The following brief is submitted by National Wildlife Federation, U.S. Public Interest Research Group, Defenders of Wildlife, Sierra Club, Natural Resources Defense Council, Institute for Fisheries Resources, Northwest Ecosystem Alliance, American Lands Alliance, and the Fund For Animals (hereinafter "amici"). Each organization is committed to the protection of plants and animals in their natural habitat. Collectively, amici have over four million members and supporters in all 50 states, many of whom regularly enjoy and will continue to enjoy educational, recreational, aesthetic and scientific activities associated with endangered species and their habitats. Amici have engaged in efforts, including litigation, lobbying, public education, and research, to protect and recover threatened and endangered species. On behalf of their institutions and members, amici are strongly opposed to the no surprises rule as currently drafted because it will harm the survival and recovery of endangered species, for the reasons described below.
SUMMARY OF THE ARGUMENT
The question at issue in this case is whether the U.S. Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") (hereinafter "the Services") may issue a regulation the "no surprises" rule that allows the federal government to issue "incidental take" permits which include assurances to the permittee that no changes will be made to the terms of the permit without the permission of the landowner even if it ultimately means the extinction of the species. By severely limiting methods of correcting and improving these permits and the accompanying habitat conservation plans ("HCP"), this rule reduces the chances of endangered species survival and recovery on nonfederal lands. As set forth below, the no surprises rule is both contrary to the best available science and violates the Endangered Species Act, 16 U.S.C. § 1532 et seq. ("ESA"). In addition, in promulgating this regulation, the Services violated the Administrative Procedures Act, 5 U.S.C. § 706, when it arbitrarily rejected reasonable alternatives that would provide assurances to landowners without undermining the recovery of species. There is no rational reason why the Services, after reviewing the hundreds of comments from scientists, environmental organizations, tribes, and state and local governments, rejected out of hand and without justification the widespread suggestion that landowner assurances must be made contingent upon minimum safeguards such as biological goals, monitoring, assured funding sources, and requirements that species and habitat management strategies be adapted to account for information obtained through monitoring.
Species extinctions have occurred since life has been on earth. However, today, our planet is faced with the greatest rate of extinction worldwide since the disappearance of the dinosaur 65 million years ago. Indeed, scientists estimate that the planet may be losing up to 50,000 species per year. Wilson, E.O. in Stephen R. Kellert and E.O. Wilson (eds.), The Biophilia Hypothesis, Island Press, Washington, D.C. (1993), at 36. Scientists have concluded that human activities are causing this accelerated loss of biological diversity and that the recent rate of extinction is reaching crisis proportions. National Research Council, Science and the Endangered Species Act (1995), at 1.
In 1973, Congress enacted the ESA in recognition of the need to protect our declining plant and wildlife populations. How the ESA is applied to nonfederal lands is "of major conservation concern both because, according to some estimates, more than half of all listed species occur wholly on private land, and because listed species on private land are faring worse in general than those on federal land." Murphy, D.D. et al., "A Statement on Proposed Private Lands Initiatives and Reauthorization of the Endangered Species Act from the Meeting of Scientists at Stanford University," in The Science of Conservation Planning, Noss, R.F., et al, Island Press, Washington, D.C. (1997), at 214-219 (Exhibit ("Ex.") 1) (hereinafter the "Stanford White Paper"). See also Stein, B.A., T. Breden, and R. Warner, "Significance of federal lands for endangered species" in E.T. LaRoe (ed.) Our living resources: a report on the distribution, abundance, and health of U.S. plants, animals, and ecosystems, National Biological Service, Washington, D.C. (1995), at 398-401 (half of all federally listed species occur exclusively on non-federal lands) and U.S. General Accounting Office, Endangered Species Act: Information on Species Protection on Nonfederal Lands. GAO/RCED-95-16, U.S. General Accounting Office, Washington, D.C. (1995) (more than half have at least 81 percent of their habitat on nonfederal land). With habitat loss as the primary factor leading to the endangerment of species in the U.S., how species are protected on nonfederal lands is critical to the survival and recovery of endangered species across the United States. Wilcove, D.S., et al., "Quantifying threats of imperiled species in the United States," Bioscience 48:8 (1998), at 607-617. In short, unless nonfederal landowners conserve habitat, many species will not survive or recover.
In 1982, Congress amended the ESA to allow nonfederal landowners to develop their property even if this led to destruction of some listed animals or their habitat. In exchange, Congress required landowners to keep the damage to a minimum and implement conservation measures supposedly designed to more than offset the harm. See 16 U.S.C. § 1539. The terms of these negotiated, legally binding agreements initiated by landowners are set forth in HCPs and their accompanying implementing agreements. From 1982 until the beginning of 1994 (the year the no surprises policy was adopted), HCPs were not widely used. During that time, only 34 HCPs were approved. However, once the Services began including no surprises assurances in HCPs, the use of HCPs exploded. Currently, 244 HCPs have been approved and approximately 200 are being developed. See FWS, Habitat Conservation Planning and the Incidental Take Permitting Process, http://www.fws.gov (December 31, 1998).
