DECLARATION OF ROBIN SILVER

Transcription

1 Cliff Levenson Esq. North 1th Avenue, Suite K Phoenix, AZ 01 Phone: (0 - cliff@hotmail.com Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CENTER FOR BIOLOGICAL DIVERSITY; MARICOPA AUDUBON SOCIETY; and TUCSON AUDUBON SOCIETY, v. Plaintiffs, PINAL COUNTY and PINAL COUNTY BOARD OF SUPERVISORS LIONEL D. RUIZ, SANDIE SMITH, AND DAVID SNYDER, Defendants. Civil Action No.: CV0-xxxx- PHX-xxx DECLARATION OF ROBIN SILVER IN SUPPORT OF PLAINTIFFS COMPLAINT AND MOTION FOR TEMPORARY RESTRAINING ORDER DECLARATION OF ROBIN SILVER I, Robin Silver declare as follows: 1. I submit this declaration in support of the Complaint and the Motion for Temporary Restraining Order submitted by Plaintiffs in this case. The facts stated herein are personally known to me. If called as a witness, I will and can competently testify thereto.. I am a Co-Founder and a Board Member for the Center for Biological Diversity ( CBD. I am also the Vice-President and a Board Member for the Maricopa Audubon Society ( Maricopa Audubon. I am a member of both organizations.

2 I work with CBD s staff and other organizations to advance CBD s mission of conserving native plants and animals and their natural habitats through education, scientific research, advocacy, and land stewardship.. I analyze a variety of public and private projects, and comment on their potential impacts on biological resources. I also write petitions to list species as endangered or threatened under the Endangered Species Act ( ESA. I am a co-author of the petition to designate the Southwestern Willow Flycatcher as federally endangered.. The Southwestern Willow Flycatcher is a severely imperiled neotropical songbird.. The Southwestern Willow Flycatcher is intimately dependent on canopied, riparian or riverine habitat.. At least 0% of Arizona s historically present riparian or riverine habitat has been lost owing to dams, diversions, groundwater pumping, channelization, livestock grazing, fires, and/or off road vehicles ( ORVs.. As a result of such extensive loss, surviving riparian or riverine habitat patches, as well as surviving Southwestern Willow Flycatcher populations, are smaller and more isolated and are consequently even more vulnerable to further loss.. We filed the petition to protect the Southwestern Willow Flycatcher as federally endangered and to designate Critical Habitat with the U.S. Fish and Wildlife Service on January,. (See Exhibit 01 PETITION to List Southwestern Willow Flycatcher January.. The term endangered species means, any species which is in danger of extinction throughout all or a significant portion of its range [See 1 U.S.C. 1(.]. Critical Habitat is defined as, the specific areas within the geographical area occupied by the species on which are found those physical or biological features (i essential to the conservation of the species and (ii which may require special management considerations or protection [See 1 U.S.C. 1((A.]

3 The U.S. Department of Interior and the U.S. Fish and Wildlife Service designated the Southwestern Willow Flycatcher as federally endangered on February, 1. (See Exhibit 0 Federal Register LISTING February, 1.. The U.S. Department of Interior and the U.S. Fish and Wildlife Service designated the lower San Pedro River as Critical Habitat for the Southwestern Willow Flycatcher on July, 1. (See Exhibit 0 Federal Register CRITICAL HABITAT Designation July While Critical Habitat has been revised in the interim, designation of the lower San Pedro River as Critical Habitat remains in place. (See Exhibit 0 Federal Register CRITICAL HABITAT Designation October The two largest surviving Southwestern Willow Flycatcher populations in Arizona are found at Roosevelt Lake and at the lower San Pedro River. (See Exhibit 0 STATUS REVIEW WFC 00 AGFD The importance of preserving the lower San Pedro River habitat is highlighted again in 00 by the fact that the Southwestern Willow Flycatcher population at Roosevelt Lake has decreased % from 00 to 00 secondary to destructive habitat changes. (See Exhibit 0 STATUS REVIEW WFC 00 AGFD In 1, in good part to protect the Southwestern Willow Flycatcher, federal Land and Water Conservation Funds were used by the Bureau of Land Management ( BLM to purchase a federal conservation easement from the Schwennesen family. (See Exhibit 0 DEED of CONSERVATION EASEMENT March The Nature Conservancy facilitated and brokered the purchase. 1. The Nature Conservancy transferred ownership of the Conservation Easement to the BLM on April 1, 1. (See Exhibit 0 Conservation Easement TRANSFER TNC to BLM April 1 1.pdf. 0. Prior to brokering purchase of the Conservation Easement, the Nature Conservancy produced the Conservation Easement s Baseline Documentation

