Woodpecker Survives Legal Battles?

In August 1972, a group of Monroe County residents urged then-Gov. Dale Bumpers to deploy the Arkansas National Guard to stop the U.S. Army Corps of Engineers from channelizing the Cache River.

“If you’re going to send the Guard down, I want to join it for the day,” 60-year-old Augusta Mayor Ed McGill told the governor, according to an Aug. 23, 1972, Arkansas Gazette story.

The National Guard was never sent, but the Cache River became the stage for one of the fiercest environmental battles in Arkansas’ history.

The environmentalists eventually won a struggle that lasted nearly 15 years. And their side now asserts that without that activism, the ivory-billed woodpecker wouldn’t have survived.

In April, it was announced that the ivory-billed woodpecker had been rediscovered in the 5,000-acre Cache River National Wildlife Refuge, the first confirmed sighting of the bird in the wild since 1944.

“If this [channelization] project had been completed, it would have drained and converted to farmland approximately 170,000 acres of bottomland hardwoods — which would have forever precluded future generations from experiencing the sight of the majestic ivory-billed woodpecker,” wrote Bob Apple of Dardanelle, the former executive director of the Arkansas Wildlife Federation, in a recent editorial in the organization’s publication.

The discovery of the bird that had been written off as extinct gave the National Wildlife Federation, headquartered in Reston, Va., and the Arkansas Wildlife Federation ammunition in their current battle against the Corps over the Grand Prairie Area Demonstration Project in east-central Arkansas. Without the project, irrigated cropland would shrink by more than 75 percent, the Corps has said.

While environmentalists had failed to get a judge to stop the project in 2004, the discovery of the ivory-billed woodpecker sent the Arkansas Wildlife Federation back to U.S. District Court in Little Rock in an attempt to stop the Grand Prairie project.

Bob Anderson, spokesman for the Army Corps of Engineers, said the Corps maintains that it has done extensive studies for the project for more than 10 years and is ready to push forward.

Work on the project began in May and is expected to take three to four years, he said.

“We don’t expect the lawsuit to delay construction,” Anderson said.

Lisa Madry, regional representative for the National Wildlife Federation, said the woodpecker could have an estimated 17-mile habitat range. The Corps of Engineers project is located about 14 miles from where the ivory-billed was sited, she said.

The case is pending in U.S. District Court in Little Rock and a decision was expected in late February.

Anderson said 130 acres will be impacted by the project, but nearly 400 acres will be restored.

“It will be a net gain over time,” Anderson said.

Madry said the Department of the Interior has a high-level task force outlining a ivory-billed woodpecker recovery plan that hasn’t been released yet.

“Meanwhile, the Corps of Engineers is going ahead with the project,” Madry said.

Madry also said a team of researchers has been in the White River National Wildlife Refuge for a few months trying to track the ivory-billed.

The River

To tame the Cache River, which flows through several counties in eastern Arkansas, Congress approved channelizing it in the 1950s. But the project didn’t get off the ground until 1971.

The Corps planned to ease the environmental impact of deepening and straitening the Cache River by buying mitigation lands.

Landowners near the river said the Corps work would alleviate flooding and improve drainage on the land around the river, according to a March 6, 1977, article in the Arkansas Gazette. At the time, soybeans were hot commodities and would have been planted on the cleared forest lands.

“At the time the project was being touted, soybeans had reached a dramatic high of over $5 a bushel in the 1960s and early 1970s. That was just a huge increase in price,” said Tom Foti, the chief of research at the Arkansas Natural Heritage Commission, who fought against the project in the 1970s.

Supporters said the project wouldn’t hurt wildlife because mitigation lands would have replaced the lost wildlife habitat. And besides, they said, ducks could adapt to another environment.

But before bids could be let, the Arkansas Ecology Center, a private nonprofit environmental advocacy organization, filed a lawsuit in U.S. District Court in Little Rock challenging the Corps’ environmental study.

A judge ruled the environmental study was adequate and allowed the Corps to move forward in 1972.

Rex Hancock, a Stuttgart dentist who was president of the Arkansas Wildlife Federation at the time, organized the Citizens Committee to Save the Cache. The organization evangelized about damage it believed the Corps project could cause.

Hancock argued the state would lose a vital habitat for winter ducks and other wildlife if the channelization project went forward.

“There is simply no way to compensate for the loss of such a tract of wildlife land,” Hancock said in 1977. “It was a black day for mallards when that dragline gouged out the first bucketful of earth.”

The project also received criticism from the then-dominant Arkansas Gazette.

“The rape of the Cache clearly is the biggest one-shot environmental outrage in Arkansas in recent years,” an editorial said on Aug. 26, 1972.

About four miles of the river was channelized before the project was halted again in 1972 as the case was appealed to the 8th U.S. Circuit Court of Appeals at St. Louis. The appeals judges eventually sent the case back to the federal court with orders for the Corps to have more work done on the environmental impact statement.

When the Corps had a revised environmental impact statement in hand, the U.S. District Court in 1976 approved the project. Just as another 3.1 miles had been scheduled for channelization in 1977, the project was halted again by another appeal to the 8th U.S. Circuit Court of Appeals.