From 1994 to the present, HCPs have expanded in duration and geographic scope and impact. Some HCPs extend for decades into the future even for as long as 100 years. Kareiva, P., et al., Using Science in Habitat Conservation Plans, National Center for Ecological Analysis and Synthesis and American Institute of Biological Sciences, Washington, D.C. (1999), at 20 (hereinafter "AIBS/NCEAS Study"). One incidental take permit was even granted in perpetuity. Id. Some HCPs cover millions of acres. Id. According to the FWS, HCPs will cover more than 27 million acres by 2002. FWS, Strategic Plan for September 30, 1997 - September 30, 2002 (1997), at 20. Many HCPs permit the destruction of large amounts of endangered species habitat. For example, the Balcones Canyonland HCP in Travis County, Texas (approved in 1996) authorizes the destruction of 71% of remaining habitat for the endangered golden-cheeked warbler. In the Pacific Northwest, 12 forest HCPs authorize destruction of more than 118,000 acres of nesting, roosting, and foraging habitat for northern spotted owls, affecting over 550 owl pairs. Benda, L., et al., "An Independent Scientific Review of the Oregon Department of Forestrys Proposed Western Oregon State Forests Habitat Conservation Plan," College of Forestry, Oregon State University, Corvallis, OR (1998). Finally, in authorizing the Fort Morgan Paradise Joint Venture HCP, FWS acknowledged that there would be an 18.2% loss of habitat for the Alabama beach mouse since it was listed. FWS, Biological Opinion: Fort Morgan Paradise Joint Venture Request for an Incidental Take Permit for the Endangered Alabama Beach Mouse (Peromyscus polionotus ammobates) in Baldwin County, Alabama (1996).
Increasingly, the terms of HCPs are being extended not only to multiple listed species, but also to species that are not currently on the endangered species list, but may be listed in the future. In sum, HCPs due to their increasing number, duration, geographic scope and impact, and coverage of multiple species -- have, and will continue to have, a profound effect on the survival and recovery of endangered species.
- THE NO SURPRISE RULE IS CONTRARY TO THE BEST AVAILABLE SCIENCE.
- According to the Best Available Science, HCPs Must Accommodate Changing Circumstances and New Information To Avoid Jeopardizing Species With Extinction.
In recognition of the extent to which HCPs were beginning to impact species on nonfederal lands, in the mid 1990s, the scientific community began to insist upon the inclusion of adaptive management as part of minimum standards for HCPs. Adaptive management which is one of the basic tenets of conservation biology(1) -- prescribes that conservation strategies should be monitored and adjusted over time in accordance with new and better scientific information, and that those adjustments should be made to ensure that progress is made toward attainment of conservation goals. Mefee, G.K., Principles of Conservation Biology, at 321-322.
In 1995, the National Academy of Sciences (NAS) released a comprehensive review of the ESA in which it concluded that adaptive management was a necessary part of HCPs. National Research Council, Science and the Endangered Species Act (1995). The NAS stated that, "[a]t a minimum," the Services must develop guidelines for HCPs that include "management options and discussion of how ongoing research and monitoring activities will be used to adjust management in response to changes in population sizes and environmental variables." Id. at 63.
In 1997, nine preeminent conservation biologists and scientists issued a white paper on proposed private lands initiatives in which they stated that adaptive management was an essential part of "minimum standards for HCPs with no surprises assurances." Stanford White Paper, at 216 (Ex. 1). In addition, as the administrative record in this case amply demonstrates, the overwhelming consensus from the scientists who commented on the no surprises rule is that HCPs must include adaptive management. See, e.g., Letter by Dr. Bryan Norton, Georgia Tech University, A.R. Vol. 4, Comment 597 ("One cannot set the goals of a management process inflexibly there must be opportunity for policy to change and react in the face of constant change in ecosystems, and new scientific information").
Finally, in a recently published study, 119 independent scientists concluded that HCPs must adhere to the "precautionary principle" in order to avoid risk to endangered species. This principle includes the use of adaptive management. AIBS/NCEAS Study, at 57.
Scientists regard adaptive management as critical to science-based land management for two primary reasons. First, nature and life are not static; changes do occur. Ecological systems are likely to change over time, and populations of species fluctuate over time. As a group of 167 scientists wrote , "[m]odern ecological paradigms, based on the best work of the day, all recognize change, uncertainty, dynamics, and flux as the best descriptors of ecological systems . . .. [W]e will always be surprised by ecological systems." Letter of Gary K. Meffe, et al., to Senator John Chafee and Congressman James Saxton (July 23, 1996).
Some of the sources of biological uncertainty include:
unpredictable, localized environmental events such as fires, disease outbreaks, [and] storms that alter [habitat] structure, losses or changes of genetic structure in small populations that affect their future adaptability, the influence of random events on survival of very small populations, and [i]nsufficient knowledge."
