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HERITAGE ARTS FOUNDATION AGREES TO PROTECT DESERT TORTOISES An agreement announced today clears the way for the Heritage Arts Foundation to proceed with construction of the Tuacahan School and Performing Arts Center near St. George, Utah. As part of the civil settlement, the foundation will pay restitution for desert tortoises accidentally killed on an access road to the construction site, take measures to avoid further kills, and apply for an Endangered Species Act incidental take permit. The Department of Justice announced the settlement under which the foundation will ensure that, in the future, the construction and operation of the center and access road do not adversely impact the desert tortoise. The foundation will pay $20,000 in restitution for the two desert tortoises killed accidentally by vehicles using an access road that runs through desert tortoise habitat to the construction site. The desert tortoise was listed as a threatened species in 1989 under the federal Endangered Species Act (ESA). It is illegal to "take" animals on the list, but there are provisions that allow for incidental take if a permit which includes a habitat conservation plan has been granted by the U.S. Fish and Wildlife Service. Washington County, where the Heritage Arts Foundation project is located, has been working on a habitat conservation plan (HCP) which would qualify the county for an incidental take permit. However, the process is not complete and the county has not yet received a permit. Generally, an approved HCP strikes a balance between the needs of the listed species for survival and the desires of a community to develop an area. Since the Foundation did not have a permit of its own and chose to begin construction prior to Washington County obtaining a Section 10 permit, the killing of the two desert tortoises violated the ESA. However, the settlement filed today by the Department of Justice on behalf of the U.S. Fish and Wildlife Service resolves these claims, which were raised in a complaint filed simultaneously in the U.S. District Court in Salt Lake City, Utah. "We are pleased to have worked out an agreement with the Foundation that advances both national goals of building a cultural center in southwestern Utah and protecting endangered species," said Lois Schiffer, Acting Assistant Attorney General for the Environmental and Natural Resources Division. George T. Frampton, Jr., Assistant Secretary of the Interior for Fish and Wildlife and Parks, said, "This Administration's policy is to use the flexibility in the Endangered Species Act to resolve issues such as this. We are committed to working out solutions when people are willing to sit down and try to achieve an agreement." # # # 94-473