Judge Rejects ‘No Surprises’ Habitat Conservation Plan

A federal judge struck down a key provision of the Endangered Species Act, ruling that an incentive for landowners to participate in conservation planning was adopted without adequate public consultation and must be reconsidered.

Emmet Sullivan, U.S. District judge for the District of Columbia, struck down the “no surprises” rule that helped secure protection of nearly 40 million acres of wildlife habitat around the country under agreements known as habitat conservation plans.

The “no surprises” rule essentially offered a warranty to property owners who took part in the conservation plans, guaranteeing that once they commit to a plan, no new findings would affect their ability to build.

But many environmentalists objected to the rule because they felt it offered developers who sign onto the plans carte blanche to destroy habitat elsewhere.

Representatives of Spirit of the Sage Council, one of the groups that sued, were thrilled by the ruling.

“It vindicates what the plaintiffs have said for many years, that there was fundamental deprivation of the public’s right to have input into very controversial decisions,” said Eric Glitzenstein, attorney for the Pasadena-based group.

Builders and officials involved in habitat conservation plans said they would prefer to have the no surprises rule remain in place.

“It puts a cloud of uncertainty over the whole thing,” said David Smith, legal counsel for the Building Industry Assn. of Southern California. Smith said the association is considering an appeal.

Builders and others were thankful that Sullivan left the rule in place while the wildlife agencies figure out their next move.

Sullivan did invalidate a 1999 rule, called the “permit revocation” provision, which states the service can revoke a permit allowing the destruction of endangered species or their habitat if the species is in danger of extinction. By invalidating this provision, the law reverts to an older standard that allowed a permit to be revoked if a species’ recovery was jeopardized.

In the 47-page decision released Thursday, Sullivan found that the public was illegally shut out of the process that led to the adoption of no surprises.

“The history of the two regulatory provisions challenged in this action has indeed been full of surprises. The public has consistently been denied the opportunity, absent a court order, to be notified of substantive changes to regulations enforcing the [Endangered Species Act], and to weigh in on decisions likely to have significant effects on public resources,” Sullivan wrote.

Federal wildlife officials, who stood behind the rule’s intent, said they were trying to figure out their next move.

National Marine Fisheries Service officials noted that the judicial ruling was based on procedural errors, not a flaw in the rule itself.

The agency “is evaluating whether to appeal the ruling or proceed by proposing the no surprises rule again,” said Susan Buchanan, an agency spokeswoman in Washington, D.C.

A spokesman for the U.S. Fish and Wildlife Service said agency attorneys were reviewing the decision and would issue a response Monday afternoon.

Service officials noted that the no surprises rule was crucial to their ability to craft habitat conservation plans -- compromises that balance landowners’ rights to build on their property with the preservation of species on the brink of extinction.

The no surprises rule, which went into effect in 1994, gives landowners assurances that after they commit to a plan, if unforeseeable events occur, such as a species becoming endangered or needing additional habitat, they will not be required to set aside additional land, water or money.

Across the nation, there are 407 finalized habitat conservation plans, covering roughly 38 million acres and more than 500 species.

Instead of dealing with imperiled species on a project-by-project basis, proponents say these plans protect large contiguous landscapes, while allowing development to occur on less valuable lands.

Several conservation areas have been established in Southern California, and many more are proposed.

“We’re strongly supportive of no surprises,” said Jim Bartel, field supervisor for the Fish and Wildlife Service’s Carlsbad office. “We believe it’s the right thing to do and that regional conservation planning is the right thing to do as well. No surprises is a key component to encouraging that kind of effort.”

While pleased by the ruling, some environmentalists worried that the Bush administration would use the opening to roll back habitat protection.

“The Bush administration has redefined the idea of the fox guarding the henhouse, which is the only way you can possibly describe the way they have treated the environment over the last two years,” said Andrew Wetzler, an attorney with the Natural Resources Defense Council’s Los Angeles office. “I’m skeptical any time the Bush administration has the opportunity to rewrite major environmental regulations, because it will almost inevitably favor a special interest that brought them to power, namely the building industry.... Unfortunately, this may be another opportunity for them to do that.”

However, Glitzenstein, attorney for the Spirit of the Sage Council, said that those concerns were unfounded.

“We have always taken the position that if government really did respond to the views of the overwhelming majority of the public and independent scientific community, they would have no choice but to adopt a much more protective approach.”