Attorneys for the U.S. Department of Interior filed a motion Dec. 20 seeking a reconsideration of a ruling by a Washington D.C. federal appeals court that would have forced the disclosure of specific locations of endangered cactus ferruginous pygmy owls in Arizona.
The request follows a unanimous decision Nov. 5 by a three-judge panel of the U.S. Court of Appeals for the District of Columbia directing the U.S. Fish and Wildlife Service to disclose the locations of the federally protected birds to a home builders' association that requested the information three years ago under the Federal Freedom of Information Act.
The Interior Department's request seeks a hearing by the full 10-member Washington D.C. Circuit Court.
Although no date has been set for a hearing of the government's request, attorney Rafe Petersen, who represented the Virginia-based National Association of Home Builders in the initial appeal, said he expected the federal court to respond within the next two weeks.
"We're cautiously optimistic" that the request will be denied, Petersen said. "They need to make a pretty strong case to get a unanimous decision to be heard by the entire Circuit."
David J. Ball, the assistant U.S. Attorney who represented Interior Secretary Gale Norton in the home builder association's successful appeal of a lower court decision two years ago that ruled the information could be released, could not be reached for comment.
The National Association of Home Builders filed suit against Norton on behalf of the Southern Arizona Home Builders Association and the Home Builders Association of Central Arizona after the Fish and Wildlife Service rebuffed the
organizations' 1999 FOIA request for the location of owl sightings and nesting locations.
U.S. District Court Judge Colleen Kollar-Kotelly ruled in favor of the service Sept. 27, 2000, saying that the release of the information could result in an invasion of privacy for land owners if over-enthusiastic bird watchers trespassed on their property to view the owl.
The federal appeals court overturned Kollar-Kotelly's decision in November, ruling that privacy exemptions built into the FOIA did not apply to the home builder association's request, and noting the Interior Department could only cite one instance of bird watchers using the information to crowd on to private property to try and view a pygmy owl.
Tom Gatz, assistant field supervisor for the Fish and Wildlife Service's Arizona Ecological Field Services Office, said bird watchers could pose a significant threat to the owl as well as the privacy of land owners.
"The main reason is that this is a popular bird with the bird watchers, they can be very aggressive in their pursuit of finding a new bird. During the breeding season, that can cause disturbances where the nest might fail or the birds might actually abandon their territory," Gatz said. "There's also concern about the privacy of the neighbors that have these owls. We certainly don't want to be disclosing information that would cause people to descend and trespass on their property."
The Fish and Wildlife Service released a draft of a plan in November that would designate 1.2 million acres of land in Southern Arizona as critical habitat for the owl. A final decision is expected in July.
The latest proposal comes after a decision in 2000 by a federal judge in Arizona vacating a 1999 designation of critical habitat by Fish and Wildlife that encompassed 731,000 acres in the state. The judge ruled the service did not sufficiently take into consideration the economic impact of the designation.
The proposed redesignation contains the economic information and estimates critical habitat will cost businesses and land owners between $70 million and $108 million over a 10-year period.
Michael Mittelholzer, who handles environmental regulatory issues for the National Association of Home Builders, said he believes the government's request for a reconsideration of the appeals court ruling is intended to stall the release of information during the public comment period on the proposed redesignation.
"To us it looks like a brilliant delay tactic. Appeal this thing until the comment period runs out and then, for all intent and purposes, it's great cocktail party talk but the damage has been done. The ruling will become final, we'll be stuck with this 1.2 million-acre designation," Mittelholzer said. "We think it's critical during the comment period that the Fish and Wildlife Service identify where the owls are so people can make an assessment of what critical habitat is required for the owl."
David Hogan, a spokesman for the Center for Biological Diversi-ty, the environmental organization which filed the lawsuit against the Fish and Wildlife Service that led to the 1999 critical habitat designation, said the government is now doing what it's supposed to do to protect the owls.
"In the past, the courts have found that endangered species location information could only be released to those who are unlikely to harm endangered species, such as governmental agencies or environmental organizations," Hogan said. "Any developer who wants to buy a piece of land in Northwest Tucson, for example, can go to the agencies and ask whether that particular property is of significant value to that species and they can make the very best decision accordingly."
