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December 2, 2020

Discovery Motion Granted in Fish & Wildlife Service’s San Pedro River Policy Reversal

For years, FWS said huge development near the river required a formal study. One phone call changed the agency’s position.

Contacts

Stu Gillespie, Earthjustice, (303) 996-9616 

Sandy Bahr, Sierra Club, (602) 253-8633 

Jonathan Lutz, Tucson Audubon Society, (520) 209-1801 

Lisa Belenky, Center for Biological Diversity, (510) 844-7107

Phoenix, AZ

Today, the U.S. District Court for the District of Arizona found sufficient evidence of bad faith to grant a motion authorizing discovery and compelling the U.S. Fish & Wildlife Service (FWS) to produce internal documents showing whether political corruption influenced an abrupt reversal of policy regarding a huge property development near the San Pedro River.

Conservation groups represented by Earthjustice filed the motion after a longtime FWS official told reporters on the record that he was pressured by a “high-level politico” to reverse his determination that the Endangered Species Act required the U.S. Army Corps of Engineers to complete a comprehensive consultation with FWS before approving a necessary permit for the Villages at Vigneto development. The conservation groups also sought to compel the government to produce emails, drafts, and other internal documents that corroborated the improper political interference. The government opposed the motion based on the assertion that the political interference was merely a “legal” conversation.

The court granted the motion, finding that it could not ignore “the gravity of Director Spangle’s statements indicating political interference.” The court further concluded that those statements “at the very least, support a showing of bad faith sufficient to warrant deliberative materials and extra-record discovery.”

Lower San Pedro Watershed Alliance, Center for Biological Diversity, Sierra Club, Maricopa Audubon Society, Tucson Audubon Society, and Cascabel Conservation Association filed the motion as part of litigation brought against the Corps and the FWS over the Vigneto development.

“This is a crucial step forward in safeguarding the Endangered Species Act and exposing the improper political interference that occurred at the Fish & Wildlife Service during the Trump administration,” said Stu Gillespie, staff attorney with Earthjustice’s Rocky Mountain Office. “The court not only underscored the gravity of Director Spangle’s statements, it also rejected the government’s attempt to cover up that interference and withhold critical evidence from the court and public.”

“The court’s decision today is a major victory for government accountability,” said Sandy Bahr, Director of Sierra Club’s Grand Canyon Chapter. “The San Pedro River region is one of the most biologically diverse areas in the Southwest, and the public has the right to know why the Fish and Wildlife Service, after finding that the Army Corps failed to fully evaluate impacts of the Vigneto development on this fragile ecosystem, abruptly changed course to find that the Corps’ extremely limited analysis was sufficient.”

“The Trump administration tried to silence scientists to ram through development approvals for its political cronies, but hydrology studies show that this development would suck the St. David Cienega dry and have a devastating impact on wildlife that depend on the San Pedro Riparian National Conservation Area for their survival,” said Robin Silver, co-founder of the Center for Biological Diversity. “The science is clear that this level of water pumping would irreversibly degrade the riparian habitat and harm migratory birds, including multiple endangered and listed species.”

“We are encouraged by the U.S. District Court’s finding to compel the agency to be transparent about the possibility of political corruption in the Vigneto case,” said Jonathan Lutz, Executive Director of the Tucson Audubon Society. “The fates of millions of resident and migratory birds that depend on the San Pedro River, both for survival and reproduction, hinge on our public servants’ ability to make unbiased, science-based decisions. There is no margin for error or compromise when it comes to protecting this fragile, one-of-a-kind ecosystem.”

“In the middle and lower San Pedro watershed, we are dealing with the profound impacts of high sediment loads during the major flows of the River,” said Peter Else of the Lower San Pedro Watershed Alliance, “Dodging a comprehensive analysis of Vigneto’s extensive proposed dredge-and-fill impacts, based on political interference with the Fish & Wildlife Service, would constitute corruption of the Clean Water Act, which was intended to reduce sediment loads.”

The San Pedro River is the last major free-flowing river in the desert southwest, a sanctuary for millions of migratory birds, and home to multiple endangered species including the jaguar, western yellow-billed cuckoo, and southwestern willow flycatcher. Excessive groundwater pumping has already begun to dry up the river and its riparian vegetation and springs, leaving little water to spare.

In this increasingly arid environment, El Dorado Benson, LLC (El Dorado) plans to build Vigneto, a massive development that would rely solely on groundwater pumping to support 28,000 homes, 3 million square feet of commercial space, and luxurious amenities such as golf courses, fountains, and verdant landscaping.

For more than a decade, FWS was an impediment to this plan, having concluded that the U.S. Endangered Species Act required a formal consultation and a comprehensive analysis of the impacts of granting a permit to fill 75 miles of washes that cut across the land and drain into the San Pedro River. Filling them would require a Clean Water Act Section 404 permit.

FWS abruptly reversed itself in October 2017, retracting its determination that a formal consultation was required and allowing the Corps to issue a permit with no analysis or consultation.

That reversal was not based on facts or science, but on improper political interference. After he retired, FWS Field Supervisor Steven Spangle told reporters that he had received a phone call from an Interior Department attorney warning him that a “very high-ranking politico” in the Trump administration wanted the decision changed.

Reporters later found that the attorney had met twice with then-Deputy Interior Secretary David Bernhardt the same day she made the call to Spangle. Those meetings happened less than two weeks after Bernhardt had met privately with Vigneto developer Mike Ingram, a prominent donor to President Trump.

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