Incidental Take Permit Revocation Regulations and “No Surprises” Under the Endangered Species Act

Click to increase image sizeClick to decrease image size Notes 1 Unless otherwise specified, "endangered species" and "listed species" are synonymous. That is, hereafter, "endangered species" is used loosely to refer to "endangered species" and "threatened species." 2 The FWS and the NMFS will hereafter be referred to collectively as "the Services." 3 16 U.S.C. § 1538(a)(1)(B) (2000). 4 16 U.S.C. § 1532(18)(2000)(emphasis added). 5 16 U.S.C. § 1532(19). 6 64 Fed. Reg. 60,727 (1999) (to be codified at 50 CFR § 222.102). 7 See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). 8 Note that the FSW is the primary agency reasonable for the ESA. The NMFS only had authority of marine species. See Donald C. Baur and Wm. Robert Irvin, The Endangered Species Act: Law, Policy, and Perspectives xii (2002). 9 16 USC § 1539(a)(1)(B) (2000). 10 Id. 11 Id. 12 63 Fed. Reg. 8859 (February 23, 1998). 13 H.R. Rep. No. 835, 97th Cong., 2d Sess. 29 (1982). 14 See Bruce Babbitt, Address at the National Press Club Luncheon (July 18, 1997) (transcript available from Federal News Service and Lexis.com). 15 Note that while the Congressional Research Service's "IB10072: Endangered Species: Difficult Choices" (2001) indicates that 492 incidental take permits had been granted by August 2001, according to the text of Spirit of Sage Council vs. Norton only 379 incidental take permits had been granted as of April 17, 2002. 16 A.R. Vol. 1, Docs. 1 and 2. 17 Id. 18 63 Fed. Reg. 8860 (February 23, 1998) (codified at 50 CFR 17.22(b)(5) and 50 CFR 17.32(b)(5) and 50 CFR 222.307(g). 19 Bruce Babbitt, Address at the National Press Club Luncheon (July 18, 1997) (transcript available from Federal News Service and Lexis.com). 20 61 Fed. Reg. 63856 (December 2, 1996). Also note that while "no surprises" was not finalized until 1996, habitat conservation plans included "no surprises" assurances starting in 1994 when the Services adopted the policy. 21 Id. 22 Spirit of the Sage Council v. Babbitt, Civil Action No. 1:96CV02503 (DDC) as cited in 63 Fed. Reg. 8860 (February 23, 1998). 23 63 Fed. Reg. 8860 (February 23, 1998) (codified at 50 CFR 17.22(b)(5) and 50 CFR 17.32(b)(5) and 50 CFR 222.307(g). 24 Id. 25 Spirit of the Sage Council v. Babbitt, 2001 U.S. Dist. LEXIS 25541, Civ. A. No. 98-1873 (February 15, 2001). Referred to hereafter as Spirit of Sage Council vs. Babbitt II. 26 Id. 27 Hereafter, this particular rule will be referred to as the 1999 permit revocation rule. Note that this was a FWS's rule. NMFS did not participate in this rulemaking, or any subsequent versions of the permit revocation rule. NMFS only participated in the promulgation of "no surprises." 28 64 Fed. Reg. 32711 (June 17, 1999) (codified at 50 CFR 17.22(b)(8) and 50 CFR 17.32(b)(8). 29 Id. 30 Spirit of the Sage Council v. Norton, 294 F.Supp.2d 67 (D.D.C. 2003). 31 Id. at 85. 32 69 Fed. Reg. 29683 (May 25, 1994). 33 69 Fed. Reg. 71723 (December 10, 2004) 34 16 USC § 1539(a)(1)(B) (2000). 35 63 Fed. Reg. 8860 (February 23, 1998) (codified at 50 CFR 17.22(b)(5) and 50 CFR 17.32(b)(5) and 50 CFR 222.307(g). 36 69 Fed. Reg. 71723 (December 10, 2004). 37 Bruce Babbitt, Address at the National Press Club Luncheon (July 18, 1997) (transcript available from Federal News Service and Lexis.com). 38 U.S. Fish and Wildlife Service, Report to Congress on the Recovery Program for Threatened and Endangered Species 5 (1999). 39 See, e.g., Nathan Baker, Water, Water, Everywhere and at Last a Drop for Salmon? NRDC v. Houston Heralds New Prospects under Section 7 of the Endangered Species Act, 29 ENVLT. L. 607, 613 (1999). 40 Fish and Wildlife Service, Habitat Conservation Plans 2, available at http://endangered.fws.gov/ esb/99/11-12/12-13.pdf. 41 See Lucas v. South Carolina Coastal Commission, 505 US 1003 (1992). 42 53 Fed. Cl. 570 (2002). 43 Section 9 of the ESA prohibits the "take of any [endangered or threatened] species." Section 3 of the ESA explains that "the term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 44 515 U.S. 687 (1995). 45 Michael Bean, Endangered Species: Endangered Act?, Environment, January 1999, at [page # needed]. 47 U.S. Fish and Wildlife Service, Threatened and Endangered Species System (Sept. 1, 2003), available at http://ecos.fws.gov/tess_public/html/boxscore.html. As of Sept. 1, 2003, there are 1,263 U.S. species listed and 1,853 total species listed. 46 U.S. Fish and Wildlife Service, Number of U.S. Species Listings Per Calendar Year (March 10, 2003), available at http://endangered.fws.gov/stats/List_cy2001.PDF. 48 U.S. Fish and Wildlife Service, Recovery Report to Congress: Fiscal Years 1997–98 and 1999–2000, at http://endangered.fws.gov/recovery/reports_to_congress/97-2000/. 