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The Southern Utah Wilderness Alliance has filed a federal court challenge to an agreement between the U.S. Department of Justice and the Tuachan Art Complex over the protection of the desert tortoise.

SUWA officials say the agreement, signed last month after lengthy negotiations, violated the law and fails to comply with habitat conservation agreements being worked out between Washington County and the U.S. Fish and Wildlife Service.The Heritage Arts Foundation, which is building the $18 million amphitheater and arts complex at the mouth of Snow Canyon, agreed to pay a $20,000 fine after two of the threatened reptiles were apparently killed last spring by construction crews on a road leading to the site.

The road falls inside an area deemed to be critical habitat for the tortoise by the FWS. As part of the agreement, pounded out over six weeks while construction was at a standstill, the foundation agreed to set up its own temporary Habitat Conservation Plan (HCP) pending the outcome of negotiations between the county and federal government.

The temporary plan includes a "tortoise-proof" fence running the length of the 1.3-mile road and full-time monitors to walk its perimeter.

FWS officials had warned Heritage of the risks of proceeding before the county HCP was in place. The HCP, among other things, provides for "incidental takes" - or deaths - of the threatened species without penalty.

SUWA, however, doesn't believe the new measures are sufficient and wants the agreement set aside. It filed a motion to intervene in U.S. District Court for Utah. No date for a hearing has been set.

"They're in violation of federal law because they never filed for a incidental `take' permit for that part of the project, but now they're getting one retroactively," said SUWA executive director Mike Matz. "They never had to go through the public process as they should have."

SUWA attorney Heidi McIntosh also questions whether the access road would fall under the county HCP once it is in place.

Heritage Arts Foundation director Doug Stewart said SUWA is "out in the twilight zone."

"(The road) has been in the HCP since day one," he said.