Deals with feds offer only limited legal protection
By Mateusz Perkowski
Landowners across the West have made deals with the federal government to shield themselves from legal liability if endangered or threatened species occupy their private property.
These agreements offer protection from federal regulators, but they’re still open to legal assaults from environmental groups who worry that safeguards for species aren’t strong enough, experts say.
“Nothing is going to insulate you from a lawsuit,” said Robert Thornton, a California attorney who advises landowners on such agreements.
Deals between landowners and the U.S. Fish and Wildlife Service, which enforces the Endangered Species Act, come in several flavors:
• Habitat Conservation Plans permit landowners to “take” protected species, usually by damaging their habitat, as long as they undertake certain conservation measures.
• Safe Harbor Agreements allow landowners to enhance habitat without the government imposing additional restrictions if the activities attract species to the property.
• Candidate Conservation Agreements with Assurances let landowners voluntarily adopt conservation practices to help species that are candidates for listing as threatened or endangered. In return, they won’t be subject to additional regulatory burdens if the species gets listed.
• 4(d) Special Rules allow the federal government to ease restrictions on properties occupied by threatened — but not endangered — species, as long as activities on the land don’t impede the animal’s recovery.
So-called “no surprises” language in some agreements is particularly alarming for environmentalists, as it blocks the government from imposing new requirements for landowners.
Agreements should have mechanisms to ensure species are still protected in an “ever-changing world” prone to disasters, like wildfires, said Kristen Boyles, attorney for the Earthjustice environmental law firm.
“It’s a bad idea to have a system where you can’t respond to changes everybody is concerned about,” Boyles said.
Courts have approved the “no surprises” policy itself, but lawsuits over the provision in Habitat Conservation Plans in the 1990s reduced landowners’ enthusiasm for such deals, said Scott Horngren, an attorney for the American Forest Resource Council, which represents timber companies.
Many timber companies instead prefer to avoid “taking” species like the northern spotted owl by avoiding harvest in certain areas where the bird resides, Horngren said.
This approach may not necessarily prevent enforcement by federal authorities or lawsuits by environmentalists who believe the landowner isn’t going far enough, he said.
Even so, it’s less expensive and time-consuming than developing a Habitat Conservation Plan that can survive legal scrutiny, he said.
“Unless you’re a major landowner, it’s prohibitively expensive to get through the process,” Horngren said.
Currently, environmentalists are suing federal regulators for approving a Habitat Conservation Plan with the Fruit Growers Supply Co., which owns more than 150,000 acres in Siskiyou County, Calif., occupied by threatened northern spotted owls and coho salmon.
They’re also challenging 4(d) rules approved for properties in parts of Colorado, Kansas, Kansas, New Mexico and Texas inhabited by the lesser prairie chicken, a threatened species.
Such lawsuits have a mixed record of success and experts say each agreement will rise or fall according to its own virtues or flaws.
“You’ve really got to look case-by-case and critter-by-critter,” said Boyles of Earthjustice.
Within the jurisdiction of the 9th U.S. Circuit Court of Appeals, which covers much of the West, there generally isn’t a lot of case law regarding the adequacy of Habitat Conservation Plans, said Horngren.
Past rulings have cut both ways.
The 9th Circuit has upheld a plans developed by the Simpson Timber to protect the northern spotted owl and by a California air park to protect threatened snake and hawk species.
However, the court also found that the government’s approval of a plan that would govern urban development in California’s Natomas Valley — while protecting the same snake and hawk species — was “arbitrary and capricious.”
“It depends on the plan,” said Boyles. “If you have an HCP that isn’t very protective but provides immunity, I can see why that would be a concern.”
If the federal government does impose additional restrictions on a property despite an agreement, the matter of recourse for landowners is untested, said Thornton.
“We don’t have a lot of law, frankly, on the enforceability of these agreements,” he said.
The fact there’s not a multitude of legal precedents involving such agreements can be seen as a positive — it shows that such deals haven’t prompted as much litigation as expected, Thornton said.
As legal questions over such agreements arise, however, they will be resolved through courtroom battles, he said. “Inevitably, there will be litigation and we will get more decisions.”