"No Surprises"


Plaintiffs )
) No. 1:98CV01873(EGS)
  ) Judge Emmett Sullivan
Defendants. )




In moving for summary judgment, plaintiffs argued that the No Surprises rule under review is unlawful for several reasons, including that it jeopardizes the continued existence of endangered and threatened species, in violation of sections 7 and 10 of the Endangered Species Act ("ESA"). See Plaintiffs’ Memorandum ("Pfs. Mem.") at 20-28, 31. In a major concession of the strength of these arguments, the federal defendants have found it necessary to promulgate an entirely new regulation -- signed by the Assistant Secretary of the Interior after plaintiffs moved for summary judgment, although not yet (as of this filing) even approved by the Office of Management and Budget, or published in the Federal Register, see Declaration of Donald J. Barry at ¶ 4 (Defendants’ Exh. B) -- in an effort to defend the No Surprises rule.

Thus, defendants’ attorneys assert that this new regulation, which is being issued in direct response to this litigation, will "provide a necessary ‘safety net’ against extinctions," Federal Defendants’ Memorandum ("Fed. Mem.") at 37, by "clarify[ing]" that, regardless of the No Surprises rule, all Incidental Take Permits ("ITPs") may be revoked when there is an "unforeseen circumstance resulting in likely jeopardy to a covered species, and the agencies have been unsuccessful in first remedying the situation through other means." Id (1).

Of course, this post-litigation change in the agency’s regulatory scheme is only necessary because, as plaintiffs have argued at length, the No Surprises rule itself -- which plaintiffs have challenged here -- does not provide for any "safety net" but, rather, guarantees that ITP holders will never be required to conserve more land or spend more money on conservation than initially provided for in their Habitat Conservation Plans ("HCPs), even where those actions are "needed for a given species covered by a permit." 63 Fed. Reg. 8859. However, the announcement of an entirely new (and as yet unpublished) regulation in the midst of the litigation is only the most blatant way in which defendants are struggling to shift the Court’s attention from the flaws in the No Surprises rule under review. In other crucial ways, the government has simply misstated the plain terms of that rule.

For example, to allay concerns the Court may have regarding the seemingly irrational inflexibility of a rule which locks the terms of ITPs/HCPs in place for decades or longer, the government repeatedly asserts that the rule somehow requires the "inclusion of adaptive management provisions." Fed. Mem. at 2. In reality, however, while guaranteeing ITP holders that they will never be required to "adapt" to changes in the status of endangered species they are "taking" by providing more land or more money for conservation than was expressly provided for at the time they received their permits, there is absolutely nothing in the No Surprises rule itself -- or any other regulation -- which requires "adaptive management provisions." See 50 C.F.R. §§ 17.3, 17.22, 17.32 (as amended), 63 Fed. Reg. 8870-73 (2).

In light of these extraordinary developments -- where the government is relying on entirely new regulations developed during the litigation in an attempt to defend its legal position, as well as simply misstating the rule which is under review -- plaintiffs are plainly entitled to judgment that the rule which plaintiffs have challenged is contrary to the ESA, and that the government’s mid-litigation effort to revise its regulatory scheme in an effort to stave off plaintiffs’ legal challenge contravenes basic tenets of administrative law and judicial review under the APA. Before returning to those merits issues, however, plaintiffs will first address defendants and intervenors’ various justiciability defenses.


To satisfy the "case or controversy" requirement of Article III, plaintiffs must demonstrate (1) that they will suffer "injury in fact" without judicial relief; (2) that the injury is "fairly traceable" to the defendants’ actions; and (3) that a favorable judicial ruling will "likely" redress plaintiffs’ injury. Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 1161 (1997) (citations and quotation marks omitted). So long as any one of the plaintiffs meets these requirements, the Court "need not pass on the standing" of the other plaintiffs. Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 429 (D.C. Cir. 1998) (en banc) ("ALDF"); Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996); Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998). Here, however, along with their summary judgment motion, plaintiffs submitted seven uncontested affidavits which detail the many ways in which plaintiffs are harmed by the rule. While broadly asserting that plaintiffs lack standing, defendants have simply disregarded most of the specific allegations made in those affidavits, which easily meet the applicable Article III requirements.


A. Injury In Fact

Plaintiffs’ previously filed affidavits, along with several additional ones attached to this memorandum, articulate numerous concrete injuries which fall squarely within the harms that have been recognized by the Supreme Court and D.C. Circuit as satisfying the "injury in fact" requirement. First, as the en banc Court of Appeals recently observed, "[t]he Supreme Court has repeatedly made clear that injury to an aesthetic interest in the observation of animals is sufficient to satisfy the demands of Article III standing." ALDF, 154 F.3d at 432, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) and Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986). Similarly, the "Supreme Court and this circuit have frequently recognized the injury in fact of plaintiffs who suffer[] aesthetic injury stemming from the condition and quality, or despoliation, of an environmental area that they used." ALDF, 154 F.3d at 434.

Plaintiffs’ affidavits demonstrate precisely the kinds of injuries to aesthetic and recreational interests which have been deemed adequate for standing in related contexts . For instance, Dr. Fraser Shilling, a well-known ecologist with the University of California, Davis, and a member of plaintiff Spirit of the Sage Council, explains in his affidavit how the No Surprises rule impairs his ongoing aesthetic and recreational interests in specific areas and species:

At a [] personal level, the ‘harm’ that this rule causes can be measured by the loss of opportunities for enjoyment of the natural landscape given the decline of wildlife and plant diversity that will inevitably result from use of the rule. For example, I frequently enjoy seeing Swainson’s hawks in Yolo County, where I live. Specific areas where I periodically observe these magnificent birds are the north side of Davis and south side of Woodland, which are areas where development is proposed under the Yolo County HCP. In addition, I frequently enjoy seeing salmon runs on my periodic trips to the North Coast, which I have taken over a dozen times in the past decade and intend to take approximately every once to twice a year in the future. Specific areas where I have seen salmon runs, and will visit again in the future, are the Eel and Elk Rivers.

The No Surprises rule is harming and will continue to harm my enjoyment of these and other resources. As a result of the regulatory assurances extended to the Incidental Take Permit applicants, these applicants have sought, and obtained, FWS authorization to destroy and degrade the natural areas which I enjoy, and to "take" Swainson’s hawks, salmon, and other species which I enjoy viewing. In addition, when "surprises" inevitably occur which are detrimental to these species, there will be additional adverse effects on the wildlife and plant species which I enjoy viewing and being near in these natural areas.

Affidavit of Fraser Shilling, Ph.D., at ¶ 9 (Pfs. Exh. G) (emphasis added).

Similarly, ecologist Dr. K. Shawn Smallwood, a Science Advisory Board member of plaintiff National Endangered Species Network, explains in detail how he is injured by the inclusion of No Surprises guarantees in the Yolo County HCP:

The specific areas to be affected, which I regularly observe, enjoy, and draw income [from] as a consulting ecologist, include the designated Spheres of Influence around the cities of Davis, Woodland, Knights Landing, Winters, Zamora and West Sacramento. The most affected areas for me include a one mile buffer around Road 102 and Highway 113 within the City Spheres of Influence of Davis, Woodland and Knights Landing, all areas proposed for housing and commercial developments under the Yolo County HCP. These areas are included within my ten year wildlife survey, from which I have been publishing papers relevant to conservation of the locally rare species . . . These species include, but are not limited to, Swainson’s Hawk, Burrowing Owl, short-eared owl, Cooper’s Hawk, Northern Harrier, Greater Sandhill Crane . . ..

Affidavit of K. Shawn Smallwood, Ph.D, at ¶ 2 (scientific names of species omitted) (Pfs. Exh.

H) (emphasis added). Dr. Smallwood further explains that:

The No Surprises rule greatly increases the chances that [these species] will go extinct in the Valley portion of Yolo County, where I live, work, and enjoy observing and/or studying all of these species . . . [W]ith the No Surprises rule applied to the Yolo County HCP, I will inevitably lose the aesthetic qualities of the County that drew me here 18 years ago, and that keep me here today.

Id. (emphasis added). Dr. Smallwood has similarly detailed how his aesthetic and recreational interests in specific places and species are directly threatened by the inclusion of No Surprises guarantees in the Orange County Central/Coastal NCCP, Pfs. Exh. H at ¶ 4, the Pacific Lumber Headwaters Forest HCP, id. at ¶ 6, and the Natomas Basin HCP. Id. at ¶ 3. (3)

All of the other affidavits make similar allegations of present and future aesthetic and recreational injuries.(4) Once again, these are precisely the kinds of allegations of injury which courts (including this one) have deemed adequate to pursue claims seeking relief for violations of the ESA in many recent cases.(5)

Second, plaintiffs’ affiants detail how the No Surprises rule is also injuring their professional pursuits in several distinct ways. Thus, as detailed by scientists who are members of the plaintiff organizations, the rule will contribute directly to the loss of species and habitats in specific geographical areas which these scientists study. For example, as explained by Dr. Shilling, the rule impairs his concrete research interests because it locks in place the Pacific Lumber Company HCP ("PALCO HCP") which:

"fail[s] to protect aquatic resources for all water courses leaving PALCO’s lands. Because we [Dr. Shilling and other University of California at Davis aquatic scientists] are all involved in various types of research that would be directly impacted by this lack of protection, we paid special attention to the lack of adaptive management (i.e., No Surprises) in the implementation of the plan. This facet of the plan meant that for the 50 year lifespan of the plan, none of the watercourses and watersheds could be considered for inclusion in legitimate studies of landscape ecology and aquatic communities. Because several of these streams support salmonids, this was a considerable loss in our research base. With the continuing decline in salmonid populations, due in part to plans like this, the diminishment of resources on which research can be conducted is of major concern to, and has a major practical effect on, scientists like me. "

Shilling Aff. at ¶ 8 (emphasis added); see also Smallwood Aff. at ¶ 5 ("[t]he species that I am studying at [five specified] locations are wide-ranging, and will be affected by the massive development projects permitted under the San Diego County MSCP"); Hector Aff. at ¶ 2 (enumerating "[s]pecific areas in which I . . . presently observe and study Golden Cheek Warblers, and which are directly threatened by ITPs/HCPs with No Surprises assurances"). These research interests are alone sufficient for standing purposes. See Lujan v. Defenders of Wildlife, 504 U.S. at 566-67 ("it is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm") (emphasis added).

