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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civ. No. 1:98CV01873
Judge Sullivan
SPIRIT OF THE SAGE COUNCIL,
30 N. Raymond Ave.
Suite 302
Pasadena, CA 91103
(626) 744-9932,
BIODIVERSITY LEGAL FOUNDATION,
2630 Juniper Avenue
Suite 8
Boulder, CO 80308-1327,
(303) 442-3037,
THE NATIONAL ENDANGERED SPECIES NETWORK,
624 M Street
Davis, CA 95616
(916) 753-7187,
SHOSHONE GABRIELINO NATION,
3451 Remy Street
Baldwin Park, CA 91706
THE HUMANE SOCIETY OF THE UNITED STATES,
700 Professional Drive
Gaithersburg, Md. 20879,
KLAMATH FOREST ALLIANCE,
P.O. Box 820
Etna, California 96027
(530) 467-5405,
LEEONA KLIPPSTEIN,
2245 East Colorado Blvd.
Suite 102
Pasadena, CA 91107
VERA ROCHA,
3451 Remey Street
Baldwin Park, CA 91706
DOLORES WELTY,
2076 Sheridan Road
Leucadia,CA 92024
Plaintiffs,
v.
BRUCE BABBITT, SECRETARY,
U.S. DEPARTMENT OF THE INTERIOR,
1849 C Street, N.W.
Washington, D.C. 20240,
JAMIE CLARK, DIRECTOR,
U.S. FISH AND WILDLIFE SERVICE,
1849 C Street, N.W.
Washington, D.C. 20240,
WILLIAM DALEY, SECRETARY,
U.S. DEPARTMENT OF COMMERCE,
14th and Constitution Ave., N.W.
Washington, D.C. 20230
and
ROLAND A. SCHMITTEN, ASSISTANT ADMINISTRATOR,
NATIONAL MARINE FISHERIES SERVICE,
1315 East-West Highway
Silver Spring, MD 20910,
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1.  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 Endangered Species Act, 16 U.S.C. § 1532 et seq. ("ESA"), and the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"), in adopting a rule which greatly expands the circumstances under which third parties may "take" an endangered or threatened species through destruction of habitat or other means. The rule concerns the contents of 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 "Incidental Take Permits" ("ITPs") may be issued to persons whose activities will harm endangered or threatened species. Under the new rule, the Services must guarantee to all holders of ITPs that the permittees will never, for the life of their permits, be obligated to make substantial changes to their HCPs, even when existing plans prove inadequate to avoid the extinction of the species. The adoption of this rule -- which the Services refer to as "No Surprises" -- constitutes a flagrant violation of both the APA and the ESA.
JURISDICTION
2. This Court has jurisdiction over this action pursuant to 28 U.S.C.§ 1331.
PARTIES
A. PLAINTIFFS AND THEIR INTERESTS
3. Plaintiff Spirit of the Sage Council ("Sage Council"), which has its headquarters in Pasadena, California, is a non-profit membership organization and coalition of indigenous California Native-Americans, other Native-Americans, 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 its headquarters in Pasadena, California, and has over 1,000 individual members and 30 supporting organizational coalition members throughout the United States, British Columbia, and Mexico.
4. 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 Coastal California gnatcatcher, Bald Eagle, Red Cockaded Woodpecker, Delhi Sands Flower-Loving Fly, Northern Spotted Owl, Quino Checkerspot Butterfly, Santa Ana Woolly-Star, Giant Garter Snake, Steelhead Trout, Southwestern Willow Flycatcher, Desert Tortoise, Mojave Ground Squirrel, Stephens' Kangaroo rat, and San Joaquin Kit Fox, among others. Sage Council members will continue to derive recreational and other benefits from these species in the future.
5. The Services' No Surprises rule threatens the interestsof the Sage Council and its members in the conservation of the speciesenumerated in 4 and other endangered and threatened species. Inparticular, the Sage Council and its members are harmed and will beharmed in the future by HCPs/ITPs and associated agreements which havebeen approved by the Services or are being considered for approval,which contain No Surprises guarantees, and which permit or will permitthe "taking," and destruction of habitat, of threatened and endangeredspecies in specific areas used by Sage Council members. Examples ofsuch ITPs/HCPs include the State of California Natural CommunitiesConservation Planning ("NCCP") Program; the Central and CoastalSubregion NCCP/HCP, County of Orange, California ("Orange County HCP");the Colton Transmission Line and Substation Project HCP/ITP; theRiverside County Long-Term HCP, Riverside, California; TemeculaEntertainment Valley HCP, Riverside, California; City of San DiegoMultiple Species Conservation Program HCP/NCCP; Fieldstone/La Costa Associates and City of Carlsbad HCP/ITP, San Diego, California; Plum Creek Timber Company HCP/ITP; San Bernardino Valley-Wide Multi-Species Habitat Conservation Plan; Yeager Construction Company Wildwash HCP, San Bernardino, California; Southern Orange County HCP/NCCP, County of Orange, California; Murray Pacific HCP/ITP, Washington.
