Saying prior court orders have been ignored, environmental groups want a federal judge to force Fort Huachuca to finally determine how it's impacting the San Pedro River and take measures to stop that – or face the possibility of having some of its operations shut down.
The lawsuit filed in U.S. District Court points out that a series of federal judges have concluded the Army has never fully complied with requirements in the Endangered Species Act for a “biological opinion” to ensure that its operations – including pumping groundwater out of the aquifer – do not jeopardize the continued existence of some species or destroy critical habitat.
Attorney Melanie Kay of Earthjustice said Tuesday her law firm got a judge to rule in 2011 that the impact statement the fort had prepared did not comply with the law.
“And yet, they're pumping away,” she said.
Kay is asking a federal judge to set a firm deadline for compliance.
Robin Silver, a cofounder of the Center for Biological Diversity, one of the plaintiffs in the lawsuit, told Capitol Media Services that what's needed is a court order with teeth.
“At this point, ultimately what we need to do is find some of those generals in contempt in a civil court and then assess them personal penalties,” he said. But Silver said it may take an action even more radical not only to force completion of the report but to eliminate the damages he says the fort is causing the watershed.
“Ultimately, the question is, can we shut down Fort Huachuca?” he said.
“I think at this point we need to acknowledge that most of their missions can be done elsewhere,” Silver said. “And, at some point, a federal judge needs to get frustrated enough with them to shut down all essential missions until they obey the law.”
Tanja Linton, media relations officer for Fort Huachuca, said no one from the base would comment on the litigation. She said the fort is continuing to work with the Fish and Wildlife Service in preparing the legally required biological opinion. “And we continue to aggressively pursue water conservation measures.”
Jeff Humphrey, public outreach specialists for Fish and Wildlife, said his agency does not comment on lawsuits.
Silver's frustration stems from the fact this fight has been going on for years.
As long ago as 1988 Congress designated 36 miles of the river's upper basin as a conservation area. The area is home to at least two endangered species: the water umbel, a semi-aquatic plant and the southwestern willow flycatcher.
In 1999 U.S. Fish and Wildlife Service designated portions of the river as critical habitat.
What makes the fort's operations significant is the contention that its groundwater pumping intercepts water that would otherwise sustain the river.
The first biological opinion issued by Fish and Wildlife in consultation with the Army 2002 concluded the fort's operation did not adversely affect the river, but that was rejected by a federal judge.
Another opinion issued just months after that court order acknowledged that decreased flows in the San Pedro would affect the water umbel. At that point the fort promised various water conservation measures, resulting in a new determination by Fish and Wildlife there would be no adverse impact on endangered species or destruction of critical habitat.
But Kay said the river's condition continued to deteriorate – and the number of employees at the fort increased beyond what was estimated.
That resulted in a new lawsuit, a new biological opinion – and a court order in 2011 by a different federal judge concluding the opinion is flawed because it is “not supported by the record or the best available science” and “fails to articulate a rational connection between the facts found and the conclusion made.” Judge Wallace Tashima said the Army's reliance on the “legally flawed” opinion means it violated the law to ensure that its proposed ongoing and future operations do not jeopardize the continued existence or habitat of the two species.
Kay, in the latest lawsuit, said the Endangered Species Act would have required compliance with the 2011 order with a new ¬– and valid – opinion by April 2012. To date, she said, that has not been done.
“In the meantime, Fort Huachuca has been pumping groundwater without a valid biological opinion (on the effects on species and habitat) in place since 2007,” she told the court. “This pumping continues to intercept water that would otherwise feed the San Pedro's flows, contributing to the drying of the river and destruction of riparian habitat.”
Kay wants the judge to issue a firm deadline. She said that would “add a lot more pressure” on both the Army and the federal agency to finally comply with the law and the court order.
Silver, however, said he thinks it's going to take more than "pressure.''
“They treat members of the public that question their actions like the enemy,” he said. “They're grossly dishonest, don't believe they have to obey the laws.”