As plaintiffs’ scientific affiants further explain, the No Surprises rule also directly threatens the livelihood of professional ecologists by eliminating the incentives for ITP holders to hire them -- i.e., because the Services have foreclosed opportunities to compel ITP holders to make significant changes in their HCPs, these permit holders no longer have any reason to hire ecological experts to assist in monitoring, planning for, and implementing, such changes. Accordingly, the No Surprises rule directly threatens these scientists’ livelihoods, as well as their ability to conduct ongoing research on specific species and habitats. As explained by Dr. Smallwood:

Since most of my income is derived from consulting work on Endangered Species Act issues, the No Surprises rule directly jeopardizes my income because it assures permit holders that they need not study or implement additional conservation measures to halt ‘surprising’ declines in the species abundance as a result of their project activities. My concern is serious because these HCPs in California cover very large areas and the typical permit periods last 50 to 100 years. The No Surprises rule will effectively shut me out from obtaining business from a large percentage of [areas covered by ITPs in] California for the remainder of my life, because the ITP holders will simply have no incentives to hire ecologists for the purpose of responding to the "surprises" that will occur to the detriment of species covered by their take permits.

Smallwood Aff. at ¶ 6 (emphasis added).(6) Once again, evidence that the No Surprises rule will impair biologists’ professional opportunities reflects precisely the kind of Article III injury which has been accepted by the D.C. Circuit. See, e.g., Lepelletier v. FDIC, 164 F.3d 37, 42 (D.C. Cir. 1999) ("loss of a business opportunity" satisfies the injury requirement of Article III standing); CC Distributors, Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989) ("a plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit").(7)

Third, the No Surprises rule also injures all of the plaintiffs by eliminating their procedural rights under section 10 of the ESA to comment on whether individual ITPs/HCPs should have any No Surprises assurances. See 16 U.S.C. § 1539(a)(2)(B). The Supreme Court has recently confirmed that, where members of the public are vested with specific procedural rights, they have standing under Article III to seek relief from agency actions which abridge those rights. Federal Election Comm’n v. Akins, 524 U.S. 11, 141 L. Ed. 2d 10, 20 (1998); see also Public Citizen v. Dep’t of Justice, 491 U.S. 440, 449 (1989) (inability of members of the public to attend meetings and obtain information under Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue").

As plaintiffs have argued, see Pfs. Mem. at 31-32, section 10 of the ESA requires the federal defendants to provide an "opportunity for public comment" before approving any specific ITP or HCP. 16 U.S.C. § 1539(a)(2)(B). The rule under review, however, eviscerates that opportunity with regard to the critical question of whether No Surprises assurances should be made in the context of any particular plan, since, under the rule, No Surprises assurances must always be made to ITP holders. Accordingly, plaintiffs’ affiants -- all of whom live and/or work in specific areas which are affected by ITPs/HCPs containing such assurances, and many of whom participate regularly in public proceedings relating to these plans, see, e.g., Shilling Aff. at ¶ 7; Klippstein Aff. at ¶¶ 12-13; Smallwood Aff. at ¶ 9 -- plainly have standing under Akins and Public Citizen to seek relief for the deprivation of their statutorily-created rights to participate in the section 10 permitting process. See also Lujan v. Defenders of Wildlife, 504 U.S. at 572 (members of the public have standing to "enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs"); Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986) (organization had standing to challenge regulations which "may make administrative review a meaningless process").(8)

The organizational plaintiffs suffer an additional injury because another effect of the No Surprises rule is to shift the financial responsibility for responding to new crises affecting endangered species away from the permit holders whose activities are killing or otherwise "taking" the species, and to instead impose that burden on conservation organizations. Indeed, in promulgating the rule, the FWS explicitly relied on the assumption that non-profit conservation groups -- such as the organizational plaintiffs here as well as the amici -- would shoulder some of the financial burden which the rule removes from developers, timber companies, and other ITP holders. See 63 Fed. Reg. 8862 ("if additional measures are needed" to respond to new circumstances, "the Services will work together with . . . conservation groups, and private entities to ensure additional measures are implemented to conserve the species") (emphasis added); id. at 8864 (when there is a "breakdown of an HCP," the Services will rely on "environmental groups[] and private entities" to "help ensure the continued conservation of the species in the wild"). Hence, since the Services are expressly seeking to impose new substantial financial burdens on non-profit conservation organizations such as plaintiffs and amici, surely those organizations have standing to seek judicial review of the rule which produces that result.(9)

B. Causation and Redressability

Plaintiffs also easily satisfy the interrelated causation and redressability elements of Article III standing. As to causation, as detailed in plaintiffs’ affidavits, all of the distinct injuries enumerated above are not only "‘fairly traceable’" to, but flow directly from, the federal defendants’ decision to incorporate No Surprises assurances in each and every ITP approved by the Services. Akins, 141 L. Ed. 2d at 23 (internal citation omitted) . Moreover, as the en banc Court of Appeals recently explained:

Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenge agency action authorizes the conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal otherwise.

ALDF, 154 F.3d at 440 (emphasis added), citing Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976). Further, ALDF specifically held that "[t]his circuit’s law confirms that a plaintiff satisfies the causation prong of constitutional standing by establishing that the challenged agency rule permitted the activity that allegedly injured her, when that activity would have been illegal otherwise." 154 F.3d at 441 (emphasis added). That is exactly the situation here, where the Services have adopted a rule purporting to authorize activities -- i.e., the future "takings" of endangered species -- that would otherwise be illegal under section 9 of the ESA.

ALDF also makes clear that plaintiffs satisfy the redressability component of constitutional standing which simply asks "whether, if plaintiffs secured the relief they sought, it would redress their injury." Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1233 (D.C. Cir. 1996). Here, plaintiffs are seeking standard APA relief -- i.e., an order which (1) declares that the "No Surprises" approach, as embodied in the final rule, is arbitrary, capricious, and contrary to law, and (2) vacates the rule and enjoins its implementation pending any action by the agencies on remand; and (3) enjoins the Services from making any "No Surprises" assurances in accordance with the rule until further order of the Court. See Amended Complaint at 30; cf. National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1408 (D.C. Cir. 1998) ("[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated") (emphasis added) (internal citation omitted).

Indeed, plaintiffs are seeking essentially the same relief as was sought in ALDF, and which both the D.C. Circuit and Supreme Court have recently held is sufficient for redressability in an APA challenge. As the Supreme Court explained in Akins:

[T]hose adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground . . . If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency’s action and remand the case -- even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason.

141 L. Ed. 2d at 23 (emphasis added) (internal citations omitted); see also ALDF, 154 F.3d at 443 ("The Supreme Court’s recent decision in FEC v. Akins, moreover, rejects the possible counterargument that the redressability element of constitutional standing requires a plaintiff to establish that the defendant agency will actually enforce any new binding regulations against the regulated third party").(10)

Furthermore, since plaintiffs’ injuries are in part based on a violation of their procedural rights under section 10, it is even clearer that "redressability" is present. As the Supreme Court has instructed:

The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.

Defenders of Wildlife v. Lujan, 504 U.S. at 573 n. 7 (emphasis added). This analysis is also controlling here, where plaintiffs with "concrete interests" in specific areas and species threatened by the No Surprises rule are challenging the rule’s deprivation of their procedural rights under section 10 of the ESA.


C. Defendants’ Challenges To Plaintiffs’ Standing Are Baseless.

While largely ignoring the specific allegations of injury enumerated above, as well as the pertinent legal authorities which make clear that plaintiffs have standing to pursue their claims, defendants and intervenors assert several groundless attacks on plaintiffs’ standing. Thus, in the ultimate elevation of form over substance, both defendants and intervenors argue that some of plaintiffs’ affidavits refer to HCPs/ITPs issued under the "No Surprises" policy, rather than HCPs/ITPs issued under the No Surprises rule which codified that same policy in a formal regulation. See Fed. Mem. at 14-15; Intervenor Defendants’ Brief ("Interv. Br.") at 16-17. For several reasons, this argument is both pointless and wrong.

It is pointless because, as even defendants appear to concede, several of plaintiffs’ affiants specifically relate their recreational and professional injuries to No Surprises guarantees incorporated into HCPs/ITPs developed after the effective date of the rule. See Fed. Mem. at 14 (referring to four of the seven affidavits as alleging harm from ITPs issued prior to effective date of the rule); see also Shilling Aff. at ¶¶ 7-9 (identifying injuries from Yolo County ITP and PALCO ITP, both of which are post-March 1998 HCPs/ITPs); Smallwood Aff. at ¶¶ 2, 3, 6 (identifying injuries from the Yolo County and PALCO ITPs, as well as from the Natomas Basin ITP, as to which the FWS has announced its intention to add a "No Surprises" guarantee); Supplemental Affidavit of Dean P. Keddy-Hector at ¶ 2 (attached as Exhibit V) (explaining how ITPs with No Surprises clauses issued since March 1998 "compound and exacerbate injuries" described in prior affidavit); Affidavit of Julia Butterfly Hill (attached as Exhibit W) at ¶¶ 2-3 (identifying aesthetic injury from PALCO ITP).(11)

Moreover, as discussed above, the rule itself deprives all of the plaintiffs of their procedural rights to comment in the ITP process, and also injures the organizational plaintiffs by seeking to shift resource burdens from ITP holders to them. Accordingly, since the Court need only find that at least one of the affiants has standing for this rule challenge to proceed, see, e.g., ALDF, 154 F. 3d at 445, there is no point whatsoever in addressing defendants’ assertion that some of the affiants’ injuries flow from the "No Surprises" policy, rather than the "No Surprises" rule codifying that policy.

However, even if there were some concrete reason for the Court to consider this argument, it is mere sophistry. As plaintiffs’ Complaint and earlier memorandum make clear, the No Surprises rule was issued for the precise purpose of embodying in a formal regulation the No Surprises policy, which had been promulgated in 1994 without the benefit of any advance public notice and comment. Moreover, the same plaintiffs here challenged the policy in a prior lawsuit on the grounds that it had been issued in violation of the APA, 5 U.S.C. § 553, and defendants responded to that lawsuit by agreeing -- in a stipulated Order signed by Judge Sporkin -- to subject the policy to notice and comment rulemaking which, in turn, resulted in the rule now under review. See Settlement and Stipulated Dismissal, Spirit of the Sage Council et al. v. Babbitt, No. 1:96CV02503 (SS) (D.D.C. March 18, 1997), at ¶ 4 ("the defendants shall publish in the Federal Register a notice requesting public comment on the substance of the No Surprises Policy") (attached as Exhibit Q). Hence, defendants’ strange notion that plaintiffs have somehow challenged the "rule," but not the "policy" on which it is based, is belied not only by the history leading up to this case and basic common-sense, but also by plaintiffs’ Complaint, which recites in detail how the policy was codified by the rule. See Amended Complaint at ¶¶ 50-57.