6. 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.
7. BLF brings this action on its own institutional behalf and on behalf of its supporters, officer, and board members, some of whom regularly photograph, observe, study, and otherwise enjoy endangered and threatened species and their habitats. Such species include, but are not limited to, the golden-cheeked warbler, grizzly bear, and gray wolf.
8. The Services' "No Surprises" rule threatens the interests
of the BLF and its supporters, officers, and board members in the conservation of these 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.
9. Plaintiff National Endangered Species Network ("NESN") is an unincorporated, non-profit networking wildlife conservation organization dedicated to the protection of endangered species and habitats. Through educational, administrative, and legal actions, the NESN seeks to protect and conserve all species and, specifically, it seeks to ensure that the habitat conservation planning process under section 10 of the ESA adequately protects endangered and threatened species and their habitats.
10. 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 natural habitats. Such species include the Coastal California Gnatcatcher, the Nightingale Reed Warbler, the Aplomado Falcon, the Aleutian Canada Goose, the San Joaquin Kit Fox, the Northern Spotted Owl, the Yaqui Chub, the Coho Salmon, the Red Cockaded Woodpecker, the Least Bell's Vireo, the Southwestern Arroyo Toad, the Golden-Cheecked Warbler, and the Black Capped Vireo. 11. The Services' No Surprises rule threatens the interests of the NESN and its supporters in the conservation of endangered and threatened species. In particular, the NESN and its supporters are harmed and will be harmed in the future by HCPs/ITPs and associated agreements which have been approved by the Services or are being considered for approval, which contain No Surprises guarantees, and which permit or will permit the "taking," and destruction of habitat, of threatened and endangered species in specific areas used by the NESN and its supporters. Examples of such HCPs/ITPs are the International Paper Company HCP/ITP, the El Coronado Ranch and Cattle Company HCP, the Natomas Basin HCP, and the Balcones Canyonlands HCP.
12. Plaintiff Shoshone Gabrielino Nation is a State recognized 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 Bernardino Mountain ranges. The Tribe and its members use their ancestral territory for educational, recreational, cultural, and religious activities. The Tribe is a co-founder of Spirit of the Sage Council.
13. 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. Many such habitats are of cultural and religious significance to the Tribe -- including wetlands, riparian woodlands, and coastal sage scrub ecosystems -- and they support endangered and threatened species, such as the Coastal California Gnatcatcher, the Peregrine Falcon, the Pacific Pocket Mouse, the Southwestern Willow Flycatcher, the Santa Monica Mountains Dudleya, the Delhi Sands Flower Loving Fly, the Riverside Fairy Shrimp, and the Bald Eagle.
14. The Services' No Surprises rule threatens the interests of the Shoshone Gabrielino Nation and its tribe members in the conservation of these and other endangered and threatened species. In particular, the Shoshone Gabrielino Nation and its tribe members are or will be harmed by specific HCPs/ITPs which have been adopted or are under consideration by the FWS, including the San Bernardino Valley-wide Multi-Species HCP, the Lockheed Martin Multi-Species HCP for the Potrero Creek and Beaumont Gateway Sites, Unocal Coyote Hills HCP/ITP (City of Fullerton, California), and Shell Corporation and Metropolitan Water District of Southeastern California HCP/ITP.
15. Plaintiff Humane Society of the United States ("HSUS") is a national animal protection organization based in Gaithersburg, Maryland. HSUS has over 6 million members and constituents throughout the nation. The HSUS and its members are dedicated to protecting wild and domestic animals by actively opposing those projects, plans, or other activities which result in the destruction of wildlife habitat, including the habitat of endangered and threatened species. The HSUS accomplishes its objectives through public education, litigation, legislation, and research and investigations. It publishes a bi-monthly newsletter, special reports, and activist letters to inform its members and constituents of its activities and to request assistance in preventing harm to wildlife and wildlife habitat.
