The U.S. Fish and Wildlife Service overstepped its authority by building two water tanks inside a Western Arizona wilderness area to help bighorn sheep living in the Kofa National Wildlife Refuge, a federal appeals court panel ruled.
The wildlife service failed to prove that the 13,000-gallon tanks were needed for bighorn sheep, thereby flunking a key requirement for building permanent structures inside federal wilderness areas, said two members of a three-judge panel of the 9th U.S. Circuit Court of Appeals. Under the Wilderness Act, permanent structures are not allowed "except as necessary to meet minimum requirements" for administration of wilderness areas.
The Dec. 21 ruling means the service will either have to come up with a better justification for installing the tanks, remove them or take some other, as yet unknown action.
Environmental groups have opposed these tanks since the service built them in 2007 and had filed the lawsuit challenging the federal decision to build them. The 9th Circuit panel sent the case back to the U.S. District Court in Arizona for further review and action.
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While hailing the ruling, a Tucson environmentalist said he's not sure whether removing the tanks would be the best solution at this point, because that would require more intrusive action in a wilderness area.
He said a more important point is how such projects will be handled in the future - that they be properly justified and approved in an open, public manner without "backroom deals" of the kind that environmentalists say occurred in this case.
"The damage has been done. We can't turn back the clock," said Matt Skroch, the Arizona Wilderness Coalition's executive director. "If we bring in heavy equipment and hard labor to remove the tanks, we are constituting a signficant impact."
A wildlife service official acknowledged this week that the judges were "absolutely right" that the service hasn't adequately justified the need for these tanks. But the service's Mitch Ellis also noted that the ruling agreed with the service's assertion that the Kofa bighorns are a wilderness resource and that service officials are supposed to be managing for that.
"We need to do a better job in explaining why the water sources are necessary for bighorn sheep as a wilderness resource," said Ellis, manager for a complex of Southwest Arizona wildlife refuges including the Kofa, Imperial and Cibola. "Absolutely we can do that."
The underground tanks, installed over a three-day period, were built as an effort to try to stem a sharp decline in bighorn sheep populations in the Kofa refuge, which is about 40 miles northeast of Yuma.
The tanks consist mainly of PVC pipes. They were designed to catch rainwater and run that water into small concrete troughs or weirs. The service decided to enter the Kofa wilderness with motorized vehicles and equipment to build the tanks, after concluding that such a tactic was safer for workers and would reduce the amount of time they spent in the wilderness.
The workers used existing roads and removed their vehicle tracks after the work was done, the 9th Circuit ruling said. They also covered the watering troughs with sand and rocks to blend them into the environment, so only troughs and small vent pipes are visible.
Jim Paxon, a spokesman for the Arizona Game and Fish Department, said the department doesn't see the court ruling as a "win-lose" situation, but as a call to provide additional information to the court about the need for the tanks. Ideally, the plaintiffs and the court and proponents of the tanks can find room to agree on points of substance and move forward, Paxon said. The department had intervened in this lawsuit on the service's side.
"We feel that these re-developed waters are critical to the stabilization of the bighorn sheep herd and also serve as a benefit to all other wildlife in the area," Paxon said in an e-mail.
Environmentalists have said these water tanks aren't helping the sheep that much because their review of thousands of pictures of the tanks found none of the sheep drinking from the tanks. State and federal officials said one reason the sheep may not be using the tanks is that the weather in the Kofa hasn't been unusually dry in recent years, so they have plenty of other sources to rely on.
Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.
