NGOs as Lawmakers, Watchdogs, Whistle-Blowers, and Private Attorneys General

Colorado Environmental Law Journal Colorado Environmental Law Journal

Manuscript 1445

NGOs as Lawmakers, Watchdogs, Whistle-Blowers, and Private NGOs as Lawmakers, Watchdogs, Whistle-Blowers, and Private

Attorneys General Attorneys General

Susan D. Daggett

NGOs as Lawmakers, Watchdogs, Whistle-blowers, and Private Attorneys General

Susan D. Daggett*

I. INTRODUCTION

Margaret Mead once said: "Never doubt that a small group of...

committed citizens can change the world; indeed, it's the only thing that ever has." Environmental groups have taken that advice to heart and in the last thirty years have transformed environmental protection in the Unites States.

The role of nongovernmental organizations (NGOs) in American governance, specifically, their role as lawmaker, watchdog, whistleblower, and private attorney general, is a unique one. Although there is a tendency for citizens to feel powerless in the face of a huge federal-or even state-bureaucracy, in fact, citizens in this country wield substantial power. Nowhere is that more true than in the realm of environmental and natural resources protection.

Some thirty years ago, Congress saw fit to give citizens a place in environmental enforcement. Under our system of governance, we, the people, are charged with an awesome responsibility, and it is humbling

to recognize how much individual citizens have actually accomplished since Congress delegated that power. This paper generally addresses how citizens, and particularly NGOs, fit into the structure of governance as it relates to environmental protection. In addition, it illustrates their influence by exploring a few examples of how citizens have helped transform the protection of our air, water, native species, and public lands.

First, a bit of background. The province of government is to protect public health and the environment by establishing legal requirements, enforcing those requirements, and setting priorities for the expenditure of resources. At least that is the conventional wisdom when it comes to political theory and the role of government in environmental protection. This was, in fact, typical of the government's role in environmental regulation for much of this country's history.

In the 1960s, however, world events like Vietnam, the civil rights movement, and the consumer movement collided to create a political environment in which sweeping reform was possible. As a result, Congress was pressed to give citizens a central place at the political table-at least insofar as environmental protection was concerned.

In the late 1960s and early 1970s, Congress passed a cascade of new environmental laws made unique in the world by the inclusion of provisions designed to encourage citizen enforcement of environmental laws. Although environmental standards had previously existed, they had not been effectively enforced because the agencies responsible for enforcing the standards were too friendly with regulated industries and had limited In examining the failure of environmental protection, Conresources. gress recognized that in order to ensure widespread compliance with and enforcement of environmental provisions, citizens needed to play a significant role in the regulatory structure. To accomplish those ends, Congress included what is known as a citizen suit provision in many of the statutes that were passed in the early 1970s-the Clean Air Amendments, the Clean Water Act, and the Endangered Species Act, to name a few.'

In the thirty years since those laws were passed, we have made major strides in this country-improving water quality and air quality, protecting our native species, and changing the management of our forests and public lands. Those improvements are not just the result of better

laws-they are the result of better enforcement, and most of that enforcement has been at the hands of citizen groups.

II. LEGAL AUTHORITY FOR NGO ENFORCEMENT OF ENVIRONMENTAL LAWS

Under the federal legal system in the United States, environmental laws are enforced in three basic ways. First, governmental agencies have police power to enforce regulations against those who violate laws and regulations. Second, citizens or NGOs that have constitutional standing to sue play a major role in forcing the government to abide by its own rules and regulations under the Administrative Procedures Act (APA).2 Indeed, the most common environmental lawsuit filed against a federal agency is for failure to take some non-discretionary action, or for acting in a way that is arbitrary, capricious, or contrary to law.3 Finally, under certain environmental statutes, citizens are granted the power to enforce environmental laws directly, acting in effect as private attorneys general by suing third-parties such as individuals and companies who violate the law.4

Under the APA, citizens may seek injunctive and declaratory relief against the government.' NGOs or citizens that prevail against the government may also be entitled to reasonable attorney fees under the Equal Access to Justice Act. This statute allows for the recovery of fees and costs associated with suits to require governmental compliance with federal laws.