16. The HSUS brings this action on its own organizational 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 Coastal California gnatcatcher, the Peregrine Falcon, the Kit fox, and the Desert tortoise.
17. The No Surprises rule threatens the interests of the HSUS and its members in the conservation of these and other endangered and threatened species. In particular, the HSUS and its members are harmed by the Orange County HCP and the San Diego County HCP, which permit the "taking," and destruction of habitat of, these and other endangered and threatened species in specific areas used by HSUS members.
18. Plaintiff Klamath Forest Alliance ("KMA") is a non-profit, public interest organization organized under the laws of California. KFA was created to promote sustainable forest ecosystems and economies in California and Southwest Oregon. In particular, KFA is dedicated to ensuring the continued existence of healthy and diverse ecosystems in the Klamath Province, which spans part of the states of Oregon and California.
19. KMA brings this action on its own institutional behalf, and on behalf of its members, volunteers, and Board of Directors, some of whom have recreational, occupational, and cultural interests in endangered and threatened species and their habitats. Such species include the Northern Spotted Owl, the California Spotted Owl, the Chinook salmon, the Coho salmon, the Klamath Mountain steelhead, the Bull trout, the Siskiyou Mountain Salamander, and the Del Norte Salamander. In particular, KFA members include fishermen, fishing guides, and native Americans who rely on salmon and steelhead for their livelihoods, traditions, and/or for religious purposes.
20. The No Surprises rule threatens the interests of KFA and its members in the conservation of these and other endangered and threatened species. In particular, KFA and its members are or will be harmed by specific HCPs/ITPs which have been adopted or are under consideration by the FWS, and which include or will include No Surprises assurances in accordance with the rule. Examples of such HCPs/ITPs include the State of Oregon Coho Plan, Sierra Pacific Industries multi-species HCP, Fruit Growers Supply Co.'s Northern Spotted Owl and multi-species HCP, and other HCPs in the Klamath River Basin and the Klamath Mountains.
21. Plaintiff Leeona Klippstein is a resident of Pasadena, California, located in Southern California. Since 1991, Ms. Klippstein has been involved in advocating the preservation and protection of the coastal sage scrub ecosystem in Southern California, and its native species. Ms. Klippstein co-founded the Spirit of the Sage Council in 1993 and is currently the environmental director for the Sage Council. She also co-founded the National Endangered Species Network in 1994 and has participated as a member of the San Bernardino Valley MSHCP Technical Subcommittee and Steering Committee and the Riverside CountyMSHCP Negotiating Team. Ms. Klippstein regularly photographs, observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include, but are not limited to, the Coastal California gnatcatcher, Desert Tortoise, Quino Checkerspot Butterfly, Least Bell's Vireo, Southwestern Arroyo Toad, Peregrine Falcon, Bald Eagle, San Bernardino kangaroo-rat, and Stephen's kangaroo-rat.
22. The Services' No Surprises rule threatens Ms. Klippstein's interest in these and other endangered and threatened species. In particular, Ms. Klippstein is or will be harmed by approved and proposed HCPs/ITPs which do or will contain No Surprises assurances in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other endangered and threatenedspecies in specific areas used by Ms. Klippstein. Examples of such HCPs/ITPs include the Western Riverside County Multiple Species Habitat Conservation Planning Agreement and Proposed Western Riverside County Multiple Species Habitat Conservation Plan, the City of San Diego Multiple Species Conservation Program HCP/NCCP, Implementation Agreement and ITP, the Central and Coastal Subregion Natural Community Conservation Plan and Habitat Conservation Plan (County of Orange, California), the Colton Transmission Line and Substation Project HCP/ITP (City of Colton, California), the Riverside County "Long-Term HCP (Riverside, California), and the Temecula Entertainment Valley Habitat Conservation Plan (Riverside County, California).
23. 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 Spirit of the Sage Council and is currently the Sage Council's cultural affairs director.
24. Chief Rocha regularly observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include the Coastal California gnatcatcher, Pacific pocket mouse, Desert Tortoise, Quino Checkerspot Butterfly, Least Bell's Vireo, Southwestern Arroyo Toad, Peregrine Falcon, Bald Eagle, San Bernardino kangaroo-rate, and Stephen's kangaroo-rat.
25. The Services' No Surprises rule threatens Chief Rocha's interest in the conservation of these 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.
