gulch. This flooding eroded old mine tailings in the area and

resulted in significant water pollution, in violation of water quality standards, in Alum

Gulch.

71. Project activities will include roadway clearing, roadway maintenance,

drilling, and reclamation. Necessary equipment will include drilling rigs, backhoes, road

graders, dozers, trucks, water pumps and chainsaws. Up to two drill rigs at a time will be

used. Drilling may occur 24 hours per day and seven days per week. Drilling at night

will require artificial lighting. USFS claims the Project is expected to last up to one year

total, with a break in operations from March 1 through August 31 to avoid the Mexican



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spotted owl breeding season. The drilling is expected to last at least six months,

assuming no break-downs in equipment occur. Reclamation, invasive weed control and

erosion control will not be finally completed for up to three years. Reclamation activities

include moving earth and topsoil with dozers and graders. USFSs review and approval

of the exploratory mineral operations at the Project site includes the review and approval

of all reclamation activities.

72. USFSs approval of the Project requires the mining company to monitor

drill pad locations for three years following the completion of drilling operations to

ensure settlement or excessive erosion is not occurring in the reclaimed areas. Repair of

any improper settlement or erosion control measures is the responsibility of the operator.

Repair of any improper settlement or erosion control measures may involve the use of

heavy mechanical equipment.

73. A rock drill typically produces 98 decibels of noise at a distance of 50 feet.

A grader or dozer typically produces 85 decibels of noise at a distance of 50 feet. A

water pump or chainsaw typically produces 76 decibels of noise at a distance of 50 feet.

These typical noise levels were not measured in a narrow rock walled canyon. A narrow

rock walled canyon may amplify these typical noise levels.

74. Drilling operations are expected to require up to 12,500 gallons of water

per day. The source of this water has not been determined. The town of Patagonia uses

approximately 110,000 gallons of water per day. The Sonoita Creek watershed, which

includes Alum Gulch and Harshaw Creek, is the municipal watershed for the town of

Patagonia. Sonoita and Harshaw Creeks and their subterranean aquifers provide the only



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source of potable water for the town of Patagonia and its approximately 900 residents and

over 300 private well users within a 3-mile radius of the town. The shallow depth of the

aquifers in this watershed, combined with the nature of the soils and underlying geology,

make the relationship between the surface and ground watersheds a particularly close and

interconnected one.

75. USFS has not performed any scientific studies regarding the water supply

for the Project and the possible effects to the town of Patagonia. Depending on the

location of the withdrawal of the water supply for the Project, this groundwater

dependent ecosystem may be negatively affected by the Project from dewatering.

Additionally, any spills of drilling fluids, wastes, or produced water, or any overflow or

leaking of sumps, could result in pollution to the town of Patagonias water supply.

II. Species in the Project Area

76. The jaguar is listed under the ESA as an endangered species. Jaguars may

occur in the project area. The project area is inside the designated critical habitat of the

jaguar. An important function of the designated jaguar critical habitat in the Patagonia

Mountains, including the project area, is to allow jaguars to travel between occupied

habitat areas to the north and south of the Patagonia Mountains, and in particular to allow

immigration of jaguars from Mexico to the United States. The ability of jaguars to travel

through the Patagonia Mountains is important to the recovery of the species. The drilling

noise, nighttime lighting, and other disturbances associated with the Project will cause

any jaguars to avoid the project area for the duration of the Project. The level of

disturbance from the Project in terms of noise and human activity may be intense. The



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Project may affect the jaguar. The Project will adversely affect a portion of the jaguars

designated critical habitat for the duration of the Project.

77. The ocelot is listed under the ESA as an endangered species. Ocelots may

occur in the project area. The Patagonia Mountains provide habitat for resident and/or

dispersing ocelots. Though the ocelot lacks a formally designated critical habitat, the

Patagonia Mountains, including the project area, serve as an important corridor linking

occupied ocelot habitat to the north and south, and in particular to allow ocelots from

Mexico to immigrate to the United States. The ability of ocelots to travel through the

Patagonia Mountains is important to the recovery of the species. The drilling noise,

nighttime lighting, and other human disturbances associated with the Project will cause

ocelots to avoid the project area for the duration of the Project. The level of disturbance

from the Project in terms of noise and human activity may be intense. The Project may

affect the ocelot.

