Flying The Condor By

It's common practice when you are trying to "sell" something - or to protest something - to introduce some celebrity into the discourse. The presumption is that a famous face will sway the proceedings in your favor. It does work, and it works best when the "celebrity" can be clearly identified with what you are selling or opposing.

The California condor has been chosen regularly to be the celebrity. Anywhere in "Condor Country," if it's a new residential subdivision that someone doesn't want or a wilderness area that someone does, almost inevitably some group will "fly the condor by."

It's not a bad strategy in many cases. What is happening to, or what might happen to, a high profile endangered species is often followed with interest by both the public and the decision makers. Whatever decision is finally reached might be influenced by whether an action is perceived to be positive for condor survival, or negative (and, more cynically, how the decision might affect the decision makers).

There are downsides to the technique, however. Some uses of it just appear silly, and certainly don't help the credibility of the protestors. I remember one attempt to deny drilling of a new oil well, on the basis that it would be within condor "critical habitat." It was, in the sense that the location was barely within the map section line used to delineate critical habitat. It was also within a few feet of acres and acres of avocado groves, the edge of an intensive agricultural-residential area that stretched away for miles. The error in trying to use the critical habitat designation to stop the oil drilling was that having an area marked critical habitat does not necessarily stop anything; the law just says that within a designated area no Federal action can occur that would further jeopardize an endangered species. Whether or not you liked oil wells, there was no threat of jeopardy for condors. That particular attempt to use the condor was more against oil wells than it was for condors.

More important than the frivolous "flights" are those in which the one being "flown by" becomes so inextricably linked to the issue that the outcome - even if "good," overall - may be bad for the celebrity. When lead poisoning was first seriously linked to condor mortality, a biologist adamantly (but without any proof) claimed that the contamination was coming from the bullets of deer hunters. Not only did the elimination of lead ammunition become an immediate cause for condor lovers to support, but became part of the larger campaign to reduce all sources of lead in the environment. The legislation subsequently passed is, in my opinion, good environmental legislation. Unfortunately, the cry became so loud against hunting ammunition that research into the issue stopped, and no one looked for other possible causes of lead buildup in condors. Now, ten years later, the condors' lead problem remains unsolved, while the impetus to investigate other sources of lead is gone. (See "Lead Poisoning" I, II and III, this website.)

* * *

My first big experience with "flying the condor by" came fairly early in my time as a condor researcher, lasted almost halfway through my field assignment, and almost cost me my job. The Big Bosses in the Department of Interior decided that a phosphate mine proposal could best be defeated by interjecting the condors into the mix. I felt that using the condors to "win" the mine debate could make us vulnerable to losing other fights of much more importance to the birds. I think it's a good cautionary tale, and have reproduced it below.

THE PHOSPHATE MINE

[The following was originally published as a chapter in: "Nine Feet from Tip to Tip: the California Condor through History." (Gresham, Oregon: Symbios Books, 2012). If you would like a free copy (PDF) of the entire book,send me an e-mail.]

When I was removed from the condor recovery program in 1980 (see Chapter 46), I think a few people considered it my own fault, blaming it on what they considered my arrogance and unwillingness to compromise. It’s interesting that my first big controversy centered around some people’s belief that I was all too willing to compromise. Neither assessment was true, but ain’t it funny how life works out, sometimes?

Early in 1970, U. S. Gypsum proposed open pit mining for phosphates on the west slope of Pine Mountain, in the Los Padres National Forest high country some 20 miles from Ojai. Because the mine would be located in an area where condors sometimes occurred, I was asked to assist the Forest Service with their evaluation of the proposal. On 20 May, I joined a large group for the first show-me trip to the area. There were fifteen of us, representing U. S. Gypsum, Forest Service, Bureau of Land Management, Geological Survey, and Fish and Wildlife Service. In my field journal for that day, I recorded my introduction to the project.

