U.S. District Court Rules Against ESA

Leeona Klippstein, Spirit of the Sage Council (910) 947-5091, (626) 676-4116
Jon Lovvorn, Humane Society of U.S. (202) 955-3669

D.C. District Court Rules Against Endangered Species Recovery

Conservation Plans Nationwide Allow Permits To
Kill & Destruction of Millions of Acres

On Thursday afternoon, Judge Emmett Sullivan,
D.C. District Court, released his Decision and
Order regarding the most controversial legal
challenges to the federal Endangered Species Act
(Spirit of the Sage Council, et al. v. U.S.
Interior Secretary Kempthorne).

For over decade, several nonprofit conservation
groups, led by Spirit of the Sage Council have
filed numerous lawsuits against the U.S.
Secretary of the Interior, Fish and Wildlife
Service and National Marine Fisheries Service
over Rule Makings that effect hundreds of various
endangered species. The two federal Rules are
referred to as No Surprises and Permit
Revocation. Each Rule are vital aspects in how
federal government agencies implement the
Endangered Species Act.

The Sage Council, including the Humane Society of
the U.S., contended that the No Surprises Rule
was in violation of the Act and prevented the
recovery of endangered species that the Services
were issuing Incidental Take Permits for. No
Surprises gives an assurance to nonfederal
landowners that once a permit is issued to them,
the federal government will not ever require them
to provide additional conservation habitat or
measures. Sage Council contended that this sort
of permit guarantee could effect a species
ability to recover if it was found that a Habitat
Conservation Plan was inadequate to where species
were declining in numbers. Since 1994, the U.S.
Fish and Wildlife Service has approved over 500
Habitat Conservation Plans (HCPs) with Incidental
Take Permits, including No Surprises guarantees,

“While the American public has been sleeping and
lulled by the idea that the Endangered Species
Act protects our nation’s plants and wildlife,
the reality is that a biodiversity time-bomb has
exploded.” Said Leeona Klippstein, Executive
Director of the Sage Council. “Yes, a tree does
fall in the forest when you can’t hear it! In
this case, hundreds of various rare and
endangered species are being killed and millions
of habitat acres gone through so-called Habitat
Conservation Plans that are created for the sole
purpose of allowing development, timber, mining
industries to continue on and profit. It’s the
loophole exemption in the law that acts as a
noose on biodiversity.”í®

Interveners of the lawsuit, supporting the U.S.
Fish and Wildlife and National Marine Fisheries
use of No Surprises in Incidental Take Permits,
included numerous building and timber industry
interests. Defendant’s contended that Section 10
of the Act, Habitat Conservation Plans and
Incidental Take Permits only had to meet survival
standards, otherwise referred to jeopardy.í®

Ruling in favor of the defendant government
agencies, Judge Sullivan’s decision presumed,
“that the Services will faithfully execute their
duties” when they determine whether the
conditions of the Incidental Take Permits are not
likely to jeopardize the continued existence of
any listed species. Judge Sullivan’s decision
runs counter to other recent court decisions of
other districts.

“If Incidental Take Permits are to be permitted
to undercut the recovery of endangered species,
then it is vitally important that Congress
revisit this provision of the Act — the whole
idea beyond this amendment to the statute was to
allow the rare taking of an already extremely
imperiled species, in exchange for a guarantee
that the taker would do something to protect the
species as a whole – a meaning that has been
completely forsaken by the FWS and the district
opinion” stated Katherine Meyer of the D.C.
public interest law office, Meyer, Glitzenstein &

In California (Southwest Center for Biological
Diversity v. Bartel, 2006 )and Alabama (Sierra
Club v. Babbitt, 1998), District Courts upheld
that a Habitat Conservation Plans and Incidental
Take Permits have to provide for species recovery
as defined by the word “conservation.” Judge
Sullivan reasoned that the other district courts
had made their decisions without “closely
scrutinizing” the text of Section 10 of the
Endangered Species Act. Judge Sullivan stated,
“Thus, while applicants must submit a
“conservation” plan, the statutory text makes
clear that the ITPs [permits to kill] can be
granted even if doing so threatens recovery of a
listed species. To the extent that there is a
conflict between the general definition of
“conservation” and the specific criteria in [the
law], the “specific statutory language should
control more general language when there is a
conflict between the two.” (quoting Nat’l Cable &
Telecomm. Ass’n, Inc. v. Gulf Power Co., 2002).

