Alabama Ruling Could Prove Restrictive to Builders
By John Hughes
Associated Press Writer
Monday, August 31, 1998

WASHINGTON (AP) -- Margie Welch calls it "a precious little animal" -- a gray mouse with big ears and bulging eyes that emerges from sand dunes at night to munch on sea oats. But the Alabama beach mouse is endangered, numbering in the low thousands or fewer, because homes and businesses have encroached on its terrain on the state's southwest coast.

So in 1996, when federal officials agreed to let condominium developers kill some mice and destroy some dunes, Welch and other environmentalists cried foul. They sued, saying Uncle Sam wasn't living up to his obligations under the Endangered Species Act.

Earlier this month, a US District Court judge agreed. Judge Charles R. Butler in Mobile ordered the US Fish and Wildlife Service to rewrite its agreement with developers to better assess the potential harm to the mice and steps developers should take to make up for it.

"I was so pleased ... I started to cry," said Welch, a member of the Alabama Sierra Club. "We've saved a species."

The federal government may appeal, but environmentalists are cheering anyway -- and not just for the mouse. They say the Alabama decision could prompt more legal challenges to some of the government's 242 similar agreements -- three-fourths of which are in the West.

"It sets an excellent precedent," said lawyer Eric Huber, who argued the Alabama case for the Sierra Club. "That is now the standard by which all the future ones have to be judged."

The 243 agreements -- called habitat conservation plans, or HCPs -- cover 6.2 million acres in 16 states, including 4.9 million acres in Washington, Oregon, Nevada and California. An additional 200 plans, covering millions more acres, are awaiting final approval.

HCPs allow nonfederal land owners to harm some plant and animal species and their habitat in the course of developing or using their land. In return, the land owner agrees to certain provisions to help the species, such as setting aside land or donating money for the purchase of other land.

The plans vary immensely in size -- from a 1.6 million-acre agreement with Washington's state Department of Natural Resources to a third-of-an-acre plan that covers a private lot in Travis County, Texas.

Critics say the agreements are merely a government license for land owners to kill or jeopardize endangered and threatened species -- be it a grizzly bear in Washington state, marbled murrelet in Oregon or gnatcatcher in California. They contend the government gets little or nothing in return.

"Thus far the government has been giving out blank checks -- big, thick plans with no teeth," said Mitch Friedman, director of the Northwest Ecosystem Alliance in Bellingham, Wash.

But the Clinton administration says the plans are critical for protecting species on private lands. They credit the documents for helping to prevent bitter conflicts between local and federal officials over endangered species.

"We feel that it's the most effective tool available under the Endangered Species Act," said Interior Department spokeswoman Stephanie Hanna. While a judge may have raised questions about one plan, most are working well, Hanna said.

Federal officials and land owners boast of some examples: In central Washington state, Plum Creek Timber Co. signed a 50-year agreement two years ago that covers more than 418,000 acres. The plan allows the company to log in habitat for endangered species such as the grey wolf and grizzly bear, in return for protecting trees near streams, preserving wetlands and monitoring stream quality.

"We think it's quite successful," said Robert J. Jirsa, Plum Creek's director of corporate and environmental affairs.

In central Oregon, a 1995 agreement with timber giant Weyerhaeuser Co. covers 210,000 acres and will run from 50 to 80 years. It allows the company to cut some old-growth trees -- spotted- owl habitat -- in return for setting aside younger forest to help the owl make links to surrounding, protected land.

Dee Boersma, a zoologist at the University of Washington in Seattle, said some of the plans were drafted without a clear idea of how many endangered species exist in a given area. "In some cases, the real problem is there just isn't any science," said Boersma, who is helping to conduct a national study of the plans, due out later this year. The research is sponsored by the University of California-Santa Barbara's National Center for Ecological Analyses and Synthesis and the American Institute of Biological Sciences in Washington, DC

Congress allowed for the plans when it amended the Endangered Species Act in 1982, but just 14 were approved by 1994. Then Interior Secretary Bruce Babbitt made them more attractive to land owners by adding "no surprises" clauses, which guarantee the government won't change conditions of the agreements for a specific period -- even if the situation becomes more dire for a species. Most clauses last about 30 years, although some cover 100 years and others just a few years. As a result, 229 HCPs have been approved in the past four years.