“We walked up the Chorro Grande Trail to the center of the mine and plant site. Frank Appleyard (U. S. Gypsum) explained the project with George Neilsen (Leasing Officer, Bureau of Land Management, Sacramento) asking many knowledgeable questions. I didn’t understand most of it, but gained the following impressions:

(1) the phosphate deposit is an extremely rich one.

(2) U. S. Gypsum feels there will be almost no dust and very little chance of pollution. Neilsen felt they were a little too optimistic but still seemed to feel that, if they followed their plans completely, it would be a fairly safe operation.

(3) Most of the actual mining would be done by mechanical ripping - blasting would occasionally be necessary, but is supposedly a rather small part of the operation.

“Don Ziel (U. S. Geological Survey, Menlo Park) seemed almost fanatical in his support for U. S. Gypsum, and in his dislike for ‘pressure groups’ slowing the project. He felt there was no question of granting a permit to U. S. Gypsum - he said once a discovery is made, that’s it (no basis for refusing). However, Al West (Ojai District Ranger) pointed out that the Regional Forester cannot approve an impact study concerning a strip mine operation. It has to be reviewed and approved by the Chief of the Forest Service.”

Because I worked in the Ojai Ranger Station, it was hard not to hear a lot about the mine proposal over the next several months. The more I heard, the more I was convinced that it shouldn’t be permitted at Pine Mountain. In the first place, it would be a big, open, noisy hole right beneath one of the nicest areas on the Los Padres Forest. It would seriously detract from the hiking, camping, and hunting use of the pine forests on Pine Mountain and Reyes Peak. Then, there was the safety hazard from all those big phosphate-laden trucks traveling the narrow, winding grades of Highway 33. Also, all those trucks would have to pass right through Ojai, a quiet and scenic community so far spared from the automotive excesses of most of the rest of Southern California. Finally, as I understood it, there was really no economic need for phosphates at that time, no matter how good the quality was.

What about the condors? That was a tougher call for me. Condors did occasionally fly over the mine site, but it was not a feeding area. There were roosting and nesting sites to the east, but they were outside of the 1 1/2 mile limit that we used to discourage other types of noise and disturbance. The condors certainly wouldn’t benefit from the mine, but would they be harmed? I thought it was a hard case to make. When the Condor Advisory Committee visited the site on 25 September 1970, they agreed. As I recorded in my journal: “Members seemed pretty appalled by the proposal, but none seemed to think the condor itself was enough justification for defeating the project.”

For almost a year, I had little to do with the phosphate mine proposal. My journal records that I had several phone conversations about it (but I didn’t write any details), and there is a note about a public meeting scheduled for February 1971 (but I didn’t go, and I think it was postponed). Finally, 27-28 July 1971, there was a two-day public hearing, during which all the issues were aired for the first time. Information presented to the public at that time included a general statement about where the mine would be located in relation to condor nests, roosts, feeding areas, and flight lanes. John Borneman summarized the condor part of the hearings in his newsletter:

“The July 27-28 BLM hearings in Ventura showed that public sentiment is overwhelmingly opposed to the proposed phosphate mine. NAS (Audubon) opposed the development of the phosphate mine on the grounds that even though it cannot be proven that such a development would be detrimental to the survival of the California condor, by the same token it cannot be proven that it would NOT have an adverse effect on condor survival. Since we have no shortage of phosphates we have an obligation to do all we can to keep from adding additional pressures to an already over-pressured species. Although the Environmental Protection Agency has come out against the mine, the decision is up to the Secretary of the Interior.”

The wheels ground slowly. I received a call on 10 November 1971 from my boss, Ray Erickson, merely letting me know that the impact statement was almost completed. Then, on 31 January 1972, I received the first call from our Washington Office: “Gene Ruhr, Office of Endangered Species, called to discuss the phosphate mine proposal. I clarified a few points re disturbance, nest abandonment, etc.”

The draft environmental statement finally came out, and on 24 March 1972 I sent Ray Erickson my comments. A few days later I got another call from Washington: “Call from Gene Ruhr, Office of Endangered Species, re phosphate mine vs. condors. I repeated the information I had previously sent him, tried to stress that there was potential harm to condors, but not certain - that other factors of pollution, esthetics, and recreation should be strongly considered, if possible.”