26. 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 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.
27. Ms. Welty regularly observes, studies, and otherwise enjoys endangered and threatened species and their habitats. Such species include the Coastal California gnatcatcher, Least Tern, California Brown Pelican, Least Bell's Vireo, Southwestern Arroyo Toad, Pacific Pocket Mouse, Peregrine Falcon, and Bald Eagle.
28. The No Surprises rule threatens Ms. Welty's interest in the conservation of these and other endangered and threatened species. In particular, Ms. Welty is or will be harmed by approved and proposed HCPs/ITPs which do or will contain No Surprises assurances in accordance with the rule, and which permit the "taking," and destruction of habitat, of these and other endangered and threatened species in specific areas used by Ms. Welty. In particular, she is or will be harmed by the Sweetwater River HCP/ITP (Rancho Sante Fe, California), the North County San Diego Multiple Habitat Conservation Program, and the Memorial Heights HCP/ITP (San Diego County, California).
29. The No Surprises rule substantially increases the likelihood that the Services will issue additional permits allowing the taking and habitat destruction of species in which plaintiffs and their members, supporters, officers and board members have an interest -- by encouraging developers to obtain such permits -- and will also hasten the extinction of species affected by such permits when ITP/HCPs containing No Surprises fail to protect and conserve endangered and threatened species. Accordingly, the continuing interests of plaintiffs and their members, supporters, officers, and board members in observing, studying, and otherwise enjoying threatened and endangered species in their natural habitats, are harmed by defendants' adoption and implementation of the No Surprises rule.
30. In addition to the injuries described in 3-29, the No Surprises rule also abrogates plaintiffs' procedural rights under section 10(a)(2)(B) of the ESA, 16 U.S.C. § 1539(a)(2)(B), to provide comments on individual ITPs/HCPs and whether No Surprises assurances should be extended to permit holders in particular cases.
B. DEFENDANTS
31. Defendant Bruce Babbitt is the Secretary of the DOI and has ultimate responsibility for the implementation of the ESA with regard to terrestrial species.
32. Defendant Jamie Clark is the Director of the FWS ("Director"), an agency within the DOI, which has been delegated responsibility for implementing the ESA with regard to terrestrial species.
33. Defendant William Daley is the Secretary of the DOC and has ultimate responsibility for the implementation of the ESA with regard to marine species.
34. Defendant Roland A. Schmitten is the Assistant Administrator of the National Marine Fisheries Service, an agency within the DOC, which has been delegated responsibility to implement the ESA with regard to marine species. STATUTORY FRAMEWORK AND FACTS GIVING RISE TO PLAINTIFFS' CLAIMS FOR RELIEF A. STATUTORY AND REGULATORY FRAMEWORK
35. The purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species . . . ." 16 U.S.C. § 1531(b). The Act defines "conservation" as the "use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which" the species no longer needs to be protected under the Act. Id. at § 1532(3). The principal responsibilities under the Act are imposed on the Secretary of the Interior and the Secretary of Commerce. Id. at § 1532(15). The Secretary of the Interior and the Secretary of Commerce, in turn, have delegated implementation of the Act to the FWS, an agency within the Department of the Interior, and the NMFS, an agency within the Department of Commerce. 50 C.F.R. § 402.01(b).
36. Before a species or subspecies may receive protection under the ESA, it must be listed by the Service as "endangered" or "threatened." An "endangered" species is one "which is in danger of extinction throughout all or a significant portion of its range . . . ." 16 U.S.C. § 1532(6). A "threatened" species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at § 1532(20).
37. Once a species is listed as either endangered or threatened, it is entitled to immediate protection under several different provisions of the ESA. Under section 7 of the Act, every federal agency must "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical" to the survival of the species. 16 U.S.C. § 1536(a)(2).
38. Under section 9 of the Act, it is illegal for anyone, including a private party, to "take" an endangered or threatened animal. 16 U.S.C. § 1538(a)(1); see also 50 C.F.R. §§ 17.21, 17.31. The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. at § 1532(19). The Services have further defined "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. § 17.3.
39. Section 10 of the ESA, as amended in 1982, contains an exception to the strict prohibition against "taking" an endangered or threatened species under which, in exchange for being permitted to "take" one or more members of the species, an individual must commit to a plan to "conserve" the species. Id. at §§ 1539(a)(1)(B), (a)(2)(A). This permit is commonly referred to as an "incidental take permit" or "ITP."