78. The lesser long-nosed bat is listed under the ESA as an endangered species.

The lesser long-nosed bat lacks a formally designated critical habitat. The lesser long-

nosed bat is likely to occur in the project area. The Patagonia Bat Cave, a post-maternity

roost for the lesser long-nosed bat, is approximately five miles northeast of the project

area. Lesser long-nosed bats may forage up to 36 miles from a roosting site. In addition

to the Patagonia Bat Cave, there are eight known post-maternity and day roost sites of the

lesser long-nosed bat within 36 miles of the project area. The lesser long-nosed bat feeds

on agaves. Agaves occur in the project area. It is likely that lesser long-nosed bats use

the project area to feed on agaves throughout the later summer and early autumn,



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including during the month of September after the Mexican spotted owl breeding season.

Agaves occur on at least some of the six drill sites proposed for vegetation clearing

during the Project. The Project will avoid agaves to the extent practicable and if they

cannot be avoided agaves will be relocated. USFS has not analyzed whether or not it is

possible to relocate agaves successfully. Disturbance associated with the Project,

especially nighttime drilling, may cause lesser long-nosed bats to avoid the project area.

The Project may affect the lesser long-nosed bat.

79. The Mexican spotted owl is listed under the ESA as a threatened species.

The entire project area is inside of designated critical habitat for the Mexican spotted owl.

Mexican spotted owl critical habitat is generally divided into three categories: (1)

Protected Activity Centers (PACs), (2) recovery habitat, and (3) other forest and

woodland habitat. PACs are afforded the highest priority and encompass a minimum of

600 acres surrounding known owl nest or roost sites. Five of the six drilling locations

proposed for the Sunnyside Project, those along Forest Road 4685, are inside of the

Humboldt Canyon Mexican spotted owl PAC (Alum Gulch). One of these five sites is

only one-tenth of a mile from the core nesting area of this PAC (drill site F). The sixth

drilling site, on the road off Forest Road 812, is only two-tenths of a mile outside the

PAC boundary.

80. The Mexican spotted owl is known to occupy the project area. Occasional

surveys of this PAC have been conducted since the late 1980s and have consistently

documented Mexican spotted owls at this location. Nesting was confirmed in 2006. In

2007, a pair of Mexican spotted owls nesting in this location successfully fledged two



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young. The most recent survey of the Humboldt Canyon PAC documented a pair of

Mexican spotted owls in June and July of 2013. Some Mexican spotted owls occupy

their territories year-round. Defenders and other concerned citizens commenting on the

scoping notices for the Sunnyside Project informed USFS that the Mexican spotted owls

in Humboldt Canyon were observed in the area outside of their March 1 through August

31 breeding season. The Humboldt Canyon PAC appears to be occupied year-round.

Mexican spotted owls have been observed in the Humboldt Canyon PAC outside of the

breeding season (March 1 st to August 31 st). Young Mexican spotted owls fledge and

disperse from the natal area in mid-September to early October. Young Mexican spotted

owls are particularly susceptible to predation. Predation of young Mexican spotted owls

may be increased when they are flushed (forced to fly) from protected roosting areas.

81. Elevated noise levels may affect Mexican spotted owls in the vicinity of the

sound. The impact of noise on Mexican spotted owls varies with the frequency of noisy

events, topography, weather conditions, reproductive status of the owl, and the owls

location relative to the sound source. The Mexican spotted owl recovery plan

recommends breeding season noise restrictions be applied to noise levels in excess of 69

decibels within a PAC boundary. Sporadic noise events, such as chainsaw operation

during brush clearing and roadway grading, may affect Mexican spotted owls by causing

them to change behaviors and/or flush from perches. Consistent noise, such as that

associated with drilling operations, may negatively impact the Mexican spotted owls

ability to forage and communicate in the vicinity of the sound. In general, noise above 92

decibels may cause Mexican spotted owls to flush from roost sites. A rock drill, such as



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those proposed for use in the Project, typically creates 98 decibels of noise. Acute noise

events, such as chainsaw operations, cause flushing at a lower threshold of 46 decibels.