I didn’t interpret Gene’s calls as anything out of the ordinary. It was common practice in the Government to go over and over these kinds of statements until they were worded “just right.” In the next couple weeks, it began to appear that something was brewing.

“18 April 1972 - Gene Ruhr call re upcoming call from Mrs. Pat Malin, U. S. Geological Survey, re phosphate mine. Interior has to re-do the environmental impact statement on phosphate mine because it doesn’t go into enough detail, and doesn’t adequately treat all potential problems.”

“26 April 1972 - Sort of a wheel-spinning day. Worked on clapper rail records, literature review, and review of phosphate mine proposal data preparatory to visit next week from Dan Stiles (Wildlife Services, Washington Office) - Phil Lehenbauer called to asked if I would show Stiles around.”

“28 April 1972 - Had Eldon Hayes (BLM, Washington) and Patricia Malin (Bureau of Mines, Washington) here to discuss condor and phosphate mine.”

“1 May 1972 - With Dan Stiles to Pine Mountain area to talk about phosphate mine proposal. On Pine Mountain ridge from about 1000 to 1300, no condors seen but not seriously looking. Back to office 1500, showed Dan the condor film and talked about condors and phosphate mines until 1630.”

After this flurry of activity, interest in the phosphate mine died (at least at my level). I had one call from our Washington Office toward the end of July, but nothing further until 24 January 1973: “Returned call to Charles Potter, National Wildlife Federation, re phosphate mine and condors. They plan to do a news article on it. I told him that I considered the issue only marginally condor-related, but that the Office of Endangered Species might have other things to say. I suggested he contact them.”

If National Wildlife Federation prepared an article, I never saw it. After that call, my journal is devoid of any references to the phosphate mine for over a year. Then, on 31 May 1974 and really out of the blue, I received two phone calls. One was from the Bureau of Land Management and the other from the Sacramento office of Fish and Wildlife Service. Both were to alert me that Interior was completely re-doing the environmental impact statement, and that I was drafted to be a full-time member of the team, to write the wildlife impacts section. Since the only wildlife of any significance in the project area was the condor, since I had provided all the information I could on the condor, and since I was in the middle of what I considered some extremely important condor studies, I had absolutely no interest in devoting several weeks of my time to working with an impact team. I expressed those feelings to Ray Erickson, then left for a family vacation. When I returned, it had started.

“9 July 1974 - In office until 1030 carding condor sightings, reviewing draft of phosphate mine environmental analysis, etc. Long telephone conversation with Dr. Erickson, mainly about my participation in phosphate mine evaluation - he has already protested and been told I was indispensable!”

“12 July 1974 - All day reviewing material on the Pine Mountain phosphate mine proposal; began writing down some of my ideas regarding impacts on condors.”

“17 July 1974 - Jack Clifford (BLM - environmental analysis team leader) called to discuss the phosphate mine rewrite. He still doesn’t have a schedule firmed up, but plans to meet in Santa Barbara on 5 August.”

At the Santa Barbara meeting, I finally got the word about what had been going on with the phosphate mine proposal, and what the re-write on the impact report was all about.

“5 August 1974 - Met with phosphate analysis team in Santa Barbara 0800-1800. Most of the time, Dr. John Farrell (Department of Interior rep.) spent telling us what he feels is wrong with the Impact Report. Very opinionated and sure he knows more than anybody about everything, including condors. I spent a hectic day trying to teach him some basics about condors, but his mind seems made up that the phosphate mine must have an adverse effect on them.”

