| Spirit of the Sage Council, et. al., v. Bruce Babbitt 1996 |
BRUCE BABBITT, SECRETARY, U.S DEPARTMENT OF THE INTERIOR, et. al., Defendants.  In this action, plaintiffs seek relief from the failure of the Department of the Interior ("DOI"), the U.S. Fish and Wildlife Service ("FWS"), the Department of Commerce ("DOC"), and the National Marine Fisheries Service ("NMFS") (hereinafter the "Services") to comply with the requirements of the Administrative Procedure Act, 5 U.S.C. § 553 ("APA"), by substantially changing, without any prior public notice or opportunity to comment, the Services' approach to the issuance of permits, under the Endangered Species Act, 16 U.S.C. § 1539 ("ESA"), for "taking" an endangered or threatened species through destruction of habitat or other means. Under the new rule, the Services must include in all Habitat Conservation Plans ("HCPs") -- which set forth the measures that permittees must take to mitigate the adverse effects of their projects, and which must be approved before "taking" permits may be issued -- guarantees that permittees will never, for the life of their permits, be obligated to make substantial changes to their HCPs even if the existing plans prove inadequate to avoid the extinction of the species. The adoption of this radically new approach to ESA implementation -- which the Services refer to as a "No Surprises" policy -- without any advance opportunity for input by plaintiffs or other members of the affected public constitutes a flagrant violation of both the APA and section 10 of the ESA.
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
PLAINTIFFS AND THEIR INTERESTSPlaintiff Spirit of the Sage Council ("Sage Council") is an unincorporated non-profit membership organization and coalition of Indians, located in California, other American Indians, community groups, and citizens dedicated to the protection of America's natural and cultural heritage, endangered species, habitats and ecosystems, and indigenous sacred sites. The Sage Council has approximately 1,000 individual members and 30 organizational coalition members throughout the United States, British Columbia and Mexico.
The Sage Council brings this action on its own institutional behalf and on behalf of its members, many of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher, Pacific pocket mouse, Bald Eagle, and Stephens' Kangaroo rat. Sage Council members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of the Sage Council and its members in the conservation of the California gnatcatcher, Pacific pocket mouse, Bald Eagle, Stephens' Kangaroo rat, and other endangered and threatened species. In particular, the Sage Council and its members are harmed by the Orange County Central and Coastal Subregional Natural Communities Conservation Planning program ("NCCP")/HCP, the San Diego Gas and Electric NCCP/HCP, and the County of Riverside, Lake Matthews NCCP/HCP, all of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Sage Council members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which the Sage Council and its members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of the Sage Council and its members in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, Pacific pocket mouse, Bald Eagle, and Stephens' Kangaroo rate, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated the Sage Council's and its members' rights under the APA and deprived the Sage Council and its members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 5.
Plaintiff Biodiversity Legal Foundation ("BLF") is a non-profit organization with headquarters in Boulder, Colorado. The BLF is dedicated to the preservation of all native plants and animals, communities of species, and naturally functioning ecosystems in this country. Through educational, administrative, and legal actions, the BLF seeks to improve public attitudes and policies concerning the conservation of all species.
BLF brings this action on its own institutional behalf and on behalf of its supporters, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the golden-cheeked warbler, grizzly bear, and gray wolf. BLF supporters will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of the BLF and its supporters in the conservation of the golden-cheeked warbler, grizzly bear, gray wolf, and other endangered and threatened species. In particular, the BLF and its supporters are harmed by the Balcones Canyonlands HCP and the Plum Creek Timber Company HCP, both of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by BLF supporters.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which the BLF and its supporters have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of the BLF and its supporters in observing, studying, and otherwise enjoying threatened and endangered species, such as the golden-cheeked warbler, grizzly bear, and gray wolf, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated the BLF's and its supporters' rights under the APA and deprived the BLF and its supporters of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 10.
Plaintiff Forest Guardians is a New Mexico, non-profit corporation with its principal office in Santa Fe, New Mexico. Forest Guardians has approximately 1,000 members, many of whom reside in New Mexico, Arizona, and California. Forest Guardians and its members are committed to the protection of intact forest ecosystems throughout the West. To achieve this protection, Forest Guardians works though administrative appeals, litigation, and education to assure that all federal agencies fully comply with the federal environmental laws and the APA. In particular, Forest Guardians regularly submits comments to the Services in response to proposed rules regarding threatened and endangered species.
Forest Guardians brings this action on its own institutional behalf and on behalf of its members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher, Stephens' Kangaroo rat, and golden-cheeked warbler. Forest Guardian members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of Forest Guardians and its members in the conservation of the California gnatcatcher, Stephens' Kangaroo rat, golden-cheeked warbler, and other endangered and threatened species. In particular, Forest Guardians and its members are harmed by the Orange County NCCP/HCP, the San Diego Gas and Electric NCCP/HCP, and the Balcones Canyonlands HCP, all of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Forest Guardian members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which Forest Guardians and its members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of Forest Guardians and its members in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, Stephens' Kangaroo rat, and golden-cheeked warbler, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated Forest Guardians' and its members' rights under the APA and deprived Forest Guardians and its members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 15.