4 Report. (See Exhibit 0 Conservation Easement Deed BASELINE DOCUMENTATION REPORT February 1.pdf. 1. The Baseline Documentation Report states, The BLM and the Conservancy are currently working with willing landowners to purchase properties or Conservation Easements that provide long-term protection for riparian and wildlife habitat in several core areas along the San Pedro River. The Schwennesen parcel is a key tract to accomplishing protection of the Dudleyville-Cook s Lake core area riparian corridor...species such as the federally listed Southwestern Willow Flycatcher are known to nest in the cottonwood-willow forest on the property there is presently a good presentation of several tree age classes on the property indicating a vigorous, sustainable riparian forest. Because seedling cottonwoods and willows are very vulnerable to livestock grazing and ORV damage, important factors in maintaining riparian forest condition are resting the river bottom from grazing for one to two years following good tree establishment seasons and protection of seedling bars from ORV damage.. The BLM purchased the conservation easement in order to protect, scarce riparian plant communities including the Cottonwood-Willow Gallery forest types from erosion, dredging, damaging cattle grazing, ORVs, excessive groundwater pumping and other threats. (See Exhibit 0 DEED of CONSERVATION EASEMENT March 1.. The BLM conservation easement restrictions are specifically focused on Area of exhibit B of the property subject to the conservation easement. (Exhibit 0 Conservation Easement Deed EXHIBIT B MAP March 1.pdf.. The BLM conservation easement restrictions include, Public Access. Exhibit B depicts the agricultural and public access areas of the Property. Grantor [Schwennesens] reserves the right to restrict or prohibit public access to the purely agricultural portions of the Property. Grantee [The Nature Conservancy/BLM] has the right to control access in the public access portions of the property. Except

5 that public access shall be by non-motorized means only. (Emphasis added (See Exhibit 0 DEED of CONSERVATION EASEMENT March 1.. Pinal County s destructive activities are occurring within protected Area. (See Exhibit Conservation Easement Deed EXHIBIT B MAP March 1 BULLDOZING MARKED.pdf.. The Southwestern Willow Flycatcher has consistently occupied the conservation area since at least 1 for purposes of nesting in the immediate vicinity of the administration and emergency use only vehicleway within the BLM conservation easement. (See Exhibit 0 STATUS REVIEW WFC 00 AGFD 00.. Until December 1, 00, the BLM conservation easement was subject to a temporary emergency easement agreement with Pinal County. (See Exhibit TEMPORARY EMERGENCY EASEMENT Gordon_Pinal County December 1 1.pdf.. The temporary emergency easement agreement between Pinal County and the previous owners (the Gordons, prior to the Schwennesens resulted from Pinal County s desire to secure contractual temporary emergency passage across the San Pedro River until Pinal County repaired the nearby Romero Road Bridge which had been damaged in the January 1 floods.. The Gordons desire to maintain private ownership and control of their private vehicleway was reflected in the temporary emergency easement with the clearly expressed declaration that, Gordon does not want to convey fee title or a permanent easement across his property, but is willing to grant Pinal County a temporary easement for highway purposes, including a river crossing across the San Pedro River, for public use. (See Exhibit TEMPORARY EMERGENCY EASEMENT Gordon_Pinal County December 1 1.pdf. 0. The secluded, private, limited-access ranch vehicleway subjected to the temporary emergency easement has never been intended for travel without the knowledge and permission of the owners of the property (the Gordons, the Schwennesens, or