From then until 24 August, I spent a portion of almost every day in Santa Barbara, working with the analysis team, while what I considered the important condor work languished. The wildlife section of the report - for everything but condors - was easy. There really wouldn’t be any impacts for other species, except the obvious: they wouldn’t be found at the mine site, anymore. But there were no other rare animals or plants, or anything unique to the area, so all that could be said was that a few acres of chaparral would be replaced by a few acres of open pit mine. The condor section, on the other hand, remained a major problem. John Farrell was adamant that we were going to find that the phosphate mine would jeopardize the condors. I was equally adamant that, while the condors certainly couldn’t be ignored, their occasional occurrence in the area could not be used as a legitimate reason to deny the mine permits. Finally, my frustration reached its limits. I finished my report on the condor; gave it to the team leader; said “I am the condor expert, this is what I think, take it or leave it;” and went back to my regular duties.

A number of people were very unhappy with me, but I wasn’t just being a prima donna because I was the “expert.” Although the mine really was a very bad idea, and it certainly wouldn’t be good for condors, I thought there was a very strong reason not to give more emphasis to the negative or the unknown impacts. My reasoning was that we had much more to lose than we had to gain by making the phosphate mine a condor issue. Using Fred Sibley’s studies of the effects of disturbance on condors, we had been able to sidetrack the Topatopa Dam project by showing that noise and activity within one and one-half miles of condor nests was likely to be detrimental. At the same time that the phosphate mine was under consideration, I was working closely with the Forest Service on reviewing new oil drilling proposals near the Sespe Condor Sanctuary. We felt that we could win this first serious challenge to the integrity of the Sanctuary since 1951 if we invoked the “mile and a half rule,” but things were shaping up into a pretty good fight. We needed all the credibility and consistency we could muster, and I wasn’t about to risk everything by coming out with new “rules” for phosphate mines. If oil wells, in areas where they would clearly impact condors, could be allowed within 1 1/2 miles of condor nests, how come phosphate mines in peripheral habitat had to stay over two miles away?

After my rebellion, the phosphate mine situation went its own way for awhile. In November 1974, I visited the mine site with the people from Washington, D. C. who were writing the economic analysis of the proposal. Then, in January 1975, the final environmental impact report was released. My journal notes for 9 January 1975 seem to indicate that I had “won.” “All day in the office on the condor sighting analysis, for the comprehensive report. Took a few minutes to review the Final EIR on Pine Mountain phosphate proposal - reflects accurately, I think, that there would be little impact on condors.”

A month later, I was asked to help our Sacramento Area Office draft Fish and Wildlife Service comments on the Final EIR. We were able to come up with a recommendation that acknowledged the precarious state of the condors, but that didn’t jeopardize our stance on other issues. In essence, we suggested that the Service oppose the mine on general principles, because there was no way to completely rule out adverse effects on the condors. I didn’t feel that was contrary to my stance as the “expert.” We would be able to make our original point without confusing other condor issues. My feelings of well- being lasted almost a whole week:

“10 March 1975 - Got a call from Dave Marshall to discuss the phosphate mine EIS - he said that Interior wants to beef up the condor section.”

“14 March 1975 - Jack Clifford, BLM, called to forewarn me that Interior wants to rewrite the condor section of the phosphate mine EIS. He will send a copy of their efforts to me if and when he gets it.”

All was quiet again for a couple months, then: “15 July 1975 - Jack Clifford, BLM, called to tell me that Dr. Farrell is still holding up the U. S. Gypsum EIS. He warned me that I may be called to Washington to ‘defend my position’.”

“22 July 1975 - Received calls from Don Riddle (BLM, Washington D.C.) and Jack Clifford (BLM, Sacramento) about phosphate EIS - Riddle is trying to generate support in Washington for our statement.”

“3 September 1975 - I called Jack Clifford to see if a letter from the Condor Recovery Team regarding the phosphate mine would be helpful. He feels problems are ‘resolved’ (conflicting viewpoints to be discussed in an appendix), and no action is required unless I hear otherwise.”

“7 October 1975 - Jack Clifford called to tell me that the phosphate mine EIS is in limbo again; should be hearing more.”

“9 December 1975 - With Arch Merhoff and Joe Blum (Fish and Wildlife Service) and Forest Service personnel Bob Lancaster (Forest Supervisor), Walt Schlor (District Ranger) and Ed Waldaphel (Public Information Officer), went to Pine Mountain phosphate mine site. Spent the day on the site and on Pine Mountain.”