Defendants’ formalistic argument is also contrary to the Services’ own statements and actions, both in promulgating the rule itself and in compiling the Administrative Record in this case. Thus, in the preamble to the final rule, the Services explained that:

[T]he Services agreed to submit the No Surprises Policy to further public comment and to consider public comment in deciding whether to adopt the No Surprises policy as a final regulation. The Services agreed to this approach because they recognized the benefits of permanently codifying the No Surprises policy as a rule in 50 CFR, as well as the value of soliciting additional comments on the policy itself.

63 Fed. Reg. 8860 (emphasis added). Plainly, the Services cannot reap the alleged "benefits of permanently codifying the No Surprises policy as a rule," id., while simultaneously asserting that there is some meaningful (though as yet unarticulated) distinction between judicial review of the rule and the policy it codifies.

The government’s duplicity on this issue is also evident in its compilation of the Administrative Record, which includes not only the 1994 "policy" itself and a press release announcing it, but several hundreds of pages of documents relating specifically to the policy that was in place prior to issuance of the final "rule." See A.R. Vol. 1, Docs. 1-4 Plainly, therefore, in compiling the official Administrative Record, the government itself recognized that the Court’s review of the rule unavoidably encompasses review of the policy leading up to it. Indeed, the final rule not only expressly "codifies" the policy as a general matter, but also specifically provides that all "assurances provided in incidental take permits issued prior to March 25, 1998 remain in effect . . .." 63 Fed. Reg. 8871 (emphasis added). Hence, in challenging the final rule as violative of the ESA and APA, plaintiffs are, necessarily, also challenging the Services’ decision, as reflected in the rule itself, to ratify all preexisting ITPs with No Surprises assurances.(12)

There is also no substance to defendants’ assertion that plaintiffs’ injuries "are based on the alleged inadequacy of HCP provisions that operate independently of No Surprises assurances in individual HCPs . . .." Def. Mem. at 17 (emphasis added). As made clear previously, and as that Court can discern by reading plaintiffs’ affidavits in their entirety, all of the recreational, aesthetic, professional, procedural, and organizational injuries identified in the affidavits flow directly from the No Surprises approach adopted by the Services.

In addition, the affidavits make clear that the ITPs themselves -- and their attendant adverse impacts on specific habitats and species of concern to plaintiffs -- would not have occurred without No Surprises assurances. See, e.g., Shilling Aff. at ¶ 9; Jenks Aff. at ¶ 4; Welty Aff. at ¶ 4; Klippstein Aff. at ¶ 3. Defendants have not controverted any of these specific statements directly linking plaintiffs’ present aesthetic and recreational injuries to the Service’s No Surprises guarantees. See ALDF, 154 F.3d at 429 (observing that the plaintiff’s affidavit is an "uncontested statement of the injuries that he has suffered to his aesthetic interest in observing animals living under humane conditions") (emphasis added). (13)

Moreover, it is simply bizarre for defendants to suggest that the ITP-related injuries enumerated in the affidavits somehow "operate independently of No Surprises assurances," Fed. Mem. at 17 (emphasis in original), when, elsewhere in its brief the government states point-blank that the recent "profusion" of ITPs/HCPs "would not have been possible without No Surprises-like assurances." Fed. Mem. at 43 (emphasis added); see also id. at 9 ("[t]he permittee assurances afforded by the No Surprises policy resulted in a dramatic increase in the number of HCP permits") (emphasis added).

This discussion also answers defendants’ argument that plaintiffs’ injuries are "purely speculative." Fed. Mem. at 18. There is nothing "speculative" about the destruction and degradation of specific areas and species which is occurring today under ITPs which, plaintiffs maintain and defendants agree, would "not have been possible" without "No Surprises" guarantees. Id. at 43. Nor is there anything "speculative" about the extraordinary contractual guarantees which the Services are currently making to all ITP holders that they will never, for the life of their decades-long permits, be required to conserve more habitat than initially provided for, even when their permits are found to be jeopardizing species with extinction. There is also nothing "speculative" about the deprivation of plaintiffs’ procedural rights even to comment on whether these extraordinary guarantees should be made in any particular case.

Nor, contrary to defendants’ argument, is there anything "speculative" about whether there will be "change[s] in circumstances not provided for in individual plan[s]," Fed. Mem. at 18, which will only compound the injuries plaintiffs are now suffering because of "No Surprises." As explained in plaintiffs’ opening brief -- with no rebuttal by defendants -- hundreds of the nation’s leading conservation biologists have stressed that such "changes in circumstances" are not only likely, but inevitable. See, e.g., A.R. Vol. 4, Comm. 577 at 4, Attach. 3 (Pfs. Exh. B) (letter from 168 scientists explaining that "surprises are inherent in the distribution and abundance of . . . species, as well as in our interpretation of nature generally") (emphasis added); A.R. Vol., Comm. 683, at 10 (quoting Stanford Paper) ("Surprises will occur in the future" to the detriment of species); A.R. Vol. 2, Comm. 133 at Attach. at 1 ("Because we will always be surprised by ecological systems," No Surprises "flies in the face of scientifically based ecological knowledge") (emphasis added).

Indeed, precisely because of the unavoidability of detrimental "surprises," these hundreds of scientists have concluded that the No Surprises rule "cannot help but put species in further jeopardy of extinction," A.R. Vol. 2, Comm. 133 (Pfs. Exh. C) (emphasis added), and will "greatly increase the risk of extinction of rare, threatened and endangered species in the wild." A.R. Vol. 4, Comm. 577, Attach. at 3 (Pfs. Exh. B) (emphasis added). While defendants may disagree with those views by the nation’s leading conservation biologists (although they have never coherently explained why), they cannot seriously maintain that plaintiffs lack standing even to complain about the enormous "risk of extinctions" which hundreds of scientists say will result from the rule under review.(14)



Defendants’ second, "related" jurisdictional argument -- that the final rule is "not ripe for this Court’s review," Fed. Mem. at 20; see also Interv. Br. at 17-21 -- is equally meritless. As the government recognizes, the Supreme Court has established a two-part test for assessing whether a particular controversy is "ripe" -- first, whether the particular issues raised in the case are "fit" for judicial review and, second, "the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). Contrary to defendants’ assertions, however, it is not the law in this Circuit that the reviewing court must consider both of these factors in every case where a ripeness challenge is asserted. See Fed. Mem. at 21; Interv. Br. at 17. Rather, "[u]nder the law of this circuit, once we have determined that an issue is clearly fit for review, there is no need to consider ‘the hardship to the parties of withholding court consideration,’ because there would be no advantage to be had from delaying review." Action for Children’s Television v. FCC, 59 F.3d 1249, 1258 (D.C. Cir. 1995); see also George E. Warren Corp.v. EPA, 159 F.3d 616, 621 (D.C. Cir. 1998), amended on other grounds, 164 F.3d 676 (D.C. Cir. 1999) ("‘[w]here the first prong of the [Abbott Laboratories] ripeness test is met’" then "‘no purpose is served by proceeding to the second prong.’") (internal citation omitted); Comsant Corp. v. FCC, 77 F.3d 1419, 1422 (D.C. Cir. 1996) (same). In any event, both prongs of the Abbott Labs test are easily satisfied here.

Thus, as the government acknowledges, the question as to whether an issue is "fit" for judicial resolution turns on whether it is "‘purely legal.’" Fed. Mem. at 21, quoting Natural Resources Defense Council, Inc. v. EPA, 22 F.3d 1125, 1133 (D.C. Cir. 1994). As plaintiffs’ opening brief makes clear, plaintiffs are pursuing purely legal challenges to a final agency rule, i.e., whether the rule violates the plain language and clear intent of the ESA; whether the Services adequately explained their rationale for issuing the rule; and whether the agency adequately considered and responded to the public comments it solicited. These are quintessential legal issues which this Court is fully capable of resolving and, indeed, they are the kinds of rule challenges which courts in this Circuit resolve routinely.(15)

Indeed, in the course of resisting production of the full administrative record, defendants themselves have taken the position that the issues in this case are purely legal. Hence, when plaintiffs requested that defendants include all of the documents which led up to issuance of the rule -- including documents purportedly being withheld on "deliberative process" grounds -- the government refused to furnish those materials, because:

The No Surprises rule will either stand or fall based upon its conformity to the statutory provisions of the ESA. In resolving this purely legal question the Court need not have before it the pre-decisional documents sought by plaintiffs.

January 12, 199 Letter from Charles C. Carson to Eric R. Glitzenstein, at 2 (emphasis added) (attached as Pfs. Exh. R).

It is difficult to see how issues which were "purely legal" when the government wished to withhold materials from the Administrative Record available for judicial review have somehow become issues which "quite clear[ly]" are "not fit for review," as defendants now insist. Fed. Mem. at 21 (emphasis added). However, this is not the only flagrant inconsistency in the government’s position on the ripeness issue. Thus, the government and intervenors insist that the validity of the "No Surprises" approach can only be assessed on a "case-by-case basis" because "[w]hether these complex plans, with their species- and project-specific provisions, comport with the ESA is determined by the Services on a case-by-case basis." Fed. Mem. at 22; see also Interv. Br. at 18-19. Yet that is a very peculiar argument in view of the fact that the Services refused to adopt a case-by-case approach to application of the "No Surprises" concept, although many commenters asked the Services to consider such an approach in lieu of the "blanket rule" promulgated by the agencies, Interv. Br. 27, under which the Services have retained no discretion whatsoever to refrain from making "No Surprises" guarantees to ITP holders, regardless of individual circumstances. See Pfs. Mem. at 42-43.(16)

Simply put, it makes no sense for the Services to adopt a categorical "rule" which mandates that No Surprises guarantees be made to each and every ITP holder for the life of the permit, and then argue that the legal validity of this approach can only be assessed in the context of an individual ITP proceeding, in which the Services must abide by the rule under review. Under these circumstances, Circuit precedent makes clear that plaintiffs may seek review of the legality of the overall approach embodied in the agencies’ non-discretionary, mandatory rule.(17)

For similar reasons, defendants’ assertion that plaintiffs’ challenge to the rule "‘turns on the assumption that the agency will exercise its discretion unlawfully’" is also groundless. Def. Mem. at 23, quoting National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1408 (D.C. Cir. 1998); see also Interv. Br. at 24. Once again, in issuing the rule, the Services have not retained any "discretion" to refrain from making No Surprises assurances to ITP holders -- which, of course, is one of the central reasons why plaintiffs are challenging the rule itself as unlawful and unreasonable.

