WESTERN STATES WATER, ISSUE NO. 1570

Spirit of the Sage Council v. Norton

On June 10, Judge Emmet Sullivan, U.S. District Court for the District of Columbia, ordered the FWS to stop issuing Habitat Conservation Plan (HCP) Assurances for new incidental take permits (ITPs) under the Endangered Species Act until FWS adopts new revocation rules specifically applicable to ITPs. Judge Sullivan gave the agency until December 10, to revise its ITP revocation rules. An ITP allows the landowner to undertake otherwise legal development activities without fear of prosecution for any incidental harm to individuals of a listed species, and in exchange, the landowner agrees to take other actions to ensure the long term conservation of the listed species.

This so-called “No Surprises” regulation (63 Fed. Reg. 8859) was issued by FWS in 1998 as an incentive for landowners to ensure that they would not later face additional unanticipated requirements for protecting endangered species. However, the Spirit of the Sage Council and other environmental groups sued FWS over the “No Surprises” policy, arguing that the regulation violated the ESA and the Administrative Procedures Act.

Eric Glitzenstein, an attorney for the environmental groups, called the ruling “...a message by the court that these policies have to be revisited, and that a much higher emphasis has to be put on species protections. We believe it’s an opportunity to finally incorporate public and scientific input into the formulation of policies that may determine whether hundreds of species survive or go extinct.” Spirit of the Sage Council Executive Director Leeona Klippstein added, “...this ruling is a huge victory for imperilled animals and plants, as well as the public’s basic right to have a say in how public resources are managed....” Judge Sullivan’s opinion can be found at: www.sagecouncil.com.

In a June 10 press release, Craig Manson, Assistant Secretary of the Interior for Fish and Wildlife and Parks, said, in response to the ruling: “From the days of Teddy Roosevelt, conservation in America has been a partnership between citizens and government. The greatest conservation resource we can draw upon are the people who live on and work on the land. The willing cooperation of private landowners is essential to accomplish the conservation, restoration, and enhancement of habitat for threatened and endangered species. HCPs have been the cornerstone of our efforts to make the Endangered Species Act work for both landowners and wildlife. Although HCPs may vary enormously in size, scope, and the activities they address, a key to all HCPs has been the ‘No Surprises’ policy.”

He continued, “This Administration believes that policy is a fundamental covenant with citizen stewards of our natural resources. These conservationists should be assured that the government will not come back in the future and require them to do more than is stated in the agreement. Simply put, the policy embodies the American value of ‘a deal’s a deal.’ The policy gives landowners certainty and an incentive to take affirmative measures that they would not otherwise be required to do. The inability to give ‘No Surprises’ assurances to landowners would not only be a breach of faith with those landowners, it would also be a serious impediment to our ability to conserve and enhance habitat for imperiled wildlife. Although disappointed with today’s court decision, this Administration stands by the principles embodied in the ‘No Surprises’ rule and will continue to work to ensure that we are able to keep faith with America’s citizen conservationists and the natural resources that benefit from the fruits of their labor.”....