Plaintiff The Fund for Animals ("The Fund"), a national non-profit membership organization, is headquartered in New York City, New York, and Silver Spring, Maryland. The Fund is committed to preserving animal species and their natural habitats around the world; preventing the abuse, exploitation, and hunting of animals; and providing its members with information regarding threats faced by animal species and their habitats.
The Fund brings this action on its own institutional behalf and on behalf of its members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the gray wolf and grizzly bear. These Fund members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of The Fund and its members in the conservation of the gray wolf, grizzly bear, and other endangered and threatened species. In particular, The Fund and its members are harmed by the Plum Creek Timber Company HCP, which contains "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by The Fund members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which The Fund and its members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of The Fund and its members in observing, studying, and otherwise enjoying threatened and endangered species, such as the gray wolf and grizzly bear, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated The Fund's and its members' rights under the APA and deprived The Fund and its members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 20.
Plaintiff National Endangered Species Network ("NESN") is an unincorporated, non-profit networking organization dedicated to the protection of endangered species and habitats through the implementation of sound science and policy. Through educational, administrative, and legal actions, the NESN seeks to improve public attitudes and policies concerning the conservation of all species and, specifically, seeks to ensure that the habitat conservation planning process under section 10 of the ESA adequately protects endangered and threatened species and their habitats. NESN has also participated in local government meetings, public hearings, and advisory committees pertaining to HCPs.
NESN brings this action on its own institutional behalf and on behalf of its supporters, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher, the Pacific pocket mouse and the golden-cheeked warbler. These NESN supporters will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of the NESN and its supporters in the conservation of the California gnatcatcher, the Pacific pocket mouse, the golden-cheeked warbler, and other endangered and threatened species. In particular, the NESN and its supporters are harmed by the Orange County Central and Coastal Subregional NCCP/HCP, and the Balcones Canyonlands HCP, both of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by NESN supporters.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which the NESN and its supporters have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of the NESN and its supporters in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, Pacific pocket mouse, and golden-cheeked warbler, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated the NESN's and its supporters' rights under the APA and deprived the NESN and its supporters of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 25.
Plaintiff San Bruno Mountain Watch ("SBMW") is a non-profit organization headquartered in Brisbane, California. SBMW is dedicated to the preservation of all native plants and animals, communities of species, and naturally functioning ecosystems in California, especially San Bruno Mountain, located in San Mateo County. Through educational, administrative, and legal actions, SBMW seeks to improve public attitudes and policies concerning the conservation of all native species.
SBMW brings this action on its own institutional behalf and on behalf of its members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher and Pacific pocket mouse. These SBMW members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of SBMW and its members in the conservation of the California gnatcatcher, Pacific pocket mouse, and other endangered and threatened species. In particular, SBMW and its members are harmed by the Orange County Central and Coastal Subregional NCCP/HCP, which contains "No Surprises" guarantees in accordance with the rule, and which permits the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by SBMW members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which SBMW and its members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of SBMW and its members in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher and Pacific pocket mouse, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated SBMW's and its members' rights under the APA and deprived SBMW and its members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 30.
Plaintiff Shoshone Gabrielino Nation is a California Tribe whose ancestral territory is located south of Malibu at Topanga Canyon in Los Angeles, California, and continues along the coast to Aliso Creek in Orange County, and from Catalina Island inland to the San Gabriel and western San Bernadino Mountain ranges. While the Shoshone Gabrielino Nation does not have a "reservation," the tribe and its members use their ancestral territory for educational, recreational, cultural, and religious activities.
The Shoshone Gabrielino Nation brings this action on its own institutional behalf and on behalf of its tribe members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher, Pacific pocket mouse and Bald Eagle. These Tribe members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of the Shoshone Gabrielino Nation and its tribe members in the conservation of the California gnatcatcher, Pacific pocket mouse, Bald Eagle, and other endangered and threatened species. In particular, Shosone Gabrielino Nation and its tribe members are harmed by the Orange County Central and Coastal Subregional NCCP/HCP, which contains "No Surprises" guarantees in accordance with the rule, and which permits the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Shoshone-Gabrielino members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which the Shoshone Gabrielino Nation and its tribe members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of the Shoshone-Gabrielino and its tribe members in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, Pacific pocket mouse and Bald Eagle, in their natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.37. Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated the Shoshone-Gabrielino's and its tribe members' rights under the APA and deprived the Shoshone Gabrielino Nation and its tribe members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 35.