The Project will produce noise levels in excess of the 69 decibel limit recommended as a

breeding season restriction in the owl Recovery Plan. Project activities are expected to

elicit flush responses from Mexican spotted owls in the Humboldt Canyon PAC. Project

activities are expected to decrease the ability of Mexican spotted owls in the Humboldt

Canyon PAC to forage. The Project may affect the Mexican spotted owl. The Project

will adversely affect a portion of the Mexican spotted owls designated critical habitat for

the duration of the Project.

82. The western distinct population segment of the yellow-billed cuckoo will

be listed under the ESA as a threatened species as of November 3, 2014. Surveys for the

yellow-billed cuckoo have not been conducted in the project area. However, surveys of

nearby canyons, located between one-half and three and one-half miles away from the

project area (Hermosa Canyon, Corral Canyon, and Harshaw Creek), detected yellow-

billed cuckoos. The most recent surveys in these areas adjacent to the project area were

conducted in 2013. These surveys detected yellow-billed cuckoos on eight of the nine

transects surveyed and documented evidence of breeding on six transects. Because the

vegetation in the project area is similar to that found in these nearby occupied locations, it

is likely the yellow-billed cuckoo occurs in Humboldt Canyon. The yellow-billed cuckoo

uses riparian vegetation in canyon bottoms for breeding, feeding and sheltering. The five

drill site locations in Humboldt Canyon, along Forest Road 4685, are all adjacent to the

riparian area in the bottom of Humboldt Canyon. The yellow-billed cuckoo is negatively



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impacted by noise. It is likely that yellow-billed cuckoos use the project area throughout

the later summer and early autumn, including during the month of September after the

Mexican spotted owl breeding season. The Project may affect the yellow-billed cuckoo.

III. USFS Efforts to Comply with NEPA

83. USFS determined the Project could be categorically excluded from further

NEPA analysis based on a categorical exclusion for short-term (1 year or less) mineral,

energy, or geophysical investigations and their incidental support activities. USFS

asserts the Project will be completed in one year or less.

84. USFS indicates that drilling cannot occur between March 1 and August 31

to avoid the Mexican spotted owl breeding season. Drilling is allowed during the other

six months of the year, including the month of September. The drilling operations are

expected to last six months assuming no breakdowns in equipment occur. Because the

Project did not commence on September 1 and because drilling will take at least six

months to complete, the required cessation of drilling for the Mexican spotted owl

breeding season between March 1 and August 31 likely will require drilling to be

conducted in two increments of less than six months each, rather than during a single six-

month block. It is unclear whether these two increments of drilling will occur within one

calendar year.

85. Required reclamation will not be completed for up to three years.

Reclamation is a component of the Project. Reclamation may involve the use of heavy

equipment, including dozers and graders, to remove and re-contour sumps, once they

have dried out, and to re-contour drill pads and replace topsoil. Accordingly, even if the



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drilling is completed in one calendar year, the Project does not qualify for the use of the

categorical exclusion for activities that will be completed in one year or less because

reclamation may take up to three years.

86. USFS relies on the cessation of drilling during the Mexican spotted owl

breeding season (March 1 to August 31) to avoid impacts to the owl and other listed

species. However, as detailed above, owls inhabit the project area year-round. Jaguars

and ocelots may also use the project area at any time. Drilling during September is

particularly problematic. Lesser long-nosed bats and yellow-billed cuckoos use the

project area during the month of September and thus impacts to these species are not

completely avoided by the cessation of drilling during the owl breeding season. Even

though drilling did not occur during September 2014, it is possible that drilling will occur

during the month of September 2015 because, as detailed above, drilling takes six months

to complete and likely will occur in two increments to avoid the owls breeding season.

In partial recognition of the potential impacts to the cuckoo that might result from drilling

in September, USFSs second (revised) Decision Memo does require cuckoo surveys in

Alum Gulch before conducting any work in September. However, the Decision Memo

does not describe any protective measures to be taken if cuckoos are detected and

contains no similar survey provisions for the bat.