40. Neither FWS nor NMFS may issue an ITP unless the applicant submits a "conservation plan" which specifies: (1) "the impact which will likely result from such taking;" (2) the "steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;"(3) "what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized;" and (4) "such other measures that the [Services] may require as being necessary or appropriate for purposes of the plan." Id. at § 1539(a)(2)(A).
41. In addition, the Services may not issue an ITP unless the agencies determine, after affording an opportunity for public comment on the ITP application and the related HCP, that (1) "the taking will be incidental;" (2) "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;" (3) "the applicant will ensure that adequate funding for the plan will be provided;" (4) "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;" (5) "the measures, if any, required" by the Services as necessary or appropriate, "will be met;" and (6) the Services have "received such other assurances as [they] may require that the plan will be implemented." Id. at § 1539(a)(2)(B); see also id. at § 1539(c); 50 C.F.R. §§ 17.22, 17.32.
42. Defendants are required to "utilize" all programs they "administer" in "furtherance of the purposes" of the ESA, 16 U.S.C. § 1536(a)(1), i.e., to provide for the "conservation" of endangered and threatened species and the ecosystems on which they depend. Id. at § 1531(b). B. FACTS 43. In 1982, the FWS developed the first HCP -- commonly referred to as the "San Bruno Mountain HCP" -- which, as a condition for allowing the destruction of some of the habitat of the Mission Blue butterfly, Calliope Silverspot butterfly, San Bruno Elfin butterfly, and San Francisco garter snake, on San Bruno Mountain in California, committed the developer to preserving 90% of the species' habitat. The HCP also provided that, if the plan proved to be inadequate to conserve the species because of changing circumstances, the FWS could require the modification of the plan to afford the species necessary protection, regardless of whether the developer agreed to the modifications.
44. Shortly after the development of the San Bruno Mountain HCP, Congress amended section 10 of the ESA by adopting the 1982 amendments which expressly authorized the approval of HCPs as a condition for incidental take. In adopting the 1982 amendments, Congress expressly cited the San Bruno Mountain HCP as the model on which it believed other HCPs should be patterned.
45. In 1984, the FWS adopted regulations implementing section 10 of the ESA, which provided that the Services must include specific measures in each HCP that address changing circumstances which, after adoption of an HCP, may jeopardize the survival and recovery of the threatened and endangered species covered by the plan. 50 C.F.R. §§ 17.22(b), 17.32(b). In 1990, NMFS adopted similar regulations. 50 C.F.R. § 222.22.
46. In accordance with these regulations, the Services required in all HCPs that developers would be required to change the terms of HCPs if such changes became necessary to conserve the species.
47. In an August 11, 1994 Memorandum, the Department of the Interior and the Department of Commerce adopted a No Surprises policy, and thus substantially changed the agencies' approach to section 10 of the ESA. This change in the section 10 program was made effective immediately, and promulgated without any prior public notice and comment.
48. Under the 1994 No Surprises policy, in approving HCPs, the Services were required to provide landowners with several "assurances," irrespective of the circumstances surrounding each HCP. The policy provided that, even if circumstances changed following the approval of an ITP/HCP which rendered the HCP inadequate to conserve a listed species, the Services would be foreclosed from ever imposing additional conservation and mitigation measures on permit holders that would involve the payment of additional compensation or which would impose additional restrictions on the natural resources that could be developed under the original plan.
49. In November 1996, the Services issued a "Habitat Conservation Planning Handbook," which stated that, in order to "provid[e] regulatory certainty in exchange for conservation commitments, the Department of the Interior (DOI) and Department of Commerce (DOC) have jointly established a 'No Surprises' policy for HCPs." The Handbook described the same policy which had been adopted in August 1994, and explained that the No Surprises approach "provides certainty for private landowners in ESA Habitat Conservation Planning" by providing various "assurances" regarding the manner in which the Services will "negotiat[e] 'unforeseen circumstances' provisions for HCPs."
50. Following the issuance of the No Surprises policy in August 1994, No Surprises assurances were incorporated in all approved HCPs whenever the permit applicant sought such assurances in accordance with the August 1994 memorandum. For example, such assurances were included in HCPs which specifically and adversely affect plaintiffs' interests in safeguarding particular endangered and threatened species and their habitats, including: the Orange County Central and Coastal Subregional NCCP/HCP; the San Diego Gas and Electric NCCP/HCP; the County of Riverside, Lake Matthews NCCP/HCP; the Balcones Canyonlands HCP; and the City of San Diego MSHCP.