The so-called citizen suit provisions similarly entitle citizens to seek In some indeclaratory and injunctive relief to stop the violations. stances, they can also ask a judge to award substantial civil penalties, which are paid into the federal treasury.7 To provide additional incentives for citizens to take up this enforcement role, Congress included attorneys' fee provisions to enable prevailing plaintiffs to recover any fees and costs associated with bringing the enforcement action.8

Citizens and NGOs have taken up their role as watchdogs and enforcers with enthusiasm and now, arguably, have assumed at least some of the fundamental functions of the federal government, particularly the executive power. If executive power is fundamentally the power to decide whether and when to enforce the laws and to set priorities for how to spend government funds, then remarkably, the American Congress has delegated these executive functions to private citizens and NGOs through the enactment of citizen suit provisions. For their part, citizens and NGOs have increasingly stepped into the void to carry out these executive functions as lawmakers, watchdogs, private attorneys general, and agenda-setters.

III. THE NGO AS LAWMAKER

NGOs have played an enormous role in the development of environmental law. It is obvious that citizen groups such as the Sierra Club have a strong lobbying presence in Congress, trying to influence law-

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making and appropriations processes. It is also obvious that citizens actively participate in government rulemaking by submitting comments, testifying at public hearings, and the like. Less obvious is the role of citizen groups in developing the law through litigation.

Even the most cursory review of environmental law reveals that

many of the major cases in that field-as well as in administrative lawwere brought by NGOs. For example, in Citizens to Preserve Overton Park v. Volpe,9 a citizens' group in Memphis, Tennessee, challenged a Department of Transportation decision to construct an interstate highway through the middle of town-and through a city park. In doing so, the citizens' group established one of the most important legal principles under the APA: that a court reviewing agency action that is arbitrary, capricious, or contrary to law must "engage in a substantial inquiry" into the facts that is to be "searching and careful."'0 Similarly, in Sierra Club v. Morton," one of the seminal cases on constitutional standing, the Sierra Club charted new territory in an attempt to establish a right to sue based on a general institutional interest in a particular place. Although the Supreme Court decided the Sierra Club was required to articulate a particularized interest on behalf of its members,12 there can be little doubt that the Sierra Club played a significant role in shaping the law of standing. More cases like these, designed to push the legal envelope, continue to be plotted and pursued.

One example testing current legal limits involves the Endangered Species Act (ESA).'3 The 5th Circuit's recent decision in Sierra Club v. United States Fish and Wildlife Service interprets that Act.14 The ESA absolutely prohibits federal action that may jeopardize the continued existence of a species or adversely modify designated critical habitat.5 The ESA defines "critical habitat" as areas that are essential for the conservation of the species; in other words, it includes those lands or waters that may be unoccupied but that nevertheless are necessary for the recovery of the species.16 To prevent violation of these standards, the statute requires federal agencies to "consult" with the U.S. Fish and Wildlife

Service (FWS) if their actions are likely to jeopardize a species or adversely modify critical habitat.'7

For years, environmental NGOs have argued that there are two different standards that need to be considered under the ESA. One standard is the jeopardy standard relating to the survival of the species, and the other is the adverse modification standard, relating to the recovery of the species. 18 Specifically, some advocates argue consultation is required for actions that are likely to affect the recovery of the species, as well as for actions that are likely to jeopardize the species.

Despite these arguments, the FWS defined "jeopardy" and "adverse modification of critical habitat" to mean virtually the same thing. Under FWS regulations, to jeopardize the continued existence of a species is to engage in any action that could be "expected to reduce the likelihood of both the survival and recovery of a listed species."'9 Similarly, the regulations define "adverse modification of critical habitat" as "alteration [of habitat] that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.2° In defining away the difference, the FWS has been able to argue that designation of critical habitat does not add anything to the protection already afforded listed species by the jeopardy standard.

Attorneys at environmental NGOs involved in ESA litigation, such as Earthjustice, have been convinced for years that the FWS' definition of critical habitat is inconsistent with the statutory language of the ESA, and have subsequently looked for opportunities to raise that issue. That chance finally came in the Sierra Club's suit to force the FWS to designate critical habitat for the Gulf sturgeon.