87. USFS determined that no extraordinary circumstances resulting from the

presence of federally listed threatened or endangered species or designated critical habitat

in the project area prevented the use of a categorical exclusion from further NEPA

review. An extraordinary circumstance exists when a normally excluded action may



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have a significant environmental impact. 40 C.F.R. 1508.4 (emphasis added). USFS

determined the Project may affect, but is not likely to adversely affect, the jaguar,

ocelot, lesser long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo. USFS also

determined the Project would not result in the destruction or adverse modification of

designated critical habitat for the jaguar and Mexican spotted owl.

88. The USFS may still use a categorical exclusion even when threatened or

endangered species or their designated critical habitats are present in a project area if it

determines that the project will not impact the species or designated critical habitat but

that is not the case here.

89. USFS did not determine the Project would have no effect on the ESA

protected species. Rather, it determined the Project may affect but is not likely to

adversely affect the species. The Project will negatively impact the jaguar, ocelot, lesser

long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo. In particular, the Project

will cause jaguar and ocelot to avoid the project area for its duration. The jaguar will be

unable to use a portion of its designated critical habitat throughout the Project. Similarly,

the Project will cause lesser long-nosed bats and yellow-billed cuckoos to avoid the

project area for its duration and may reduce food resources for the lesser long-nosed bat.

Because jaguars and ocelots may occur in or use the project area year-round, the

cessation of drilling activity during the Mexican spotted owl breeding season does not

preclude the possibility of harm to the jaguar and ocelot. Lesser long-nosed bats and

yellow-billed cuckoos use the project area during the month of September. The cessation

of drilling activity during the Mexican spotted owl breeding season does not preclude the



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possibility of harm to the lesser long-nosed bat or yellow-billed cuckoo during the month

of September. Merely requiring surveys for yellow-billed cuckoos before allowing

drilling in September, without requiring protective measures in the event of detection, do

not avoid harm to the species. Lesser long-nosed bats may also be harmed by the loss of

food resources (agaves) regardless of the month of the year in which the agaves are

destroyed. Yellow-billed cuckoos may be harmed by the loss of riparian habitat

regardless of the month of the year in which the habitat is destroyed.

90. The Projects impacts to the Mexican spotted owl are particularly negative.

Five of six drill site locations are within the most sensitive portion of Mexican spotted

owls designated critical habitat a Protected Activity Center. One drill site location is

only one-tenth of a mile from the most protected portion of the PAC the core nesting

area. The cessation of drilling during the Mexican spotted owl breeding season (March 1

through August 31) does not negate the possibility of harm to the resident owls. Mexican

spotted owls occupy the project area year-round. Noise and light from the Project will

harm resident owls within this PAC by interfering with their foraging and communication

and by causing them to be continually flushed from roosting sites. The Mexican spotted

owls will be flushed from, and thus have to avoid, a portion of their home range in the

PAC for the duration of the Project. Young Mexican spotted owls, which fledge in late

autumn, including the month of September, are particularly vulnerable to predation when

flushed. The Project may harm the ability of the resident pair of owls to successfully raise

young.



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91. Accordingly, USFSs determination that no extraordinary circumstances

arising from the presence of threatened and endangered species or designated critical

habitat for these species in the project area and potential harm to these species is

arbitrary, capricious and unsupported by the record before the agency.

92. USFS also determined that no extraordinary circumstances resulting from

impacts to floodplains, wetlands, or municipal watersheds in the project area prevented

the use of a categorical exclusion from further NEPA review.

