Ruling May Make A Moot Point
Of Feds’ "Safe Harbor" Pacts

WASHINGTON — Ever since it was introduced, Clinton administration Interior Secretary Bruce Babbitt’s "safe harbor," or "no surprises" program has stirred controversy. Now a recent court ruling may have made all that controversy moot.

Ostensibly a way to make the widely detested Endangered Species Act "kinder and gentler" by guaranteeing a specified and supposedly limited amount of federal interference in private property owners’ rights, the program was suspected from the beginning of being little more than a way to stave off much-needed reform of ESA itself.

Despite their suspicions, some landowners who found themselves squeezed between the proverbial rock and a hard place cautiously embraced it, and state agencies such as the Texas Parks and Wildlife Department took tentative steps to develop workable programs that could help landowners take advantage of it.

The TP&WD effort evaporated when the federals refused to guarantee confidentiality of information about individual landowners — a point that all participants in the aborted planning process recognized as absolutely essential before it ever began.

During its interrupted gestation, however, the Texas program stirred up a dust storm of its own, pitting champions of private property against one another in a battle apparently born of miscommunication and nurtured by suspicions that anything coming out of Washington in this day and age is a trap waiting to be sprung.

Now landowners who took the "no surprises" bait may be feeling the jaws snap shut.

Reduced to its simplest terms, "no surprises" assured property owners with officially "threatened" or "endangered" species on their land that if they followed certain mutually agreed-upon guidelines, the government would not further restrict their activities in the future. Terms were individually negotiated, and both sides contractually obligated themselves to comply with the agreement.

Now, it appears, the government’s contractual agreements weren’t worth the ink with which they were signed.

In an Alabama case decided last month, U.S. District Judge Charles R. Butler overturned a "safe harbor" agreement between Interior’s Fish and Wildlife Service and a group of condominium developers. While the case is a long way — geographically, jurisdictionally and in its particulars — from such epicenters of ESA activity as the Texas hill country, the Southwest deserts or the Northwest forests, legal observers say it could eventually invalidate virtually all existing "safe harbor" contracts.

It will almost certainly put the brakes on any pending agreements and dissuade landowners who may have been considering others.

The case at issue involved a rodent, the officially "endangered" Alabama beach mouse. Interior’s F&WS had concluded "habitat conservation plans" with developers who agreed to protect certain areas of "critical habitat" for the supposedly rare mouse in return for the right to build on parts of their own land.

It was what the Babbitt forces have proclaimed a "win-win" situation, in that certain areas are guaranteed protection from development in return for other areas being guaranteed protection from the government.

The Sierra Club didn’t like the second part of that formula, however, and sued. Judge Butler sided with Sierra, ordering F&WS vaguely to "rewrite" the supposedly binding contracts in a manner more acceptable to the activists.

Sierra Clubbers are predictably pleased, and not just with what the ruling does directly, but with what they believe it will mean in the end.

"I was so pleased ... I started to cry," said Margie Welch, a member of the Alabama Sierra Club. "We've saved a species."

"It sets an excellent precedent," crowed attorney Eric Huber, who argued the Alabama case for the Sierra Club. "That is now the standard by which all the future ones have to be judged."

The Alabama ruling is expected to generate a raft of other lawsuits.

Leona Klippstein, conservation director for a California activist group calling itself the "Spirit of the Sage Council," has given notice that her outfit intends to sue over several California agreements.

Klippstein and other activists expect the mouse case to smooth the way by attracting lawyers who might have been reluctant to risk the time and resources on such a speculative venture before, but now smell the scent of money.

"Now there's case law," she says, "and a lot of the attorneys we would use are not going to be so hesitant."

At risk are almost 250 "habitat conservation plans" already in place, covering 6.2 million acres in 16 states, including 4.9 million acres in Washington, Oregon, Nevada and California.

Another 200 plans, covering millions more acres, are awaiting final approval.

The plans vary immensely in size — from a 1.6 million-acre agreement with Washington's state Department of Natural Resources to a third-of-an-acre plan that covers a private lot in Travis County, Texas.

Congress allowed for the plans when it amended the Endangered Species Act in 1982, but just 14 were approved by 1994.

Then Babbitt made them more enticing, with his safe harbor or "no surprises" clauses, which guarantee the government won't change conditions of the agreements for a specific period of time.

Most clauses last about 30 years, although some cover 100 years and others just a few years.

As a result, 229 HCPs have been approved in the past four years. After the Alabama ruling, there may never be another one — and all those written so far may be worthless.