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But Hervert says the Air Force had been told that pronghorn were near H.E. Hill and other live-fire sites in the weeks leading up to the resumption of bombing at H.E. Hill.
In any case, Fish and Wildlife's Spiller was not amused. He wrote to the Air Force again on March 12, demanding that it begin a "formal consultation" with the wildlife service to document what was happening and what should be done. He closed by saying, "If pronghorn are likely to be taken, (FWS) recommends that appropriate action must be taken immediately to prevent it. One course of action that may prevent the take of Sonoran pronghorn would be to cease using the area as a live-fire site."
The Air Force has never given any indication it will make permanent changes in its training schedule or live-fire sites to accommodate the pronghorn.
But Spiller's letter apparently convinced Luke officials they had to do something. In a March 14 letter to Spiller, Captain M.S. Monroe, chief of Environmental Flight, agreed that "the increase of food and water in the vicinity of a live-fire training area does raise concerns regarding the safety of the Sonoran Pronghorn." She agreed that the consultation process should "continue in earnest."
A group known as Defenders of Wildlife thought the process should continue in earnest, too--in federal court.
As with many things governmental, preservation of endangered species is an exercise in semantical gymnastics.
The watchword of the Endangered Species Act is "take," which is defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" an endangered species. Nobody can legally "take" an endangered species without the Fish and Wildlife Service's permission.
All federal agencies, including the military branches, are required to consult with the Fish and Wildlife Service to make certain their actions will not jeopardize an endangered species, a process that requires a "biological assessment" by the agency. The service then decides whether the information is sufficient and if "formal consultation" is warranted. If it is, and if the service concludes that jeopardy is likely, it must give the agency alternatives to remedy the violation. These alternatives can even allow for "incidental take" of a certain number of the species.
But during formal consultation, the agency is not supposed to engage in the activities then under review.
Defenders of Wildlife, a Washington, D.C.-based nonprofit group that claims 4,000 members in Arizona, believes the Air Force is unlawfully "taking" Sonoran pronghorn at H.E. Hill. After months of hectoring the Air Force, Defenders on May 22 sent Luke officials a letter of intent to sue.
"The ultimate agenda of any conservation group like Defenders of Wildlife is not just to cause problems for the military," says Greg Sater, former counsel to Defenders. "Our goal is to find some way to balance military training with wildlife.
"We're not talking about some snail or two-inch fish here. We're talking about a key component of the Sonoran ecosystem. This is a big, beautiful, charismatic, fast animal that evolved in the Sonoran Desert."
With the Fish and Wildlife Service and Defenders of Wildlife breathing down their necks, Luke officials on June 5 began sending a biologist to H.E. Hill each morning that bombings are scheduled there. The biologist surveys the area with binoculars, then gives the all-clear for the mission to begin. So far, one mission has been scrubbed because a pronghorn was sighted.
Defenders and others doubt the reliability of such surveys.
"It's pretty hard to see pronghorns down there," says Christine Maher, a pronghorn expert from Montana State University who visited H.E. Hill this summer. "The creosote bush is pretty tall. It could be hard to find them. They blend in well."
John Hervert concurs, saying, "Pronghorn are small animals and they blend in with vegetation and soils. Sometimes I can't see them when I have a radio receiver in my hand, and I know they're there."
In addition to visual sweeps, Air Force officials hired the Phoenix consulting firm of Geraghty & Miller to prepare the "biological assessment" required by law.
It was completed on August 30, and, among other things, it says that Sonoran pronghorn are probably habituated, and thus not disturbed, by jet overflights. This contradicts the Air Force's December 4, 1995, assertion that "dry" fly-bys were chasing pronghorns away before bombing began. And as recently as October 28, the Arizona Republic reported that "Luke officials" had said that "before they drop any bombs, pilots do a flyover to scare any animals away."
The Air Force's environmental assessment concludes: "The greatest potential impact to Sonoran Pronghorn resulting from military activities . . . appears to be death or injury to antelope on high explosive hills. . . . because no evidence suggests that military activities have caused a decline in the Sonoran pronghorn population or any deaths or injuries since 1941, measures to minimize or mitigate current or planned operations . . . do not appear warranted."
The wildlife service's Ecological Services office has until mid-January to review the Air Force's assessment and, if it decides "formal consultation" is called for, render a biological opinion. The service also could decide that it needs more information, or that the species is not jeopardized and nothing needs to be done.