93. As to floodplains, USFS acknowledges that some drill site locations are

located in a floodplain. USFS opines that no adverse effects are anticipated to this

floodplain because the Project activities are temporary in nature. The fact that the

activities are temporary is necessarily true in all cases involving the use of a categorical

exclusion for short-term activities taking one-year or less to complete. Nonetheless,

USFS must still analyze whether an exceptional circumstance exists even for such

temporary activities. USFS did not perform any such analysis. It is quite likely a flood

or a significant rainfall event in this floodplain could result in negative impacts. Indeed,

recent rainfall events or floods in Alum Gulch caused significant water pollution by

washing old tailings from abandoned mines into the creek. Five of six drill site locations

are in Humboldt Canyon. Humboldt Canyon is a narrow, steeply walled canyon prone to

flash floods. The Project proposes to store drilling fluids wastes, and produced water in

open sumps. Any flood or significant rainfall event in Humboldt Canyon could cause

these open sumps to overflow and result in pollution entering Alum Gulch. Additionally,

because the Project drilling may encounter water at depths below 1000 feet, and because



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the volume of this water is unknown, it is also unknown whether the designed sumps can

accommodate the volume of water that may result from drilling. An exploratory drilling

hole, from a prior project in this area, has become an artesian well. Accordingly, despite

the temporary nature of the Project in the floodplain, it could still have negative effects

and may present extraordinary circumstances making it inappropriate for a categorical

exclusion from further NEPA review.

94. The Project will also take place in the municipal watershed of the town of

Patagonia. USFS acknowledges that the Harshaw Creek watershed has been proposed to

be designated as a municipal watershed for the town of Patagonia. This is partially

incorrect. The Sonoita Creek watershed, which includes both Harshaw Creek and Alum

Gulch, is proposed to be designated as a municipal watershed for the town of Patagonia.

The extraordinary circumstance criteria do not specify whether or not a municipal

watershed must be officially designated as such to qualify as a municipal watershed for

the purposes of the extraordinary circumstances analysis. The Project area is, in fact, part

of a municipal watershed which provides the only source of potable water for the town of

Patagonia and its approximately 900 residents and over 300 private well users within a

three-mile radius of the town. Moreover, any delay in officially designating this area as a

municipal watershed arises from USFSs processing of the proposal through an

amendment to its Coronado National Forest Resource Management Plan.

95. USFS opines that because the location of the water supply necessary for the

Project is unknown, the water supply of the town of Patagonia may be unaffected as the

Projects water supply may be drawn from an entirely different groundwater basin. Of



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course, the converse is equally possible. USFS has merely speculated that no harm to

this municipal watershed will result from the Project, but has not performed, and indeed

cannot perform, any actual analysis because the source of the Project water supply has

not been revealed by the Project proponent. Depending on the location of the water

supply withdrawal, the town of Patagonias municipal watershed may be negatively

affected by the Project. Accordingly, USFSs failure to find an extraordinary

circumstance resulting from the Projects location in a municipal watershed fails to

consider all relevant factors, is arbitrary and capricious, and unsupported by the record.

96. In determining that the Project does not present extraordinary

circumstances, USFS did not analyze the cumulative effects or impacts from all past,

present, and reasonably foreseeable future actions in the project area. A cumulative

impacts analysis is required as a part of USFSs determination of whether there may be

significant impacts from the Project. Without an adequate analysis of such effects or

impacts, USFSs decision to categorically exclude the Project from detailed NEPA

review fails to consider all relevant factors, is arbitrary, capricious, and unsupported by

the record.

97. The Coronado National Forest is reviewing several other proposals for

exploratory drilling and related mineral operations on USFS and private lands in the

Patagonia Mountains. These projects may adversely affect wildlife, recreation,

floodplains, and water resources, including the town of Patagonias water supply, among

other potentially affected resources. Arizona Minerals, Inc. (AMI) is currently proposing

to drill as many as 10 exploratory, 23 geotechnical, and 12 hydrogeological boreholes,



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along with 16 test pits, at 46 different sites in an area very near the Sunnyside Project

location known as the Hermosa Drilling Project. The proposed Hermosa Drilling Project

is located approximately 6 miles southeast of the town of Patagonia. Another project, by

Oresome Resources Pty. Ltd., an Australian company, is also proposed for this area, as is

a project called the Placer Mine, Dice # 8. Additional mineral project proposals currently

before the USFS include: (1) the Plan of Operations for the Moore & Moore #4 Placer

Mine, where the USFS proposes to authorize placer mining on unpatented mining claims;

(2) the Plan of Operations submitted by Oracle Ridge Mining, LLC, where the USFS

proposes to issue a special-use permit to Oracle Ridge Mining, LLC, authorizing the use

of Forest roads, a parking area and a utility corridor during operation of the Oracle Ridge

