California Group Drops 10 Year Endangered Species Lawsuit

Spirit of the Sage Council, a nonprofit wildlife conservation organization based in Pasadena, California and co-founded by First Nations leaders of the Shoshone Gabrielino tribe, began a series of legal challenges in 1996 to a regulatory policy change made to the Endangered Species Act.

Known as "No Surprises - User Friendly Assurances to Non-Federal Landowners," the policy change to the act was announced in 1994 by U.S. Interior Secretary Bruce Babbitt.

Once given a "No Surprises" guarantee with an Incidental Take Permit, the permit holder needs to do nothing else before killing endangered species in the course of legal activities. No additional land or water set aside or funding for conservation is required.

In 1996, Spirit of the Sage Council and co-plaintiffs challenged the way in which the Clinton administration implemented the "No Surprises" policy, demanding an official rulemaking process that included the public.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service settled out of court, agreeing to provide formal public notice in the Federal Register and consider public comments.

The federally endangered Chinook salmon is disappearing from the West Coast due to logging and development. (Photo credit unknown)

But the Fish and Wildlife Service had already given "No Surprises" guarantees to numerous developers and timber companies, mainly in California.

Saying it was "the desire of landowners" and "a deal is a deal," Babbitt approved the continued use of "No Surprises" although more than 800 scientists, conservationists and tribes provided comment letters in opposition.

Prior to the Clinton administration, only 18 Incidental Take Permits had been issued. Since 1994, over 700 permits to kill or harm endangered species have been applied for or issued.

"When we began our series of legal challenges nearly 13 years ago, the make up of the DC Court of Appeals and U.S. Supreme Court were different. Prior to the George W. Bush administration the make up of judges were more balanced," said Leeona Klippstein, executive director of Spirit of the Sage Council.

Judge Emmet Sullivan of the D.C. District Court had previously ruled on the side of the endangered species, but in his ruling on August 30 he found it was difficult to make a single decision that would effect all 700 Incidental Take Permits and Habitat Plans on more than 140 million acres nationwide.

"The terms and conditions of each of the permits would need to be reviewed," the judge wrote. "It is assumed that the U.S. Fish & Wildlife Service would revoke a permit if the species were not surviving."

In 1984, Congress amended the Endangered Species Act to include an exemption process from the strict prohibitions of killing an endangered plant, fish or animal.

The amendment allows a non-federal landowner to receive a license to kill or "take" listed species after a habitat plan to protect some of the species has been approved by the U.S. Fish and Wildlife Service.

Klippstein explains, "In many instances more than 50 percent of the endangered species population and habitat are destroyed, known as a ratio of 1:1, for every one acre of habitat destroyed, one acre will be conserved."

"The entire premise is nonsense and criminal," she said. "If the reason a species has become endangered is loss of habitat, there is no way destroying 50 percent more of its habitat is going to protect it."

"It's corporate greed over species needs," she said.

Still, the Council has decided not to continue with the case because of the new makeup of the court, now filled with conservative Republican-appointed judges, including three recent George W. Bush appointees - Janice Rogers Brown, Brett Kavanaugh, and Thomas Griffith.

Klippstein says these new judges would not look kindly upon her side of the case, saying, "The D.C. Circuit has become (not coincidentally) extremely hostile to claims by environmental organizations."

The Council's case did result in two changes.

Eric Glitzenstein, the Sage Council's attorney said, "When we started this effort, the government did not even acknowledge that it could revoke take permits in species jeopardy situations, nor had it committed to adaptive management, monitoring, and similar clauses in permits."

Now the federal government has at least acknowledged a duty to revoke permits before they cause species extinction, he said.

In addition, the Department of the Interior issued a "five-point" plan, which contains commitments for adaptive management, biological goals, monitoring and other safeguards.

Klippstein calls "No Surprises" "one of the most disastrous and misguided policies ever adopted in the field of wildlife law and management," particularly in view of the pressures of global climate change, which she terms "one of the surprises."

Copyright Environment News Service (ENS) 2007. All rights reserved.