6 the BLM before or after signing of the Temporary Highway Easement Agreement. If this were not true, the County would not have needed to secure a temporary emergency easement in the first place. 1. The temporary emergency easement was to be automatically extended for additional one-year periods, unless written notice is given by either party of an intent not to renew the Agreement Upon termination of this Agreement, Pinal shall erect barriers across the highway to close said highway to the public (See Exhibit TEMPORARY EMERGENCY EASEMENT Gordon_Pinal County December 1 1.pdf.. The temporary emergency easement between Pinal County and the Gordons transferred from the Gordons to the Schwennesens upon purchase of the property by the Schwennesens from the Gordons in 1.. Pinal County has still not repaired the Romero Road Bridge fifteen years since the 1 floods.. In the interim, the temporary emergency easement has rarely been used for an emergency, but it has been increasingly used by abusive recreational ORVs.. Vandalism and damage to the riparian area by ORVs gaining access through the vehicleway has become an increasingly serious problem beyond the control of law-enforcement officials.. Illegal ORV use in the streambed and on stream banks is causing accelerating erosion of streamside soils and damage to vegetation within Critical Habitat. These activities are threatening consistently occupied Southwestern Willow Flycatcher nest trees.. On June, 00, the Bureau of Land Management and the Schwennesens notified Pinal County that they were exercising their termination option within the temporary emergency easement contract.. On December 1, 00, a barrier was placed across the vehicleway to control offroad traffic, non-emergency, and non-administrative use. An unlocked ranch gate

7 remained in place so that administrative use and emergency access would not be obstructed.. At the time of Pinal County s Court injunction seeking eminent domain taking and presently, BLM signs on the vehicleway state, U.S. Department of the Interior Bureau of Land Management, NO MOTOR VEHICLES, ADMINISTRATIVE USE ONLY, Your Cooperation Will Be Appreciated, For More Information Contact Your Local BLM Office. (See Exhibit Image_BLM SIGN W entry NO MOTOR VEHICLES_ADMN USE ONLY 00001_DSC0.pdf; See Exhibit Image_BLM SIGN W entry NO MOTOR VEHICLES_ADMN USE ONLY 00001_DSC0 MAGNIFICATION.pdf; Exhibit 1 Image_BLM signs E entry NO MOTOR VEHICLES_ADMIN USE ONLY 00001_ DSC0.pdf; Exhibit 1 Image_BLM SIGN E entry S side NO MOTOR VEHICLES_ADMIN USE ONLY 00001_ DSC0.pdf; and Exhibit 1 Image_BLM SIGN E entry N side NO MOTOR VEHICLES_ADMIN USE ONLY 00001_ DSC0.pdf. 0. With placement of the barrier across the vehicleway to stop uncontrolled ORV abuse, and with the unlocked ranch gate for emergency and administrative use, ORV abuse was finally controlled. 1. At the time of closure of the vehicleway to non-emergency, non-administrative traffic, as before the closure, a nearby, non-restricted alternative San Pedro River crossing remained open. It remains open today.. The nearby, non-restricted alternative San Pedro River crossing is called the SmithCo/ASARCO crossing.. The SmithCo/ASARCO crossing has been and remains well maintained. It has been and remains commonly used as an open public road.. Passage across the SmithCo/ASARCO crossing has not required permission for passage in the past. It does not require permission for use to date. Moreover, its