Mine, which is located on private land; and (3) the Javelina Minerals Exploration project

where the USFS proposes to authorize drilling of 8 holes for minerals exploration

approximately 3 miles southeast of the town of Patagonia. Defenders and other groups

called the potential cumulative impacts of all or most of these projects to USFSs

attention during the NEPA scoping process. Each of these projects involves drilling

multiple exploratory holes or other mining-related operations such as roads and support

facilities. The noise, traffic, and physical footprint of these projects, combined, will be

substantial. Additionally, other drilling activities are already taking place on private land

in the same area and these private land projects further exacerbate the environmental

impacts of the proposed federal projects.

98. Border security activities being conducted in the Sunnyside project area by

the Department of Homeland Security are also ongoing and intensive, further harming



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wildlife and recreational resources. Past, present, and reasonably foreseeable border

security activities include, but are not limited to, border barrier construction, road

construction, vegetation clearing, installation of high-powered lighting, cross-country

vehicle patrols and pursuits, horse patrols, foot patrols, helicopter overflights,

surveillance tower construction, remote camera installation, installation of ground

sensors, construction of new forward operating bases and camps, and renewed or

increased occupancy of existing forward operating bases and camps. In fact, the

Coronado National Forest has disclosed the expected issuance of a special use permit for

the occupancy of forward operating camps in the Coronado Nogales and Sierra Vista

Districts. These activities may adversely affect wildlife, recreation, and water and air

quality, among other potentially affected resources.

99. Additional past, present, and reasonably foreseeable future actions that raise

additional uncertainty about the significance of the cumulative effects resulting from the

Sunnyside Project include: the Coronado National Forest Travel Management Plan

process, which is ongoing and may result in an expansion of the designated road system

in the Sierra Vista Ranger District; the Coronado National Forest Land and Resources

Management Plan revision, which is ongoing and may result in additional impacts to

resources in this area related to revise management strategies; continued off road vehicle

use and unauthorized road creation in the affected watershed, as well as the reasonably

foreseeable dispersal of motorized recreation activities that currently occur in the project

area and into neighboring watersheds as they are displaced by the Projects road closures

and traffic; continued population growth and associated residential need for groundwater



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in the Patagonia area, which will affect surface water; and ongoing impacts from old

mine sites to water quality.

100. USFSs decision that the Sunnyside Project was appropriate for a

categorical exclusion from detailed NEPA review did not adequately analyze the

cumulative impacts from the mineral and other activities and actions noted above, in

violation of NEPA and its implementing regulations and the agencys own policy

requirements.

IV. FWS Efforts to Comply with the ESA

101. As required by Section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), USFS

consulted with FWS concerning the impacts of the Project on the jaguar, ocelot, lesser

long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo. In addition, USFS

consulted with FWS concerning the impacts of the Project to the designated critical

habitat of the jaguar and Mexican spotted owl. FWS determined the Project may affect,

but was not likely to adversely affect, the jaguar, ocelot, lesser long-nosed bat, or yellow-

billed cuckoo. In addition, FWS determined the Project is not likely to adversely affect

the jaguars designated critical habitat and is not likely to adversely affect the Mexican

spotted owls designated critical habitat. FWS failed to state directly whether the Project

would adversely affect the Mexican spotted owl, independently of impacts to its

designated critical habitat.



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First Claim for Relief(Violation of NEPA and APA by USFS)

102. Defenders hereby re-alleges and incorporates the allegations in all

preceding paragraphs of this Complaint herein by reference.

103. USFS relied on a categorical exclusion from NEPA applying to short-term

(1 year of less) mineral, energy, or geophysical investigations and their incidental support

activities, 36 C.F.R. 220.6(e)(8), to exclude the Sunnyside Project from further NEPA

review. The Sunnyside Project will take more than one year to complete.

