Mining projects in the mountains of Southern Arizona now face a new regulatory hurdle: persuading federal regulators that their proposed operations will not degrade the “critical habitat” of Mexican Jaguars who may wander into the area. On March 5, 2014, the U.S. Fish and Wildlife Service (FWS) issued its final decision under the Endangered Species Act (ESA) to identify 764,207 acres (1194 square miles) of federal, state and private land as habitat for the rare jaguar. For the Arizona mining industry, virtually every project within the designated area will receive heightened scrutiny to assure that it will not adversely affect the land’s value as habitat. Even on state or private land, any required federal permit (such as a Section 404 wetlands permit) will subject the project to mandatory consultation with the FWS to prevent habitat degradation.
The designated habitat is located primarily in Pima, Santa Cruz and Cochise Counties along the border with Mexico. FWS backed away from an earlier proposal that would have included parts of Fort Huachuca and the Tohono O’odham Nation. Roughly two-thirds of the critical habitat is federal land under the jurisdiction of the Forest Service, the Bureau of Land Management or the National Park Service. The remaining third is evenly split between private land and state land administered by the Arizona State Land Department.
Arizona is in the extreme northern range of the Mexican Jaguar, and sightings in the state have been extremely rare. Since 1996, the presence of only five jaguars, all of which were male, has been confirmed. Wildlife biologists believe that Southern Arizona woodlands and mountains represent “marginal” quality habitat that only a few transient jaguars will visit. Biologists do not believe that this area ever was, or ever will be, the preferred habitat of a stable, breeding jaguar population. The FWS justifies its critical habitat designation based on the hope that conservation of the area will in some manner support recovery of the species in adjacent habitat within Mexico. The Mexican Jaguar was listed as an endangered species under the ESA in 1997, relying on a claim that it “intended to” list the jaguar as endangered within the United States. As early as 1972, however, FWS plotted its the critical habitat based on the estimated geographic range of the species in the United States as of that date.
By itself, the critical habitat designation places no restrictions on use of the public or private lands involved. Private landowners are free to use their land as they did before (so long as their actions do not cause harm to actual jaguars, if any exist on the property), and the public lands will remain open to all of the types of uses that were allowed prior to the designation, including location of mining claims. Every federal agency, however, must assure that any action it carries out, funds or authorizes on these lands is unlikely to result in the destruction of, or adverse modification to, the designated critical habitat. Habitat is considered to be “adversely affected” if the proposed action would prevent it from serving its intended conservation role for the species in question.
Agencies fulfill their duty to prevent adverse effects through “consultation” with the FWS on every contemplated action where an effect is possible. If the effects are unlikely to be adverse, FWS will issue a “concurrence letter” to the agency involved. If adverse effects are deemed likely, the FWS will require the preparation of a Biological Opinion that identifies alternatives designed to avoid or minimize effects, and the agency must proceed only in accordance with the Biological Opinion. This mandatory consultation process can be time consuming and very expensive for the party attempting to obtain a mining or other land use permit within the designated habitat.
The exact scope of permissible uses of public lands within the critical habitat will likely be determined through litigation as projects are proposed and either approved or rejected. This critical habitat designation is unusual in many respects, and proponents of projects that are adversely impacted may be able to assert legal challenges to this critical habitat designation. For example, FWS has twice before determined that listing of critical habitat for the Mexican Jaguar was not a prudent act. In addition, FWS has designated these lands as essential for the species’ recovery, even though it acknowledges that the land provides only marginal habitat for transient, non-breeding solitary animals, and that the agency does not expect the Mexican Jaguar population to ever “recover” within the designated critical habitat.
Miners and prospectors considering operations within the critical habitat should identify, early on, whether any kind of federal approval will be required. Examples include approval of mining plans of operations, permits for discharges into waterways or obtaining road or utility rights-of-way. Project plans and feasibility studies should include sufficient time in their project plans to allow for the consultation with FWS. While clearing of vegetation and building facilities will not always be deemed as an adverse impact, such activities could be deemed unacceptable if they cut off connectivity with Mexican Jaguar habitat, eliminate native prey, decrease water availability or significantly increase human presence.