In Sierra Club v. United States Fish and Wildlife Service, the 5th Circuit agreed with the argument that the jeopardy standard relates to "survival" and that the adverse modification standard relates to "conservation," and determined that the FWS definition of adverse modification is facially invalid.22 This ruling will now serve as the cornerstone for future efforts to designate critical habitat; the FWS will no longer be able to maintain that critical habitat is meaningless to species conservation or recovery. As a result, the designation of critical habitat will help lead to

the conservation and recovery-rather than the mere survival-of imperiled species. There is no doubt that the work of citizen advocates led to this development in the law.

IV. THE NGO AS WATCHDOG AND

WHISTLE-BLOWER

The best laws in the world do not result in good environmental protection without some mechanism for requiring compliance with those laws. This is an area where the NGO role has become especially important. Citizen groups are perhaps best known for their role as watchdogs and whistle-blowers, crying foul when governmental agencies refuse to follow their own rules and regulations or otherwise violate environmental laws. There are countless instances in which NGOs have fundamentally altered the operation of government. A current example involving grazing reform in the Southwest is instructive.

Anyone familiar with the West understands that grazing has been an institution on the Western landscape for well over a century. Most grazing occurs on public lands managed by either the United States Forest Service or the United States Bureau of Land Management. Although the federal government issues grazing permits for ten-year periods, the permittees have viewed those permits as a sacrosanct property right.23 Political efforts to limit, or even regulate, grazing on the public lands have been difficult at best, and often unsuccessful.24

Historically, the federal land management agencies have not imposed strict limits on grazing, and have permitted grazing at levels and in locations that have caused significant environmental damage on the landscape. Grazing in riparian areas has had a significant impact on the riparian forests that once thrived along Western rivers, fundamentally altering the riverine ecosystems the lifeblood of the

that represent

Southwest.25 In fact, many species have been listed as threatened or endangered under the ESA due, at least in part, to excessive grazing in sensitive areas.

Although the impacts of grazing are now well-documented and government biologists acknowledge that grazing reform is inevitable, the political will to make the changes necessary to protect the environment is lacking. The hard truth is that livestock grazing in some areas of the arid Southwest is not economically viable at environmentally sustainable levels. Protecting natural resources means that some ranchers may not make a profit grazing their animals on public lands.

Because land managers typically live in the same communities as the ranchers, they are under substantial pressure not to reduce livestock numbers, and have not been able to make the hard decisions necessary to stay in compliance with environmental laws. As a result, they continue to permit excessive numbers of livestock on allotments that are already severely damaged and in areas that jeopardize the continued survival of endangered species.

Several years ago a number of environmental NGOs got serious about trying to reform grazing in the Southwest in order to protect important habitats and imperiled species. They brought dozens of lawsuits designed to reduce livestock numbers to levels compatible with protection of the range and native species. The Center for Biological Diversity in Tucson took the lead in forcing the U.S. Fish and Wildlife Service to list endangered species and to designate critical habitat in the Southwest.27 Those efforts resulted in the federal agencies' acknowledgement that protection of natural resources will require significant regulatory restrictions on grazing in sensitive habitats. Because of those lawsuits, the Forest Service issued guidance and amended its planning documents to include provisions designed the Southwest Willow Flycatcher, and the Mexican Spotted Owl, among other species.

to protect several species of fish,

However, these efforts alone have not led to reform. Although the Forest Service has recognized its obligations in writing, it has refused to comply with those obligations without first being sued. As a result, the Center for Biological Diversity and the New Mexico-based Forest Guardians, as well as other Southwestern conservation groups, have filed a host of follow-up lawsuits against the Forest Service to force the agency to enforce grazing restrictions against permittees.