Moreover, defendants’ citation to National Mining Association is singularly unhelpful to their cause, because, in that case, the D.C. Circuit faced a remarkably similar facial challenge to an across-the-board rule, which the Court had no trouble resolving and deciding in the plaintiffs’ favor. There, the plaintiffs challenged the validity of a rule which provided that "any redeposit" of dredged material would be regulated as an "addition" of pollutants under section 404 of the Clean Water Act, 33 U.S.C. § 1344. The Court found that, since this rule would "encompass

. .. [a] wide range of activities that cannot remotely be said to ‘add’ anything to the waters of the United States," the rule itself could not be reconciled with the statute. 145 F.3d at 1405. In reaching this result, the Court stressed that the plaintiffs’ challenge did not depend on any assumption that the agency would "exercise its discretion unlawfully," explaining that:

The plaintiffs here rely on no such assumption. The problem with the Tulloch Rule is that its faithful application would carry the agency beyond its statutory mandate.

Id. at 1408 (emphasis in original).

That is also precisely the "problem" with the No Surprises rule. Its "faithful" application means that all ITP holders will receive ironclad assurances that they will never be compelled, for their life of their permits, to conserve additional habitat, or expend more resources, beyond that provided for in the initial HCP, even when "necessary" to avoid the extinction of species. 63 Fed. Reg. 8871 (emphasis added). As plaintiffs have argued, and address further below, see infra at 35-41, it is that "faithful application" of the across-the-board rule to every ITP holder which "would carry the [Services] beyond [their] statutory mandate[s]" under sections 7 and 10 of the ESA, and which also reflects a patently arbitrary exercise of agency decision making in light of the extensive Administrative Record compiled by the Services.(18)

While Circuit precedent makes clear that the Court need not inquire into the hardship to plaintiffs of withholding review, see supra at 22, plaintiffs easily satisfy that prong of the Abbott Labs test as well. As explained previously, the government itself maintains that hundreds of ITPs have already been issued as a direct result of No Surprises guarantees, see Fed. Mem. at 43, including those which are now harming plaintiffs’ recreational, aesthetic, professional, and academic interests in particular species and habitats. Consequently, "the impact of the challenged action can be said to ‘be felt immediately’ by [plaintiffs]," and "‘irremediable adverse consequences’ may flow from a determination that this case is not currently ripe for review." International Union, 783 F.2d at 250, quoting Gardner v. Toilet Goods Ass’n, 387 U.S. 158, 164 (1967). Moreover, by depriving plaintiffs of their statutory right to comment on whether, and the extent to which, particular ITP holders should receive "No Surprises" guarantees, the rule causes immediate and ongoing impairment to those procedural rights. See, e.g., Better Government Ass’n v. Dep’t of State, 780 F.2d 86, 93-95 (D.C. Cir. 1986) (recognizing hardship where plaintiff alleged deprivation of statutory entitlement).

Finally, for many of these same reasons, this case is obviously distinguishable from Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665 (1998), on which both the government and intervenors rely, but which, on close inspection, strongly supports the ripeness of plaintiffs’ challenge here. First, Ohio Forestry did not involve review of a substantive rule which the agency would have to apply in all future proceedings; to the contrary, it involved an amorphous forest "plan" which merely set "logging goals" and "probable methods of timber harvest" for one national forest. Id. at 1668 (emphasis added). Under ripeness precedents, that legal distinction is critical, even where, in contrast to this case, the substantive rule has not yet even been applied. See Eagle-Pitcher Industries, 759 F.2d at 917-18 ("it is clear beyond peradventure that the validity of a rule can be ripe for review whether or not it has actually been improperly applied and enforced in a concrete setting"); see also Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998) ("In the three decades since Abbott Laboratories, ‘preenforcement review of agency rules and regulations has become the norm, not the exception’") (emphasis added) (quoting Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy 1137 (2d ed. 1985).

Indeed, Ohio Forestry itself makes clear why substantive rules are generally reviewable, while less formal agency actions frequently are not. Thus, the Supreme Court stressed that the "plan" at issue there did "not create adverse effects of a strictly legal kind" -- i.e., it did not "command anyone to do anything or to refrain from doing anything," and it "creat[ed] no legal rights or obligations." 118 S. Ct. at 1670.

In sharp contrast, as is the nature of most other substantive rules published in the Code of Federal Regulations, the No Surprises rule most assuredly does have these concrete effects. It unequivocally "command[s]" FWS employees to make No Surprises guarantees part of every ITP which is granted for the entire life of each permit, and it flatly "forbids" Service employees from responding to unanticipated (and other not previously provided for) circumstances by requiring ITP holders to devote more habitat or other resources to species conservation than were set forth in the initial HCP. 50 C.F.R. §§ 17.3, 17.22, 17.32 (as amended). By the same token, the rule certainly vests "legal rights" in every developer or other entity which obtains an ITP. Indeed, that is the whole point of the Services’ determination to "permanently codify[]" the "No Surprises" approach, which gives ITP holders "regulatory assurances" that "no additional land use restrictions or financial compensation will be required, even if . . . additional mitigation is needed for a given species covered by a permit." 63 Fed. Reg. 8859 (emphasis added).

Second, Ohio Forestry stressed that the nature of the challenge there was anything but "purely legal," i.e., that it would instead "require time-consuming judicial consideration of the details of an elaborate, technically based plan." 118 S. Ct. at 1671. Here, as set forth above -- and as the government stated earlier in the litigation -- plaintiffs are bringing a "purely legal" challenge to a final rule, Pfs. Exh. R at 2, the resolution of which requires no more than a straightforward analysis of the statute, the Services’ explanation of the rule, and the already-compiled and filed Administrative Record.

Third, in Ohio Forestry, the Supreme Court discerned no evidence in the record that the forest service plan "now inflicts significant practical harm upon the interests that the Sierra Club advances." 118 S. Ct. at 1670. At the same time, the Court stressed that if such information had appeared in the record -- i.e., evidence that the plan was having concrete effects on Club member’ recreational and aesthetic interests -- then the ripeness analysis "would be significantly different." Id. at 1673 (emphasis added). Here, however, plaintiffs have presented substantial uncontroverted evidence that the government’s No Surprises approach is presently harming both them and their members. See supra at 4-12.

Finally, Ohio Forestry specifically distinguished the legal challenge before it from one in which the plaintiff is arguing that the agency’s action violated a statute which "guarantees a particular procedure." 118 S. Ct. at 1672 (emphasis added). Using the National Environmental Policy Act’s requirement for an environmental impact statement as an example, the Court

made clear that such procedural rights challenges may be brought "at the time the failure [to comply with the required procedure] takes place, for the claim can never get riper." Id. (emphasis added). That statement also directly supports immediate review of the No Surprises rule which directly undermines plaintiffs’ procedural right to comment on critical features of ITPs in individual proceedings. Indeed, since the effect of the rule is to foreclose case by case consideration of "No Surprises" guarantees in individual proceedings, this is the paradigmatic example of a claim which, by definition, "can never get riper." See also Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 51 (D.C. Cir. 1999) (relying on Ohio Forestry to find the plaintiffs’ "procedural claim . . . ripe for review").




A. The Court Cannot Rely On the Government’s Mid-Litigation Effort
to Change Its Regulations to Justify The "No Surprises" Rule.

Before turning to defendants’ specific responses to plaintiffs’ merits arguments, it is essential to first address the Services’ remarkable effort to modify the rule which the Court is reviewing in the middle of the litigation. As noted previously, in attempting to stave off plaintiffs’ arguments that the rule under review will, contrary to sections 7 and 10 of the ESA, jeopardize the continued existence of endangered and threatened species, defendants rely on an entirely new regulation which, as of this filing, has not even been published in the Federal Register or, so far as plaintiffs are aware, reviewed or approved by OMB. Defendants claim that this new "clarifying" regulation -- which would authorize the FWS to revoke ITPs where, because of new circumstances, they are jeopardizing species with extinction -- will establish a "safety net" for species adversely affected by the No Surprises rule, and hence should be taken into account in assessing the legality of the rule. See Fed. Mem. at 37. For several obvious and compelling reasons, however, this Court cannot rely on the issuance of a new regulation following the filing of plaintiffs’ summary judgment motion to sustain the rule under review.

First, it is axiomatic that the Court’s review of whether an agency rule is contrary to law or otherwise arbitrary and capricious must "be based on the full administrative record that was before the [agency] at the time [it] made its decision." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971) (emphasis added). For that reason, reviewing courts in APA cases do not allow agencies to take advantage of "post hoc rationalizations," in the form of "litigation affidavits" or otherwise, for the regulation under review. Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) ("To review more than the information before the Secretary at the time she made her decision risks . . . allowing [agencies] to take advantage of post hoc rationalizations") (emphasis added); see also Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insurance Co., 463 U.S. 29, 43 (1983) (an agency must "articulate a satisfactory explanation for its action" at the time of decision).

