CBD’S LITIGIOUS APPROACH CUTS AGAINST ENDANGERED SPECIES RECOVERY EFFORTS
AUGUST 21, 2013
We realized that we can bypass the officials and sue, and that we can get things done in court . . . . Psychological warfare is a very underappreciated aspect of environmental campaigning. . . . The core talent of a successful environmental activist is not science and law. It’s campaigning instinct.
This quote comes from Kieran Suckling,1 a founder of the Tucson-based Center for Biological Diversity (CBD). CBD has participated in well over 800 lawsuits with purported environmental aims. Two recent CBD lawsuits, however, were filed with the goal of stopping hunters from being able to use traditional lead-based ammunition in one of the Southwest’s best hunting areas, northern Arizona. These two lawsuits arose out of the hotly contested issue of whether there is an identifiable source for the apparent pattern of lead poisoning in California condors (Condors). CBD has chosen to single out lead ammunition as the culprit, which is the primary focus of CBD’s “get the lead out” campaign. It is unclear if CBD is focusing on ammunition fragments in hunter-shot game as part of a larger agenda (e.g., anti-hunting, anti-firearm)2 or if lead ammunition just makes for better copy than less polarizing items like car batteries and historic lead-based paint.
Regardless, CBD’s “warfare” approach is counterproductive at best. CBD’s California condor-related lawsuits in Arizona, both of which were dismissed, are instructive on how CBD is working against those who are trying to integrate Condor recovery and human activity.
Starting in 1989, the Arizona Game and Fish Department (AGFD) began evaluating the possibility of establishing a population of Condors in Arizona, a non-essential experimental population under the Endangered Species Act (ESA). Condors may have lived in Arizona into the early twentieth century, but Condors simply did not exist outside of California when the AGFD started to consider the possibility of creating an Arizona-based non-essential experimental population. AGFD worked on this project for years, collaborating with the U.S. Fish and Wildlife Service (FWS), local residents and industry, non-profits, and various governmental and tribal entities so that, in 1996, a federal regulation could be enacted to allow an experimental population of Condors to be released in northern Arizona. Based on CBD’s website, it appears CBD took no part in the lengthy process leading up to the regulation being enacted.
Some residents and industrial interests were initially hesitant to allow Condors into their backyard. This hesitance was surely in no small part caused by a prior dispute in the Pacific Northwest over the northern spotted owl, a situation the Secretary of Interior referred to as a “national train wreck.” That dispute erupted in 1992 when the FWS designated nearly 6.9 million acres of federal land in the Pacific Northwest as “critical habitat” for the northern spotted owl, a decision that threatened to wreak havoc on the lumber industry and the rural communities it supported. The battle over the northern spotted owl spawned numerous lawsuits consuming vast taxpayer funds, and new logging regulations on the timber industry.
A key distinction between the northern spotted owl dispute and the introduction of Condors to areas outside of California is that the owls existed in the Pacific Northwest when that dispute arose, whereas Condors did not exist outside of California when the non-essential experimental population was being considered. Many Arizona, Utah, and Nevada residents were concerned that, by going along with the proposed introduction, they would become second-class citizens, with their interests given less weight than those of an animal that didn’t even naturally exist outside of California at the time.
Ultimately, however, the FWS made reasonable representations to the relevant population, indicating that the presence of Condors would not change peoples’ way of life in northern Arizona, southern Utah, and southern Nevada. Indeed, in 1996 the FWS stated in the Federal Register – the official journal of the government of the United States – that
Current and future land, water, or air uses such as, but not limited to: commercial and business development; forest management; agriculture; mining and energy resource exploration and development (e.g. coal); livestock grazing; development of transportation and utility corridors (e.g. power transmission lines); communication facilities; water development projects; sport hunting and fishing; air tour operations and outdoor recreational activities (e.g. jeep tours, hiking, biking, boating) should not be restricted due to the designation of the nonessential experimental population of California condors.
(Emphasis added).
At the time of this statement, the FWS was aware of the alleged link between Condor deaths and the use of lead ammunition for hunting. Nonetheless, it expressly stated in the Federal Register that it did not “intend to request modifications or restrictions to the current hunting regulations” in the relevant area. Indeed, whether substantively correct or not, the FWS determined that “some condor deaths from [ingestion of hunter-shot lead ammunition] are to be expected, but will presumably be more than compensated by natural and captive reproduction.” In effect, the FWS made a promise to the people and businesses of northern Arizona, southern Utah, and southern Nevada, that Condor introduction would not be allowed to impinge on the rights and interests of those living in the relevant area. CBD is now trying to force the federal government to break that promise.