8 owners have expressed no objection to having the crossing become a permanent public crossing under county maintenance.. The SmithCo/ASARCO crossing features no limiting signage. It does not require the passage through a gate, and, unlike the private vehicleway through BLM s conservation easement, the SmithCo/ASARCO crossing has a non-intimidating, non-secluded approach. (See Exhibit 1 Image ASARCO Crossing TRUCK CROSSING RIVER to WEST 00001_ DSC00.pdf; Exhibit 1 Image ASARCO Crossing SEMITRUCK CROSSING RIVER to WEST 00001_ DSC0.pdf; Exhibit 1 Image ASARCO Crossing P_U TRUCK CROSSING River to WEST 00001_ DSC00.pdf.; Exhibit 0 Image ASARCO Crossing LOOKING to WEST 00001_ DSC0.pdf; Exhibit 1 Image ASARCO Crossing BRONCO CROSSING RIVER to WEST 00001_ DSC01.pdf; and Exhibit Image EAST ENTRY Conservation Easement_Double Check GATE AFTER BULLDOZING 00001_DSC01.pdf.. On January 0, 00, Pinal County requested from a county court a Temporary Restraining Order to convert the restricted, private vehicleway encumbered by a federal contractual easement into an unrestricted public road. (See Exhibit Pinal County TRO request January 0 00.pdf.. On January 0, 00, Pinal County misled the county court regarding BLM s property/contractual interests in the vehicleway by saying, The County does not believe BLM will raise any objection to the condemnation proceeding It is unlikely it would object to keeping access to its own property open. (Exhibit Pinal County TRO request January 0 00.pdf.. Pinal County s characterization to the county court of BLM s lack of concern regarding Pinal County s condemnation proceeding s violation of BLM s conservation easement was disingenuous at the time. It remains so now. (See Exhibit Clean Water Act COMPLAINT BLM vs Pinal County April 1 00.pdf.; and Exhibit correspondence BLM to Pinal County May 00.pdf.

9 On January 0, 00, Pinal County secured their requested Temporary Restraining Order from the county court authorizing them to forthwith remove any existing objects or features currently impeding the free transit and use of San Pedro Road at the subject location. (See Exhibit Pinal County TRO request January 0 00.pdf. 0. On January 1, 00, Pinal County bulldozed open and converted the previously administration and emergency use only vehicleway through the Bureau of Land Management conservation easement property to an open unrestricted public road. (See Exhibit Image BULLDOZER IN STREAM_ pdf; Exhibit Image BULLDOZER ENTERING STREAM_ pdf; Exhibit Image DUMP TRUCK BRINGING IN FILL_ 0001.pdf. 1. On January 1, 00, in bulldozing open and converting the previously administration/emergency use vehicleway to an open public road, Pinal County operated heavy dredging equipment within the stream and imported off-site fill into the San Pedro River. (See Exhibit Image BULLDOZER IN STREAM_ pdf; Exhibit Image BULLDOZER ENTERING STREAM_ pdf; and Exhibit Image DUMP TRUCK BRINGING IN FILL_ 0001.pdf.. Pinal County s dredging and importation of fill has been repeated at least one more time on March, 00. (See Exhibit Image GRADED ROAD FILL ACROSS RIVER_ 0000.pdf.. The San Pedro River through the BLM conservation easement is a perennial (year- round stream. (See Exhibit 0 MAP Lower San Pedro PERENNIAL STREAM tnc 00_San_Pedro_wet-dry_lower 000.pdf.. Section 0 of the Clean Water Act requires a permit from the U.S. Army Corps of Engineers prior to operation of heavy dredging equipment within a year-round stream and prior to the importation of off-site fill material into a year-round stream. (See U.S.C..