It is difficult to imagine a more flagrant example of an impermissible "post hoc rationalization" than that which the government has injected into the litigation here. Following the filing of plaintiffs’ summary judgment motion pinpointing the legal flaws in the "No Sur-prises" rule, federal defendants produced two post hoc affidavits from the Assistant Secretary of the Interior describing a regulatory change that defendants are hurriedly cobbling together in an effort to shore up their defense of the No Surprises rule -- so hurriedly, in fact, that the version of the draft regulation actually described in defendants’ summary judgment motion had to be withdrawn from OMB review because it contained "errors," and because the notice "does not give the reader any sense of how the Service intends to implement the revocation provision" on which the government is now relying. See Pfs. Exh. S at 2 (May 11, 1999 Memorandum from Interior Department’s Assistant Solicitor). Accordingly, the government has now filed with the Court two different versions of a draft Federal Register notice (the second of which was submitted to OMB for review only two weeks ago, see Federal Defendants’ May 14, 1999 Notice of Filing Second Declaration of Donald J. Barry, at 1), as well as still another post hoc agency document, i.e., a May 11 memorandum from the Interior Department’s Assistant Solicitor to the Department’s Assistant Secretary "recommend[ing] that this notice of final regulations be re-vised in certain respects," including that the Department insert a new "preamble discussion" that would be "consistent with the brief the government filed on April 23, 1999, in the No Surprises litigation." Pfs. Exh. C at 2 (emphasis added).(19)

In addition, defendants are not only expressly relying on a post hoc revision of its regulations announced after plaintiffs moved for summary judgment but, incredibly enough, they have done so without even awaiting final approval and publication of the new regulation, without having even filed the administrative record underlying it, and without attempting to explain how, under basic APA principles, the Court could even begin take the regulation into account in the absence of a "full administrative record." Citizens to Preserve Overton Park, 401 U.S. at 420.

Equally troubling, the government’s summary judgment memorandum does not even accurately describe the full effect of the new regulation on which the government relies. Hence, while defendants’ post hoc affidavits and summary judgment memorandum refer to a provision of the new regulations (designated in the May 11 draft as section 17.22(b)(8)), which they claim will establish a new "safety net" for species jeopardized by ITPs, they neglect to inform the Court about another provision of the regulations which would work in the very opposite direction by providing that, unlike all other permits issued by the FWS, ITPs subject to "No Surprises" assurances may not be revoked even where the "population(s) of the wildlife or plant that is the subject of the permit declines to the extent that continuation of the permitted activity would be detrimental to maintenance or recovery of the affected population." May 11, 1999 draft Federal Register Notice (Exh. C to Federal Defendants’ May 14 Notice of Filing), at 29 (section 13.28(a)(5) (emphasis added). Therefore, far from creating a new "safety net," this new proviso -- which neither plaintiffs nor any other member of the public has ever previously seen, let alone had an opportunity to comment on -- appears to place endangered and threatened species subject to ITPs at even greater peril than before development of the new regulation.(20)

In any case, where, as here, the government concedes that it has found it necessary to devise new regulations to buttress its position in pending litigation, this Court’s path is clearly dictated by Supreme Court and Circuit precedent. Thus, when an agency essentially admits that its decision is "not sustainable on the administrative record" that actually formed the basis for the rule under review, at an absolute minimum, the "[agency’s] decision must be vacated and the matter remanded . . . for further consideration." Camp v. Pitts, 411 U.S. 138, 142-43 (1973); see also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course of action, except in rare circumstances, is to remand to the agency for additional investigation or explanation") (emphasis added); cf. Williston Basin Inter. Pipeline Co. v. FERC, 165 F.3d 54, 61 (D.C. Cir. 1999) ("‘when an agency changes a policy or rule underlying a decision pending review, the agency should . . . either move on its own for a remand or explain how its decision can be sustained independently of the policy in question’") (internal citation omitted) (emphasis added). Accordingly, at an absolute minimum, the government’s tactic necessitates a ruling for plaintiffs on the present record, and a remand for a coherent explanation of precisely how the new regulation (assuming it is actually approved for publication) interrelates with the No Surprises rule.


B. The "No Surprises" Rule Violates The Prohibitions In Sections 7 And
10 Of The ESA Against Jeopardizing Endangered Species.

The federal government concedes, as it must, that ITPs are subject to the section (7)(a)(2) prohibition on any federally permitted actions which "jeopardize the continued existence of any endangered or threatened species," 16 U.S.C. § 1536(a)(2) -- a prohibition which, as applied to ITPs, is reinforced by the language of section 10(a)(2)(B)(iv). See Fed. Mem. at 30, 34 (agreeing that ITPs are subject to the section 7(a)(2) "duty to ensure non-jeopardy" and that section 10(a)(2)(B)(iv) should "be interpreted in a manner similar to that of the jeopardy standard"); see also Environmental Protection Information Center v. Pacific Lumber Company, No. C-98-2129 MHP, slip op. at 25 (N.D. Cal. March 15, 1999) (excerpts attached as Exhibit X) ("[t]he section 7 consultation requirement applies equally to the Services’ actions in connection with the issuance of an ITP . . . as it does to other federal agency actions that may affect endangered or threatened species") (emphasis added). Yet defendants nevertheless insist that a rule which forbids the Services from imposing any "additional land use restrictions or financial compensation" on ITP holders -- even when such "additional mitigation is needed for a given species covered by a permit," 63 Fed. Reg. 8859 (emphasis in original) -- can somehow be reconciled with the plain terms of sections 7 and 10 of the ESA. These arguments are groundless.(21)

To begin with, defendants are simply misstating controlling Circuit precedent when they assert that plaintiffs must "demonstrate that the rule would violate the ESA under all conceivable factual circumstances, or their facial challenge must fail." Fed. Mem. at 31. In fact, that precise proposition was unequivocally rejected by the D.C. Circuit last year in National Mining Ass’n, supra. In that case, the D.C. Circuit held that, in their facial challenge to a rule, the plaintiffs did not have to demonstrate that there were no possible circumstances under which the rule would be valid, explaining that:

The Supreme Court has never adopted a ‘no set of circumstances’ test to assess the validity of a regulation challenged as facially incompatible with governing statutory law. . . .

Our own cases confirm that the normal Chevron test is not transformed into an even more lenient ‘no valid applications’ test just because the attack is facial. We have on several occasions invalidated agency regulations challenged as facially inconsistent with governing statutes despite the presence of easily imaginable valid applications.

145 F.3d at 1408 (emphasis added). Hence, the Court of Appeals invalidated the "Tulloch rule" at issue in National Mining Ass’n -- which, as noted above, subjected "any redeposit" of pollutants to Clean Water Act ("CWA") regulation -- as contrary to the plain terms of the statute, despite finding that a rule might lawfully be applied to some kinds of redeposits. See 145 F.3d at 1408 ("A facial attack on the rule should not fail simply because the Corps might apply it to cases where an addition is present.").

The same result must be reached here, for functionally identical reasons. The No Surprises rule provides that the Services will never "require [from the ITP holder] 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" provided for in the initial plan, even where such additional measures are necessary to avoid the extinction of a species harmed by an ITP. 63 Fed. Reg. 8871 (emphasis added). Therefore, just as the Tulloch rule reviewed in National Mining Ass’n violated the plain language of the CWA, the sweeping rule at issue here contravenes the plain terms of section 7(a)(2) of the ESA -- by expressly foreclosing, in the case of all ITPs, even permit changes which are necessary to avoid "jeopardiz[ing] the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2); see also Health Ins. Ass’n of America, Inc. v. Shalala, 23 F.3d 412, 418-20 (D.C. Cir. 1994) (holding that agency exceeded statutory authority in enacting regulation concerning Medicare payment recovery, because rule plainly covered some situations in which recovery was barred by statute).(22)

Indeed, defendants evidently know that the "No Surprises" rule conflicts with section 7, which is why they have taken the unusual step of rewriting their regulations during the litigation. As stressed above, the most blatant such rewriting involves the Service’s announcement of a new ITP revocation provision, which the Services describe as a "safety net" for species deemed to be in jeopardy of extinction because of ITPs. Fed. Mem. at 37. But that post hoc development merely underscores the patent legal deficiency in the rule under review. Plainly, the only reason why the government feels compelled to inform this Court that it is drafting a new purported "safety net" for species affected by ITPs is because the "No Surprises" rule itself creates a gaping loophole in the "safety net" which is otherwise woven by sections 7 and 10 of the ESA.

The Services are also attempting to rewrite the rule in other significant, albeit less glaring, ways. Thus, defendants assert that the "Services have defined ‘unforseen circumstances’ in such a way that . . . those circumstances will be ‘highly unlikely.’" Fed. Mem. at 31 (emphasis added), quoting 63 Fed. Reg. 8864 (emphasis added). However, the rule simply does not define "unforseen circumstances" in the narrow fashion suggested by defendants but, rather, includes all 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.

50 C.F.R. § 173 (as amended), 63 Fed. Reg. 8870 (emphasis added). Moreover, as stressed by hundreds of leading conservation biologists, such "unforseen circumstances" are not rare but commonplace in the natural world. See A.R. Vol. 2, Comm. 133 at Attach. (Pfs. Exh. C) ("Because we will always be surprised by ecological systems," the No Surprises approach "flies in the face of scientifically based ecological knowledge"). Accordingly, the rule as written "cannot help but put species in further jeopardy of extinction." A.R. Vol. 2., Comm. 133 (Pfs. Exh. C).(23)

Defendants also ignore their own rule as actually written when they assert that even "changed circumstances" -- defined as those which "can reasonably be anticipated" at the time of ITP approval -- "‘should be addressed in the HCP.’" Fed. Mem. at 31 (emphasis added), quoting 8863, 8868. As explained in plaintiffs’ opening brief -- and never disputed by defendants -- while defendants surely should have adopted a rule at least mandating that all "changed circumstances" be addressed at the time of ITP issuance, the indisputable fact is that they did not even do that much. Rather, the rule accomplishes the opposite result by relieving ITP holders of the obligation even to make changes necessitated by readily foreseeable developments (such as fires or storms in areas prone to such events) whenever, for whatever reason, those circumstances were not expressly addressed in the HCP. See 50 C.F.R. § 17.22(b)(5)(ii), 63 Fed. Reg. 8871 ("If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and such measures were not provided for in the plan’s operating conservation program, the Director will not require any additional conservation and mitigation measures") (emphasis added). Hence, as many commenters pointed out, the Services created an incentive for ITP holders to avoid addressing "changed circumstances" in their HCPs, see Pfs. Mem. at 39-40 -- another feature of the rule which is not only contrary to section 7(a)(2)’s prohibition on jeopardizing species, but for which defendants here cannot muster even a post hoc explanation.

