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>Copyright 1998 Environmental News Network, Inc.
>ESA no surprises policy spurs lawsuit
>Wednesday, July 29, 1998
>Habitat Conservation Plans with No Surprises allow the incidental taking
>of endangered species, like the spotted owl, right to the point of
>extinction, according to groups challenging them in court.Changes to the
>Endangered Species Act by the Clinton administration -- called Habitat
>Conservation Plans with No Surprises -- are being challenged in court by
>a coalition of conservation organizations.
>The coalition, led by the Spirit of the Sage Council of Pasadena,
>Calif., and the Biodiversity Legal Foundation of Boulder, Colo., filed
>suit Tuesday in U.S. District Court in Washington, D.C., to halt the no
>surprises policy.
>Habitat Conservation Plans with No Surprises guarantee that developers
>who agree to protect species on a portion of their land will not be
>subject to new regulations or requirements on the developed part for a
>certain period of time, usually between 30 and 100 years.
>The Fish and Wildlife Service has been making no surprises assurances to
>timber, mining and development companies as part of the Incidental Take
>Permit process since 1994, when the Department of Interior issued in
>informal policy statement without noticing the public or taking public
>If successful, the lawsuit would invalidate more than 450 Habitat
>Conservation Plans that have been approved or are in the works that
>contain the no surprises clause, according to the environmental groups.
>Plans in the Pacific Northwest approved for Plum Creek Timber Company
>and Weyerhauser and the proposed Pacific Lumber Headwaters plan would be
>affected, the groups say.
>"This is a rule in search of a rationale."
>-- Eric Glitzenstein, coalition legal counsel
>In 1996, the Spirit of the Sage Council, the Biodiversity Legal
>Foundation and other groups sued in federal court, arguing that the FWS
>was violating the Administrative Procedures Act by relying on its no
>surprises policy without subjecting it to public comment.
>The case was settled with the FWS and the National Marine Fisheries
>Service agreeing to solicit public comment and then making a new
>decision based on the public record.
>The FWS and NMFS were overwhelmed with critical comments from
>conservation groups, scientists and others, according to the
>Biodiversity Legal Foundation. Basically, conservationists unanimously
>opposed the no surprises policy while development interests supported
>Both services issued a final rule codifying the no surprises approach as
>a matter of federal regulatory policy on Feb. 23, 1998.
>The rule requires that no surprises assurances must be made along with
>"each and every Incidental Take Permit/Habitat Conservation Plan
>irrespective of any concerns by FWS biologists in particular cases where
>inadequate biological information exists to make such promises."
>Under the rule, if unforeseen circumstances arise to the detriment of a
>species following the issuance of an ITP, no further requirements or
>restrictions can be made even when such changes are necessary to avoid
>the extinction of the species.
>"This is a rule in search of a rationale," said Eric Glitzenstein, legal
>counsel for the coalition of environmental groups. "There is virtually
>no coherent explanation as to why the government wildlife agencies found
>it appropriate or necessary to extend these extraordinary assurances in
>order to persuade land holders not to violate the law."
>"Nature is full of surprises," said Leeona Klippstein, conservation
>director of the Sprit of the Sage Council. "The no surprises assurances
>are not ecologically realistic or economically feasible.
>"Congress has not appropriated the funding that is currently needed to
>acquire habitat for endangered plants and animals. But even if Congress
>were to do so in the future, we still have two dilemmas to address: The
>first is whether or not the public should be required to pay the price
>for conservation while those natural resource extractive industries
>profit financially from activities that are killing the species?
>"Then, secondly, once the species and habitat are gone, can we really
>ever buy them back? The Sage Council believes the answer is 'No.'
>Extinction is forever. Therefore, the no surprises assurances to
>logging, mining and land development interests in a complete reversal of
>the goal of the Endangered Species Act.
>"It's a risk not only to the survival of the species, but also to the
>core fabric of the public trust that has been placed in the hands of
>government to protect America's natural heritage," she said.
>Copyright 1998, Environmental News Network, All Rights Reserved
>Related stories:
>* Babbitt, Glickman sign agreements with Plum Creek Timber
>* Landowners, environmental groups oppose ESA bill
>* U.S. endangered species policies questioned
>* USFWS lists wildlife habitat plans
>* Habitat conservation planning streamlined
>Related sites:
>* Spirit of the Sage Council
>* U.S. Fish and Wildlife Service
>* National Marine Fisheries Service
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>Copyright 1998 Environmental News Network, Inc.
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