In April, 1997, a group of nine preeminent conservation biologists reiterated this fact when they stated that:
Nature frequently produces surprises such as new diseases, droughts, storms, floods, and fire. The inherent dynamic complexity of natural biological systems precludes accurate, specific prediction in most situations; and human activities greatly add to and compound this complexity. Surprises will occur in the future, it is only the nature and timing of the surprises that are unpredictable.
Stanford White Paper, at 215 (Ex. 1).
Uncertainty, however, is not limited to biological changes alone; political and sociological circumstances are also likely to change over the course of time. We only have to look so far as the 1995 timber salvage rider which allowed clearcutting to take place in our National Forests without environmental review to find political uncertainty that may adversely affect our endangered and threatened species. 1995 Rescissions Act, Public Law 104-19, section 2001. This legislative provision, which was attached to an appropriations bill, opened up key areas in our National Forests in the Pacific Northwest to destructive logging and roadbuilding. These areas, which had been considered protected under President Clintons 1994 Northwest Forest Plan and were important for the long-term protection of numerous endangered species, including the Northern spotted owl, were relied upon in the formation of mitigation measures in timber company HCPs. As a result of that rider, HCPs that had been developed assuming strong protection of species habitat on federal lands under President Clintons 1994 Northwest Forest Plan were suddenly called into question. Even the FWS has acknowledged that the unanticipated salvage rider has thrown these plans "out of balance," thus requiring additional mitigation measures to compensate for the unexpected logging on federal lands. Davies, S., "Rider may cause FWS to revisit HCPs," Endangered Species and Wetlands Report (March 1996), at 5.
Second, the inherent uncertainty of ecological systems and social and political circumstances is further compounded by the fact HCPs often contain inadequate scientific information and questionable management strategies. See AIBS/NCEAS Study; Hood, L.C., Frayed Safety Nets: Conservation Planning Under the Endangered Species Act, Defenders of Wildlife, Washington, D.C. (1998). The recently completed AIBS/NCEAS study provides the most comprehensive scientific assessment to date of HCPs. This study raises serious concerns over the lack of scientific rigor in the development of HCPs and their potentially significant impact on the survival and recovery of endangered and threatened species. The study found that in nearly half of the cases analyzed (42.2%), "take" was not explicitly estimated for the HCP. AIBS/NCEAS Study, at 20. The study concluded that for only 57% of the plans analyzed was the determination of authorized "take" based on "adequate" scientific information. Id. at 18, figure 18. Only 51% of the plans utilized "adequate" scientific data in assessing the impacts of "take" on the plans covered species. Id. As for mitigation measures, the report said that "[g]iven the generally low quality of data underlying many mitigation plans in HCPs, their success is not assured and, if implemented as proposed, may be very close to a guess in terms of curbing the impacts on the species." Id. at 22.
The scientific adequacy of HCPs is further compromised by the fact that HCPs rarely have explicit, adequately funded compliance monitoring and biological monitoring. Hood, L.C., Frayed Safety Nets. The AIBS/NCEAS study documented that only 49% of a representative sample of HCPs had any clear biological monitoring plans at all, and only 16% had monitoring plans that would clearly examine whether the HCP results in intended consequences for species. AIBS/NCEAS Study, at 40.
The reliance in HCPs on questionable or unproven mitigation strategies, and the general lack of adequate scientific data for both listed and unlisted species, make it all the more imperative that these plans remain flexible enough to allow for changes in mitigation strategies in response to new and better scientific information, and changes in environmental and other circumstances.
- The No Surprises Rule Undermines the Use of Adaptive Management, Jeopardizing The Continued Existence of Species.
The no surprises rule provides that once the Services approve an HCP, they will not thereafter impose additional restrictions on use of land, water or other resources or require that additional land, water or money be contributed by the landowner to provide for the conservation of species covered under the HCP. The no surprises policy was adopted and put into practice in 1994. In 1998, FWS completed the rule-making process and it became a final regulation. See 63 Fed. Reg. 8859-8873 (February 23, 1998) (Administrative Record ("A.R".) (Vol. 2, Rec. 23).
The no surprises rule forecloses the Services ability to include meaningful adaptive management strategies in HCPs. As explained supra and also at length in the plaintiffs summary judgment brief, in the event that it becomes clear that plans and agreements need to be changed in order to prevent the species covered in HCPs from further declining, the no surprises rule ties the Services hands by locking in the initial conservation measures - measures that are frequently unproven and based on inadequate scientific evidence.
The no surprises regulation prevents meaningful adaptive management by allowing the inclusion of adaptive management only to the extent that the landowner wants to include it. Thus, under this rule, adaptive management will not take place except in the narrow and rare circumstances where changes cost no money and do not affect areas set aside for development or resource extraction, or where the permittee voluntarily agrees to make changes.