Furthermore, while insisting that "[t]his Court has no basis at this juncture to assume that unforeseen circumstances will occur and go unaddressed," Fed. Mem. at 31 (emphasis added), the federal government does not (and cannot) deny that the very same agencies which are now committing to shoulder the financial burden for "unforeseen circumstances" -- as well as "changed" but ignored circumstances -- have repeatedly told the federal courts, including in sworn affidavits, that they lack the funds even to carry out their present mandatory duties under the ESA. See Pfs. Mem. at 25. Therefore, since the No Surprises rule says that ITP holders will never be responsible for "necessary" conservation measures "not provided for in the plan’s operating conservation program," 63 Fed. Reg. 8871, and since the federal government has told federal courts that it lacks the funds even to implement its existing statutory duties under the ESA, it is difficult to conceive of what additional "basis" plaintiffs need to supply to demonstrate that the rule places endangered species at far greater risk of extinction -- in clear conflict with sections 7 and 10 of the ESA, as well as the Act’s overriding purposes -- and is patently arbitrary and capricious.

The federal defendants’ position makes even less sense in light of their acknowledgment that "there is a continuing obligation [under section 7] to reinitiate consultation" regarding ITPs "within the bounds of discretion retained by the agency." Fed. Mem. at 29. Thus, the Services concede that, when an ITP is affecting a species or its habitat "to an extent not previously considered," such a situation "would require a reinitiation of consultation over the permit" for the purpose of ensuring that the permitted activities are not, in light of new circumstances, jeopardizing species with extinction or destroying their critical habitat. Id. at 29 (emphasis added), citing 50 C.F.R. § 402.16(b) (emphasis added).

Yet, under the No Surprises rule, that consultation process cannot conclude with an ITP modification which "increase[s] the overall costs to the HCP permittee" by even a single penny or a single acre, even where Service personnel agree in the consultation that such a modification is "necessary" to avoid the species’ extinction in light of the "best scientific and commercial data available." 16 U.S.C. § 1536(a)(2). Hence, when defendants acknowledge that the "scope of the reinitiated consultation[] would be limited by the terms of the No Surprises rule," Fed. Mem. at 29 (emphasis added), they are pinpointing precisely why the rule is unlawful and irrational, i.e., it arbitrarily "limit[s]" the "scope" of the section 7 consultation process in a manner which increases, rather than lessens, the risk of extinctions confronting endangered species.(24)

As plaintiffs have previously explained, this result is simply impossible to square with section 7 and the ESA as a whole, particularly as analyzed by the Supreme Court in TVA v. Hill, 437 U.S. 153 (1978). See Pfs. Mem. at 26-27. Moreover, defendants’ notion that plaintiffs’ "repeated reliance" on that landmark ruling is somehow "misplaced" because of minor revisions in the language of section 7, Fed. Mem. at 32 (emphasis added) is simply startling, since the Supreme Court itself recently relied heavily on the very same portions of TVA v. Hill as those cited in plaintiffs’ opening brief. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 132 L. Ed. 2d 597, 611 (1995) ("Both our holding and the language in our opinion [in Hill] stressed the importance of the statutory policy. ‘The plain intent of Congress in enacting this statute,’ we recognized, ‘was to halt and reverse the trend toward species extinction, whatever the cost’") (quoting 437 U.S. at 184) (emphasis added). Congress likewise specifically instructed that the amendments cited by defendants and intervenors "would not . . . lessen in any way an agency’s obligation under Section 7(a)(2)," and would "continue[] to give the benefit of the doubt to the species . . .." H. Conf. Rep. No. 697, 96th Cong., 1st Sess. 12 (1979). Once again, the "No Surprises" rule -- which gives the "benefit of the doubt" to ITP holders rather than the species harmed by "take permits" -- is impossible to reconcile with this Congressional purpose.(25)


C. The Rule Violates Other Requirements of Section 10.

In their opening brief, plaintiffs described various ways in which the rule also contravenes specific requirements of section 10. Pfs. Mem. at 28-36. Defendants’ responses to these points are anemic at best. First, with regard to plaintiffs’ argument that the rule violates Congress’s mandate that HCP’s "conserve[]" -- i.e., promote the recovery of -- endangered species, defendants contend that there "is no explicit provision in the ESA requiring that there be a net benefit" to species affected by ITPs/HCPs. Fed. Mem. at 32 (emphasis added). Yet defendants conveniently ignore the explicit definition of "conservation" in the ESA itself which, as plaintiffs explained in their opening brief (at 28-29), unequivocally does require actions that produce net benefits for species, and has been specifically construed as such in Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1278 n. 3 (S.D. Ala. 1998); see also Harbor Gateway Commercial Property Owners’ Ass’n v. EPA, 167 F.3d 602, 606 (D.C. Cir. 1999) ("when a statute’s meaning is clear . . . the ‘sole function of the courts is to enforce it according to its clear terms’") (internal citation omitted).(26)

Defendants similarly seek to sidestep the statutory language which requires that ITP applicants "minimize and mitigate the impacts" of their takings "to the maximum extent practicable," and "ensure that adequate funding for the plan will be provided." 16 U.S.C. §§ 539(a)(2)(B)(ii), (iii) (emphasis added). Defendants assert that "[t]here is nothing inherent" in the rule that "precludes" the Services from finding that an individual HCP "adequately minimize[s] and mitigate[s] the permitted taking . . .." Fed. Mem. at 35 (emphasis added). But "adequately minimize and mitigate" simply is "not the language of the ESA." Fund for Animals v. Babbitt, 903 F. Supp. 96, 111 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997). Instead, Congress required that ITP holders minimize and mitigate the effects of their "takings" "to the maximum extent practicable" -- a requirement which is clearly contradicted by a rule which says that ITP holders will never be responsible for any "additional mitigation [] needed for a given species covered by a permit." 63 Fed. Reg. 8859 (emphasis added). Similarly, ITP holders are certainly not "ensuring" that adequate funding will be available when they are entirely relieved of the financial responsibility for such "additional" mitigation measures. See Fund for Animals, 903 F. Supp. at 111 (rejecting FWS’s departure from the "maximum extent practicable" standard as applied to another ESA provision; "where Congress has specifically addressed an issue its intention must be given effect").

Finally, defendants concede that "[s]ections 10(a)(2)(B) and (C ) require the Services to afford an opportunity for public comment prior to the issuance of an individual HCP," Fed. Mem. at 38 n. 29, but they cannot explain how the rule meaningfully preserves that "opportunity." Rather, a rule which says that all ITP holders will receive the same regulatory guarantees, irrespective of the comments submitted by members of the public is certainly not affording an "ample opportunity [to comment] on a case-by-case basis . . .." Id.


D. The Services’ Explanation for the Rule Cannot Survive APA Review.

Defendants do not deny that they are extending decades-long (and, in some instances, century-long) "regulatory assurances" to federal permittees which literally have no precedent in any other federal regulatory scheme. Indeed, it is difficult even to conceive of the government extending a comparable "no surprises" guarantee to companies receiving federal permits to market drugs, or emit pollutants into the air or water, or to operate a nuclear power plant. Yet the federal government has still not explained why regulatory "assurances" which would be unthinkable in any other context are somehow appropriate in the context of permits to "take" species already on the verge of extinction.(27)

To the contrary, defendants’ brief can only leave the Court even more perplexed about the rationale for the radical regulatory approach under review here. Thus, defendants’ reading of section 10 of the ESA as "not requiring a net benefit" to affected species, Fed. Mem. at 34 (emphasis added), not only violates the plain language of the statute, see supra at 42-43, but also leaves the rule without any rational justification. Simply put, if ITPs/HCPs are not being construed and employed to require "net benefits" for species, then why, consistent with the conservation objectives underlying the ESA, would the Services possibly adopt and perpetuate a policy of "promoting" ITPs through extraordinary No Surprises guarantees employed nowhere else in environmental law? Stated differently, since the Services do not contend that they must issue No Surprises guarantees to all ITP holders then why, even under defendants’ own view of the law, would the Services refuse to adopt a rule which, at most, allows regulatory assurances to be traded to ITP applicants who do commit to plans which affirmatively promote the recovery of species facing extinction -- i.e., produce a "net benefit" for the species -- an option which would unquestionably further the anti-extinction purposes of the ESA far better than the blanket rule here. See Pfs. Mem. at 43-44.(28)

There are simply no clear answers to those critical questions, either in the government’s brief or in the preamble accompanying adoption of the final rule. Instead, the Services have adopted a position which "looks hopelessly irrational" by extending the same guarantees to each and every ITP holder, irrespective of whether the particular permittee agrees to take actions which leave an endangered species better off than before issuance of the permit. Sierra Club v. EPA, 167 F.3d 658, 660 (D.C. Cir. 1999); see also National Mining Ass’n v. Babbitt, 1999 WL 241776 * 6 (D.C. Cir. April 27, 1999) ("this regulation is both arbitrary and capricious because it is irrationally overbroad, and we therefore vacate it"). Accordingly, the Court must at least remand for "further explanation" as to why the Services crafted the rule in the particular manner that they did. Id.(29)

Respectfully submitted,

Eric R. Glitzenstein

(D.C. Bar No. 358287) Katherine A. Meyer

(D.C. Bar No. 244301)