By then, public support for the project had waned.

While duck hunters led the charge, environmental agencies from several states also noted their displeasure with the project, Foti said.

“Even the state attorney general, who at that time was Bill Clinton, indicated that he was opposed to the project at one meeting,” Foti said. “With all that opposition, the Corps eventually withdrew — not deauthorized — active work on the project.”

It was then that environmental groups began creating the Cache River National Wildlife Refuge, Foti said.

Video Shakes Bird World

The last time the ivory-billed woodpecker had been confirmed in the U.S. was in 1944.

M. David Luneau Jr., an associate professor of electronics and computers at the University of Arkansas at Little Rock, said habitat destruction is the top theory for why the bird fell out of sight.

The bird thrived in old-growth forests, where there was an ample supply of dead and dying timber. But most of that land had been disappearing.

In February 2004, Gene Sparling of Hot Springs was kayaking on Bayou DeView in the Cache River National Wildlife Refuge when he saw an ivory-billed woodpecker and reported it.

While sights of the bird had been reported over the years, none had been confirmed. But Sparling took a couple of people out to where he had seen the bird — and they saw it too.

Based on the sightings, Luneau spent most of his free time for the next two months in the area looking for the bird.

On April 25, 2004, he had a breakthrough.

At the end of a full day of hunting for the ivory-billed woodpecker in the Cache River National Wildlife Refuge, Luneau and his brother-in-law spotted a bird flying away.

He didn’t get a good look at the bird and wasn’t even sure he captured it on the $2,500 video recorder he was using to film the event.

The bird had been about 65 feet away. The image wasn’t clear on Luneau’s TV or computer screen. He even sent the image to Intergraph Corp. in Huntsville, Ala., a company that enhances crime scene videos, but the weren’t able to get a better image.

Luneau thought he could get better footage and headed back into the woods. But he never saw the bird again.

Earlier this year, Luneau took the footage to Cornell University in New York at its Lab of Ornithology, a world leader for the study of birds.

After two days of scrutinizing the image, Cornell researchers confirmed the sighting, nearly a year after Luneau’s footage was taken.

The news of the discovery, which was announced in April, swept the country. Initial doubts in the birding world were laid to rest by new recordings of the ivory-billed’s distinctive call.

“There is something about the bird that has an appeal that’s hard to put your finger on,” Luneau said. “The bird itself is not so important for the environment, but the bird is more of an indicator of … our forest.

“And the fact that it has made it and we found it again just might be an indicator that the forests are getting back to the status they have been before,” he said. “Maybe we got a second chance to do the right thing to save the bird as well as the entire ecosystem that it represents.”

New Battle

On Sept. 8, another round in the environmentalists’ war against the Army Corps of Engineers occurred when the Arkansas Wildlife Federation and the National Wildlife Federation sued the Corps, saying it didn’t adequately study the impact of the Grand Prairie project on the ivory-billed woodpecker.

U.S. District Judge William Wilson was expected to make a decision on the case by the end of February. As of this writing, no decision had been made and no action had been taken other than a hearing held Feb. 6 at which point Wilson postponed a decision.

“The federal regulations have the requirements spelled out, and they just chose to ignore them,” said John Kostyack, senior counsel for the National Wildlife Federation. “All we are asking is for them to follow the law.”

Kostyak is representing the National Wildlife and Arkansas Wildlife federations in the case. If the preliminary injunction motion is granted, all work on the pump and pipeline project will stop, he said.

“It is fairly rare that the Corp and the Fish and Wildlife service would blow off doing the consultation all together,” Kostyack said of the formal endangered species consultation required for a large-scale project such as the one in Arkansas. He said that process would take a few months.

The Grand Prairie Area Demonstration Project will withdraw more than 158 billion gallons of water annually from the White River basin ecosystem and deliver it to about 900 rice farms, the lawsuit said. The project will consist of a 392-mile water delivery system, including a pumping station, 102 miles of new canals and 290 miles of new pipelines.

The Corps said the project is designed to allow continued irrigation of crops in 362,000 acres of Arkansas’ Grand Prairie region while preserving the Alluvial and Sparta Aquifers from further depletion.

“One part of the project is designed to increase the efficiency with which Grand Prairie farmers use water to irrigate crops through conservation measures, including use of tailwater recovery systems and reservoirs,” according to an order by U.S. District Judge G. Thomas Eisele, who later recused himself from the current injunction case because of his donation to Arkansas Audubon Society. “The second part of the project aims to pump water from the White River and deliver it to the Grand Prairie through a system of canals, hydraulic control structures, pipelines and streams.”

The Arkansas Wildlife Federation and the National Wildlife Federation sued the Corps in 2004 to stop the project. But Eisele ruled in September 2004 that the project had been adequately studied and could move forward.

The 2004 case didn’t involve endangered species, and the rediscovery of the woodpecker gave rise to new obligations, Kostyack said.

(Laura Bruegge contributed to this report.)