49 See U.S. Fish and Wildlife Service, Threatened and Endangered Species System: Delisted Species Report 11/4/2003, http://ecos.fws.gov/tess_public/TESSWebpageDelisted?listings=0. The listed species that have gone extinct are the Longjaw cisco (Coregonus alpenae), Amistad gambusia (Gambusia amistadensis), Sampson's Pearlymussel (Epioblasma sampsoni), Blue Pike (Stizostedion vitreum glaucum), Tecopa Pupfish (Cyprinodon nevadensis calidae), the Dusky Seaside Sparrow (Ammodramus maritimus nigrescens), and the Santa Barbara Song Sparrow (Melospiza melodia graminea). 50 See U.S. Fish and Wildlife Service, Threatened and Endangered Species System: Delisted Species Report 11/4/2003, http://ecos.fws.gov/tess_public/TESSWebpageDelisted?listings=0. The species that should not have been listed in the first place include the Indian flap-shelled turtle (erroneous data); the spineless hedgehog cactus (not a listable entity); Truckee barberry, Mexican duck, purple-spined hedgehog cactus, Lloyd's hedgehog cactus, cuneate bidens, Coastal Cutthroat trout, and the Gray wolf (all delisted because of taxonomic revisions); and the Pine Barrens Treefrog, McKittrick Pennyroyal, Tumamoc Globeberry, Dismal Swamp Southeastern Shrew (all delisted because new information was discovered). Id. 51 Id. 52 See Endangered and Threatened Wildlife and Plants; Removal of Three Kangaroos from the List of Endangered and Threatened Wildlife, 60 Fed. Reg. 12,877, 12,878 (Mar. 9, 1995). 53 Gordon, Robert E, James K. Lacy, and James R. Streeter. 1997. "Conservation Under the Endangered Species Act," Environment International, Vol 23, #3, pp. 359-419. 54 Id. 55 Id. 56 Id. 57 See Fish and Wildlife Service, Final Delising, Recovered–Aleutian Canada Goose, 66 Fed. Reg. 15,643 (Mar. 20, 2001). 58 In 1982, there were only 22 California Condors left in the wild. U.S. Fish and Wildlife Service, Wind in Their Wings: The Condor Recovery Program, available at http://endangered.fws.gov/esb/2000/05-06/08-09.pdf (last visited Mar. 11, 2003). Today there are 78 California Condors in the wild. The Peregrine Fund, California Condor Fact Sheet: March 1, 2003, available at http://www.peregrinefund.org/ condor_factsheet.html#Current%20Condor%20Numbers (last visited Mar. 11, 2003). 59 By the 1930s, all populations of the gray wolf had been extirpated from the western United States. U.S. 60 In 1942, only 16 whooping cranes remained of the migratory population. Nebraska Game and Parks Commission, Whooping Cranes (available at http://www.ngpc.state.ne.us/wildlife/whopcran.html) (last visited Mar. 11, 2003). Today, there are over 180 whooping cranes left in the wild. Texas Parks and Wildlife, Whooping Crane (available at http://www.tpwd.state.tx.us/nature/endang/birds/whooper.htm) (last visited Mar. 11, 2003). See also U.S. Fish and Wildlife Service, Whooping Crane (available at http://endangered.fws.gov/i/B0F.html) (last visited Mar. 11, 2003). 61 In the 1960s there were no peregrine falcons left east of the Mississippi. The Peregrine Fund, Peregrine Falcon Recovery (available at http://www.peregrinefund.org/conserv_peregrine.html) (last visited Mar. 11, 2003). Through the efforts of research and captive release programs pioneered by the Peregrine Fund, the peregrine falcon was delisted in 1999. Id.; see also Final Rule to Remove the American Peregrine Falcon from the Federal List of Endangered and threatened Wildlife, 64 Fed. Reg. 46,542 (Aug. 25, 1999). 62 U.S. Fish and Wildlife Service, Report to Congress on the Recovery Program for Threatened and Endangered Species 5 (1999). 63 Michael Bean, Endangered Species: Endangered Act?, Environment, January 1999, at 18. 64 Brian Seasholes, "Anecdotes on Perverse Incentives under the Endangered Species Act," Competitive Enterprise Institute, Washington, D.C. 1997. 65 Id. 66 Id. 67 National Association of Home Builders, Developer's Guide to Endangered Species Regulation 109 (1996). 68 D. S. Wilcove, M. J. Bean, R. Bonnie, M. and McMillan. "Rebuilding the Ark: Toward a More Effective Endangered Species Act for Private Land." December 5, 1996. Retrieved 17 January 2005 from the World Wide Web: http://www.environmentaldefense.org/documents/483_Rebuilding% 20the%20Ark.htm. 69 Dean Lueck & Jeffrey Michael. Preemptive Habitat Destruction under the Endangered Species Act. Journal of Law & Economics 46 (2003):27-60. 70 Charles C. Mann & Mark L. Plummer, Noah's Choice: The Future of Endangered Species 187 (1995). 71 Id. 72 Lueck & Michael, Supra note 70 at 37. 73 U.S. Fish and Wildlife Service, Woodpecker, red-cockaded, at http://ecos.fws.gov/servlet/ SpeciesProfile?spcode = B04F (last visited Mar. 11, 2003). 74 Lueck & Michael, Supra note 70 at 31-32. 75 Id. at 32. 76 Id. at 51-52. 77 Id. at 42, 50. 78 Id. at 52. 79 Id. at 54. 80 Id. at 51. 81 Id. 82 Aldo Leopold was a renowned conservationist and environmental ethicist. See his "Conservation Economics" in The River of Mother God: And Other Essays by Aldo Leopold, Susan L. Flader, and J. Baird Callicott.

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