One of the first of these suits challenged excessive grazing in major riparian corridors in New Mexico and Arizona based on impacts to the Southwest Willow Flycatcher, a rare neotropical bird, and to the Spikedace and Loach Minnow, two species of imperiled native fish. In that case, Forest Service biologists repeatedly admitted cattle grazing was causing significant impacts to river systems, habitat values, and to endangered species. However, the agency failed to carry out any of the management prescriptions developed to address these problems.30 Over the protests of the Arizona and New Mexico Cattlemens' Associations, which intervened in the lawsuit, the Forest Service ultimately excluded cattle along hundreds of miles of rivers in Arizona and New Mexico.31

Although this suit and others like it have resulted in some progress, the Forest Service would probably not have implemented these restrictions on its own. Indeed, the Forest Service often fails to carry out its obligations voluntarily. For example, as part of its plan to protect endangered species, the Forest Service promised to monitor allotments to ensure ranchers were not violating grazing standards. An investigation of the Forest Service's compliance record, however, revealed that approximately seventy five percent of all allotments across Arizona and New This Mexico are chronically out of compliance with those standards. noncompliance is now the subject of another lawsuit to force the Forest Service to implement the grazing protections that it developed.33

While reform is slow and painful for everyone, it is occurring. Livestock numbers are beginning to come down. Riparian areas are

gradually being restricted. Eventually the range and the species that depend on it will start to recover. These changes would not have happened without the influence of citizen activists and their lawyers.

V. THE NGO AS PRIVATE ATTORNEY GENERAL

In addition to their watchdog role, NGOs have taken the lead in enforcing environmental laws against third parties, often with the support and approval of the governmental enforcement agencies. In some countries, citizens have ways of requiring their governments to comply with environmental laws. The United States, however, is unique in allowing citizens to act as prosecutors or private attorneys general in suits against other citizens. In this way, citizens and NGOs assume the role of the executive branch of government.

Like governmental agencies, NGOs can decide which environmental problems are the most important and which enforcement actions to bring. Like governments, NGOs can use the threat of litigation to encourage voluntary compliance with the laws, and like governments, NGOs can ask courts to assess civil penalties for environmental transgressions in order to deter future violations.

The power of citizen enforcement has proven extremely effective in the past. Consider the case concerning the Pikes Peak Highway in Colorado Springs, Colorado.34 The Pikes Peak Highway, a road that leads to the top of Pikes Peak, is located on national forest land operated by the City of Colorado Springs under a special use permit from the Forest Service.

Because of the harsh climate, heavy use, and steep grade of the road, the road's gravel washes off each year into alpine streams and wetlands. Over the years, gravel and runoff from the road have caused a considerable amount of damage to streams and wetlands. Attempting to address this problem, the Sierra Club sued the City of Colorado Springs to force compliance with the Clean Water Act. As a result of that case, Colorado Springs agreed to upgrade the road to prevent the annual discharge of gravel and to implement a monitoring program to make sure that the upgrades actually protect the aquatic resources on Pikes Peak.35

VI. THE NGO AS AGENDA-SETTER

Another way NGOs have assumed an executive branch role is in influencing how the government spends its limited resources. Through litigation, NGOs can literally control agencies' agendas. One instructive example involves the FWS species listing and critical habitat program. The FWS issued a moratorium on new projects and openly acknowledged that its entire FY 2001 budget will be consumed by responses to court orders and injunctions.36

Congress passed the ESA in 1973. It is considered to be "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.37 A careful review of the Act convinced the U.S. Supreme Court that "Congress intended endangered species to be afforded the highest of priorities ,'38 and "the plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost."39 Despite this mandate, the FWS moved at a glacial pace in listing species as threatened or endangered, the first step in establishing protection for these species. The FWS has been even slower designating critical habitat for listed species, a process that should occur at the time of listing.n

The ESA provides two ways for a species to be listed on the endangered species list.41 First, the Secretary of Interior may list a species of her own accord, after finding that a species is endangered or threatened based on the best available science and publishing a proposed rule identifying the species as such. The FWS has an internal process in which it

is supposed to maintain a list of candidate species that may be eligible for listing. The FWS must have a process to move species from that list to the endangered species list.43 As a practical matter, the FWS has been extremely slow to list species using its internal process.