104. USFS determined that no extraordinary circumstances preventing the use of

a categorical exclusion from further NEPA review were presented by the Sunnyside

Project. Potential negative effects to ESA listed species or their designated critical

habitats present an extraordinary circumstance. Potential negative effects to floodplains

or municipal watersheds present an extraordinary circumstance. The Sunnyside Project

will have negative effects on the jaguar, ocelot, lesser long-nosed bat, Mexican spotted

owl, and yellow-billed cuckoo. The Sunnyside Project will have negative effects on the

jaguars designated critical habitat. The Sunnyside Project will have negative effects on

the Mexican spotted owls designated critical habitat. The Sunnyside Project will have

negative effects on the floodplain in Humboldt Canyon and Alum Gulch. The Sunnyside

Project will have negative effects on the municipal watershed of the town of Patagonia.

105. Because USFS relied upon a categorical exclusion to exclude the Sunnyside

Project from further NEPA review, it did not consider any reasonable alternatives to the

proposed action. Reasonable alternatives, including preclusion of drilling during the



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month of September to better protect the lesser long-nosed bat and yellow-billed cuckoo,

the relocation of drill site locations outside of the Mexican spotted owl PAC or further

from the core nest area of this PAC and outside of floodplains, exist. Additionally,

reasonable alternatives concerning the source of the water supply necessary for the

Projects drilling, including obtaining the necessary water from outside of the municipal

watershed of the town of Patagonia, exist. See 40 C.F.R. 1502.14(a).

106. Because USFS failed to adequately consider the cumulative effects and

impacts of all past, present, and reasonably foreseeable future actions in its consideration

of the Sunnyside Project, including during the scoping process and categorical exclusion

decision-making process, USFS violated NEPA and its implementing regulations, and the

agencys own policy.

107. USFSs decision to invoke a categorical exclusion from NEPA instead of

preparing at least an EA is arbitrary, capricious, not in accordance with law, and without

observance of the procedures required by law, within the meaning of the APA, 5 U.S.C.

706.

108. Defenders is entitled to its reasonable fees, costs, and expenses associated

with this litigation pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412.

Second Claim for Relief(Violation of the ESA and APA by FWS)

109. Defenders hereby re-alleges and incorporates the allegations in all

preceding paragraphs of this Complaint herein by reference.



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110. Section 7 of the ESA, 16 U.S.C. 1536(a)(2), requires FWS to insure that

any action authorized by USFS is not likely to: (1) jeopardize the continued existence of

any threatened or endangered species; or (2) result in the destruction or adverse

modification of any designated critical habitat for a threatened or endangered species.

111. In fulfilling this requirement, FWS must use the best scientific and

commercial data available. 16 U.S.C. 1536(a)(2).

112. If USFS determines that an action, such as USFSs Sunnyside Project,

may affect a listed species or its designated critical habitat, USFS must initiate formal

consultation with FWS. 50 C.F.R. 402.14.

113. If during formal consultation FWS determines that a proposed action will

jeopardize the continued existence of a listed species, or result in the destruction or

adverse modification of designated critical habitat, it must prepare a biological opinion

outlining reasonable and prudent alternatives to the proposed action that will avoid

jeopardy or the destruction or adverse modification of critical habitat. 16 U.S.C.

1536(b)(3)(A).

114. If during formal consultation the biological opinion concludes that the

proposed action is not likely to jeopardize the continued existence of a listed species, and

will not result in the destruction or adverse modification of critical habitat, FWS must

provide an incidental take statement specifying the amount or extent of such incidental

taking on the listed species any reasonable and prudent measures that FWS considers

necessary or appropriate to minimize such impact, and setting forth terms and conditions



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that must be complied with by the project proponent to implement those measures. 16

U.S.C. 1536(b)(4); 50 C.F.R. 402.14(I).

115. Alternatively, FWS may use informal consultation to determine if formal

consultation is required. 50 C.F.R. 402.13.

116. If, during informal consultation, FWS determines that the action is not

likely to adversely affect listed species or designated critical habitat and issues a

concurrence letter to that effect, the consultation process ends. 50 C.F.R. 402.13.

117. The Sunnyside Project is likely to adversely affect the jaguar, ocelot, lesser

long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo. The Sunnyside Project

is likely to adversely affect designated critical habitat of the jaguar and Mexican spotted

owl.

