pygmy owl By 1994, the cactus ferruginous pygmy owl had been identified as a "species of special concern" by the US Fish and Wildlife Service (FWS). A FWS report on the owl was published in 1994 with a map depicting the areas believed to be prime potential habitats for the owl. The two school sites were not identified as being located in those areas. The school district planned to break ground in October 1997, with the high school opening by August 1999. In spring 1997, all the plans and blueprints for the school were completed, and the district had obtained all the required permits for construction, with the exception of one. The school site had a significant wash running through it, and the Army Corps of Engineers contended that building on such a wash constituted modifying a navigable waterway and required a 404 permit. As the school district applied for the permit, the cactus ferruginous pygmy owl was listed as an endangered species under the Endangered Species Act (ESA) by the FWS in 1997. Within an area in Arizona designated by the FWS as critical habitat of the pygmy owl included the owned by the school district. were earmarked for construction of the high school, with the remaining to remain undeveloped. At the request of the school board, the Arizona Game and Fish Department conducted six surveys on the site and did not find ferruginous pygmy owls on the property or on the adjacent land where the owls last were sighted in early 1996. The school board then began a process with the FWS to mitigate disturbance of the potential owl habitat on the site. Negotiations with the FWS were ultimately unsuccessful, and the school district proceeded with developing the school site. Federal lawsuit When the school district began construction operations on the parcel, Defenders of Wildlife (Defenders), an environmental group, brought an action for injunctive relief under Section 9 of the ESA (applicable to private parties) in the US District Court of Arizona, alleging that the proposed school construction was likely to harm or harass pygmy owls that used or inhabited the site. Defenders obtained a temporary restraining order (TRO) to halt the construction. The Arizona District Court found that no pygmy owl had been detected anywhere within the school site, and that the evidence was insufficient to show that a pygmy owl had used any portion of the