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Spirit of the Sage Council v. Kempthorne

ELR Citation: 37 ELR 20235
Nos. No. 98-1873, (D.D.C., 08/30/2007) Opinion following remand to agency

A district court upheld the No Surprises Rule and the Permit Revocation Rule, promulgated by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration under the Endangered Species Act (ESA). Both rules concern incidental take permits (ITPs) made available to landowners and developers who agree to mitigate impacts to listed species through a habitat conservation plan (HCP). The Permit Revocation Rule significantly narrows the circumstances under which the agencies may revoke ITPs. So long as "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," the permittee commits no procedural violations, and the law does not change, the rule precludes the agencies from revoking an ITP. Native American and environmental organizations argued that the Permit Revocation Rule is contrary to the ESA under Chevron because the ESA as a whole and §10 in particular require measures that ensure the survival and recovery of listed species. They also argued that the rule contradicts the ESA's general purpose of protecting the recovery of listed species. Yet the statutory criteria for HCPs under ESA §10 directly undercut their arguments that ITPs must promote the recovery of listed species. To the contrary, applicants are only required to minimize and mitigate the impact on species "to the maximum extent possible." Further, the statutory text of ESA §10 demonstrates congressional intent to allow the agencies to grant incidental take permits even if they do not protect the recovery of listed species. ITPs may be granted if the likelihood of recovery, but not survival, is appreciably reduced. Nor is the No Surprises Rule contrary to the ESA. The groups argued that the No Surprises Rule makes more permanent conditions in an ITP that may not promote or maintain the recovery of listed species. But as discussed above, the ESA does not require such permits to promote or maintain the recovery of species. The court also held that the rules are not arbitrary or capricious under the Administrative Procedure Act.

[Prior decisions in this litigation can be found at 34 ELR 20008 and 35 ELR 20110.]