Although permitees may voluntarily agree to changes on a sporadic basis, there is nothing in the no surprises rule requiring a consistent, science-based approach to adaptive management. To the contrary, the no surprises rule provides a perverse incentive for permittees to omit adaptive management strategies from their HCPs. The final rule provides that "all reasonably foreseeable circumstances, including natural catastrophes that normally occur in the area, should be addressed in the HCP," and if such circumstances were not provided for, then the Services will "not require any conservation and mitigation measures in addition to those provided for in the plan" even if it means the extinction of the species in question. 63 Fed. Reg. 8870. Thus, this rule actually creates an incentive for permittees to avoid addressing future changed circumstances in their HCPs because the Service can only require significant HCP amendments if the changes are agreed to in the HCPs.
The result of including no surprises assurances in HCPs is that there is an arbitrary limit to the amount of mitigation required from permittees that is divorced from the future harm to the species caused by the development in question. The rule limits changes to HCP mitigation measures even when HCPs prove to have serious detrimental consequences for species. As HCPs are implemented, it is possible that species populations will decline, either because management strategies have failed or because large-scale natural or manmade disturbances such as fire or storms have caused significant habitat loss. Indeed, the likelihood of future species decline is substantial given the fact that HCPs are often crafted with incomplete or inadequate scientific information. During the life of any HCP, new information will surface about the status of the species, the effects of authorized activities on species, and the effectiveness of habitat management and mitigation techniques. HCPs must remain flexible to accommodate this new information.
Unfortunately, the no surprises rule (and its predecessor policy) seriously undermines this flexibility. For example, the Balcones Canyonlands HCP in Travis County, Texas authorizes the destruction of golden-cheeked warbler habitat associated with housing development. Housing development not only destroys habitat but also results in increased numbers of blue jays, which eat golden-cheeked warbler eggs. Engels, T. and C. Sexton, "Negative correlation of blue jays and golden-cheeked warblers near an urbanizing area," Conservation Biology 8: 286-290 (1994). Although the HCP seeks to minimize the adverse effects of housing development by setting aside areas as preserves for the warbler, the HCP does not include adaptive management provisions. Thus, the FWS is not equipped to adequately address the unanticipated consequences of blue jay predation by increasing the size of preserves or providing money for intensive management to deter the jays. Under the no surprises rule, the HCP will not provide for these indirect consequences because the FWS cannot require more funding for management, and it is barred from altering the HCP to address these issues without the permittees consent. This example illustrates how the no surprises rule undermines conservation of endangered species by limiting the ability of the FWS to adjust HCPs to environmental changes and new scientific information.
In summary, the no surprises rule fails to "reflect ecological reality and rejects the best scientific knowledge and judgment of our era. It proposes a world of certainty that does not, has not, and will never exist." Soule, M., Letter to Sen. Chafee and Rep. Saxton (1996); see also Stanford White Paper, at 215 ("A no surprises policy is troubling to scientists because it runs counter to the natural world, which is full of surprises") (Ex. 1). The final rule simply "close[s] the door to adaptive management by saying that, once an agreement is made, new and better scientific information will not alter it" except in the unlikely event that the permittee agrees to new restrictions or the event that the Services can afford to finance the changes themselves. Id.
II. THE NO SURPRISES REGULATION IS INCONSISTENT WITH THE ESA AND THEREFORE BEYOND THE SERVICES AUTHORITY TO ADOPT.
As explained below, and in addition to its scientific and biological infirmities, the no surprises regulation is inconsistent with the overall goals and basic requirements of the ESA in numerous significant respects. Therefore, the regulation is beyond the Services' authority to adopt and must be declared null and void by this court. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 865-66 (1984).
- The No Surprises Regulation Undermines the Conservation Goals of the ESA.
The fundamental purpose of the ESA is to conserve endangered and threatened species and the ecosystems upon which they depend for survival. 16 U.S.C. § 1531(b). "Conserve" is defined extremely broadly as "the use of all methods and procedures which are necessary to bring any endangered . . . and threatened species to the point at which the measures provided by [the ESA] are no longer necessary." 16 U.S.C. § 1532(3). Thus, the ESA's primary goal is to recover endangered and threatened species, a goal which the law seeks to achieve above all others. As the U.S. Supreme Court stated in Tennessee Valley Authority (T.V.A.) v. Hill, 437 U.S. 153, 184 (1978) (recently reaffirmed in Babbitt v. Sweet Home Chapter of Communities, 115 S. Ct. 2407 (1995): "the plain intent of Congress was to halt and reverse the trend toward species extinction, whatever the cost." Because this recovery goal is the cornerstone of the ESA, all ESA implementation actions must be construed in light of this basic objective.
The ESA's overriding conservation mandate is expressly incorporated into several substantive provisions of the act. Section 4(d), for example, requires the Services to promulgate rules that provide for the conservation of threatened species. 16 U.S.C. § 1533(d). Section 4(f) requires the Services to prepare a recovery plan for each listed species, unless they find that such plan will not provide for the conservation of a particular species. 16 U.S.C. § 1533(f). The Services also have a mandatory duty to conserve listed species under section 7. 16 U.S.C. § 1536(a)(1). In Carson-Truckee Water Conservancy v. Clark, 741 F.2d 257, 262 (9th Cir. 1984), the Ninth Circuit Court of Appeals held that all federal agencies (including the Services) have an affirmative obligation to conserve threatened and endangered species under section 7(a)(1), which requires them to "actively pursue a species conservation policy." See also Pyramid Lake Pauite Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1417 (9th Cir. 1990); Sierra Club v. Babbitt, 156 F.3d, 606, 615-617 (5th Cir. 1998).
