ESA ruling: More sound than fury

 

Lawyers, get ready: People can use the Endangered Species Act to sue the federal government for protecting species too much, not just too little, ruled the U.S. Supreme Court March 19. Now, ranchers, farmers and developers may be encouraged to do what environmentalists have been doing for two decades - demand their day in court.

The case that went to the nation's highest court began during a 1992 drought. The federal government reduced water flows from two Oregon reservoirs to boost stream levels for two endangered fish species; Oregon ranchers sued the federal government for not considering their losses. Two years ago, an appeals court ruled that the ranchers had no legal right to sue as citizens under the Endangered Species Act because they were not defending a species. The Supreme Court unanimously reversed this decision.

At first glance, this hardly seems revolutionary. "In the history of the act, industry groups have been given access," says John Kostyak of the National Wildlife Federation. "The decision that denied this group access is a quirky one."

But receiving legal standing from the Supreme Court is key, says Perry Pendley of the Denver-based Mountain States Legal Foundation. "Look how tough it is for private litigants - non-environmentalists - to get into court and raise a fundamental question: Did the agency do the right thing?"

Not surprisingly, private-property advocates like Pendley are elated, yet many environmentalists have responded almost as positively. "It means something very simple and true that all environmentalists will agree with - all Americans have access to the courts," says Bill Snape of Defenders of Wildlife.

This populist sentiment has pragmatic roots. Environmentalists hope that the decision will simplify their struggle to get more lawsuits. "The wording of the Supreme Court decision is so strong, so wide, it really opens up environmental doors to sue on other statutes," says Snape. "This is almost a revolution."

Legal standing isn't always such a muddle. If a pedestrian is flattened by a speeding car, the victim clearly has the right to sue the speedster. But since the early '70s, when citizens began suing the federal government to enforce environmental statutes, the courts have had to decide who is an injured party and eligible to sue. Over the past 20 years, the courts have ruled that people who can prove they were injured by underprotection of the Endangered Species Act - those whose aesthetic views or recreating opportunities were harmed - may file citizen suits.

Proving injury, however, remains difficult. In two recent cases, the Supreme Court told environmentalists that they lacked standing. Now, by granting standing to people injured by overprotection of the act, the court is widening its definition of injury, perhaps aiding environmentalists.

Some environmentalists find it ironic that their access to court may have been expanded by corporate interests. "The same groups that are really celebrating the decision have spent millions of dollars in Congress to limit the environmentalists' day in court," says Heather Weiner of the Sierra Club Legal Defense Fund. She cites the salvage logging rider, which barred environmentalists from suing, as an example.

Pendley says that the decision will not boost the number of lawsuits. Weiner predicts it will have a "catalytic effect," spurring a slew of lawsuits from private property groups. If it does, Keiran Suckling of the Southwest Center for Biological Diversity is not worried. He says he would be happily surprised if anyone could prove that the government protected species too much.

"If they can prove economic harm, that only gets them in the door. Then they have to prove bad science," he says. "Environmentalists have been extremely successful proving in court that the Fish and Wildlife Service does everything possible to minimize protection."

Heather Abel is a researcher and reporter for HCN.

High Country News Classifieds
  • LAND CONSERVATION MANAGER
    SUMMARY Leads, administers and manages the land conservation, conservation easement stewardship, and property management activities of the City of Fort Collins Natural Areas Department within...
  • CLEAN ENERGY PROGRAM ATTORNEY, NEVADA
    Position Summary: Western Resource Advocates (WRA) is seeking a Staff Attorney who is passionate about Western communities and the protection of the natural environment to...
  • EXECUTIVE DIRECTOR
    Deschutes River Conservancy in Bend, Oregon
  • WATER POLICY ANALYST WITH WRA (BOULDER)
    Position Summary: Western Resource Advocates seeks a passionate Water Policy Analyst with knowledge of western water issues to join our Healthy Rivers Team to strengthen...
  • GILA NATIONAL FOREST
    9+ acre inholding. Passive solar strawbale off the grid and next to the Continental Divide Trail in ponderosa pine/doug fir forest at 7400.
  • HIRING BEARS EARS EDUCATION CENTER DIRECTOR
    Conservation nonprofit Friends of Cedar Mesa in Bluff, Utah is hiring an Education Center Director to oversee the operation of the Bears Ears Education Center....
  • PROGRAM MANAGER, SUSTAINING FLOWS
    Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • PROGRAM ASSOCIATE - VERDE RIVER EXCHANGE
    Verde River Exchange - Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • CODE COMPLIANCE OFFICER
    Teton County Planning & Building is hiring! Our ideal candidate is a team-player, a problem-solver, pays attention to detail, and can clearly communicate technical material...
  • ARCHITECTURE DRAFTSPERSON/PROJECT MANAGER
    Studio Architects is seeking a full time Architectural drafts-person/project manager with1-3 years of experience to join our firm. At Studio Architects our mission is to...
  • ASSISTANT MANAGER/TRAINEE, COLORADO RANCH
    needed for 16,000+ acre conservation property in south central Colorado. Qualified candidate would have experience working on a ranch or wilderness property, general forestry/fire management...
  • FARM HAND &/OR NANNY IN ESCALANTE
    Nanny for 18-mnth-old. Yearly salary, vacation, health insurance. Spanish/other foreign-language native spkr prefrrd.
  • EXECUTIVE DIRECTOR
    Washington Association of Land Trusts seeks an ED to build on WALTs significant success & to lead the association to new levels of achievement. See...
  • BEAUTIFUL CUSTOM STRAWBALE HOME IN WESTERN COLORADO!
    Secluded, energy efficient Southwestern home on 40 wooded acres. Broker - Rand Porter - United Country Real Colorado Properties. 970-261-1248, $425K
  • FORMER RETREAT CENTER/CONSERVATION PROPERTY FOR SALE
    57 acres in Skull Valley, AZ, 17 miles from Prescott, year-round creek, swimming holes, secluded canyon, hiking/meditation trails, oaks, pines, garden, greenhouse. House, office building,...
  • ARIZONA PUBLIC LANDS ORGANIZER
    Title: Public Lands Organizer About the Arizona Wildlife Federation (AWF) The AWF is a non-profit organization dedicated to educating, inspiring, and assisting individuals and organizations...
  • HISTORIC RANCH HOME W/ 20 ACRES
    Historic 1893 Ranch Headquarters. 4 Bdrm, 3.5 Ba, 4000 ft2. Remodeled 2002. Includes 2 studio apts, stables, arena, workshop, 5 RV hookups. Chirachua & Peloncillo...
  • VICE PRESIDENT OF RETAIL OPERATIONS
    The Vice President of Retail Operations will provide overall leadership and accountability for purchasing, product development, merchandising planning, visual merchandising, retail operational excellence, oversight and...
  • ASSOCIATE DIRECTOR
    Grand Staircase Escalante Partners seeks an experienced fundraiser with excellent communication and organizational skills.
  • PROGRAM MANAGER
    position in Phoenix with the Babbitt Center for Land and Water Policy.