The most significant legal challenge facing the plans centers on the no-surprises clauses.

Some environmental groups filed suit in Washington, DC, in late July, contending the clauses violate the Endangered Species Act and that Babbitt overstepped his authority in authorizing them.

Leeona Klippstein, a plaintiff in that lawsuit, has also served a 60-day notice to the government that she intends to sue over two other plans in California. Klippstein, conservation director for the California environmental group Spirit of the Sage Council, said she expects even more lawsuits following the Alabama ruling. "Now there's case law, and a lot of the attorneys we would use are not going to be so hesitant," she said.

"How Many Gnatcatchers ?"
by Pat Brennen
Staff Writer
Tuesday, July 16, 1996
The Orange County Register
Freedom Press ©

The formal launching of Orange County's new 37,000-acre wildlife reserve is a day away, and the mood among planners, landowners and federal officials is one of celebration.

But despite the monumental effort, the California Gnatcatcher - the threatened bird the reserve was designed to protect - remains an enigma.
No one, it seems, really knows how many gnatcatchers live in Orange County, or how badly the population has suffered from wildfire and development. Despite more than $1 million and several years of research, the habits and needs of the tiny songbird remain largely unknown.

"I don't think we know how many gnatcatchers are out there, in the US or in Orange County," said Jonathan Atwood, a biologist with the Manomet Bird Observatory in Massachusetts, whose population estimates were critical in planning the reserve. "The reason for that is tied in with a failure to do adequate research."

US Interior Secretary Bruce Babbitt on Wednesday will preside over a celebration in Orange County's back country, signing the final authorization for the reserve that spans the county's central and coastal areas. Among other things, Babbitt's action gives the go-ahead for development of 7,444 acres of gnatcatcher habitat. That translates into allowing 121 gnatcatcher nesting or territorial sites to be destroyed.

The amount of acreage was based on a population estimate for the birds of 1,000 in Orange County and 3,000 nationwide.

But that estimate, which appeared in a biological opinion by the US Fish and Wildlife Service, has been called into question by a critic of the five-year effort that made the reserve a reality.

Leeona Klippstein of the environmental group Spirit of the Sage Council said the Fish and Wildlife Service overestimated the number of gnatcatchers in the county. She thinks there are as few as 1,000 gnatcatchers nationwide.

"The plan is going to kill endangered species," Klippstein said. "It's just hideous that that this is all happening.

Gail Kobetich, a Fish and Wildlife supervisor, said his agency has begun a 90-day review of the gnatcatcher numbers to make sure there were no mistakes. The review is not a result of Klippstein's allegations, Kobetich said, but a normal procedure designed to ensure that the bird is being protected adequately.

Kobetich acknowledged that the counts in the agency's report reflects only the best available data - most of it gathered before the 1993 wildfires in and around Laguna Beach that consumed more than 7,700 acres of gnatcatcher territory. No one can say with certainty whether the bird's population has dropped, increased or stayed the same since the fires, although the service's opinion says the fires are not expected to have much long term effect.

"It's an ongoing process to keep track of these birds," Kobetich said.

Biologists who have studied gnatcatchers in Orange County also have been critical, both publicly and privately, of the assumptions used to set the reserve's boundaries.

The original idea for the reserve, articulated by Babbitt and other public officials, was to base much of the decision making on sound science. Habitat deemed by science to be the richest in native species would be included, while other more degraded habitat could be developed.

Freeing some land for development without further red tape would encourage landowners to lend some of their property to the reserve, saving jobs as well as endangered species.

Scientists recruited as advisors later complained that they were quickly dealt out of the process. A scientific review panel created early in the effort was disbanded shortly after the planning began. Although panelists continued to provide input on an informal basis, the bulk of the research and analysis was performed by environmental consultants.

The end result: Gnatcatcher habitat is being developed with the blessing of the Fish and Wildlife Service, while scientists and others question whether the reserve can support enough gnatcatchers to allow the species to recover.

"The final product may be acceptable," Atwood said. "I don't know yet.

There is a danger, however, in focusing too hard on counting gnatcatchers. Population estimates, even good ones, are of limited value when it comes to saving endangered species, biologists say. Of far greater import is the amount of suitable habitat available to the species.

