No Backdoor Deal: Conservationists win settlement on Endangered Species Act

Publisher: San Francisco Bay Guardian
Reporter: Savannah Blackwell

ENVIRONMENTALISTS recently marked a small victory in their fight to stop the Clinton administration's back-dooring the Endangered Species Act by compromising with commercial interests.

More than seven groups settled their lawsuit against the U.S. Department of the Interior March 18 over its "no surprises" policy -- a concession to landowners who wanted to develop private property inhabited by endangered species. The fight to save the habitats of endangered species has local roots; David Schooley of San Bruno Mountain Watch, one of the plaintiffs, has worked for nearly 30 years to preserve habitats on San Bruno Mountain.

The environmentalists oppose habitat conservation plans, or HCPs, which allow developers to kill endangered species and destroy their habitats so long as they attempt to either re-create or preserve similar habitats elsewhere (see "The Sack of San Bruno," 12/11/96). HCPs have been part of the Environmental Protection Act since 1982; the nation's first HCP was crafted to allow development of San Bruno Mountain. The "no surprises" policy guarantees landowners freedom from government demands for additional protection measures once an HCP is signed. The suit sprang from this policy, which encourages landowners to sign onto HCPs.

Oddly enough, the Clinton administration has outdone its conservative predecessors in its efforts to suck up to developers through HCPs. The Bush and Reagan administrations created only 14 HCPs, while more than 200 HCPs have been completed and 300 are in the works under Clinton's leadership. More than 30 HCPs have been approved and 50 more are pending in California alone.

Though HCPs were intended to be an exception, they are fast becoming the rule, and they're now covering larger land areas. At the same time, acreage set aside for protection of species is shrinking dramatically. Much of southern California is now covered by state versions of habitat conservation plans. For example, a San Diego HCP includes more than 500,000 acres and covers 85 species. Under the plan, 98 percent of habitat used by endangered species can be developed, according to Leeona Klippstein, a co-plaintiff in the "no surprises" suit.

The historic settlement calls for a 60-day review period, during which the Department of the Interior will take comments from the public on the policy. The department recently started accepting letters; the official comment period runs from May 19 to July 19. According to the settlement's terms, federal officials obligated to consider rescinding the "no surprises" policy.

"It's the best thing we can do right now," Schooley told the Bay Guardian. "We're hoping for a big response from conservationists all over America."

The "no surprises" policy was enacted without public comment in 1994 by Bruce Babbitt, secretary of the Department of the Interior. In effect, "no surprises" says some cooperation from landowners is better than none; once a property owner secures the right to develop land critical to an endangered species under an HCP, no additional requirements or demands may be made of the owner, even if it is later established that the species needs additional measures for protection, such as more land for breeding. Recent HCPs promise landowners this guarantee for as long as 100 years.

Zygmunt Plater, the environmental lawyer who was the first ever to litigate under the Endangered Species Act, calls the "no surprises" policy "ludicrous." According to Kim Walley, a Washington, D.C., lawyer who handled the lawsuit, the policy violates the intention of the Endangered Species Act by severely limiting what measures the government can take to protect endangered species.

"This is a way of quieting down the landowners and 'wise-use'rs [property rights supporters] by giving them what they want in a more discreet way. It's totally outrageous," Tara Mueller, a staff lawyer at the Environmental Law Foundation, told the Bay Guardian.

Federal authorities say HCPs and the "no surprises" policy are more realpolitik than craven submission. "We think this is as much as you can ask for from private landowners without the public ponying up and being party to it," Peter Hamm, spokesperson for the Department of the Interior, told the Bay Guardian. "We think it's a fair trade-off."

Many conservationists and scientists disagree. The Endangered Species Act was designed to help species facing extinction increase in number.

"We [taxpayers] get milked twice, because we lose part of our natural heritage and we've got to pay for it," Brian Vincent, conservation director of the Northwest Ecosystem Alliance, told the Bay Guardian.

In a joint letter last July to congressmembers working on new versions of the Endangered Species Act, more than 160 scientists wrote that "no surprises" was a scientifically unsound approach to conservation.

" 'No surprises' flies in the face of scientifically based ecological knowledge, and in fact, rejects knowledge," wrote Gary Meffe, senior ecologist at the Savannah River Ecology Lab and professor at the University of Georgia.

When White House officials asked for comments from leading conservation and biology scientists earlier this spring, nine scientists wrote, " 'No surprises' ... runs counter to the natural world, which is full of surprises."

The litigants are hoping the suit will open the door to challenges to the use of HCPs. Meyer & Glitzenstein, the Washington, D.C., firm that handled the "no surprises" suit, is now suing the federal government over an HCP in Alabama.

The San Bruno HCP has proved to be a dismal failure. In the 15 years since its creation no new habitat has been established. The butterflies have not taken to their resettled environment, and the number of butterflies is dwindling. Non-native plants that threaten flora on which native species depend are taking over large sections of protected habitat (see "The Sack of San Bruno," 12/11/96).

Even so, the Clinton latched onto HCPs as convenient tools to appease private-property interests and added "no surprises" as a further concession. According to Hamm, "Maximizing the flexibility of the ESA" is necessary to prevent losing the Endangered Species Act in its entirety, or as he said, so "the dark side doesn't win in the final analysis."

But those who do not want to see the Endangered Species Act defanged say the Clinton administration should stand up to private-property interests rather than caving in to their demands.

If the administration continues the policy even after many scientists and concerned citizens say it is unsound, the public's comments will constitute grounds for further lawsuits, Walley told the Bay Guardian.

"This gives us ammunition," she said. "It gives us another angle to pressure them to get rid of it."

To participate in the public-comment period, before July 19 write Bruce Babbitt urging him to discontinue the "no surprises" policy.

Bruce Babbitt, Secretary
U.S. Department of the Interior
1849 C Street NW
Washington, D.C. 20240

To assist in the fight against HCPs, call San Bruno Mountain Watch at (415) 467-6631.