The second way that species may be listed is by petition.44 Under this process, citizens or scientists may submit a petition outlining the scientific case for listing. The FWS then has a statutory duty to review and act on any such citizen petition.45

During the first ten years of the ESA, very few species were listed. In fact, from the date the Act was passed in 1973 until 1982, only 180 species were added to the endangered species list.46 This was the case, in spite of the fact that more than 3000 species had been identified as candidates for listing.47 In 1982, Congress amended the ESA to stop the endless delays, and established mandatory deadlines for the listing of species. The amendments allowed the agency to delay final listing decisions by categorizing species as "warranted but precluded;" in other words, the listing is found to be biologically warranted but is temporarily precluded by agency workload.48 However, this "warranted but precluded" finding was only available if the agency could demonstrate that it was making "expeditious progress" in listing other, more imperiled species.49 Moreover, Congress warned that this finding was not to be used to allow the "footdragging efforts of a delinquent agency.5°

Even with these marching orders and the statutorily imposed deadlines, the pace of listing did not substantially pick up for almost another ten years. Indeed, from 1982 until 1990, only 314 species were added to the endangered species list.5 In 1990, however, the Inspector General of the Department of Interior issued a report criticizing the rate at which species were being protected under the ESA, noting that at least thirtyfour species had gone extinct while waiting to be listed.52 At this rate, it

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would take between thirty-eight and forty-eight years to list all of the species on the candidate list.53 This report galvanized the scientific and NGO community, which began submitting listing petitions to the agency and followed up those petitions with lawsuits to require compliance with the statutory deadlines.

Today, virtually all listing decisions are the result of citizen petitions, followed by citizen lawsuits to enforce the statutory deadlines. The FWS knows it will be sued for every missed deadline; however, it still routinely refuses to make its decisions within statutory deadlines. As a result, petitioners commonly have to litigate at least one aspect of their listing petition in order to get a species on the Endangered Species List.54 It can take as many as three lawsuits to get a species listed, and that is assuming a substantive challenge to a negative decision is not required.

Although the process is inefficient from the standpoint of effective governance, it works. Petitions and lawsuits under the ESA have increased dramatically in the last decade, as have the number of species that have been listed. Between 1990 and the end of 2000, almost 650 species were added to the list.55 This was due in large part to the work of several environmental organizations that have focused their efforts on getting species added to the endangered species list, using litigation effectively to make that happen.

The FWS is currently facing enormous backlogs. There are over 250 species currently proposed for listing or that are candidates for protection.56 Moreover, there are more than 1,000 species that need designation of critical habitat.57 Undoubtedly, many of these species are the subject of existing or proposed litigation. Despite these backlogs, the FWS refuses to ask for the resources necessary to comply with the law. In fact, the FWS has specifically asked Congress to limit the money available for listing activities and for the designation of critical habitat.

Last year, the Department of Interior asked for $7.2 million and Congress appropriated only $6.3 million.58 This appropriation is far less than the amount of money required to address the listing and critical habitat backlog that currently exists.59 In addition, at the Department of Interior's request, the Secretary is prevented from spending money from any of her discretionary accounts on species listing actions.

Because of the huge number of court orders and injunctions obtained against the FWS and because of the limited budget available for listing activities, environmental organizations and litigators now control virtually all of the FWS' listing activities. In fact, the Secretary of Interior recently announced a settlement with the Center for Biological Diversity and several other environmental NGOs to delay several courtordered critical habitat designations in exchange for the listing of twentynine imperiled species.60 This state of affairs presents some interesting issues for governance. On the one hand, the priority given to a listing decision is no longer determined by the FWS, but instead is a function of who gets a court order first. This system of prioritization is completely ad hoc and a matter of chance. As a result, the most imperiled species may not get listed first. On the other hand, citizen-driven prioritization is not necessarily bad from an environmental standpoint, because the species that citizen groups tend to care about are those that make the biggest difference from an ecological standpoint.

This role for NGOs presents some interesting problems. As a practical matter, litigation has become an essential element to making any progress because it is clear that the government would either refuse to make or would endlessly delay decisions to protect our natural resources. However, litigation is ad hoc, not subject to any central coordination or control, and is a relatively inefficient way to set government policy.

VII. CONCLUSION

The legacy of the political environment thirty years ago is still bearing fruit today, but the current political climate is not as congenial. Citizen enforcement in the coming years is likely to be more important than ever in ensuring protection of the environment and natural resources for future generations. A coherent environmental policy requires more than

a bunch of lawsuits, no matter how carefully conceived a particular legal strategy may be. However, given the proven reluctance of regulatory agencies at both the state and federal level to make politically difficult choices, citizens and NGOs will-and should-continue to have a central role in the structure of government.