The no surprises regulation is inconsistent with these basic conservation goals of the ESA and necessarily precludes the Services from meeting their mandatory conservation obligations under sections 2, 4 and 7 of the act. The no surprises regulation limits both the circumstances under which the federal government may require additional conservation measures, as well as the type of conservation measures that may be required. The regulation unlawfully purports to foreclose the Services from seeking future conservation measures that would require permittees to dedicate additional land or water, pay additional money or be subject to new regulatory restrictions if not provided for in the original HCP, or unless the permittee consents. Instead, the federal government must pay for and implement such mitigation itself.
The "no surprises" restrictions apply even if new information, changed circumstances(2) not provided for in the original HCP, or unforeseen circumstances(3) subsequently reveal that the terms, conditions, or goals of the HCP and ITP are inadequate to ensure the continued survival or recovery of one or more species covered by the plan, and that such additional measures are critically necessary to conserve the species and prevent imminent extinction. Even minor changes in the management regime applicable to areas already set aside for species conservation under the original HCP can only be imposed in "unforeseen circumstances," and even then only if no additional costs are imposed on the permittee. By so severely restricting the Services future exercise of discretion to impose additional conservation measures, the no surprises rule unlawfully restricts the federal governments ability to meet its future conservation obligations under the ESA. This includes both conservation measures imposed pursuant to sections 4(d) and 7(a)(1), and the requirements of species recovery plans prepared pursuant to section 4(f).
The Services response -- that the government will pay or otherwise provide for any future needs of the species as they arise -- is no answer at all because the federal government has not guaranteed that adequate funding will be available to meet this potentially enormous obligation.(4) Indeed, under the Anti-Deficiency Act, the government is prohibited from making such guarantees. See 30 U.S.C. § 1341 ("[a]n officer or employee of the United States Government . . . may not (A) make or authorize an expenditure or obligation exceeding an amount in an appropriation or fund for the expenditure or obligation; [or] (B) involve [the] government in a contract or obligation for the payment of money before an appropriation is authorized by law"; see also FWS/NMFS HCP Handbook, at 3-34 - 3-35. The Federal Register notice itself states that new conservation actions "would necessarily be subject to the requirements of the Anti-Deficiency Act and the availability of funds appropriated by Congress." 62 Fed. Reg. 29095; see also 63 Fed. Reg. 8859, Response 11.
Further, the courts have held that, if no funds are available, the Services may be excused from having to take an otherwise mandatory action to protect species. See, e.g., Environmental Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995) (holding that USFWS was not required to list red legged frog under ESA because Congress had rescinded funding for the listing program).
Yet, the no surprises regulation makes no provision for the foreseeable contingency of the unavailability of federal funds. Rather, the Federal Register notice for the proposed rule blithely ignores the magnitude of this imminent disaster by stating, without basis, that such an event is "highly unlikely." 63 Fed. Reg. 8859, Response 11. Such a conclusion is contrary to the evidence in the record which establishes that the success of HCPs is an extremely risky proposition, with the need for future species "bailouts" in fact an extremely likely scenario. See Section II infra.
In short, the rule merely makes unassured promises that the agencies will use their "best efforts" to secure future funding or take other actions (such as land exchanges) to protect imperiled species, without providing any guarantees that adequate funding or other options will in fact be available for this purpose. Indeed, the rule does not require the Services to take any particular remedial action to ensure species recovery or even to prevent extinction.
Thus, the no surprises regulation unlawfully and arbitrarily places all of the high risk of an inadequate HCP on the covered species: the precise opposite of what the ESA requires. See T.V.A. v. Hill, 437 U.S. at 185 (endangered species protection is to be afforded "the highest of priorities"); 16 U.S.C. § 1531(b) (the purpose of the ESA is to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved). By preventing the Services from imposing any meaningful additional mitigation measures on the permittee for the entire life of the permit, the regulation unlawfully forecloses the Services from: (1) using "all methods and procedures necessary" to conserve species under section 2 of the ESA; (2) implementing conservation measures for threatened species under section 4(d); (3) preparing and implementing adequate recovery plans under section 4(f); and (4) fulfilling its mandatory conservation obligations under section 7(a)(1). Therefore, the regulation must be declared invalid.
- The No Surprises Regulation Unlawfully Allows the Services To Avoid Their Mandatory Duties Under Section 7 of the ESA to Prevent Jeopardy to Listed Species and Adverse Modification of Critical Habitat.