51. On October 31, 1996, environmental groups and individuals, including several plaintiffs in this case, filed a lawsuit in this Court challenging the No Surprises policy on various grounds, including that defendants had promulgated it without complying with the notice and comment requirements of the APA, 5 U.S.C. § 553. On March 20, 1997, the Court approved a settlement agreement and stipulated dismissal, which committed defendants to a specific timetable for soliciting and considering public comment on the No Surprises policy, and then publishing the final decision. Spirit of the Sage Council et al v. Babbitt, et al., Civ. No. 1:94CV02503 (D.D.C. Settlement and Stipulated Dismissal Approved, March 20, 1997).
52. In accordance with the settlement, on May 29, 1997, the Services published for public comment a proposal to codify the No Surprises approach to ITPs/HCPs as a formal rule. 62 Fed. Reg. 29091. In response, the Services received over 800 comments, the vast majority of which expressed strenuous opposition to the proposal on the grounds that it would undermine the conservation of endangered and threatened species and violate the ESA.
53. Among the commenters vehemently opposing the proposal were national and grassroots conservation organizations from every region of the country, conservation biologists and other scientists who have worked to protect endangered and threatened species, religious organizations, Native-American tribes, and individuals. These commenters opposed the proposal on many grounds, including that: (1) there are innumerable changes -- i.e., "surprises" -- in the natural world which affect species survival and hence that there must be some mechanism by which HCPs/ITPs which are approved for many decadesmay be modified to reflect those changes; (2) the Services had not articulated any convincing explanation for how or why the proposal would further the purposes of the ESA; (3) there is no basis for believing that the Services will themselves have the resources necessary to respond to all unforeseen or changing circumstances that pose risks to species and, given that reality, it is particularly unreasonable and unlawful for the Services to promise permit holders that they would never be obligated to devote additional land or other resources to species conservation; and (4) there were many alternatives that should be considered by the Services which would better conserve endangered and threatened species on private lands.
54. Despite this overwhelming public opposition, the Services adopted the No Surprises approach as a final rule on February 23, 1998, explaining that, once an ITP is issued, "no additional land use restrictions or financial compensation will be required of the permit holder with respect to species covered by the permit, even if unforeseen circumstances arise after the permit is issued indicating that additional mitigation is needed for a given species covered by a permit." 63 Fed. Reg. 8859. Under the rule, such assurances are automatically extended to the permit holder for as long as the permit is valid, which may be as long as a century.
55. In adopting the rule, the Services drew a distinction between "changed circumstances" and "unforeseen circumstances." The Services defined "changed circumstances" as "changes in circumstances affecting a species or geographic area covered by a conservation plan that can reasonably be anticipated by plan developers and the Service and that can be planned for . . .." 63 Fed. Reg. 8870. The Services defined "unforeseen circumstances" as "changes in circumstances affecting a species or geographic area covered by a conservation plan that could not reasonably have been anticipated by plan developers and the Service at the time of the conservation plan's negotiation and development, and that result in a substantial and adverse change in the status of the covered species." Id.
56. In the case of "unforeseen circumstances," the rule provides that the Services will never "require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee." Id. at 8871. The rule provides for no exceptions to this provision, so that it would apply even in the event that, as a result of "unforeseen circumstances," an ITP/HCP is jeopardizing a species with certain extinction or making recovery of a species impossible.
57. Even in the case of "changed circumstances" adversely affecting species -- i.e., developments which "can reasonably be anticipated" at the time of HCP/ITP approval, 63 Fed. Reg. 8870 -- the rule prohibits the Services from "requir[ing] any conservation and mitigation measures in addition to those provided for in the plan" unless the plan's "operating conservation agreement" specifically authorizes such additional measures. Id. at 8871. This prohibition applies even where "additional conservation and mitigation measures are deemed [by the Services] to be necessary" to conserve a species, so that it foreclose changes to ITPs/HCPs even where, as a result of "changed circumstances," an ITP/HCP is jeopardizing a species with certain extinction or is making it impossible to recover a species. Id. (emphasis added).
58. Although the rule authorizes the Services to impose "additional conservation and mitigation measures" in the event of "changed circumstances" only where that contingency is provided for in an HCP's "operating conservation program," the rule does not require HCPs to incorporate such provisions in any fashion.