Meyer & Glitzenstein

1601 Connecticut Avenue, N.W., Suite 700

Washington, D.C. 20009

(202) 588-5206

May 26, 1999 Attorneys for Plaintiffs


  1. The Barry affidavit filed along with defendants’ motion for summary judgment indicated that the new rule had been signed and submitted to OMB on March 22. However, in a May 14 "Notice of Filing" and accompanying "second declaration of Donald J. Barry," defendants indicated that the March 22 rule notice has been replaced by a new version, which was signed by the Assistant Secretary and submitted to OMB for review on May 11. See Exhibit C to May 14, 1999 Second Declaration of Donald Barry. According to a memorandum prepared by the Interior Department’s Assistant Solicitor, and which was also filed with the Court on May 11, the March 22 version -- which was evidently prepared hurriedly so that defendants could rely on it in their summary judgment motion in this case -- was withdrawn from OMB review because of various errors and omissions, including that it did "not give the reader any sense of how the Service intends to implement the new revocation provision" on which the government is now relying. See Exhibit D to Second Barry Declaration, at 2 (also attached as Pfs. Exh. S). The Second Barry Declaration and Assistant Solicitor’s Memorandum also confirm what is already obvious from the timing of defendants’ submission -- that the new regulation has been developed in direct response to this litigation.
  2. Indeed, the most comprehensive review of HCPs conducted by independent scientists to date found that "most plans do not include provisions for ‘adaptive management,’" and also that, frequently, "crucial, yet basic, information on species is unavailable for the preparers of HCPs." See Using Science in Habitat Conservation Plans, at 3 (January 1999) (sponsored by National Center for Ecological Analysis and Synthesis and American Institute of Biological Sciences).
  3. The government notes that the "Natomas Basin HCP . . . doesn’t contain any No Surprises-like assurances" at the moment, pursuant to a stipulation in the predecessor notice and comment case, Fed. Mem. at 16 (emphasis in original), but defendants neglect to mention that the government has already announced its intention to "reinstate the ‘No Surprises’ assurances into the City of Sacramento’s incidental take permit for the Natomas Basin Plan" as a direct result of the adoption of the "No Surprises" rule. See 63 Fed. Reg. 29021 (May 27, 1998) (attached as Pfs. Exh. N) (emphasis added).
  4. See, e.g., Affidavit of Jean K. Jenks (Pfs. Exh. I) at ¶ 8 ("I am personally injured by the diminution in many of these bird species, since I enjoy observing and studying them, which will result from the inclusion of No Surprises guarantees in the HCPs described above."); Affidavit of Dean P. Keddy Hector (Pfs. Exh. J) at ¶ 2 (identifying "[s]pecific areas in which I have hiked and camped, and presently observe and study Golden Cheek Warblers, and which are directly threatened by ITPs/HCPs with No Surprises assurances"); Affidavit of Loren Foss (Pfs. Exh. K) at ¶ 4 ("Since the lower east side of this area [the Mineral Creek/Park Lakes area in Washington state] has been logged -- as authorized by the Plum Creek HCP -- my ability to enjoy this area has greatly diminished "); Affidavit of Dolores Welty at ¶ 2 ("With the approval of the MSCP and its No Surprises assurances, we will witness many of our most beloved areas be destroyed or degraded."); Affidavit of Leeona Klippstein at ¶ 3 ("All the beautiful and magical places that I have enjoyed for much of my life are being destroyed and degraded because of ITPs/HCPs approved by the FWS in accordance with its ‘No Surprises’ approach").
  5. See, e.g., Sierra Club v. Glickman, 156 F.3d 606, 613-14 (5th Cir. 1998) (plaintiff’s interest in avoiding jeopardy to species dependent on aquifer in Texas was an adequate "judicially cognizable injury under the ESA" to pursue a claim that a federal agency had failed to adopt sufficient conservation programs); Coast Alliance v. Babbitt, 6 F. Supp. 2d 29, 32 (D.D.C. 1998) (plaintiffs’ affidavits asserting how the government’s action would harm their interests in observing endangered sea turtles and migratory birds in specific locations in Florida "constitutes sufficient injury to meet the Article III injury requirements"); Wyoming Farm Bureau Federation v. Babbitt, 987 F. Supp. 1349, 1361 (D. Wyo. 1997) (allegation that "Plaintiffs’ members will be less likely to see or hear natural wolves because those wolves will be subjected to increased habitat loss and mortality" deemed sufficient for Article III standing); Salmon v. Pacific Lumber Co., 30 F. Supp. 2d 1231, 1242 (N.D. Cal. 1998) (because plaintiffs’ members "enjoy observing and using coho salmon in the streams and rivers which flow through or are adjacent to boundaries of [Pacific Lumber Company’s] lands," plaintiffs had standing to complain that the company was unlawfully "taking" the threatened coho salmon); Strahan v. Coxe, 939 F. Supp. 963, 979 (D. Mass. 1996).
  6. See also Shilling Aff. at ¶¶ 6,7 ("There is no greater academic and professional harm than to have one’s field of study removed or made irrelevant . . . [T]he ‘No Surprises’ rule will do just that to me"); Hector Aff. at ¶ 7 ("No Surprises provisions create enormous disincentives for effective monitoring because FWS officials know that they cannot make significant adjust-ments to the ITP/BCP mitigation requirements if focal species continue to decline"; "The direct result is that less scientific data regarding species and the effects of the BCP are available to scientists such as myself, whose research and teaching duties depend on these monitoring data").
  7. Defendants’ only response to this particular injury -- that "[]most HCPs include adaptive management provisions and require extensive monitoring," Fed. Mem. at 20 -- is not accompanied by any citation. This is not surprising, since, contrary to the government’s assertions, nothing in the rule under review requires the inclusion of "adaptive management" or "monitoring" provisions in HCPs. In fact, as noted previously, see supra at n. 2, a recent analysis of HCPs by independent scientists has found that most plans do "not include provisions for ‘adaptive management,’" and that "only 7 out of 43 plans had monitoring programs that were sufficient for evaluating success." Using Science in HCPs at 3, 41.
  8. Of course, the fact that defendants may disagree with plaintiffs’ reading of this or any other aspect of section 10 has no bearing on whether plaintiffs’ have standing to pursue those claims. See Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996) ("For the purposes of determining standing, we ‘assume the validity of a plaintiff’s substantive claim.’"), quoting Catholic Social Serv. v. Shalala, 12 F.3d 1123, 1126 (D.C. Cir. 1994); see also Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997).
  9. See Klippstein Aff. at ¶ 2 ("As a result of the FWS’s ‘No Surprises’ approach to HCPs/ITPs, my organizations must spend far more of their scarce resources responding to the ‘surprises’ which will inevitably occur to the detriment of species and habitats in areas affected by these ITPs and which my organizations are dedicated to conserving"); Affidavit of D.C. "Jasper" Carlton (attached as Exhibit U) at ¶ 12 ("The Services’ approach of having conservation organizations and others pay for the ‘additional measures’ would injure the [Biodiversity Legal Foundation] because it would siphon off money from a very limited budget.") see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) ("injury to the organization’s activities -- with the consequent drain on the organization’s resources -- constitutes far more than simply a setback to the organization’s abstract social interests" and hence qualifies as an Article III injury) (emphasis added); Action Alliance of Senior Citizens, 789 F.2d at 937 (organization had standing to challenge rule which might "raise the cost and difficulty" of organization’s ability to carry out its mission).
  10. Hence, contrary to defendants’ suggestion, Fed. Mem. at 19-20, Akins and ALDF make clear that, to satisfy the redressability element of Article III, plaintiffs certainly need not establish how third party ITP holders might react to the Court’s decision invalidating the rule.
  11. The federal defendants note that the Yolo County and PALCO ITPs/HCPs were "in proposed form as of the mid-February signing date[s]" of Dr. Smallwood’s and Dr. Shilling’s affidavits, and they question whether their "alleged injuries remain today," although defendants do not point to any specific changes which would in any way affect those injuries. Fed. Mem. at 15 n. 13. In any case, plaintiffs are submitting supplemental affidavits from both Drs. Shilling and Smallwood stating that their injuries do "remain today" with regard to both the PALCO ITP/HCP (which was approved in final form on March 1, 1999), and the Yolo County ITP/HCP (which has been negotiated and is nearing final approval). See April 30, 1999 Affidavit of Fraser Shilling, Ph.D (attached as Pfs. Exh. O); April 30, 1999 Affidavit of Shawn Smallwood, Ph.D (attached as Pfs. Exh. P); see also Pfs. Exh. Z (FWS List of ITPs/HCPs as of April 8, 1999).
  12. While plaintiffs believe that the current Complaint can and should be read to encompass a request for relief with regard to both the No Surprises rule and the policy it codifies, if the Court has any doubts on this issue, plaintiffs respectfully request that the Court declare the Complaint to be amended accordingly, as is expressly authorized by 28 U.S.C. § 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."). As the Court of Appeals recently stated in invoking this provision to deem a request for relief to be amended in that Court, "it would elevate form over substance in a case of this dimension not to treat [the Complaint] as if it also sought" the relief that would remove any jurisdictional uncertainties. Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996); see also Goble v, Marsh, 684 F.2d 12, 17 (D.C. Cir. 1982) (in section 1653, "Congress intended to permit amendment broadly to avoid dismissal of suits on technical grounds").
  13. Of course, if it is now defendants’ position that No Surprises assurances are not necessary to encourage landowners to obtain ITPs/HCPs such as those identified in plaintiffs’ affidavits, then defendants’ purported rationale for adopting the rule evaporates entirely. On the other hand, there is no "incongruity" at all in plaintiffs’ position. See Fed. Mem. at 18 n. 17. Plaintiffs never suggested in their opening memorandum that offering developers ironclad, long-term "assurances" which they can find nowhere else in environmental law (or, for that matter, any other regulatory sphere) would not lead to a massive clamor for decades-long, immutable permits to "take" endangered species -- as it surely has. Rather, plaintiffs’ APA argument -- which defendants have not rebutted at all -- is that the Services have failed coherently to explain why developers should receive these extraordinary assurances, especially where the "taking" of endangered species" is otherwise unlawful, and where the Services are not even requiring that HCPs promote the "conservation" of the affected species, as required by the plain language of section 10 of the ESA. See Pfs. Mem. at 37; infra at 42-43.
  14. See also Duke Power Co. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) (citizens have standing to challenge Price Anderson Act limitation on liability for environmental damage caused by operation of nuclear power plant because the limitation makes it somewhat more likely that such facilities will be built); Mountain States Legal Foundation, 92 F.2d at 1234-35 (affidavits asserting that Forest Service action creating "an increased risk of catastrophic wildfire" and that such a fire, if it occurred, would impair plaintiffs’ members’ "aesthetic and environmental interests" deemed adequate for Article III standing; "The more drastic the injury that government action makes more likely, the lesser the increment in probability necessary to establish standing") (emphasis added).
  15. See, e.g., George E. Warren Corp., 159 F.3d at 621 ("[w]hether the remedial provision is consistent with the statute is purely an issue of law."); Radio Television S.A. DE C.V. v. FCC, 130 F.3d 1078, 1081 (D.C. Cir. 1997) ("The questions before us depend upon law, not facts: whether the condition violated NAFTA, exceeded FCC authority, or was inadequately explained"); Action Alliance of Senior Citizens, 789 F.2d at 940 ("The question is one of law: whether the HHS regulations are facially deficient because, as written, they are inconsistent with the general regulations or the [statute]"); Great Lakes Gas Transmission v. FERC, 984 F.2d 426, 431 (D.C. Cir. 1993) ("the issue in this case is fit for judicial resolution because it is a purely legal one (whether the agency’s order reflects reasoned decisionmaking), not requiring a developed factual record"); Eagle-Pitcher Industries v. United States, 759 F.2d 905, 916 (D.C. Cir. 1985) ("the issue presented for review -- whether the [regulation] is arbitrary, capricious, or in excess of statutory authority -- is a purely legal question and thus was ‘fit’ in that respect for judicial resolution").
  16. Indeed, one of plaintiffs’ principal APA challenges is that defendants have provided no coherent reason as to why (even assuming the legal permissibility of "No Surprises") they adopted a one-size-fits-all No Surprises rule for each and every ITP, irrespective of acreage, duration, species, and habitat affected, Pfs. Mem. at 43-44 -- an argument which is strengthened by defendants’ insistence on the need for "case by case" evaluation of ITPs.
  17. See, e.g., George E. Warren, 159 F.3d at 621 (rule challenge "is as concrete now as it will ever be because the rule operates automatically") (emphasis added); Edison Electric Institute v. EPA, 996 F.2d 326, 334 (D.C. Cir. 1993) (challenge deemed ripe because "[p]etitioners are making a ‘wholly legal and facial’ challenge to an EPA policy that applies ‘across the board’ . . . Accordingly, there is little to be gained through consideration of . . . particularized facts’") (emphasis added) (internal citation omitted); International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Brock, 783 F.2d 237, 250 (D.C. Cir. 1986) ("the Department has made a broad pronouncement on the . . . issues that goes far beyond the facts of any given case. The sole issue is whether these new interpretations are consistent with the statute which they interpret."); Eagle-Pitcher Industries, 759 F.2d at 917 (agency decision was reviewable because it was "issued as a regulation, after notice-and-comment proceedings, and contains no equivocal or tentative language as to the EPA’s intention to employ it in evaluating sites"); Action Alliance of Senior Citizens, 789 F.2d at 940 ("Nor is this challenge directed to a discretionary prescription. The agency has chosen to omit the requirement altogether, rather than to make imposition of the initial self-evaluation requirement contingent on an exercise of agency discretion") (emphasis added).
  18. As noted previously, see supra at 1, defendants themselves have now evidently recognized that the rule under review, at least without modification, would violate sections 7 and 10 of the ESA, since they have taken the extraordinary step of announcing, and relying on, an entirely new regulation drafted after the filing of plaintiffs’ motion for summary judgment. Plainly, if defendants and their attorneys are capable of perceiving the legal deficiencies in the rule under review -- i.e., by changing their regulations mid-litigation in an attempt to cure those deficiencies -- then the Court itself is also fully capable of recognizing the problems with "faithful application" of the No Surprises rule.
  19. The government’s release of this deliberative, attorney-client communication -- which is not in the record -- stands in sharp contrast to defendants’ refusal to disclose to plaintiffs or the Court a host of other agency records which are listed in the Administrative Record index filed with the Court. See Pfs. Exh. R (letter from defendants’ counsel refusing to release various agency records on "deliberative process" grounds); see also January 5, 1998 Letter from Eric Glitzenstein to Charles Carson (requesting the disclosure of 23 documents withheld from the Court in whole or in part) (attached as Pfs. Exh. T). It is difficult to discern why the Court should be deprived of purportedly "deliberative" materials which actually underlie the rule under review, while at the same time being asked to review deliberative materials which have nothing to do with that rule. See Walter O. Boswell Memorial Hospital, 749 F.2d at 792 ("[i]f a court is to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision") (emphasis added).
  20. According to defendants’ post hoc submissions, these new regulations are being issued along with rules on several other subjects, which were proposed for public comment two years ago. See 62 Fed. Reg. 32194 (June 12, 1997). However, the government has never solicited public comment on the specific regulations which it has devised in response to this lawsuit (sections 17.22(b)(8) and 13.28(a)(5) in the draft Federal Register Notice).
  21. Defendants assert that the "appropriate standard of review of plaintiffs’ statutory arguments is what has come to be known as "Chevron II," Fed. Mem. at 33; Int. Br. at 20 -- which applies only where the statute "is silent or ambiguous with respect to the specific issue" before the Court. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). However, where, as here, the agency’s rule is contrary to the plain terms of several sections of the ESA, the Court must apply a Chevron I analysis by "giv[ing] effect to the unambiguously expressed intent of Congress.’" Id. at 842-43; see also Environmental Defense Fund v. EPA, 167 F.3d 641, 649 (D.C. Cir. 1999) ("Finding clear congressional intent and thus no need to proceed to Chevron’s second step, we hold that [] the regulations violate[] the Clean Air Act"). Moreover, even if the Court were to proceed to the second step of Chevron analysis, a rule which forbids the federal government from making changes to ITPs, even where necessary to avoid the extinction of species, is certainly not a "reasonable" construction of Congress’s intent in enacting the ESA. Id.
  22. As in National Mining Ass’n, this Court need not analyze at this juncture whether a more narrowly drawn rule -- e.g, one which would allow the use of regulatory assurances in some situations but not others -- could pass muster under the statute. See 145 F.3d at 1405. However, as plaintiffs have previously explained, Pfs. Mem. at 42-44, the Services’ complete failure to address this alternative during the rulemaking currently under review constitutes an independent violation of the APA. Contrary to defendants’ suggestion, Fed. Mem. at 45, there is absolutely no coherent explanation in the rule’s preamble as to why defendants were adopting a rule requiring automatic issuance of "No Surprises" assurances to all ITP holders.
  23. Defendants have articulated no coherent rationale for discarding the consensus views of hundreds of scientists that "unforseen circumstances" adversely affecting species will frequently occur. Instead, the government misleadingly asserts that these concerns "must be dealt with up front through adaptive management provisions." Fed. Mem. at 44 (emphasis added). As noted previously, however, see supra at 2, the "No Surprises" rule does not require that HCPs include "adaptive management" provisions and, in fact, "most plans do not include such provisions." Using Science in HCPs, at 3, 41.
  24. Defendants also fail to reconcile their position with section 7(a)(2)’s "best scientific and commercial data available" requirement. The federal government’s assertion that any "federal response [to unforseen circumstances] would have to be based" on such data, Fed. Mem. at 32 n. 25 (emphasis added), simply begs the question of what will happen under the rule when the evidence counsels in favor of imposing "additional conservation and mitigation measures" on the ITP holder, particularly because the Services lack the funds necessary to prevent the downward spiral of species. 63 Fed. Reg. 8870. Since the rule prohibits such modifications, it requires that the "best scientific" data available not be followed in such circumstances.
  25. Defendants’ and intervenors’ reliance on Environmental Protection Information Center, Inc. v. The Simpson Timber Co., 1999 WL 183606 (N.D. Cal. March 30, 1999) is also misplaced, since that ruling actually highlights the flaws in the rule under review here. There, the Court simply held that the FWS did not need to reinitiate consultation when new species were listed for which the ITP holder had not previously received an ITP. With respect to those species, the court held that the plaintiff’s "remedy" was to pursue a "takings" claim against the timber company, rather than seek reinitiation of consultation regarding the ITP’s impact on newly listed species. At the same time, however, the Court made clear that, under section 7 precedents, the FWS did retain legal authority and discretion to reinitiate consultation with regard to impacts on the species for which the company had previously secured an ITP. See id. at *6. Indeed, with regard to that species, the Court noted that the ITP (which was issued before the No Surprises policy), specifically made the ITP holder responsible should "unforseen events occur." Id. at *2 (emphasis added).
    That reasoning hardly supports a rule which applies directly to species for which an ITP holder has already received a specific "take" authorization," see 63 Fed. Reg. 8870, but for which "additional conservation and mitigation measures" beyond those provided in an HCP are subsequently deemed "necessary." Id. at 8871. Since the "No Surprises" rule insulates ITP holders from such permit modifications, and since the holder of an otherwise valid "take" permit for a particular species evidently could not be sued under section 9, the rule eliminates any "remedy" against ITP holders under such circumstances -- which is the opposite of what the court in Simpson Timber Co. said it was doing.
  26. In contrast, the case cited by defendants, Friends of Endangered Species Inc. v. Jantzen, 760 F.2d 976, 983 (9th Cir. 1985), did not even address the meaning of "conservation," as used in section 10. It did, however, note that the San Bruno Mountain HCP was Congress’s "paradigmatic approach to compliance with section 10(a)" because its "‘overall effect’" would be "‘beneficial to a species, even though some incidental taking may occur.’" Id., quoting S. Rep. 418, 97th Cong., 2d Sess. 10 (1982) (emphasis added).

