Dear Ms. Gloman:
On behalf of Spirit of the Sage Council, Biodiversity Legal Foundation, the Mountaineers, the National Endangered Species Network, Chief Ya'Anna Vera Rocha of the Gabrielino Band of California Mission Indians -- all of whom are plaintiffs in the pending litigation concerning the validity of the No Surprises rule -- I am submitting these comments in response to the Fish and Wildlife Services February 11, 2000 Federal Register notice seeking comments on certain rule changes published on June 17, 1999. In particular, I will focus on the rule changes bearing on the criteria for revoking Incidental Take Permits ("ITPs"). These comments supplement any individual comments which may be submitted by any of the organizations listed above.
Before turning to the substance of our comments, I wish to stress at the outset that, by submitting these comments, we do not thereby acknowledge the validity of the peculiar (and illegal) process which the Service is following with regard to the June 1999 rule changes, i.e., announcing final changes to the Services rules and only then -- eight months later -- belatedly soliciting the publics views on the final rule changes. This leap first, look later approach to important agency decisions makes a mockery of the APAs requirement for public notice and comment before the Service adopts final rules. The only way in which the Service could bring itself into compliance with the APA is by vacating the rule changes, soliciting public comment on proposed rules, and then making final decisions based on a full rulemaking record. In contrast, a post hoc solicitation of comment while the final rules remain in place will not cure the flagrant notice and comment violation which accompanied the Services June 1999 rule changes.
Since the rationale and meaning of the June 1999 rule change cannot be understood outside of the context of the lawsuit challenging the No Surprises rule, it is necessary to briefly describe that context before setting forth specific comments on the rule change.
One of the principal arguments raised in the No Surprises case is that No Surprises guarantees jeopardize species with extinction by foreclosing necessary modifications to ITPs/HCPs. In response to this challenge, the government announced -- in an affidavit signed by Assistant Secretary Don Barry -- that it was amending its ITP regulations to make clear that an ITP could be revoked in the event that the permit was determined to be jeopardizing a species with extinction.
The Service subsequently issued that rule change on June 17, 1999 (64 Fed. Reg. 32706), although it was hardly a model of clarity and was promulgated with no advance public notice or comment. It provides, in pertinent part, that an ITP "may not be revoked . . . unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. § 1539(a)(2)(B)(iv)" -- under which a permitted taking may not "appreciably reduce the likelihood of the survival and recovery of the species in the wild" -- and the "inconsistency has not been remedied in a timely fashion." Among other things, the new rule did not explain how the FWS will determine when there is an "inconsistency" between an ITP and section 10(a)(2)(B)(iv) of the ESA; what kinds of efforts will be made to "remedy" any such inconsistency, and who will undertake those efforts; what is meant by a "timely fashion" for "remedying" an ITP which is jeopardizing a species with extinction; what input, if any, the ITP holder will have in the process before the Service makes a decision to revoke an ITP; and what role the interested public will be permitted to play in any of these decisions.
Of even graver concern, also on June 17, 1999, the Interior Department published another new revocation rule -- also adopted without any prior public notice or opportunity for comment -- which substantially reduces the protection for species affected by ITPs. That rule change, which is accomplished through a change to Part 13 of the FWSs regulations, expressly exempts ITPs from a general proviso that all FWS permits may be revoked when "[t]he populations of the wildlife or plant that is subject to the permit declines to the extent that continuation of the permitted activity would be detrimental to maintenance or recovery of the affected population." 64 Fed. Reg. 32711, quoting 50 C.F.R. § 13.28(a)(5). Thus, the combined effect of the newly amended rules is that the Services may revoke ITPs only when they are "appreciably reducing the likelihood of the survival and recovery" of an entire "species in the wild," but not when they are deemed to be "detrimental to maintenance or recovery" of any "affected population" of an endangered species -- although there was no explanation in the new rules as to why ITPs were being exempted from the far more protective revocation provision which applies to all other permits issued by the FWS, and which the Administration evidently believes applied to ITPs prior to June 1999.
The plaintiffs in the No Surprises litigation subsequently amended their Complaint to also challenge the June 1999 rule changes, including the Administrations failure even to afford prior public notice and comment on the changes hurriedly adopted to buttress the governments position in the No Surprises litigation, or its failure to explain why it was making it more difficult to revoke ITPs which pose threats to listed species.
On February 11, 2000, evidently in response to the Amended Complaint in the No Surprises litigation, the Service announced that it was belatedly soliciting public comment on the final revocation rule changes made eight months earlier. Unfortunately, the notice does not explain why the Service is engaging in this completely backwards approach to an important rule change, although it does say that "[d]uring the period in which additional public comments are solicited, the regulations published in the final rule on June 17, 1999 will remain in full force and effect."
Comments On The Changes in Criteria for Revoking ITS
We have several comments on the June 1999 change in the Services criteria for revoking ITPs.
First, as stressed above, it is a flagrant subversion of the concept of public notice and comment for the government to make important final rule changes and only then, many months later, to solicit public comment on them. This, of course, is a regrettable repeat of how the Administration adopted No Surprises itself in the first place.
Second, there is no valid reason -- and the Service has certainly suggested none -- for the FWS to exempt ITPs from the more protective, general revocation standard that applies to all FWS permits, as embodied in 50 C.F.R. § 13.28(a)(5). Indeed, if the more protective standard applies even to non-endangered wildlife which may be affected by certain FWS permits -- as it does -- then it certainly should be retained for all permits, including ITPs, affecting species on the brink of extinction.