For similar reasons, the no surprises regulation unlawfully precludes the Services from satisfying their mandatory duties under section 7(a)(2) of the ESA. Section 7(a)(2) requires all federal agencies to insure that their actions are not likely to jeopardize the continued existence of a listed species or adversely modify or destroy designated critical habitat. 16 U.S.C. § 1536(a)(2). These duties apply to the Services' issuance of an ITP, which is a federal agency action, and are described in more detail in plaintiffs opening brief.
By severely limiting the instances in which mitigation may be imposed on an incidental take permittee and the types of mitigation that may be imposed in the future if jeopardy or adverse modification of critical habitat occurs, the no surprises regulation effectively precludes the Services from meeting these statutory requirements. The regulation arbitrarily predetermines the level of mitigation that will be provided to avoid jeopardy (or adverse modification of critical habitat) for decades of time, and precludes meaningful reexamination of these mitigation commitments if they are later found to be inadequate to avoid jeopardy or adverse modification, or if reinitiation of consultation is required due to new species listings, new critical habitat designations, or changed circumstances.
This artificial narrowing of the scope of measures available to prevent jeopardy violates the requirement that the Services "shall . . . insure that any action authorized, funded or carried out by such agency [e.g. an ITP] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat." 16 U.S.C. § 1536(a)(2). It also renders reinitiation of consultation a largely meaningless exercise. Further, the assurances regulation sanctions irreversible and irretrievable commitments of resources in violation of section 7(d), and forecloses Service options for implementing reasonable and prudent alternatives in violation of section 7(b).
Under the no surprises regulation, jeopardy to listed species will be avoided in the future only if the permittee agrees to implement new mitigation measures, or the Services have the money to purchase the additional land or water needed to mitigate adverse impacts, both unlikely scenarios. Such reliance on speculation about future voluntary actions violates the Services duty under section 7, 16 U.S.C. § 1536, to ensure against jeopardizing the continued existence of a threatened or endangered species or adversely modifying or destroying designated critical habitat. Sierra Club v. Marsh, 816 F.2d 1379, 1386 (9th Cir. 1987); NWF v. Coleman, 529 F.2d 359, 374 (5th Cir. 1976). Cf. Sierra Club v. Babbitt, No. 97-0691, slip op. (S.D. Alabama, August 21, 1998).
For these reasons, the no surprises regulation violates the Services' obligations under section 7 of the ESA and must be rescinded.
- The No Surprises Regulation Is Inconsistent With Congress' Intent in Enacting Section 10(a).
Likewise, the no surprises policy conflict with the statutory criteria for issuance of an ITP. Section 10(a) of the ESA provides that the Services cannot issue an ITP unless they find that:
(1) the applicant will minimize and mitigate the impacts of the taking to the maximum extent practicable;
(2) the taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild (this is the section 10(a) equivalent of the section 7 jeopardy standard); and
- the applicant will ensure that adequate funding for the plan will be provided.
16 U.S.C. § 1539(a)(2)(B).
By locking in potentially inadequate mitigation measures in an HCP and ITP for decades of time, and alleviating the permittee of any future mitigation responsibilities without any dedicated funding source to deal with plan failures, the no surprises regulation precludes the Services from legitimately making the section 10(a) findings that the HCP will fully mitigate all impacts to, will not jeopardize the continued existence of covered species, and will provide adequate funding for the mitigation measures. The rule provides for no exceptions to the prohibition on the Services' requiring additional dedications of land or water, financial compensation or restrictions on use of land or water that were not provided for in the original HCP or are not agreed to by the permittee, even where necessary to prevent imminent extinction of covered species. The rule is also contrary to the plain language of the statute, which requires the permittee alone, not the federal government, to "minimize and mitigate" the impacts of its operations and "to ensure" that funding is available to implement these measures. Id.
Finally, the no surprises regulation unlawfully removes the burden of addressing unforeseen circumstances from the permittee and precludes the Services from unilaterally amending an HCP, contrary to the ESA and its implementing regulations. Previously adopted FWS regulations (which have not been repealed) require HCPs to include procedures to deal with unforeseen circumstances. 50 C.F.R. §§ 17.22(b)(1), 17.32(b)(1). The regulations require such procedures to be implemented by the permittee as a condition of permit approval. 50 C.F.R. §§ 17.22(b)(2), 17.32(b)(2). The general permit regulations also allow the Services to amend a permit at any time, upon a finding of "necessity." 50 C.F.R. § 13.23(b).
Without explanation, the no surprises rule abandons this precautionary approach for HCPs. Instead, the no surprises regulation provides that the federal government, not the permittee, may (but is not required to) substantively address unforeseen circumstances, and precludes the Services from significantly amending an HCP (i.e., by requiring additional dedications of land or water, money or restrictions on land or water) without the permittee's consent.