Also of extreme importance is a good understanding of gnatcatcher behavior. Even though the reserve's boundaries are set and become final with Babbitt's signature, scientists are just beginning to investigate the breeding success of gnatcatchers in Orange County.

A running count of gnatcatcher nesting sites is in its second year of operation - too early to reach any broad conclusions about how well the species is doing.

The work is being done by David Bontrager and other biologists employed by the Superpark Project, a research effort funded largely by Southern California Edison. The researchers are trapping and banding gnatcatcher nestlings so they can keep track of their survival and movement in coastal sage scrub habitat around Laguna Beach.

Even after the final authorizations are signed the lack of strong science to back them up promises to be an issue kept alive by activists and scientists alike.

There is a lot unknown, "Atwood said. "Nowhere is there anything that comes close to a countywide population estimate. You would think, at the very least, we would know that sort of thing."

"Activist Keeps Close Watch Over A Dwindling Flock"
by Deborah Schoch

Sunday, July 14, 1996
Los Angeles Times ©

Day after day, Leeona Klippstein has been counting gnatcatchers.

She pores through weighty documents and confronts government experts, suspicious that a cover-up is underway - and that developers in southern California may have bulldozed more of the rare songbirds than the US Fish and Wildlife Service is letting on.

Klippstein is among the harshest critics of a conservation plan widely touted as a groundbreaking compromise between environmentalists and developers to save the threatened California gnatcatcher and other troubled Orange County animals and plants.

Although the plan has won applause from many in the environmental ranks, Klippstein contends it is a dangerous plan, a sham.

Hers is a lonely war, especially in an era that celebrates environmental compromise, not confrontation. Some members in the environmental world call her claims alarmist and extreme. Government officials say her counts of gnatcatcher fatalities are greatly inflated.

Still, federal officials acknowledged this month that they have launched a formal review of how many of the tiny songbirds still live in Southern California. The review arose out of concern that the tally of lost gnatcatchers could be approaching the legal limit and because of scrutiny from environmentalists like Klippstein, a Fish and Wildlife official said Saturday. Others credit Klippstein's watchdog work for focusing new attention on the gnatcatchers welfare.

The question of gnatcatcher counts is a weighty one for environmentalists and developers alike. If too many gnatcatchers are lost, some construction in Southern California could be slowed temporarily - and the public lose faith in the compromise effort touted as a way to save rare plants and animals as well as jobs.

Klippstein, 35, the outspoken cofounder of a group called Spirit of the Sage Council, is airing her criticisms just before US Interior Secretary Bruce Babbitt is due in Orange County to sign off on a first-in-the-nation plan that some experts predict will be a blueprint for habitat conservation programs nationwide. A formal ceremony with Babbitt, State Resources Secretary Douglas Wheeler and Irvine Co. Chairman Donald Bren is planned for Wednesday morning in Shady Canyon in Irvine.

Klippstein is unfazed. "The premise is illogical," she says of the Natural Community Conservation Planning program. "This is all a shell game, and we've all gotten wrapped up watching the hand but not watching the gnatcatchers.

She says that soon before his suicide, a friend, who was a Fish and Wildlife biologist, told Klippstein that the number of lost gnatcatchers had already exceeded the limit - a claim that federal officials deny. After his death, she began trying to piece together gnatcatcher data in hopes of understanding his doubts about the NCCP program.

Now Klippstein has assembled an arsenal of paper - draft biological opinions, letters bird counts - in her effort to focus attention on what she sees as flaws in the NCCP plan. In June, she fired off a 37-page salvo to Babbitt and other high-level environmental officials, that her group and several others may sue the government and contending the plan violates the Endangered Species Act and other federal laws.

Interior Department Regional Solicitor David Nawi responded earlier this month: "We were very careful in putting together the documents she's talking about and hope and believe we complied with all aspects of the law."

Some characterize Klippstein's actions as "paper monkey-wrenching," a legal twist on the Earth First!-style activism made famous in Edward Abbey's novel, "The Monkey Wrench Gang." While some radical environmentalists attempt to halt development projects by blocking bulldozers and pulling up survey stakes, others turn to legal channels, filing a multitude of records requests and launching lawsuits.

Others applaud her willingness to pelt government officials, journalists and fellow environmentalists with documents until they pay attention.