More specifically, by substituting the new, narrower revocation standard, the Administration is, in effect, determining that an ITP can, in light of new developments, be actively interfering with the recovery of endangered or threatened species, yet still be immune from permit revocation (or, under the No Surprises rule, modifications to the HCP as well). This is completely contrary to the overriding purpose of the ESA, i.e. to "provide a program for the conservation of such endangered species and threatened species" and to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . .." 16 U.S.C. § 1531(b) (emphasis added); see also id. at § 3(2) (defining "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 measures provided pursuant to this chapter are no longer necessary.").
The rule change is also contrary to the specific language and legislative intent underlying section 10 of the ESA. Thus, section 10 forbids persons from obtaining ITPs unless they submit a "conservation plan" for all affected species. 16 U.S.C. § 1539(a)(2)(A); see also Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1278 n. 3 (S.D. Ala. 1998) (ITP applicant "must submit a conservation plan that will -- as its name plainly connotes -- help conserve the entire species by facilitating its survival and recovery") (emphasis added). Similarly, in the legislative history accompanying the current version of section 10, Congress made clear that the FWS could issue ITPs for many years, but only if those permits and accompanying HCPs were "likely to enhance the habitat of the listed species, or increase the long-term survivability of the species or its ecosystem."
H. Conf. Rep. 835, 97th Cong., 2d Sess. 31 (1982).
Hence, in enacting a rule change which evidently provides that ITPs may be revoked when, because of unforeseen circumstances, they are deemed to be jeopardizing the continued existence of a species, but not when they are "only" interfering with the species recovery and ultimate removal from the list of endangered and threatened species, the Service is undermining Congresss intent in enacting the ESA as a whole, and in crafting section 10 in particular.
Third, the Services "clarification" that ITPs can be revoked at all (whatever the precise standard for such revocation) completely undermines the justification for the No Surprises rule. Simply put, if the Administration is now conceding that it can revoke an ITP for reasons which could not have been foreseen at the time of permit issuance, then why should the FWS preclude itself from making modifications to a permit and/or HCP for the same reasons, if that is what is necessary to conserve the species. Either ITP holders "need" absolutely regulatory certainty -- as the Administration announced when it issued the No Surprises policy in the first instance -- or they do not. If they do not -- which is the supposition that underlies any assertion of revocation authority in the face of unforeseen or unplanned-for circumstances -- then the purported rationale for No Surprises evaporates and the Service should now scrap this discredited, scientifically-baseless concept altogether and make clear that permits can be modified and/or revoked whenever necessary to conserve affected species.
At an absolute minimum, the Service must coherently explain why it makes any legal or logical sense to retain regulatory authority to revoke ITPs because of unforeseen circumstances, while at the same time foreclosing any opportunity to take the less extreme (but potentially far more useful) step of modifying permits, e.g., by requiring the ITP holder to conserve more habitat, or provide more money for habitat conservation, than initially required. Simply put, whatever its intention when it originally promulgated the No Surprises policy, the Interior Department has ended up with a system which does not afford regulatory certainty to ITP holders, while drawing seemingly irrational distinctions between permit revocation and modification. If this haphazard, jerry-rigged, litigation-driven system makes any policy or legal sense, the Department has certainly not explained it to the public, either in the June 1999 Federal Register notice or anywhere else.
Fourth, the Service has never explained why the public should pay for the Service to "remedy" problems caused by ITPs and inadequate HCPs -- which, under the new rule, the Service must attempt to do before invoking its revocation authority -- instead of ordering the ITP holder to make such changes, at its own expense, if it wishes to proceed with an action which is destructive of endangered or threatened species. This is not only bankrupt public policy and contrary to the "polluter pays" principle embodied in virtually every federal environmental law, but it is directly contrary to section 10 of the ESA, which requires that ITP holders themselves mitigate and minimize the adverse effects of their actions "to the maximum extent practicable." It is also impossible to reconcile with the Services repeated public protestations, including to federal courts, that it lacks the resources even to implement all of its mandatory duties under the ESA.
Fifth, whatever standard for revocation is adopted, it should be mandatory, not discretionary. In other words, instead of suggesting that the Service "may" revoke an ITP which is jeopardizing a species with extinction and/or undermining its recovery, the rule should provide that the Service "shall" do so. Obviously, if an ITP is deemed to be jeopardizing the continued existence of a species, and that problem has not been remedied despite any efforts of the Service and the ITP holder, the Service should have no discretion to allow such an ITP to continue in effect. Indeed, under section 7 of the ESA the Service may not do so, since that provision flatly forbids any agency -- including the Service -- from taking any action which is "likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2). Accordingly, the rule should make clear that the Service must revoke any ITP which is jeopardizing the continued existence of a species.
Sixth, at a minimum, the Service should also amend the rule by making clear that ITPs must be revoked when they are found to be destroying or adversely modifying any species critical habitat. Since, under section 7(a)(2), the agencys obligation to avoid the destruction or adverse modification of critical habitat is distinct from the agencys obligation to avoid jeopardy to the species survival, any revocation provision must, in order to be consistent with that provision, expressly reference the Services ongoing responsibility to ensure that ITPs do not have adverse effects on critical habitat.
Finally, if the Service retains the rule in its current form, it must at least clarify and flesh out what is meant by such ambiguous terms as "remedying" the "inconsistency" in a "timely fashion." How long does the agency get to "remedy" the problem created by an ITP which it believes is jeopardizing a species with extinction? Will the Service inform the public when it is pursuing such "remedies"? What kind of process will be followed in determining what sort of "remedy" is appropriate, and what kind of public input (if any) will be allowed as part of that process? Will the ITP holder have special rights to influence the Services determination as to the kind of "remedy" that will be adopted? None of these critical questions is posed, let alone answered, in the FWSs June 17, 1999 rulemaking. Until and unless they are, the June 1999 rule will be of little, if any, value when the hundreds of sweeping ITPs issued by the Service inevitably begin to drive imperilled plants and animals closer to extinction.
Eric R. Glitzenstein