Plaintiff Southwest Center for Biological Diversity ("SWCBD") is a nonprofit organization incorporated in New Mexico with its principal office in Tucson, Arizona. The SWCBD has approximately 3,000 members and is dedicated to the preservation, protection, and restoration of biodiversity, native species, ecosystems, and public lands in the West. Through educational, administrative, and legal actions, SWCBD seeks to improve public attitudes and policies concerning the conservation of all species. 39. SWCBD brings this action on its own institutional behalf and on behalf of its members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include the California gnatcatcher. These SWCBD members will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens the interests of SWCBD and its members in the conservation of the California gnatcatcher, and other endangered and threatened species. In particular, SWCBD and its members are harmed by the City of San Diego Multi-Species Habitat Conservation Program ("MSHCP"), which contains "No Surprises" guarantees in accordance with the rule, and which permits the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by SWCBD members.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which SWCBD and its members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, the interests of SWCBD and its members in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, in its natural habitats have been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated SWCBD's and its members' rights under the APA and deprived SWCBD and its members of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 40
Plaintiff Leeona Klippstein is a resident of Pasadena, California, located in Southern California. Ms. Klippstein has been involved in advocating the preservation and protection of the coastal sage scrub ecosystem in Southern California, and its native species, for several years. Ms. Klippstein co-founded the Sage Council in 1993 and is currently the environmental director for the Sage Council. She has also participated as a member of the San Bernadino Valley MSHCP Technical Subcommittee and Steering Committee and the Riverside County MSHCP Negotiating Team
Ms. Klippstein regularly photographs, observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include the California gnatcatcher and Pacific pocket mouse. Ms. Klippstein will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens Ms. Klippstein's interest in the conservation of the California gnatcatcher, Pacific pocket mouse, and other endangered and threatened species. In particular, Ms. Klippstein is harmed by the City of San Diego MSHCP and Orange County Central and Coastal Subregional NCCP/HCP, both of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Ms. Klippstein.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which Ms. Klippstein has an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, Ms. Klippstein's interest in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher and Pacific pocket mouse, in their natural habitats has been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated Ms. Klippstein's right under the APA and deprived her of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 45.
Plaintiff Vera Rocha is a resident of Baldwin Park, California, located in Southern California, and Chief of the Shoshone Gabrielino Nation. Chief Rocha co-founded the Sage Council and is currently the Sage Council's cultural affairs director.
Chief Rocha regularly observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include the California gnatcatcher and Pacific pocket mouse. Chief Rocha will continue to derive recreational and other benefits from these species in the future
The Services' "No Surprises" rule threatens Chief Rocha's interest in the conservation of the California gnatcatcher, Pacific pocket mouse, and other endangered and threatened species. In particular, she is harmed by the Orange County Central and Coastal Subregional NCCP/HCP, which contains "No Surprises" guarantees in accordance with the rule, and which permits the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Chief Rocha.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which Chief Rocha has an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, Chief Rocha's interest in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher and Pacific pocket mouse, in their natural habitats has been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated Chief Rocha's right under the APA and deprived her of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 50.
Plaintiff Dolores Welty is a resident of Leucadia, California, located in San Diego County. Ms. Welty has spent many years advocating for the protection and preservation of endangered and threatened species and their habitats such as the coastal wetlands and coastal sage scrub ecosystems. Ms. Welty is the executive director of Friends of Battiquitos Lagoon and a co-founder of the California Environmental Law Project.
Ms. Welty regularly observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include the California gnatcatcher, least tern, and Pacific pocket mouse. She will continue to derive recreational and other benefits from these species in the future.
The Services' "No Surprises" rule threatens Ms. Welty's interest in the conservation of the California gnatcatcher, Pacific pocket mouse, least tern, and other endangered and threatened species. In particular, she is harmed by the City of San Diego MSHCP and Orange County Central and Coastal Subregional NCCP/HCP, both of which contain "No Surprises" guarantees in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other threatened and endangered species in specific areas used by Ms. Welty.
The "No Surprises" rule substantially increases the likelihood that the FWS will issue permits allowing the taking and habitat destruction of species in which Ms. Welty has an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits whenever HCPs containing "No Surprises" guarantees prove to be inadequate, because of changing environmental conditions or otherwise, to conserve the affected species. Accordingly, Ms. Welty's interest in observing, studying, and otherwise enjoying threatened and endangered species, such as the California gnatcatcher, least tern, and Pacific pocket mouse, in their natural habitats has been, and will continue to be, harmed by defendants' adoption of the "No Surprises" rule.
Defendants' adoption, without any prior public notice or opportunity to comment, of the "No Surprises" rule violated Ms. Welty's right under the APA and deprived her of the ability to offer meaningful comments on HCPs approved after the adoption of the "No Surprises" rule, including those HCPs referred to in ¶ 55.
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