--- FOOTNOTES ---

Part of the Environmental Law Commons

* Susan Daggett is the managing attorney for the Denver office of Earthjustice. She

earned her J.D. from Yale Law School and her B.A. in history from Mount Holyoke College. Ms. Daggett served a judicial clerkship for William B. Bryant of the U.S. District Court for the District of Columbia. She spent two years working in the Earthjustice Montana office before moving to Colorado. Earthjustice was founded in the early 1970s as the Sierra Club Legal Defense Fund. It is the premier non-profit environmental law firm in the country, representing hundreds of public interest organizations and individuals in court to protect the environment. Based in San Francisco, Earthjustice has nine regional offices and runs two law clinics. The Denver office is responsible for teaching the Environmental Clinic at the University of Denver Law School.

1. Examples of statutes that provide for citizen enforcement include: Clean Air Act, 42 U.S.C. § 7604 (1994); Clean Water Act, 33 U.S.C. § 1365 (1994); Endangered Species Act, 16 U.S.C. § 1540(g) (1994); Toxic Substances Control Act, 15 U.S.C. § 2619 (1994); and the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 (1994).

2. 5 U.S.C. §§ 701-706. 3. 5 U.S.C. § 706(2)(A). 4. See, e.g., Clean Water Act, § 1365(a)(1), which provides, inter alia, that: any citizen may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation ....

5. 5 U.S.C. § 702. 6. The Equal Access to Justice Act (EAJA) provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any

Id.

court having jurisdiction of the action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(l)(A).

7. For example, the Clean Water Act citizen suit provision provides that: [t]he district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce ... an effluent standard or limitation, or such an order, or to order the Administration to perform [a nondiscretionary] act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365(a). Section 1319(d) of the Clean Water Act, in turn, provides for a civil penalty of up to $25,000 per day for each violation. 33 U.S.C. § 1319(d).

8. See, e.g., Clean Water Act, § 1365(d), which provides: "[t]he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." See also Endangered Species Act, 16 U.S.C. § 1540(g)(4) (1994); Clean Air Act, 42 U.S.C. § 7604(d) (1994); and Resource Conservation and Recovery Act, 42 U.S.C. § 6972(e) (1994).

9. 401 U.S. 402, 415-416 (1971). 10. 5 U.S.C § 706(2)(A). 11. 405 U.S. 727 (1972). 12. Id. at 739-40. 13. Endangered Species Act 16 U.S.C. § 1531 (1994). 14. Sierra Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001). 15. 16 U.S.C. § 1536(a)(2). 16. 16 U.S.C. § 1532(5).

17. 16 U.S.C. § 1536(a)(2). 18. See, e.g., Robert Wiygul & Heather Weine, Critical Habitat Destruction, ENVTL. FORUM, May-June 1999, at 13 (arguing that the adverse modification standard is distinct from the jeopardy standard). 19. 50 C.F.R. § 402.02 (2000). 20. Id. 21. Sierra Club, supra note 14. 22. Id. at 441-43.

23. See, e.g., Federal Land Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190 (10th Cir. 1999) (permittees unsuccessfully argued they had a property right in federal grazing permits that limited the government's right to alter the terms of those permits); Diamond Bar Cattle Co. v. United States, 168 F.3d 1209 (10th Cir. 1999) (permittee unsuccessfully argued it had a property right in grazing permit).

24. For example, in his first term, President Clinton attempted to make some minor reforms to public land grazing by raising the fees charged to ranchers for using the public lands. These efforts proved to be extremely difficult from a political standpoint, and the Clinton administration quickly aborted the attempt. See John Leshy, The Babbitt Legacy at the Department of Interior: A Preliminary View, 31 ENVTL. L. 199, 221-222 (2001).

25. The FWS' final listing decision for the Southwest Willow Flycatcher noted that "[a]s much as 90% of major lowland riparian habitat has been lost or modified in Arizona." 60 Fed. Reg. 10694, 10707 (Feb. 27, 1995).

26. See id. at 10707 (noting that "[o]veruse by livestock has been a major factor in

the degradation and modification of riparian habitats in the western United States.").