Whether the Sage Council will appeal the D.C.
District Court decision or not is presently being
considered. “This is, undoubtedly, the biggest
and most important endangered species case in
history. The recovery of endangered species is
vital to life on Earth. The loss and paving over
of more than 39 million acres of habitat and
vegetation is detrimental to not only the
species, but to the Earth’s climate. I can only
pray that all those millions of people that went
to Live Earth concerts on Global Warming will
throw their support behind the Sage Council to
continue our fight for endangered species and the
Earth. We will be discussing an appeal with our
legal counsel at Meyer, Glitzenstein & Crystal.
My feeling is that we could win at the Court of
Appeals.” stated Klippstein.


“The Bush administration has tried to keep a lid on its growing
endangered species scandal by scapegoating Julie MacDonald,” said
Suckling, “but the corruption goes much deeper than one disgraced
bureaucrat. It reaches into the White House itself through the Office
of Management and Budget.”

Environmental news service
August 30, 2007

Enviros Threaten Legal Action on Behalf of 55 Endangered Species

TUCSON, Arizona — The Center for Biological Diversity today filed a
formal notice of intent to sue the Department of the Interior for
political interference with 55 endangered species in 28 states. The
notice initiates the largest substantive legal action in the 34 year
history of the Endangered Species Act.

At stake in the suit is the illegal removal of one animal from the
endangered species list, the refusal to place three animals on the
list, proposals to remove or downgrade protection for seven animals,
and the stripping of protection from 8.7 million acres of critical
habitat for a long list of species from Washington State to Minnesota
and Texas.

“This is the biggest legal challenge against political interference
in the history of the Endangered Species Act,” said Kieran Suckling,
policy director of the Center for Biological Diversity.

“It puts the Bush administration on trial at every level for
systematically squelching government scientists and installing a
cadre of political hatchet men in positions of power,” he said.

Many of the decisions at issue were engineered by Julie MacDonald,
the former deputy assistant secretary of the interior who resigned in
disgrace following a scathing investigation by the inspector general
of misconduct at the Department of the Interior.

Other decisions challenged in this lawsuit were ordered by
MacDonald’s boss, Assistant Secretary of the Interior Craig Manson,
his special assistant Randal Bowman, and Ruth Solomon in the White
House Office of Management and Budget. Some decisions were ordered by
lower-level bureaucrats, the group claims.

“The Bush administration has tried to keep a lid on its growing
endangered species scandal by scapegoating Julie MacDonald,” said
Suckling, “but the corruption goes much deeper than one disgraced
bureaucrat. It reaches into the White House itself through the Office
of Management and Budget.”

“By attacking the problem systematically through this national
lawsuit, we will expose just how thoroughly the distain for science
and for wildlife pervades the Bush administration’s endangered
species program,” he said.

In many of the cases, government and university scientists documented
the editing of scientific documents, overruling of scientific
experts, and falsification of economic analyses.

Among the 55 species in the legal filing are the marbled murrelet, a
seabird that nests on land in California, Oregon and Washington; the
Florida manatee found in waters from South Carolina to Texas; the
Arctic grayling, a fish found in Montana waters; and the West
Virginia northern flying squirrel.

Some of the other species on the legal filing are the California
least tern; the California red-legged frog and the arroyo toad that
also inhabits California; the Mexican garter snake found in Arizona;
the brown pelican found in Louisiana, Texas, Puerto Rico and the U.S.
Virgin Islands; the piping plover, a bird found from North Carolina
to Texas; and the Preble’s jumping meadow mouse that still survives
in Colorado and Wyoming.

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