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beyond the Section 36 boundary to the vicinity of the owl nesting sites. USFWS believes on the basis of BLM monitoring that the owls primarily use the northern part of Section 36 during the summer, but has stated that monitoring is necessary, particularly in fall and winter, to determine their actual use of the parcel. We understood, on the basis of USFWS correspondence with the Sierra Club, dated May 15, 2000, that it was still their understanding that the quarry would undertake owl monitoring, that if this showed that the owls were using an azea which would be impacted by their quarrying, the quarry would prepare a habitat conservation plan, and that if the quarry sought to expand beyond its existing acreage before the monitoring could be done and a habitat conservation plan prepared, they would confine their activities to one 40-acre parcel in the southwest comer of Section 36, staying wholly or largely within the "preferred mining azea." We were therefore surprised to learn recently that on May 15, 2000, the same day that we received these assurances from the USFWS, the quarry operators had met with them and disclosed a dramatically different plan, to extend operations well beyond the "preferred mining area" and to increase the total acreage of the quarry from 40 to 110 acres. USFWS agreed to establishment of two "Take Avoidance Areas" extending well northward of the "preferred mining area". (The additional area is indicated in yellow on the enclosed Take Avoidance Area map.) Quarrying in these areas would extend over the hilltop and into the bowl, so that light from nighttime operations, noise from operations day or night, and other impacts would be noticeable well up the valley of Red Creek and would likely extend into the vicinity of the actual owl nesting site. We have received no direct explanation of the USFWS change of attitude, but it is apparently not based on any new information regarding the owls or their needs, but rather was dictated by the USFWS's perception that it has only limited power to oppose the quarrying plans. Because the quarry is on state and private land, the applicable ESA provision is Section 9 barring activities which would constitute a "taking" of the owls. Thus, it is the view of the USFWS that they can only advise and wam of the risk of an ESA violation, but cannot force the quarry to act. (We have inquired of the Bureau of Land Management as to its Section 7 obligations arising out of the leasing of the federal minerals estate, but they seem to feel that because the private parcel is located to the south of the State section and well away from the owl nesting site and the portions of Red Creek which the owls aze likely to be using, this obligation is at best minimal.) We therefore feel that any protection which is to be afforded the owls must come from restrictions and definite obligations imposed by the Division of Minerals and Geology as part of the quarry's permit. Although apparently not a part of the USFWS Take Avoidance Agreement, the Mining Plan Map shows "fire/access roads" to be constructed throughout the entire southern 2/3 of Section 36, as faz north as the edge of the Protected Activity Center. (The roads aze marked in pink on the enclosed map.) The Reclamation Plan Map shows this entire area to the edge of the PAC, approximately 400 acres, to be reclaimed as a flat area surrounded by benches. Since the quarry owner and operator presently maintain that they have the right to quarry all of Section 36 according to the terms of the 1997 permit, and that they will adhere to existing plans if the amendment is not granted, we are concerned that they will treat the 2001 permit as simply giving them a further, absolute right to take actions detrimental to the owls. Colorado law apparently allows them to do so without applying for further amendments, by filing at most an application for a technical revision, which is not subject to the same public or agency scrutiny as a plan amendment. Should the nesting owls abandon Red Canyon in the wake of the quarry's expanded activities, they are also certain to argue that they were given the "go ahead" to proceed by various agencies, including USFWS as well as DMG. This hearing therefore could well represent otu last chance to get a binding, enforceable obligation on the part of the quarry do the studies, prepare the plans, and commit to quarrying and reclaiming the land m a manner which will allow it to remain viable Mexican spotted owl habitat.