Why did the tortoise cross the road?
No one knows for sure. But it's not worth making a federal case out of, says the Heritage Arts Foundation, which is building a performing arts complex near St. George.The foundation, under fire last month for allegedly violating an earlier agreement to protect the desert tortoise, told the U.S. Justice Department last week that the tortoises, even the one that crossed the road, are safe and that there were no violations.
"There has been no harm to any tortoise," said Robert Clark, the foundation's attorney. "The instructions approved by the (U.S. Fish and Wildlife) Service have been followed."
In mid-November, Justice Department attorneys informed the foundation that it had violated an agreement reached during the summer between the FWS and the foundation following the deaths of two tortoises at the project site in May.
In separate events in September, two tortoises were found on or near the 1.3-mile access road to "Tuacahn," an $18 million amphitheater and performing arts complex the foundation is building west of Ivins in Washington County.
The agreement says no tortoises should be on or near that road.
Clark said any perceived problem, though, is the result of miscommunication between the FWS and the biologists designated by the FWS to train foundation employees on how to protect the tortoises.
"It is entirely inappropriate to refer to either of these events as violations of the (agreement)," Clark said in a Nov. 29 letter to the Justice Department.
In one case, a baby tortoise was found on the wrong side of a fence designed to keep tortoises off the road. A foundation employee charged with monitoring tortoises stopped traffic, picked up the creature and put in on the other side of the fence.
The other tortoise escaped through a section of fence that had been taken down temporarily for construction. The monitor stopped traffic while the tortoise crossed the road and helped the animal through the fence on the other side.
Problem is, according to the Justice Department, the foundation failed to contact the FWS about the incidents.
But Clark said the stipulation requires the foundation only to contact the FWS if tortoises die. In these incidents, the foundation contacted only the designated biologists, as required by the agreement.
Although saying the foundation did not act improperly, Clark pledged that foundation employees in the future will not remove the fence without a biologist present and will not touch a tortoise under any circumstance.