“11 December 1975 - Took Harry Ohlendorf (Patuxent) to Sespe oil fields and Hopper Mountain Refuge on a quick ‘show me’ trip. Had him back to the airport by 1230, then rushed to Rose Valley to meet helicopter with Frank Kelly (Secretary of Interior’s Office) and Jack Clifford. Walt Schlor and I flew with them to the phosphate mine site, discussed the proposal and the EIS.”

Oh, those long silences waiting for the next shoe to drop - and how many shoes does this project have, anyway? I found out 4 February 1976 that there was at least one more. John Spinks called me (I think from the Secretary’s Office at that time, although he was later in the Office of Endangered Species) to ask why the phosphate lease area had not been included as condor “critical habitat.” Well, here was an issue we hadn’t discussed before. The reason we were discussing it now was because the new issue of the “Defenders of Wildlife” magazine had an article provocatively titled “Government Flimflam Threatens the Condor.” The writer of the article alleged that the Final EIS had been tampered with so that “feeding and roosting sites near the mine area had mysteriously vanished from the map, effectively obscuring the relationship of the mine to condor requirements.” He didn’t know how it had happened, but could “only assume that somebody in the California offices of either BLM or Fish and Wildlife made promises about the content of the EIS, and found the promises impossible to keep without subterfuge.” He chided the long-absent Fred Sibley for his “early, costly blunder”“excluding important nesting, roosting, and activity sites.” of leaving the mine site outside the limits of the Sespe Piru “condor study area” (an administrative designation drawn up in the late 1960s), thereby (It didn’t.) He finished up by noting the incredible coincidence that the eastern boundary of the mineral lease area and the west boundary of condor “critical habitat” were the same, leaving the mine site conveniently outside the area of concern for condor preservation. And who was this “unscrupulous - but as yet unnamed - federal bureaucrat who apparently modified a government document to hide the potential impacts of mining in the condor’s range”? Gee, I wonder.

For you to understand what I tried to explain to John Spinks over the phone that day, we need to go over a little history. When the 1951 oil drilling restrictions were put on the Sespe Condor Sanctuary, it was obvious that a lot of very important condor nesting habitat adjacent to the Sanctuary was still open to potentially detrimental mining and mineral leasing activity. As a result of Fred Sibley’s work on condor disturbance factors, the Bureau of Land Management in 1970 placed a moratorium on all mineral leasing activities within a Sespe-Piru “study area” that seemed to contain the habitat most important to condors. This was only an administrative action, without the weight of law, but was a good faith effort to preserve the condors’ options until more definitive studies could be done. It was never applied to condor use areas outside the main Sespe-Piru, so there were in fact a number of condor nesting and roosting areas (and essentially all the important condor feeding areas) not included in the moratorium.

The passage of the Endangered Species Act of 1973 (Public Law 93-205) introduced the term “critical habitat” into the vocabulary of endangered species preservation. As written in Section 7 of the Act, the term seemed harmless enough. All the law said was that no Federal agency could do anything - or cause anything to be done - that might further jeopardize an endangered species “or its critical habitat.” There was no definition of critical habitat in the Act, and no further Congressional guidance on what was truly intended. It was up to the Fish and Wildlife Service to somehow define what was critical for each species designated as endangered on the Federal list. That seemed easy for a desert pupfish that lived in only one or two small springs, but what did you do with a bird that ranged over 10.8 million acres of mixed government and private land?

The condor was the guinea pig (now, doesn’t that conjure up an interesting picture?) for critical habitat designation. No one had yet prepared a critical habitat delineation for any species, and no guidance was forthcoming from the Washington Office. Therefore, we on the Condor Technical Committee had to develop our own concept of critical habitat before we could begin to draw lines on any map. Clearly, we couldn’t encompass the entire condor range, so we concentrated on the three basic habitat needs: nesting, overnight roosting, and feeding. We considered all recently-used nesting sites vital, so we used the already-delineated Sespe-Piru “study area” as one segment of critical habitat, then drew similar boxes around several other known nesting areas. Specific roosting sites were presumably less important than nest sites, but there were still several locations that had long traditions of use. We put boxes around them, too.

