[5] By 1993, overcrowding existed at a growing number of district schools, at all grade levels, in part due to the growth on the northwest side.

[5] By 1994, the cactus ferruginous pygmy owl had been identified as a "species of special concern" by the US Fish and Wildlife Service (FWS).

[5] In spring 1997, all the plans and blueprints for the school were completed, and the district had obtained all the required permits for construction, with the exception of one.

Within an area in Arizona designated by the FWS as critical habitat of the pygmy owl included the 90 acres (36 ha) owned by the school district.

The school board then began a process with the FWS to mitigate disturbance of the potential owl habitat on the site.

[5] When the school district began construction operations on the 60-acre (24 ha) parcel, Defenders of Wildlife (Defenders), an environmental group, brought an action for injunctive relief under Section 9 of the ESA (applicable to private parties) in the US District Court of Arizona, alleging that the proposed school construction was likely to harm or harass pygmy owls that used or inhabited the site.

As to harassment of the pygmy owl, the court determined that the evidence did not show that the bird's behavioral patterns would be adversely affected by construction of the school.

The Ninth Circuit found that the insufficiency of Defenders' evidence was the main issue, and any critical habitat designation would not have altered the outcome of the case.