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Court Upholds Key Endangered Species Act Regulations that Promote Habitat Conservation Planning

By: Robert D. Thornton, Paul S. Weiland

Today the United States District Court for the District of Columbia upheld the No Surprises and Permit Revocation Rules promulgated by the U.S. Fish and Wildlife Service and National Marine Fisheries Service to implement the habitat conservation planning provisions of the Endangered Species Act (ESA).  Spirit of the Sage Council v. Kempthorne, No. 98-1873 (D.D.C. Aug. 30, 2007).  This landmark decision advances the principal purpose of the habitat conservation planning provisions by encouraging public and private landowners to collaborate with regulators to protect species and their habitat.  Nossaman represented numerous private interests and public agencies as intervenor-defendants in the litigation and also played a prominent role in the development of the habitat conservation planning provisions, which were incorporated into the ESA by amendment in 1982.


Both the No Surprises Rule and the Permit Revocation Rule were promulgated to implement section 10 of the ESA.  Under section 10, parties may prepare and seek approval of a habitat conservation plan (HCP) in order to obtain an incidental take permit (ITP), which allows such parties to take species otherwise protected by the ESA provided the take is incidental to otherwise lawful activities.  Section 10(a)(2)(B) includes a set of detailed standards for issuance of ITPs.  The No Surprises Rule provides regulatory assurances to the holder of an ITP that no additional land use restrictions or financial compensation will be required of the permit holder with respect to species covered by the permit, even if unforeseen circumstances arise after the permit is issued.  The Permit Revocation Rule describes circumstances in which a federal wildlife agency may revoke an ITP.


The habitat conservation planning provisions, together with the rules that implement those provisions (including the challenged Rules), have served their intended purpose by encouraging state, regional, and local governments and private parties to develop and implement HCPs.  As the Court indicates, the federal wildlife agencies have issued hundred of ITPs that cover tens of millions of acres of land and hundreds of species protected by the ESA.


Plaintiffs in this matter advanced the argument that, under the ESA in general and the habitat conservation planning provisions of the ESA in particular, ITPs are only valid to the extent that they promote the recovery of listed species.  Plaintiffs alleged that the Rules are invalid because they are contrary to this statutory scheme.  But the Court rejected this argument, which hinged upon plaintiffs’ contention that the federal wildlife agencies must graft an additional standard onto the existing standards of section 10(a)(2)(B) of the ESA that an ITP promotes species recovery.  In the Court’s words, "[t]he more specific provisions of Section 10 … fatally undermine plaintiffs’ arguments."  Slip Op. at 19.


The court went on to hold that the statutory criteria for issuance of an ITP "directly undercut plaintiffs’ arguments that ITPs must promote the recovery of listed species."  Id. at 20.  The Rules that the Court upheld  provide non-federal parties, including local governments and private developers, with clarity regarding the resource commitments they must make during the habitat conservation planning process and the circumstances in which an existing ITP can be revoked by one of the federal wildlife agencies.  By doing so, the Rules implement Congressional intent to encourage creative public-private partnerships to conserve species and their habitats.


Robert Thornton has practiced environmental law for over twenty-eight years.  He represents landowners, resource developers, and public agencies on a variety of environmental matters and is nationally recognized as an expert on the Endangered Species Act and regional habitat conservation plans.  He can be reached at (949) 833-7800 or


Paul Weiland counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or

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