"I get calls from her at 7 o'clock in the morning and 12:30 at night, saying, 'I found such-and-such,' that she found a new place in the law where they messed-up, or a new loophole in the law," said Patrick Mitchell of Garden Grove, an active environmentalist.

Klippstein of Whittier, a former US Army emergency room technician, says she was drawn to environmentalism through an interest in the medicinal qualities of plants and concern about the vanishing coastal sage scrub habitat of Southern California.

She describes herself as a full-time volunteer for Spirit of the Sage Council, a coalition of conservation and Native American groups. She has also worked with the Earth First! movement.

At the Fish and Wildlife Service, deputy state supervisor David Harlow chooses his words carefully when commenting on Klippstein's criticisms.

"It's always difficult to look at a broader planning horizon," Harlow said, adding that changing gears to look at "a larger planning process versus an individual, species-by-species or project-by-project review just makes people uncomfortable."

The Orange County Central-Coastal plan, approved by the Board of Supervisors in April, is the first of its kind created under the NCCP program. It will create a 37,000-acre preserve system designed and managed to protect rare wildlife while granting developers new certainty when building outside the preserve's boundaries.

The program, intended to prevent the confrontations between landowners and government regulators often provoked by the Endangered Species Act, focuses on the coastal sage scrub habitat where the gnatcatcher lives.

Klippstein believes that many more gnatcatchers have been removed by development, fires and other pressures than federal officials are reporting, with 1,000 pairs or fewer remaining in the United States. She disagrees with a Fish and Wildlife report that as many as 3000 gnatcatcher pairs may remain in the United States, and she contends that report was heavily edited by Fish and Wildlife officials, with gnatcatcher counts inflated in the process.

Jonathan Atwood of Manomet Observatory in Massachusetts, widely considered a leading gnatcatcher expert, says the federal estimate of 3,000 gnatcatcher pairs in the United States may well be correct. But the number of birds can fluctuate from year to year, complicating the counting process, he said.

Under 1993 guidelines, no more than 5% of the sage scrub or 116 pairs of gnatcatchers were to be "taken" or removed while preserve plans were designed. Klippstein believes that limit was exceeded, with more than 300 pairs of birds removed from central and coastal Orange County alone.

She says her suspicions arose from conversations with a friend, James Burns, who helped write the report as a staff biologist at the Fish and Wildlife office in Carlsbad. Burns, 26, died in La Verne April 25. Police said he shot his wife and then turned the gun on himself.

Klippstein believes that work pressures played a role in Burns' death. However, La Verne Police Sgt. Darryl Seube says that a six-page handwritten suicide note focuses on marital problems.

Whatever the cause, his death sent Klippstein searching for drafts of the biological assessment of the NCCP Orange County plan that Burns helped write, and she has concluded that those drafts show that important information about the gnatcatcher population was removed.

She says the May 24 final biological report differs dramatically from earlier drafts. She showed a reporter text dated April 16 that contains some sections, such as lengthy discussions of the problems of fragmenting natural habitat, that are shortened, changes or removed from the final report.

In response, Gail Kobetich, field supervisor at the Fish and Wildlife office in Carlsbad, said staff reports, whose early drafts are often prepared by junior staff biologists, normally undergo editing by more senior biologists. "It's regular practice," Kobetich said.

"It's usually a matter of removing detail without removing substance," Kobetich said, who maintains that the substance of the Orange County report was not changed.

Kobetich did confirm that the number of lost gnatcatchers is approaching the ceiling set in 1993, and that the federal government last month began a required 90-day study of the gnatcatcher population.

If the limit were reached, developers with plans for sites containing gnatcatchers could be stalled until the NCCP plan for the area was completed, he said.

No development slowdown is anticipated in central-coastal Orange County, where the plan agreement is to be signed this week. But other NCCP preserve plans remain incomplete in southern Orange County and San Diego County -- and if the study shows the gnatcatcher population is smaller than Fish and Wildlife estimates, that could put a freeze on some development until NCCP plans for those areas are in place.

The 1993 guidelines call for a monitoring program of how much sage scrub and how many gnatcatchers can be removed while NCCP plans are being prepared, with status reports developed every six months.

Kobetich said last week that although no formal six-month reports were prepared, the service continually monitored how many gnatcatchers were lost to development.