First, CBD sued the Bureau of Land Management (BLM) as to several issues, one of which was the allegation that BLM had not sufficiently considered the alleged threat from lead ammunition in making certain land management decisions. The court in that action dismissed CBD’s lawsuit, ruling that BLM had complied with all relevant law in making the relevant land management decisions. A few years later, CBD filed another lawsuit, this time alleging that the United States Forest Service (USFS) violated federal hazardous waste law by failing to prohibit hunting with lead ammunition on certain forest land in northern Arizona.
That case was dismissed because CBD did not meet the procedural requirements necessary to have its case heard by a federal court. Specifically, a federal judge dismissed CBD’s case because CBD did not meet the procedural “standing” requirement. The court ruled this way because plaintiffs in federal courts must be able to show that the court can grant the relief the plaintiff seeks and, inasmuch CBD wanted the court to force the USFS to ban the use of lead ammunition on federal land managed by USFS – something the court probably cannot do – the case had to be dismissed.
CBD’s litigation strategy has its critics, and it is clear that CBD’s litigation strategy is not supported by those who are actually participating in the California Condor Recovery Program. A recent news article provides the following concerning the position of The Peregrine Fund, one of the key players in Condor recovery efforts.
Chris Parish, director of the Peregrine Fund’s condor project, said that while his organization and those that filed the lawsuit may have the same goal, reducing lead ammunition use, their methods for achieving that goal are markedly different . . . . As far as a lawsuit goes, Parish said he doesn’t understand the logic behind such a move. ‘They are attacking the very place where we have an active [voluntary lead reduction] program,’ he said. ‘And, that just doesn’t make very much sense to me.’
Inasmuch as CBD’s litigious strategy appears to be at odds with those actually handling the day-to-day operations related to Condors, CBD’s goal is unclear. That is, why wouldn’t CBD defer to those who actually put boots on the ground to save Condors? CBD’s conduct cuts against the efforts being expended to create a self-sustaining Condor population outside of the “native” populations that live in central and southern California, and several potential negative outcomes are easily identifiable.
CBD’s actions prove that the federal government cannot prevent the “baggage” (e.g., CBD’s attempt to involve itself and change the applicable rules) that comes with the creation of a non-essential experimental population. CBD, contrary to the wishes of those who actually participate in Condor recovery programs, continues to push for results that conflict with the protections that were promised and agreed to by those “re-”introducing the Condors in Arizona. Because of CBD’s actions in Arizona, it will be quite difficult to sell the creation of another experimental population to citizens in coastal northern California and Oregon – two recently proposed locations for new experimental Condor populations – when allowing this type of experimental population into your community appears to be an invitation to litigation. Indeed, Condors have already become the next northern spotted owl. Considering that the dispute over the northern spotted owl’s critical habitat designation is still not resolved after twenty years, it seems unlikely those in the Pacific Northwest will want to extent an invitation to more litigation by “adopting” another rare avian species.
It also is plausible that CBD’s actions will force the FWS to reevaluate the Condor’s presence in Arizona and Utah, potentially resulting in the end of the experiment. Under the regulation that allowed the FWS to release Condors in Arizona, the FWS also has the ability to remove the experimental flock. In fact, if the FWS can no longer treat the Condor population at issue as non-essential and experimental, it may be legally required to remove the Condor population based in Arizona and end the experiment. This would be a huge blow to California Condor Recovery Program, because the use of separate populations is a critically important tool that can prevent against a single causal factor (e.g., a particular disease) resulting in Condor extinction.
In Suckling’s own words, he notes that “a lot of people don’t realize: The great majority of [our] legal victories have come through settlement agreements and have not come through court orders.” Settlement agreements, of course, can be the result of economic considerations, and not because a party sued by CBD (usually a taxpayer-funded party) finds merit in CBD’s allegations. And even in those instances where CBD identifies an unintentional mistake or budget decision that is retroactively determined to be incorrect or imprudent, is CBD’s strategy the right one?
Perhaps the most glaring example of its “win the battles, lose the war” strategy is CBD’s war on the FWS. CBD was a key player in nearly a decade of litigation wherein CBD and other environmental groups sued the FWS for allegedly failing to fully address petitions seeking ESA protection for a total of more than 700 species. After years of litigation in multiple lawsuits (later consolidated in to one lawsuit, the “Listing Action”), and the expenditure of an unknown amount of taxpayer dollars, CBD and its allies extracted a what has been reported as a “megasettlement” – including attorneys’ fees – from the FWS in 2011. The settlement requires that the FWS will, within seven years of the settlement, provide final decisions on over 700 petitions seeking that a species be “listed” as endangered or threatened.
