Early on Tuesday, chain saws started cutting into trees in the Apache-Sitgreaves National Forest, and at least 60,000 board feet fell before Muecke could reiterate his injunction.
"Apparently, defendants believe that they have the authority to determine on their own that the recent issuance of the 'biological opinions' by the United States Fish and Wildlife Service terminates the injunction because it completes consultation and satisfies all the requirements under the law," Muecke wrote.
But then he informed them that they were wrong, and he asked for the names and titles and affidavits of everyone involved in the Forest Service decision. Chip Cartwright, the Southwest Regional Forester for the Forest Service owned up.
On July 23, Muecke called a secret hearing with the plaintiffs and the Forest Service and their attorneys at the federal building in Flagstaff, which is just around the corner from Peter Galvin's Southwest Forest Alliance office. Mark Hughes and John Talberth from Forest Guardians represented the plaintiffs. Peter waited in his office to track down documents when needed. Kieran, who was on the road, managed to do an overnight analysis of timber projects and craft a rebuttal to the Forest Service's latest biological opinion for Hughes to present to Muecke.
Regional forester Cartwright flew in from Forest Service headquarters in Albuquerque. No one questioned the rather unusual location--Muecke's courtroom is in Phoenix--or the insistence that the media be excluded.
"When a federal judge tells federal agencies to go, we go," says Pat Jackson, a Forest Service spokesman who accompanied Cartwright to Flagstaff but did not attend the hearing in the judge's quarters. "When he gives instructions, we do them."
The judge, however, did not agree that the Forest Service follows his instructions. He asked Cartwright how a defendant in a lawsuit could decide for himself that the lawsuit was over and that he had won. But the judge did not follow through on his threats of finding the Forest Service in contempt.
He ordered both sides to present final briefs on August 7.
The Forest Service stands firm.
"This owl is not in jeopardy, nor has it ever been," says Jackson.
In the truck on the way to explore a riparian area outside Tucson that is threatened by development, Kieran waxes philosophical about why owls have become a symbol for both sides in the environmental wars.
"I don't think it's a coincidence that it's an owl," he says. "Not just in Native American cultures, but in other cultures as well, the owl has been an omen of death. In this case it's the death of an ecosystem."
He goes on to explain that spotted owls use desert riparian areas as way stations from one mountain range to another. They have been seen near Tucson, he says, and once upon a time, when the Salt River had a riparian area, they were sighted in Tempe.
Kieran meets with a pair of local citizens who have been campaigning against the impending development of this riparian area, which is at the bottom of a canyon. Kieran knows that there is at least one cactus ferruginous pygmy owl living somewhere in the canyon. The Southwest Center filed the petition to list the species as threatened, and its presence could help the local fight against the development.
The pygmy owl is no bigger than a beer can, but it's a ferocious predator and can kill mammals larger than itself.
"Not much is known about those guys because they're very secretive," Kieran says. "They're not migratory. They'll stay at a site all year long."
The canyon is a lovely, winding slot filled with willow trees. Because of the spring drought, it is uncharacteristically dry; biologists argue whether it has a perennial or an intermittent stream, but regardless, it is green and cool.
A mile into it, there is a high monolithic brown rock carved with Native American petroglyphs that date to the Hohokam civilization. To the right are the usual gouged spirals.
Kieran's face lights up. Carved into the side of the rock face, left by some prehistoric artist as a reminder of the creatures that once lived there, is an ancient and larger-than-life rendering of an owl.