Feeding areas were more of a problem. Condors could feed anywhere they found a carcass. Even within those districts that were the most used and had the longest tradition of use (Tejon Ranch, the Glennville area, etc.), condor occupancy was more dependent on food on a given day than on any particular acre of ground. With nesting and roosting areas, we had Sibley’s disturbance distances to give us an approximation of what kind of buffer we needed. We had no such limits for feeding habitat. What we finally did was draw large circles around the three most highly-used rangeland areas, and said that “some areas of open range with adequate food and limited development and disturbance must be preserved in each of the... regions.”

So, what about the mysteriously convenient shared line between the west end of the Sespe-Piru critical habitat unit and the east end of the phosphate lease area? Sheer coincidence. The boundary of the Sespe-Piru unit had been drawn before the U. S. Gypsum application was made, and was placed on a convenient legally-definable section line over 1 1/2 miles from the nearest condor nest site.

(The whole topic of critical habitat at Pine Mountain was really not a legitimate issue, at all. Just because a Federal activity occurs outside of designated critical habitat does not mean that it is exempt from review under the Endangered Species Act. Similarly, just because a Federal activity occurs within critical habitat boundaries does not mean the activity can’t occur there. Critical habitat merely warns all Federal agencies that they may be considering actions that would be detrimental to an endangered species. In the case of the Pine Mountain phosphate mine, my conclusions were based on the distance from condor nest and roost sites, not the critical habitat line.)

Obviously, I did not convince John Spinks, as my journal for 25 February 1976 notes: “At home, received a phone call from Dave Marshall and Ron Skoog (Office of Endangered Species) re the phosphate lease. They are still concerned that the lease area and the critical habitat boundaries coincide. I explained again, on the basis of habitat and 1 1/2 mile radius. When I got to the office, I drafted and sent another report to Patuxent on the relationship of the phosphate lease and critical habitat.”

I didn’t hear any more about the subject for the next couple weeks, and I was beginning to think that I had finally got my point across. I found out I was wrong while attending a 17 March 1976 peregrine falcon recovery symposium in Denver. I was standing in the hall between program sessions, when a man I had never met and had seen for the first time the previous day walked up to me. Without preamble, he said, “There are some people in Washington who think you’re a real son of a bitch.”

Not really the best way to kick off a new friendship, but I knew who he was, so I had a good idea what he was talking about. He was Assistant Director of Fish and Wildlife Service, and boss over the Office of Endangered Species. I was certainly surprised by the challenge, but I recovered quickly, and said something like: “That may be, but I’m the only Condor Expert you’ve got, and I know a whole lot more about the situation than anybody else.” That prompted two or three minutes of discussion of condors, strip mines, and critical habitat. Then, he said: “You really believe you’re right?” I said that I did. “Well, fuck ‘em!” he said, then turned and walked off.

That was the end of the critical habitat discussions (at least, with me), and almost the last of my involvement with the phosphate mine proposal. In late April 1975, I received a phone call from a representative of the Natural Resources Defense Council. She asked some questions about condors and the phosphate mine, and said she’d call back if she needed anything else. (She never did.) In early May 1975, a Bureau of Land Management employee called me, and said she had been told (by whom?) to add three condor roosts to their map of the phosphate lease environs. (I told her the roosts didn’t exist.) Then, in late July 1975, I went to the site as part of a “show-me trip” for a delegation from Interior and the Forest Service. The next day, I sat in on one more public hearing on the proposal. That was my last official act involving the phosphate mine.

U. S. Gypsum never mined at Pine Mountain. I don’t know if there was ever a Department of Interior denial of the permit, or if U. S. Gypsum just gave up. I’m glad the mine isn’t there; it was a terrible idea from the start, but it never was a condor issue.


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