    Even more perplexing is intervenors’ reliance on section 10(d) of the Act, which does not even remotely -- let alone "expressly" -- "exempt the holder of an ITP from furthering the Act’s ‘conservation’ policies." Interv. Br. at 29. In fact, that provision does not even address ITPs, presumably because of the detailed criteria for their approval set forth in section 10(a). One of those criteria, as plaintiffs have explained -- with no rebuttal by intervenors or the government -- is the development of a "conservation" plan, which certainly does require ITP holders to "further" the "conservation policies" of the ESA.
  27. Intervenors’ assertion that this issue was not raised in the public comments, see Interv. Br. at 40, is wrong. In fact, plaintiffs quoted those comments in their opening brief (at p. 12).
  28. As discussed previously, while Congress desired to "‘encourage creative partnerships . . . in the interest of species and habitat conservation,’" Fed. Mem. at 39, quoting 1982 Conf. Repeat 30, 31 (emphasis added), it certainly did not want to encourage ITPs/HCPs which fail to confer such benefits on endangered species, while, at the same time, allowing endangered and threatened species to be "taken" -- which, as defendants and intervenors have admitted, is exactly what the No Surprises rule, as presently drafted, authorizes. See also Pfs. Exh. Y (excerpts of 1982 Conference Report).
  29. In this connection, it is also noteworthy that the other potential "ecological benefits" of HCPs mentioned by defendants, Fed. Mem. at 7-9 -- such as the protection of unoccupied habitat and presently unlisted species -- are also not required by the rule as tradeoffs for "No Surprises" guarantees. Since, under the rule, the Services must extend "No Surprises" guarantees even to ITP holders whose HCPs do not contain such provisions, the rule also undercuts the very "benefits" which defendants and intervenors tout. See also Pfs. Exh. Z (indicating that the vast majority of HCPs do not cover unlisted "candidate" species).