But Alan Lurie, executive vice president of the Southern Arizona Home Builders Association, said the general locations of the owls provided to land owners by Fish and Wildlife are often vague and unhelpful.
"Somebody goes in and buys land and then learns that it is designated a 'no development' area because of the owl and they have just wasted a hell of a lot of money," Lurie said.
Developers and other land owners also need site-specific information to help avoid disturbing the owls, Lurie said.
"It's also for the protection of the species. It's important to know where they are in order to protect them," he said.
Hogan disagrees, and points to what he believes is a greater threat to the bird's welfare.
"That's a red herring. The Arizona Game and Fish Department and the Fish and Wildlife Service have been more than happy to point out the importance of specific properties to pygmy owls without revealing exact nest locations," Hogan said. "There is a more significant concern that if site location data ended up in the hands of builders, it might find a way into the hands of those who would actively seek to remove pygmy owl "problems," from their property."
Gatz of the Fish and Wildlife Service said the idea that someone might intentionally destroy the owls is not all that far-fetched, and he cites it as another reason not to release the location of the owls.
"Of course, there are some people who just don't like pygmy owls who might want to do them harm as well, so we don't want them to have that information either," Gatz said.
Killing an endangered species is illegal and carries fines up to $100,000 for an individual, and up to $200,000 for a corporation.
"I understand the concern," Mittelholzer said. "But the Act is pretty clear on what the penalties are for going out and harming or killing the owls or disturbing owl habitat. I just don't understand from a broader public policy standpoint how we can be assured we're having reasonable critical habitat regulation if we don't have the information we need to analyze it."
The Fish and Wildlife Service is expected to issue a final report in July that will set the boundaries of the owl's habitat. The Service is scheduled to hold a public hearing to solicit input on the designation Jan. 23 at the Leo Rich Theater, 260 S. Church Ave. in Tucson, from 6:30 to 9 p.m.
MORE THAN HOME BUILDERS WANT OWL INFO
The lawsuit by the National Association of Home Builders to force the U.S. Fish and Wildlife Service to release records of cactus ferruginous pygmy owl locations under the Freedom of Information Act is also gaining the attention of open record advocates.
One such group is the Reporters Committee for Freedom of the Press, a national organization based in Arlington, Va., that serves as a watchdog of First Amendment issues.
Rebecca Daugherty, director of the Freedom of Information Service Center at the Reporter's Committee, recently posted information about the pygmy owl ruling on the group's Web site.
"The idea that they are refusing to release information because it might endanger the privacy of the people who own land where these owls are found is just ludicrous," Daugherty said. "It's just another indication of what we see as the increasingly creative ways of finding personal privacy interests in a law meant to compel disclosure and openness."
The FOIA was signed into law on July 4, 1966 by President Lyndon Johnson as a way of providing citizens a tool to know what the federal government is doing.
The law, which requires all federal agencies to respond to written requests for information, eventually lead to "Sunshine Laws" in all 50 states, including the Arizona Public Records Law.
The FOIA has 12 specific exemptions and exclusions that prevent the release of certain federal records such as information classified as secret, trade secrets of businesses or documents that would constitute invasion of privacy for individuals.
Attorneys for the Department of Interior argued that information on the pygmy owl sites should not be released primarily under Exemption Six of the FOIA, which offers invasion of privacy protection.
In the Nov. 5 ruling, the U.S. Court of Appeals in the Washington D.C. Circuit tried to balance the right of privacy of land owners who might be besieged by bird watchers if the owl locations were released with the requirements of public disclosure under the FOIA.
The three-judge panel decided the government's argument for privacy was weak and subordinate to the public's right to know under the FOIA.
The court was initially hesitant to release the specific names and addresses of property owners, and the home builders association withdrew that portion of the request, according to the ruling.
In the seven-page opinion that ordered the release, the court cited the intent of the FOIA as "serving to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny."
Daugherty interprets the FOIA ruling in the pygmy owl case similarly.
"When you can't find out what the government is doing, or what its interests are, or whose involved in the decision-making process, it's not conducive toward the free flow of information needed for democracy," she said.