10 Pinal County does not have the required Clean Water Act Section 0 permit from the U.S. Army Corps of Engineers necessary to undertake such work legally.. Damage to the riverine/riparian area by off-road vehicle users gaining access via the open roadway is now again ongoing and becoming an increasingly serious problem. (See Exhibit 1 Image ORV EROSION DAMAGE_AGFD NOT A ROAD sign down LAYING to UPSTREAM south bank 00001_DSC01.pdf.. Bulldozing itself by Pinal County is accelerating erosion damaging to the riverine/riparian conservation area by creating bank cuts perpendicular to the direction of stream flow. (See Exhibit Image EROSION_ SECONDARY to PERPENDICULAR BULLDOZING north bank 00001_DSC0.pdf.. On March, 00, the Center for Biological Diversity filed a Clean Water Act, Section 0 violation complaint against Pinal County with the U.S. Army Corps of Engineers. (Exhibit CWA COMPLAINT CBD March 00 WITH IMAGES.pdf. I was the primary author of this complaint.. The U.S. Army Corps of Engineers has still not responded to our complaint. 0. On April 1, 00, BLM filed a Clean Water Act, Section 0 violation complaint against Pinal County with the U.S. Army Corps of Engineers. (Exhibit Clean Water Act COMPLAINT BLM vs Pinal County April 1 00.pdf. 1. The [n]arrative description of unauthorized activity section of BLM s complaint states, On or about dates 1/1/0 and //0, the deposits of aggregate materials, along with road grading activities on the San Pedro riverbed and riparian areas were performed by Pinal County Public Works personnel. These activities also created realignment on a portion of the river by blocking of the flow of the river across the road with boulders.. Pinal County still does not have the required Clean Water Act, Section 0, permit from the U.S. Army Corps of Engineers to legally dredge and fill a perennial or year-round stream.

11 Because Pinal County s actions are resulting in harm to a federally listed Endangered Species and because they involve adverse modification of federal conservation land within designated Critical Habitat, the U.S. Army Corps of Engineers must consult with the U.S. Fish and Wildlife Service prior to issuance of any Clean Water Act permit. [See 1 U.S.C. 1(a(1; 1 U.S.C. 1(a(; and 0 C.F.R. 0.1.]. The Army Corps of Engineers has not consulted with the Fish and Wildlife Service regarding the issuance of a Clean Water Act permit to Pinal County.. Because the Pinal County s actions involve a controversial action of significant impact to the environment a National Environmental Policy Act Environmental Impact Statement must also be undertaken prior to issuance of any Clean Water Act permit. An examination of less destructive alternative actions is required of all such studies. [See U.S.C. 1(a; U.S.C. 1(b; U.S.C. ; and 0 C.F.R. 10..]. The Army Corps of Engineers has not undertaken the studies necessary to produce an Environmental Impact Statement regarding issuance of a Clean Water Act permit to Pinal County.. I have strong personal, professional, aesthetic, recreational, and spiritual interests in the Southwestern Willow Flycatcher. Not only did I co-author the January,, petition to designate the Southwestern Willow Flycatcher as federally endangered, I travel extensively throughout Arizona to observe, photograph, and study riparian species in their natural habitat at places like that found on the lower San Pedro. I go back to these places frequently and intend to continue to do so in the future in order to monitor the status of Southwestern Willow Flycatcher and other species and to simply enjoy observing them in their natural surroundings.. I am a professional photographer. I have professionally photographed wildlife of the Southwest including Southwestern Willow Flycatchers for more than two

12 decades. My images have appeared in multiple national and local magazines, newspapers and publications.. Because so much of my professional, aesthetic, recreational, and spiritual interests are dependent upon the conservation of Southwestern Willow Flycatchers and their habitat, their protection ensures those interests are preserved and remain free from injury. 0. Unfortunately, my interests are being harmed and face further harm because Pinal County is violating the law. 1. Because of Pinal County s failings, legal protection for the Southwestern Willow Flycatcher is being ignored, nest trees are being threatened and Critical Habitat is being adversely modified.. Only with compliance to applicable law will the endangered Southwestern Willow Flycatcher receive the protection it needs and deserves.. With such protection, the Center for Biological Diversity s, Maricopa Audubon s, and my own interests in the Southwestern Willow Flycatcher will also be protected.. Other staff and members of the Center for Biological Diversity and Maricopa Audubon share my interest in the Southwestern Willow Flycatcher population and share a concern for its fate. The continued loss of habitat significantly impairs Center for Biological Diversity and Maricopa Audubon staff and their members ability to view, study, and enjoy this species. The harming of the Southwestern Willow Flycatcher and its Critical Habitat is antithetical to the Center for Biological Diversity s and Maricopa Audubon s mission to conserve native plants and animals and their habitats.. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on May, 00, in Phoenix Arizona.

13 Robin Silver