118. FWS violated the ESA within the meaning of the APA by failing to use the

best available science in its informal consultation on the Sunnyside Project and by

finding the Sunnyside Project was not likely to adversely affect the jaguar, ocelot, lesser

long-nosed bat, Mexican spotted owl, and yellow-billed cuckoo. FWS violated the ESA

within the meaning of the APA by finding the Sunnyside Project was not likely to

adversely affect the designated critical habitat of the jaguar and Mexican spotted owl.

119. FWSs decision and concurrence letter are arbitrary, capricious, not in

accordance with law, and without observance of the procedures required by law, within

the meaning of the APA, 5 U.S.C. 706.

120. Defenders is entitled to its reasonable fees, costs, and expenses associated

with this litigation pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412.



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PRAYER FOR RELIEF

A. Declare that USFS violated NEPA and the APA in issuing its Decision

Memo authorizing the Sunnyside Project.

B. Declare that FWS violated the ESA and APA in issuing its Concurrence

Letter regarding the Sunnyside Project.

C. Set aside and vacate USFSs Decision Memo and authorization of the

Sunnyside Project.

D. Set aside and vacate FWSs Concurrence Letter.

E. Award Defenders its reasonable attorneys fees and costs incurred in this

action pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, or other provisions

of law.

F. Grant Defenders such injunctive and additional relief as the Court deems

just and equitable.

Respectfully submitted,

DATED this 29th day of October, 2014

s/ McCrystie AdamsJames Jay Tutchton (CO Bar # 21138)McCrystie Adams (CO Bar # 34121)Defenders of Wildlife535 16 th Street, Suite 310Denver, CO 80111Email: [email protected]

[email protected]: (720) 943-0457 (Tutchton)

(720) 943-0459 (Adams)



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Roger Flynn (CO Bar # 21078)Western Mining Action ProjectP.O. Box 349440 Main Street, #2Lyons, CO 80540Email: [email protected]: (303) 823-5738Fax: (303) 823-5732

Attorneys for Plaintiffs



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UNITED STATES DISTRICT COURTDISTRICT OF ARIZONA

Civil Cover SheetThis automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States inSeptember 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet.The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers asrequired by law. This form is authorized for use only in the District of Arizona.

The completed cover sheet must be printed directly to PDF and filed as anattachment to the Complaint or Notice of Removal.

Plaintiff (s):

Defenders of Wildlife ; PatagoniaArea Resource Alliance

Defendant(s):

U.S. Forest Service ; U.S. Fish andWildlife Service

County of Residence: Pima County of Residence: Santa CruzCounty Where Claim For Relief Arose: SantaCruz

Plaintiff's Atty(s): Defendant's Atty(s):

James Jay TutchtonDefenders of Wildlife535 16th St., Suite 310Denver, Colorado 80202720-943-0457

McCrystie AdamsDefenders of Wildlife535 16th St., Suite 310Denver, Colorado 80202720-943-0459

Roger FlynnWestern Mining Action Project

P.O. Box 349, 440 Main St., #2Lyons, Colorado 80540

II. Basis of Jurisdiction: 2. U.S. Government Defendant

III. Citizenship of PrincipalParties (Diversity Cases Only )

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Plaintiff:- N/ADefendant:- N/A

IV. Origin : 1. Original Proceeding

V. Nature of Suit: 893 Environmental Matters

VI.Cause of Action: 42 U.S.C. 4321 et seq., 5 U.S.C. 706, violation of NEPA and APAby U.S. Forest Service in approving mineral exploration project;16 U.S.C. 1536, 5 U.S.C. 706, violation of ESA and APA by U.S.Fish and Wildlife Service in ESA consultation

VII. Requested in ComplaintClass Action: No

Dollar Demand:Jury Demand: No

VIII. This case is not related to another case.

Signature: s/ McCrystie Adams

Date: 10/29/2014

If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button inyour browser and change it. Once correct, save this form as a PDF and include it as an attachment to your caseopening documents.

Revised: 01/2014

Page 2 of 2Case 4:14-cv-02446-RM Document 1-1 Filed 10/29/14 Page 2 of 2

defenders of wildlife v. usfs

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