Feds Designate Huge Swath of Southern Arizona for Jaguar Conservation

by Snell & Wilmer

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.