And how many birds really have been lost? That remains something of a mystery. The Fish and Wildlife tally shows 203 individual gnatcatchers lost so far during NCCP planning – just shy of the 232-bird ceiling. Klippstein claims service records show the number much higher.

Dan Silver of Endangered Habitats League, who supports the NCCP, said of Klippstein's work that if she is holding the government officials accountable, "That's good work."

However, he cautioned: "We absolutely support holding the wildlife agencies accountable, but we don't want to see the programs themselves dismantled."

County Linked to Endangered Species Suit
by J'Amy Pacheco

Staff Writer
San Bernardino Bulletin
Metropolitan News Enterprise © 1998.

San Bernardino County's diverse ecosystem makes it a key component in a lawsuit challenging the Clinton Administration's handling of the federal Endangered Species Act, environmentalist Leeona Klippstein said Monday.

The suit, filed last week, names the Secretary of the Interior, the Secretary of Commerce, and the Directors of the National Marine Fishery Service and the Fish and Wildlife Service as codefendants.

Five environmental groups filed the challenge to the Clinton Administration's implementation of a "No Surprises" guarantee, which the groups contend gives private landholders permission to "kill and harm" rare, threatened and endangered species of plants, fish and wildlife, for as long as 100 years, with no legal repercussion.

The suit was filed Wednesday by the Washington, DC-based firm Meyer & Glitzenstein, on behalf of the Sage Council, the Biodiversity Legal Foundation, the Humane Society of the US, the National Endangered Species Network and the Klamath Forest Alliance.

The groups assert that they intend to overturn the "No- surprises" policy not only to protect more than 500 rare, threatened and endangered species in the US, but to protect the Endangered Species Act itself.

Klippstein, conservation director for the Sage Council, said she anticipates the suit will "change the direction" San Bernardino and other counties are going in terms of handling threatened and endangered species, and will ultimately lead to a policy dictated by "sound science, rather than by corporate interests and politics."

The county, she said, is "very relevant" to the suit, because of its "biological diversity," which ranges from mountains to desert to the coastal valley floor. It is also, she pointed out, the largest county in the nation, encompassing a geographic area the size of several East Coast states.

The issue stems from the "No-surprise" agreements, which allow developers to build on endangered species habitat in exchange for "volunteering" to set aside "a small portion" of land for a habitat conservation. But the agreements, environmentalists contend, are not enough to assure recovery of threatened or endangered species.

"Nature is full of surprises," Klippstein said. "Just look at the wildfires in Florida and Georgia. It is ecologically unrealistic to expect an endangered species to survive and recover in a limited area, with changing environmental circumstances for the next 50 to 100 years. The no-surprises rule making is not ecologically or economically feasible."

The lawsuit, if successful, would invalidate more than 450 Habitat Conservation Planning agreements that contain the "no- surprises" guarantee clause, including several issued in the county, such as a proposed Valley-wide Multiple Species Habitat Conservation Plan, the city of Colton Substation Plan for the Delhi Sands Flower-loving fly, the Aqua Manza Industrial Growth Association's HCP and the proposed West Mojave HCP.

Jasper Carlton, director of the Boulder, Colorado-based Biodiversity Legal Foundation, said the groups' objective, simply stated, is for a federal judge to agree that Secretary of the Interior Bruce Babbitt "overstepped his statutory authority in adopting the No-surprise Policy."

"That's it," he stressed. "It's invalid, and it's illegal."

Prior to Babbitt's appointment, the suit contends, less than 20 permits to "kill" endangered species on privately held lands were issued. But the plaintiffs contend that the issuance of such permits have "skyrocketed" to more than 200, with 250 more in process since the appointment. Carlton contends that the no-surprises policy allows for the "massive and significant destruction" of endangered species in North America. A better option, he said, would have been to put some "honey" into the Endangered Species Act, providing incentives for developers who protect threatened wildlife instead of "finding ways for developers to skirt the requirements."

Carlton said the he hoped the suit would enable environmentalists, developers and federal agencies to "find a way for all of us to work together" and to "stop demonizing each other."

He pointed out that his group has previously challenged several executive orders relative to rare and endangered species, and has "never failed."

Government lawyers have 60 days to respond to the filing, Carlton said, after which hearings would likely be scheduled. He said environmentalists will not seek an injunction, and estimated that it would take four to six months for a resolution.