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FEDERAL COURT HEARS THE TICKING OF A BIODIVERSITY TIME BOMB WASHINGTON, DC, May 28, 2007 --/WORLD-WIRE/-- On May 30th, a decade old battle over the fate of our nation’s endangered plants, fish and wildlife will be heard by D.C. Federal District Court, Judge Sullivan. At stake is the future of over 850 various listed species and 135 MILLION habitat acres nationwide subject to guaranteed "Incidental Take Permits" that are issued by U.S. Interior, Fish & Wildlife Service and National Marine Fisheries Service. Since 1984, the Endangered Species Act has had an exemption clause that allows non-federal landowners a process to obtain permits to harass and kill federally listed endangered species. Between 1984 and 1994, less than 30 permits to kill endangered species were issued. However, in 1994, the implementation of the Endangered Species Act was overhauled by former U.S. Interior Secretary Bruce Babbitt who began giving a "No Surprises" assurance to private landowners that their permits to kill endangered species would not be revoked or changed by U.S. Fish & Wildlife Service without the land owner’s permission. A grassroots non-profit group of Native Americans and wildlife conservationists, Spirit of the Sage Council, witnessed the "No Surprises" assurances being given to a multitude of Southern California developers and counties. "It was alarming! Instead of endangered species receiving the guarantee of recovery under the law, it was turned upside down. Developers were calling the shots. Whole counties had teamed with the building industry and conservation had become voluntary instead of required. They were creating maps and plans to allow more than 50% of endangered species habitat to be bulldozed and paved," stated Leeona Klippstein, executive director of the Sage Council. In 1996, Klippstein and the Sage Council challenged U.S. Interior’s "No Surprises" policy. U.S. Interior settled, agreeing to provide public notice in the Federal Register and an opportunity for public comment. In response, over 800 scientists, educators, conservationists and tribes wrote their opposition to giving "No Surprises" guarantees to land owners. Renowned conservation biologists, Dr. Reed Noss, Dr. Michael Soule and ecologist, Dr. Kenneth "Shawn" Smallwood, all agreed that the use of "No Surprises" could push endangered species further towards extinction. "Nature is full of surprises" stated Dr. Smallwood. Regardless of scientist’s concerns over "No Surprises", the Interior Secretary required U.S. Fish & Wildlife Service to continue using the new rule in every Incidental Take Permit and Implementation Agreement given to cities, counties, developers, timber companies, mining companies and water districts throughout the United States. American bald eagles, salmon, bull trout, California gnatcatcher, spotted owl, pygmy owl, red-legged frogs, Mission blue butterflies, Quino checkered spot butterflies, San Bernardino and Stephen’s kangaroo rats, Delhi-sands flower loving fly, Slender horned spine flower, dolphins, fairy shrimp and Red cockaded woodpeckers, along with more than 800 others were given the back seat to industry profiteers. All endangered creatures, great and small, no longer were given a guarantee of recovery under the Endangered Species Act. Spirit of the Sage Council sued the U.S. Department of the Interior a second time. Again, the Sage Council prevailed and Federal District Court, Judge Sullivan, remanded the "No Surprises" rule and the entwined "Permit Revocation Rule" (PRR) back to Interior to make a new rule that considered the scientific needs of the species, rather than just the "desires" of private landowners. During this time, U.S. Fish & Wildlife Service could no longer give "No Surprises" guarantees. Industry groups and others including; Western Urban Water Coalition, the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Irvine Ranch Water District, and the American Forest & Paper Association, continued to intervene in the case and support the federal government. The agencies then reissued the "No Surprises" Rule and also the "Permit Revocation Rule" (PRR). The PRR was issued in an effort to buttress the government’s legal defense of No Surprises -- by "clarifying" that it could at least revoke Incidental Take Permits where they were causing the imminent extinction of a species. However, this approach was clearly inadequate because (1) the revised rule does not allow the Permit to be revoked when long-term recovery is being impaired, (2) revocation is useless when modification is what is necessary, e.g., with regard to an already built housing development, revocation will not save the species, but additional habitat conservation and acquisition may; and (3) even with regard to Incidental Take Permits that must be revoked to avoid immediate extinction, the PRR irrationally says that the Fish and Wildlife Service may revoke the permit, not that it must do so. For over a decade, the public interest law firm of Meyer, Glitzenstein and Crystal has challenged the No Surprises and Permit Revocation rules, on behalf of the Spirit of the Sage Council, which has offices in Pasadena, CA and Carthage, NC. "As is now obvious from the massive ecological changes being wrought by global warming, the No Surprises Rule is perhaps the most misguided policy ever to be adopted in the history of implementation of the Endangered Species Act. The concept that holders of permits to kill, injure, or otherwise harm imperiled species should receive decades long guarantees that their permits will never change -- and that they should receive such guarantees without even helping to ensure the long-term recovery of affected species -- is one that should have long since been relegated to the scrap heap of history. We have been battling for so long in the courts over this issue because so much is at stake -- literally the fate of the hundreds of listed species that depend on private lands for their survival and recovery," stated legal counsel, Eric Glitzenstein. "I see this case and the issue of land owner guarantees as a Biodiversity Time Bomb" said Klippstein. "The Earth is in crisis. There’s a great focus on global warming and climate change right now. If, in ten years, it is clear that a Plan for a particular species is useless because the species' habitat needs have shifted in response to global climate change, No Surprises guarantees ensure that there is nothing that can be done about that; the useless mitigation measures are locked into place for the length of the Permits to kill the species, regardless of what the scientists say based on the best available data. That is not what Congress intended when it passed the Endangered Species Act." CONTACT: Leeona Klippstein Executive Director Spirit of the Sage Council (626) 676-4116 mobile leeona@sagecouncil.com Eric Glitzenstein Meyer, Glitzenstein & Crystal (202) 588-5206 office eric@meyerglitz.com Dr. Shawn Smallwood Ecologist (530) 756-4598 puma@davis.com
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