59. Even with regard to those situations in which the Services are authorized to respond to "changed circumstances" by imposing "additional conservation and mitigation measures" on an ITP holder, the rule "does not apply to incidental take permits issued prior to March 25, 1998." Id. Therefore, any ITP/HCP approved prior to that date "need not be revised" even if the ITP/HCP is less protective of endangered or threatened species than would be required under the rule.
60. While the preamble to the rule states that, in order to safeguard species that are subject to ITPs, the Services intend to "expand[]" their "use of adaptive management, monitoring provisions, and the establishment of overall biological goals for HCPs," 63 Fed. Reg. 8861, the rule itself contains no requirements for the "use of adaptive management, monitoring provisions, and the establishment of overall biological goals." While the preamble to the rule states that "[a]ll reasonably foreseeable circumstances, including natural catastrophes that normally occur in the area, should be addressed in the HCP," 63 Fed. Reg. 8863 (emphasis in original), there is no such requirement in the rule itself.
61. The rule does not require the Services to take any specific remedial actions when, as a result of either "unforeseen circumstances" or "changed circumstances" not provided for in an HCP's "operating conservation program," an ITP/HCP is deemed to be jeopardizing a listed species with extinction and/or significantly impairing the recovery of a listed species.
62. In issuing the rule, the Services did not explain at all, or explained inadequately, how the specific choices and decisions embodied in the rule would promote the conservation purposes of the ESA. Nor did the Services explain why they were rejecting reasonable alternatives proposed by many commenters, such as allowing Service employees to make case by case determinations as to whether No Surprises assurances should be made in particular circumstances and, if so, precisely how long such assurances should be in light of the available scientific information.
63. Circumstances may drastically change, in both anticipated and unanticipated ways, following the Services' approval of an ITP/HCP -- e.g., because of forest fires, disease outbreaks, earthquakes, floods, invasion of exotic species, advances in scientific knowledge pertaining to species, etc. -- which may render an HCP totally inadequate to conserve a species, hence necessitating additional mitigation measures to prevent jeopardy to a threatened or endangered species.
PLAINTIFFS' CLAIMS FOR RELIEF
Claim One: Violations of the ESA
64. By precluding the Services from making changes to ITPs/HCPs which may be necessary to ensure the survival and/or recovery of endangered and threatened species, the No Surprises rule violates sections 2, 3(3), 7(a)(1), and 7(a)(2) of the ESA, and the Services' regulations implementing those provisions. The rule also violates section 10 of the ESA by authorizing the Services to permit the incidental taking of endangered and threatened species where ; (1) as a result of unforeseen or changed circumstances, the permittee'splan fails to "conserve" the species and where the taking "appreciably reduce the likelihood of the survival and recovery of the species in the wild" (2) the permit holder is not, "to the maximum extent practicable," agreeing to "minimize and mitigate the impacts of such taking," and (3) the Services themselves conclude that a "necessary or appropriate" condition of a permit should encompass additional mitigation measures in the event of "unforeseen circumstances." 16 U.S.C. § 1539(a)(2)(B).
65. The rule also contravenes section 10(a)(2)(B) by effectively eliminating the "opportunity for public comment" regarding whether any particular ITP/HCP should have No Surprises assurances and, if so, exactly how those assurances should be crafted in light of the particular species at issue, the length of the permit, and the importance of the habitat at issue to the survival and recovery of the species.
66. Because the rule violates these provisions of the ESA, it is also arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706. Claim Two: Administrative Procedure Act
67. Because, in promulgating the rule, defendants failed adequately to respond to public comments, failed adequately to explain the rationale for the rule or how it is consistent with the purposes of the ESA, and failed to address reasonable alternatives to the rule which would be far more protective of endangered and threatened species, defendants have acted in a manner which is arbitrary, capricious, and contrary to law, in violation of the APA, 5 U.S.C. § 706.
WHEREFORE, plaintiffs request that the Court enter an order:
Respectfully submitted,
Eric R. Glitzenstein, (D.C. Bar No. 358287)
Katherine A. Meyer, (D.C. Bar No. 244301)
Jonathan R. Lovvorn, (Cal. Bar No. 187393)
Meyer & Glitzenstein
1601 Connecticut Avenue, N.W.
Suite 450
Washington, D.C. 20009
(202) 588-5206
July 29, 1998 Attorneys for Plaintiffs
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