The no surprises regulation is also inconsistent with the legislative history of section 10(a). This legislative history reflects the fact that, while Congress was concerned with providing regulatory certainty to permit applicants through use of long term (but not ironclad) ITPs, it also recognized that HCPs would have to be amended from time to time to accommodate changed and unforeseen circumstances. See H.R. Rep. No. 835, 97th Cong., 2d Sess., p. 32 (1982). Thus, the House Conference Report on the 1982 amendments to the ESA states:
[I]t is recognized that significant development projects often take many years to complete and permit applicants may need long term permits. In this situation, and in order to provide sufficient incentives for the private sector to participate in the development of such long-term conservation plans, . . . adequate assurances must be made to the financial and development communities that a section 10(a) permit can be made available for the life of the project . . .
Permits of 30 years or more in duration may be appropriate in order to provide adequate assurances to the private sector to commit to long-term funding for conservation activities or long-term commitments to restrictions on the use of land. It is recognized that in issuing such permits, the Secretary will, by necessity, consider the positive and negative effects associated with permits of such duration. . . .
It is also recognized that circumstances and information may change over time and that the original plan might need to be revised. To address this situation, the Committee expects that any plan approved for a long term permit will contain a procedure by which the parties will deal with unforeseen circumstances.
H.R. Rep. No. 835, 97th Cong., 2d Sess., p. 32 (1982).
In derogation of this congressional intent, the no surprises regulation does not require the permittee to "deal with" unforeseen circumstances, but instead speculates that the federal government will address them. This is clearly not what Congress intended when it enacted section 10(a). Rather, Congress intended that, in exchange for the benefit of a long term ITP, the permit applicant would anticipate unforeseen circumstances and include substantive provisions in an HCP, or the HCP would be amended, to accommodate future unforeseen circumstances.
The no surprises regulation, however, severely constrains the Services' ability to address new information and changed or unforeseen circumstances. Assuming the Services are able to meet their burden of showing that "unforeseen circumstances" exist (i.e., circumstances that result in a substantial and adverse change in the status of one or more of the covered species), changes to the HCP's mitigation program must be limited to alteration of management regimes for lands already set aside for species conservation. However, since an unforeseen circumstance by definition will result in a species decline, it is highly unlikely that such minor tinkering will prevent further declines. Further, this approach sanctions reallocation of finite resources and funds dedicated under the HCP at the expense of other covered species dependent upon these same scarce resources.
Although, the no surprises rule encourages the permittee to address "changed circumstances," the fundamental problem is that the rule does not require the permittee to do so. Rather, the rule allows the permittee, without penalty or justification, to exclude certain changed circumstances from the HCP altogether, or to categorize certain future effects as "unforeseen" instead of "changed" circumstances, thereby shifting the burden to the public to mitigate for that future change.
For all the above reasons, the no surprises regulation is contrary to the incidental take permit issuance criteria and implementing regulations for section 10 of the ESA and is therefore beyond the Services' authority to adopt.
III. FWS AND NMFS ARBITRARILY REJECTED REASONABLE ALTERNATIVES THAT WOULD AVOID JEOPARDIZING LISTED SPECIES.
- The Best Available Science Shows That Assurances Can be Provided to Permittees Without Sacrificing Adaptive Management.
The scientific and legal concerns discussed above also were expressed by hundreds of organizations and individuals who filed comments on the proposed no surprises rule. Yet the Services issued the final no surprises rule with no significant changes, arguing that the rule is necessary to persuade potential applicants for Section 10(a) permits to invest the resources needed to "factor endangered species conservation into their day-to-day land management activities." 63 Fed. Reg. 8859. However, the agencies rejected out of hand and with no explanation -- the broad spectrum of possible alternative methods by which they could accomplish this objective.
The final no surprises rule merely represents one extreme end of the spectrum, where permittees receive unqualified assurances that their future obligations will not change regardless of the length of the permit or the future condition of the species (the "permittees rights" extreme). Towards, the other extreme end of the spectrum, permittees would receive highly qualified assurances about their future obligations, and the focus of the rule would be on ensuring that the permittee takes responsibility for adaptive management (the "permittees responsibilities" extreme).
As made clear by the numerous comments on the proposed no surprises rule, agencies developing an assurances policy must address two basic problems in order to fulfill the goals and requirements of the ESA. The first problem is to ensure that the Section 10 conservation planning program is viable by creating the necessary incentives for applicants to contribute to the recovery of endangered species (above and beyond the incentives already provided by the Section 9 take prohibition). The second problem is to ensure that HCPs are sufficiently adaptable to address the needs of the covered species as they become better understood (and as circumstances change) during the course of HCP implementation. Thus, to increase the likelihood of broad participation in the HCP program while increasing the adaptability and scientific credibility of the program, FWS and NMFS must find an appropriate balance between assigning rights to permittees and imposing adaptive management responsibilities on them.
