A judge has ordered a federal agency to tell a private landowner the locations of endangered pygmy owls on the Tohono O'odham Reservation, despite the tribe's concern it will interfere with its religion and possibly harm the birds.
Senior U.S. District Judge William Browning ruled that the U.S. Fish and Wildlife Service and the tribe failed to prove that disclosure of owl survey data would reveal information protected by religious privacy.
Tribal officials had argued that owls are of such religious significance that they should be able to keep the locations secret.
The O'odham believe that owls were placed on Earth to bring messages from the dead to those still living, Tribal Chairwoman Vivian Juan-Saunders wrote in a court document.
"It is a religious duty for Tohono O'odham individuals to protect an owl's occupied area, and to prevent the owls from being disturbed," Juan-Saunders' Feb. 3 affidavit said. "The act of disclosing an owl's location violates an O'odham's duty to protect the owl. Being forced to disclose owl locations to outsiders causes interference with the O'odham practice of their religion and their ability to protect owls."
The federal agency made it abundantly clear, the judge wrote, that the Tohono O'odham Nation considers the pygmy owl sacred. However, the Fish and Wildlife Service has not offered evidence that specific owl locations are sacred or that disclosing them would lead to disclosing information of religious importance, Browning wrote in his ruling earlier this month.
"The court cannot find that production of the surveys would work an unwarranted invasion of privacy, of either an individual or of members of the Nation," Browning wrote.
Federal officials said this week they did not know if they would turn over the information to Tangerine Crossing Associates - owner of about 300 acres on Tucson's Northwest Side - or if they would appeal the case.
Tangerine Crossing, whose land lies at the northeast corner of Tangerine and Thornydale roads in proposed critical habit for the pygmy owl, sought the information under the federal Freedom of Information Act. It sought 10 reports of owl sightings on the reservation between 1999 and 2002.
Tribal sovereignty is apparently not at issue. The tribe turned over owl locations to the Fish and Wildlife Service in compliance with the federal Endangered Species Act, Juan-Saunders' Feb. 3 affidavit said.
This is the second time federal courts have told the service to release owl locations to parties representing the real-estate industry. Last year, the service gave the Southern Arizona Home Builders Association locations of all other owls seen in Southern Arizona in recent years in response to a federal Court of Appeals order. As many as 41 or as few as 18 adult owls have been sighted annually outside the reservation.
The bird's endangered status is already in question. Another federal district judge is weighing a request from the service to take the bird off the endangered list because of a 9th U.S. Circuit Court of Appeals (news - web sites) ruling last August that the listing decision was flawed.
The landowner sought the tribal information to show that the service's November 2002 proposal to designate 1.2 million acres across Southern Arizona as prime owl habitat was flawed, said Doug Metcalf, Tangerine Crossing's attorney. Unlike SAHBA, he said his client doesn't wish to put the tribal land under critical-habitat status, which carries legal restrictions.
The company did want to show that the service's habitat map wrongfully ignored the reservation - where more owls have been seen - in favor of other areas that haven't had as many owl sightings, Metcalf said.
Juan-Sanders did not return numerous phone calls from the Star seeking comment on Browning's decision. Jefford Francisco, a tribal natural resources technician who submitted an affidavit in the case, cannot discuss the case without Juan-Saunders' permission, said Selso Villegas, the tribe's natural-resources director.
But the ruling and the American legal structure in general don't adequately consider tribal beliefs, said Camillus Lopez, chairman of one of 11 tribal districts. "The judge is only looking at what the paper says and if any of the rules or laws are violated," Lopez said Friday. "I try to share as much information as I can without having to go too far with outsiders."
Releasing the information will hurt the Fish and Wildlife Service's ability to get future owl-sighting information from the O'odham, said Steve Spangle, head of the agency's Arizona ecological services office. The owl surveys occur when agencies such as the Arizona Department of Transportation or the Indian Health Service develop projects on the reservation. Typically, tribal staffers accompany surveyors.
In part, Fish and Wildlife didn't propose putting O'odham land in critical-habitat status because the potential damage to the agency's working relationship with the tribe outweighed the benefits, said Scott Richardson, a service wildlife biologist.
The service's concern is unfounded, Metcalf replied: "The Endangered Species Act applies to everyone and it's every person's obligation to provide the information on endangered species that the act requires."
But in his Feb. 3 affidavit, tribal official Francisco wrote that he participated in owl surveys because he knew the Fish and Wildlife Service would be the only party to get the results.
"If the information is shared with the general public, it is possible that non-O'odham will come looking for the owls and disturb them or harm them in the area that they occupy," Francisco wrote. "I believe it is disrespectful to owls to participate in distributing information about owls to people who are not entitled to the information."
Last year, a report written by two biologists on behalf of SAHBA said the O'odham Reservation should be at the center of critical habitat designated for the owl. Several studies done on the service's behalf from 1999 to 2002 found remarkably high densities of breeding owls in Mexico just south of the U.S.-Mexican border and the reservation border, wrote Roy Johnson, a retired University of Arizona professor of renewable natural resources, and Steve Carothers, a Flagstaff biological consultant.
"If people really want to know what the owl population in Arizona is, they're going around with blinders if they don't know what the number is on the Tohono reservation," said Johnson, a federal owl recovery team member.
But without detailed surveys, there's no way to know how many owls are on the reservation or whether the reservation would qualify as critical habitat, the service's Spangle replied. To go out and systematically survey the entire O'odham Nation would be an overwhelming undertaking, he said.
"It is a religious duty for Tohono O'odham individuals to protect an owl's occupied area, and to prevent the owls from being disturbed." Vivian Juan-Saunders Tribal chairwoman, writing in a court document