On its face, the settlement seems to have a positive environmental impact. When looked at in context, however, a different picture emerges. As reported in the Washington Post,
In fiscal 2010, the Fish and Wildlife Service spent so much of its $21 million listing budget on litigation and responding to petitions that it had almost no money to devote to placing new species under federal protection, according to agency officials.
Thus, it is clear that the FWS has spent untold millions of dollars defending itself from CBD and others, money that could have been spent on conservation efforts related to the species CBD purportedly intends to protect.
One might argue, however, that because the settlement is now in place, the FWS will finally be able to focus on meeting the listing requirements placed upon it by the ESA. That is unlikely. In settlement negotiations concerning the Listing Action, CBD expressly refused to agree to a settlement provision that would limit the number of petitions it would bring in the future, basically arguing that the backlog is caused by the FWS’ own bureaucracy. Accordingly, one year after the settlement became effective, CBD petitioned the FWS requesting that fifty-three new species be given ESA protection.
But CBD’s bellicose strategy does not just include imprudent actions, it has included illegal action as well. In 2002, CBD posted an inflammatory, anti-grazing press release on its website. The press release included photographs and allegations that cattle grazing on a certain allotment of federal land in Arizona (the Montana Allotment) was harming the land. CBD is vehemently anti-grazing, and the press release seems to have been part of a strategy intended to prevent further grazing on the Montana Allotment. Put simply, the press release was, in large part, a fabrication. Several of the photographs in the press release that supposedly showed damage to the Montana Allotment were photographed elsewhere. In one instance, CBD’s photographer took a picture that was not only outside the Montana Allotment, it was at a location where the photographer himself – and many other non-bovines – had recently camped as part of an annual May Day party.
CBD had the opportunity to do the right thing when the affected rancher told CBD that the press release was false. It seems the whole matter could have been resolved if CBD would have taken the defamatory material off its website in a timely matter and provided a written apology. CBD did neither, effectively thumbing its nose at the rancher. The rancher sought to protect his name via a defamation lawsuit, and a jury confirmed that CBD had lied in the press release. Accordingly, the jury awarded the rancher $100,000 in actual damages and $500,000 in punitive damages. The jury’s verdict was affirmed on appeal, and the Arizona Supreme Court denied CBD’s request for review of the matter.
The matter examined above was not the only time CBD was called out for making unsupported statements intended to sway public opinion; CBD has recently employed similar tactics regarding the Condor population based in Arizona. CBD’s April 16, 2013, press release stated that three specific Condor deaths were “definitively linked to lead poisoning from ingesting spent lead ammunition fragments in carrion[.]” Inasmuch as those who are in charge of the Condor recovery effort based in Arizona (e.g., AGFD, the FWS, The Peregrine Fund) did not release any information that could have justified CBD’s absolute statement, some hunters suspected that CBD’s assertions were based on CBD’s own biased speculation, not scientific proof.
Indeed, when the National Rifle Association (NRA) asked CBD to support its “definitive” statements, CBD sidestepped the actual questions, providing a non-responsive letter that cited to off-point internet sources (some clearly out-of-date or concerning the wrong Condor population) to deflect attention from its failure to provide a direct response. The NRA sent a follow-up letter to CBD explaining exactly how the “non-response” failed to support CBD’s questionable statements, and CBD ignored it. By not responding, CBD did actually provide one kind of proof: not proof that supported CBD’s comments regarding Condor deaths, but rather proof that CBD continues to knowingly mislead the public.
CBD’s polarizing actions in Arizona and elsewhere seem poised to reduce public support for experimental populations and sustainable conservation in general. It seems CBD now wants to drive a wedge between the general public and the group that has a proven record of funding and valuing the protection of wildlife resources: hunters. If CBD’s current litigation strategy and related “get the lead out” campaign are successful, it seems likely that the FWS will not be able to find another area willing to host an experimental Condor population, and that CBD’s efforts will result in a reduction of hunting-related funds being available for conservation efforts (e.g., the California Condor Recovery Program). In the big picture, CBD may have litigation success, but its attitude and tactics come at the cost of conservation progress.
1 Interestingly, Suckling made a seemingly contradictory statement in an interview ten years earlier: “Suckling declares their success is built on what he describes as the two strongest forces of the environmental movement: science and law.”
2 In late 2012, CBD’s “psychological warfare” campaign opened a new front: gun rights, or as CBD refers to the issue, “gun violence.” Citing “horrific, gun-charged killings,” CBD used a full page add in the New York Times to solicit donations. CBD does not have a history of being vocal on this issue, leaving observers to wonder if CBD attempted to jump on the “gun violence” bandwagon to support its “environmental” litigation machine, or if this was simply the first time CBD publically admitted a previously held but secret anti-gun agenda.