Defenders of Wildlife v. USFS

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 1 of 43
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 Wildlife
535 16th Street, Suite 310
Denver, CO 80202
Email: jtutchton@defenders.org
madams@defenders.org
Phone: (720) 943-0457 (Tutchton)
(720) 943-0459 (Adams)
Roger Flynn (CO Bar # 21078) (Application for Pro Hac Vice to be filed)
Western Mining Action Project
P.O. Box 349
440 Main Street, #2
Lyons, CO 80540
Email: wmap@igc.org
Phone: (303) 823-5738
Fax: (303) 823-5732
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Defenders of Wildlife, and
Patagonia Area Resource Alliance,
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Plaintiffs,
v.
United States Forest Service, and
United States Fish and Wildlife Service,
Defendants.
Case No:
COMPLAINT
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 yellowbilled 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
2
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
3
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.
4
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
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 yellowbilled 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
7
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 (9th Cir.
2002), quoting Baltimore Gas & Electric Co. v. Natural Res. Def. Council, 462 U.S. 87,
97 (1983).
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
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,
10
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 uncertain

whether the proposed action may have a significant effect on the
environment, prepare an EA. If the responsible official determines, based
on scoping, that the proposed action may have a significant environmental
effect, 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 those
that would appear to be categorically excluded []. Scoping is important
to discover information that could point to the need for an EA or EIS versus
a CE. Scoping is the means to identify the presence or absence of any
extraordinary circumstances that would warrant further documentation in
an EA or EIS. Scoping should also reveal any past, present, or reasonably
foreseeable future actions with the potential to create uncertainty over the
significance 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
14
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
15
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 (9th Cir.
2004), amended by 387 F.3d 968 (9th 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 (9th
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
18
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
19
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
21
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
22
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
23
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 longnosed 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,
24
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
25
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 1st to August 31st). 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
26
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 yellowbilled 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
27
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 sixmonth 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
28
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
29
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
30
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.
31
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
32
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
33
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,
34
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
35
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
36
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 yellowbilled 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.
37
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
38
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.
39
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
40
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.
41
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 Adams
James Jay Tutchton (CO Bar # 21138)
McCrystie Adams (CO Bar # 34121)
535 16th Street, Suite 310
Denver, CO 80111
Email: jtutchton@defenders.org
madams@defenders.org
Phone: (720) 943-0457 (Tutchton)
(720) 943-0459 (Adams)
42
Roger Flynn (CO Bar # 21078)

P.O. Box 349
440 Main Street, #2
Lyons, CO 80540
Email: wmap@igc.org
Phone: (303) 823-5738
Fax: (303) 823-5732
Attorneys for Plaintiffs
43
Page 1 of 2
Case 4:14-cv-02446-RM Document 1-1 Filed 10/29/14 Page 1 of 2
UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA
Civil Cover Sheet

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in
September 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 as
required 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 an
attachment to the Complaint or Notice of Removal.
Plaintiff Defenders of Wildlife ; Patagonia
(s):
Area Resource Alliance
Defendant U.S. Forest Service ; U.S. Fish and

(s):
Wildlife Service
County of Residence: Pima
County of Residence: Santa Cruz
County Where Claim For Relief Arose: Santa

Cruz
Plaintiff's Atty(s):
Defendant's Atty(s):
James Jay Tutchton

535 16th St., Suite 310
Denver, Colorado 80202
720-943-0457
McCrystie Adams
535 16th St., Suite 310
Denver, Colorado 80202
720-943-0459
Roger Flynn
P.O. Box 349, 440 Main St., #2
Lyons, Colorado 80540
II. Basis of Jurisdiction:
2. U.S. Government Defendant
III. Citizenship of Principal

Parties (Diversity Cases Only)
http://www.azd.uscourts.gov//cgi-bin/generate_civil_js44.pl
10/28/2014
Page 2 of 2
Case 4:14-cv-02446-RM Document 1-1 Filed 10/29/14 Page 2 of 2
Plaintiff:- N/A
Defendant:- 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 APA

by 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 Complaint

Class 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 in
your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case
opening documents.
Revised: 01/2014
http://www.azd.uscourts.gov//cgi-bin/generate_civil_js44.pl
10/28/2014

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 2 of 43

The Patagonia Mountains also contain the headwaters of Harshaw Creek

The Sunnyside Project involves drilling multiple exploratory bore holes up

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 3 of 43

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

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

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

Additionally, in categorically excluding the Sunnyside Project from

Plaintiffs, Defenders of Wildlife and the Patagonia Area Resource Alliance

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 5 of 43

Defenders further alleges that in concurring with USFSs conclusion that

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

Defenders request for declaratory and injunctive relief is authorized by 28

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 6 of 43

Plaintiff Defenders of Wildlife is a national, nonprofit, membership

Plaintiff Patagonia Area Resource Alliance (PARA) is a grassroots

organization of community members committed to protecting and preserving the

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 7 of 43

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 8 of 43

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

The National Environmental Policy Act

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

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 9 of 43

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

NEPA procedures must insure that environmental information is available

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

The fundamental purpose of NEPA is to engender more informed decisions

NEPA and its implementing regulations promulgated by the Council on

Environmental Quality require federal agencies to prepare an environmental impact

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

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

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

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

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

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

Federal agencies are required to provide for extraordinary circumstances

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

The USFSs categorical exclusion regulations require scoping prior to the

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

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 11 of 43

NEPAs statutory framework, as well as USFSs own regulatory policies

As provided in the FSH:

If the responsible official determines, based on scoping, that it is uncertain

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 12 of 43

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

Prior to categorically excluding a proposed project from detailed NEPA

USFS has developed criteria specifying resource conditions that should be

considered in determining whether extraordinary circumstances related to a proposed

Case 4:14-cv-02446-RM Document 1 Filed 10/29/14 Page 13 of 43

The extraordinary circumstances that must be considered by USFS before

When a project area contains extraordinary circumstances related to the

The mere presence of one or more of the extraordinary circumstances

The Endangered Species Act

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

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

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