Rather than attempting to strike this balance, the Services instead chose not to take any action with respect to the need for meaningful adaptive management. This agency failure is particularly striking considering the unanimous view from the scientific community concerning its critical importance, and considering the numerous comments from endangered species policy experts outlining how the agencies could provide for adaptive management while also addressing the need to attract applicants to the HCP program. Rather than exhaustively cataloguing those suggestions here, amici offer just one suggestion for illustration -- a recommendation made by nine leading conservation biologists with extensive experience in conservation planning:
We appreciate that no surprises policy is not a guarantee that conservation plans will not change, but a contractual commitment to shift some of the financial burden of future changes in agreements to the public. In that light, the following features should constitute minimum standards for HCPs with no surprises assurances. First, it must be possible to amend HCPs based on new information, and it should not take "extraordinary circumstances" to do so. Second, to underwrite program changes when parties other than the landowner request and justify them, there must be a source of adequate, assured funding that is not subject to the vagaries of the normal appropriations process. We expect that the costs of fixing inadequate HCPs may be substantial. Third, mechanisms to ensure that long-term conservation plans will be monitored adequately are essential. Monitoring habitat changes or ecosystem functions cannot substitute for the monitoring of the target species. Moreover, new scientific information from monitoring should be incorporated into management as that information becomes available. Fourth, HCPs must clearly articulate measurable biological goals and demonstrate how those goals will be attained under the plans. Plans should not undermine the recovery of listed or vulnerable species. Fifth, assurances to landowners should only be extended for those targeted species for which the plan articulates species-specific goals that further conservation in a regional context, rather than in a local, piecemeal fashion.
Stanford White Paper, at 215-216 (Ex. 1) (emphasis supplied).
These eminent scientists believed that the no surprises rule would further imperil endangered species unless their recommended minimum scientific standards were added. They expressed the fear of many in the scientific community that unless HCPs adhere to such scientific standards, they "have the potential to become habitat give-aways that contribute to, rather than alleviate, threats to listed species and their habitats." Id. at 214.
B. The No-Surprises Rule Arbitrarily Fails to Incorporate Needed Safeguards for Wildlife.
The final no surprises rule incorporates none of the minimum standards for HCPs called for by the best available science. As discussed supra, there is overwhelming evidence that these standards are not met by most HCPs.
Remarkably, upon releasing their final no surprises rule in February 1998, the agencies acknowledged this scientific evidence -- and the biological deficiencies of its no surprises approach -- by pledging to promulgate a "five-point" plan to establish new HCP standards, including standards governing adaptive management. FWS, "U.S. Fish and Wildlife Services Response to AIBS/NCEASs Study: Using Science in Habitat Conservation Plans" (January 1999) http://www.fws.gov/r9endspp/hcp/response.htm. However, one year later, FWS has utterly failed to follow through on its pledge. Rather than addressing the risks posed by no-surprises HCPs, it has continually delayed the release of its proposed 5-point plan. Moreover, FWS has revealed in a written response to the AIBS/NCEAS study criticizing its HCPs (discussed supra Part II) that its 5-point plan will take the form of mere policy guidance, not enforceable rules on a par with the no surprises requirements. FWS, "U.S. Fish and Wildlife Services Response to AIBS/NCEASs Study."
According to the undisputed view of independent scientific experts, the no surprises rule poses a major threat to the survival and recovery of threatened and endangered species. By failing to build into the rule any safeguards for imperiled species to counter this very real threat, FWS and NMFS have undermined the overriding conservation purpose of the ESA and violated the legal requirements of both Section 7 and 10.
For all of the foregoing reasons, plaintiffs motion for summary judgment should be granted.
||Kimberley Walley Delfino
(D.C. Bar No. 445869)
U.S. Public Interest Research Group
218 D Street, S.E., 2nd Floor
Washington, D.C. 20003
(D.C. Bar No. 415484)
National Wildlife Federation
1400 Sixteenth Street, N.W.
Washington, D.C. 20036
(Calif. Bar No.161536)
Environmental Law Foundation
1763 Franklin Street, 8th Floor
Oakland, CA 94612
(D.C. Bar No. 543116)
Defenders of Wildlife
1101 Fourteenth Street, N.W.
Washington, D.C. 20005
||Attorneys for Amici Curiae
Date: February 23, 1999
- Conservation biology is the scientific communitys response to the extinction crisis currently facing our planet. See Meffe, G.K. and C.R. Carroll, Principles of Conservation Biology, Sinauar Associates, Inc., Sunderland, MA (1994), at 4. Conservation biology strives to prevent extinction by maintaining the "diversity of genes, populations, species, habitats, ecosystems, and landscapes, and the processes normally carried out by them, such as natural selection, biogeochemical cycling, photosynthesis, energy transfer, and hydrologic cycles." Id. at 7.
- The rule defines "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 Services and that can be planned for." 50 C.F.R. § § 17.3, 222.3.
- The no surprises regulation defines "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 Services at the time of the conservation plan's negotiation and development, and that result in a substantial and adverse change in the status of covered species." 50 C.F.R. § § 17.3, 222.3.
- The Federal Register notice announcing the proposed no surprises policy states that "it is extremely unlikely that the Services would have to resort to protective or conservation action by requiring new appropriations of funds by Congress." 62 Fed. Reg. 29094. There is no objective basis for this statement, and in fact the evidence is to the contrary, as discussed herein.