204 F.3d 920
SYNOPSIS: Plaintiffs appealed the order of the United States District Court for the District of Arizona lifting temporary restraining order and denying motion for a permanent injunction to halt construction of a new school on potential habitat for the pygmy owl, endangered under the Endangered Species Act, 16 U.S.C.S. §§ 1531-1543.
FACTS: Defendant school district sought to build a new high school. The pygmy-owl was an endangered species under the Endangered Species Act (ESA), 16 U.S.C.S. §§ 1531-1543. The school site fell within the area designated as critical habitat for the pygmy-owl. Defendant redesigned the project so that the western portion of the property would remain undeveloped and fenced off. Plaintiffs alleged that the proposed construction was likely to harm or harass a pygmy-owl, a violation of § 9 of the ESA.
The court held that: (1) the well supported factual finding that the school construction would not "take" a pygmy-owl was not clearly erroneous; (2) defendant was not required to seek an Incidental Take Permit; (3) exclusion of expert's was not abuse of discretion; and (4) denial of new trial was appropriate because evidence could have been obtained with the exercise of due diligence at the time of trial.
OUTCOME: Judgment affirmed; district court's factual finding that school construction would not "take" a pygmy-owl was not clearly erroneous; defendant was not required to seek an Incidental Take Permit; exclusion of expert's was not abuse of discretion; and denial of new trial was appropriate.
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