27. The Center for Biological Diversity's website lists over sixty species that the Center has been instrumental in getting listed, many in the Southwest. Center for Biological Diversity, The Race Against Extinction: Biodiversity and Endangered Species, at http://www.biologicaldiversity.org/swcbd/dbase/BASE.HTML (last visited October 21, 2001).

28. Letter from John R. Kirkpatrick, Regional Forester, U.S. Forest Service, to

Nancy Kaufman, U.S. Fish and Wildlife Service (June 10, 1997) (on file with author).

29. See Plaintiff's Complaint, Southwest Center for Biological Diversity v. U.S.

Forest Service, (D. Ariz. 1997) (No. 97-666-TUC-JMR) (pleadings on file with author).

30. U.S. FOREST SERVICE, EFFECTS DETERMINATION

FOR LOACH MINNOW,

SPIKEDACE, LITTLE COLORADO SPINEDACE, AND SONORA CHUB ON NATIONAL FORESTS IN THE SOUTHWEST REGION, (June 10, 1997) (on file with author).

31. Stipulation, Southwest Center for Biological Diversity v. United States Forest Service (D. Ariz., Apr. 16, 1998) (No. 97-666-TUC-JMR) (settlement agreement between environmental plaintiffs and the Forest Service to exclude cattle from riparian areas) (on file with author).

32. Brief for Forest Guardians, Forest Guardians v. U.S. Forest Service, (D. Ariz.

1998) (No. 97-2562 PHXSMM) (on file with author).

33. Id.

34. Second Amended Complaint for Declaratory and Injunctive Relief for the Sierra

Club, Sierra Club v. Glickman (D. Colo 1998) (No. 98-M-662) (on file with author).

35. Consent Judgment, Sierra Club v. Glickman, at 5 (D. Colo. 2000) (No. 98-M-

662) (on file with author).

36. In a November 17, 2000 memorandum, FWS Director Jamie Rappaport Clark to

all of the Regional Directors, wrote:

As most of you already know, the large amount of litigation over critical habitat has resulted in numerous court orders and settlement agreements. Complying with these orders and settlement agreements will consume nearly all or all of the Service's listing budget for FY 2001.... Regions should immediately stop work on any listing actions not under court order or settlement agreement.

Memorandum from Jamie Rappaport Clark to Regional Directors (Nov. 17, 2000) (on file with author).

37. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

38. Id. at 174. 39. Id. at 184. 40. Endangered Species Act, 16 U.S.C. §1533(a)(3)(A) (1994); 16 U.S.C. §

1533(b)(6)(C).

41. For a description of this process, see Center for Biological Diversity v. Norton,

254 F.3d 833 (9th Cir. 2001).

42. 16 U.S.C. § 1533(b)(l)(A); 50 C.F.R. § 424.1 l(c) (2000).

43. 50 C.F.R. § 424.15. 44. 16 U.S.C. § 1533(b)(3). 45. 16 U.S.C. § 1533(b)(3)(A); 16 U.S.C. § 1553 (b)(3)(B). 46. Fish and Wildlife Service, Number of U.S. Species Listings Per Calendar Year (as of December 31, 2000), at http://endangered.fws.gov/stats/list-Cy.pdf [hereinafter Species Listing].

47. S. REP. No. 97-418, at 14 (1982). 48. See Endangered Species Act, 16 U.S.C. § 1533(b)(3)(B) (1994). 49. H.R. CONF. REP. No. 97-835, at 22 (1982). 50. Id. 51. Species Listing, supra note 46. 52. Michael P. Senatore & Kieran Suckling, Conservation in Action: Safeguarding

Citizen Rights Under the Endangered Species Act (Defenders of Wildlife et al., Washing-

ton, D.C.), May 2001, at 7, available at http://www.defenders.org/publications /report.pdf (discussing and quoting Inspector General's report).

53. Id. 54. For a history of the listing petitions currently pending, see id. at 36-39. 55. Species Listing, supra note 46. 56. As of May 2001, there were 37 species proposed for listing. See Senatore & Suckling, supra note 52, at 36. In addition, the FWS estimated that there are 91 species of animals and 145 species of plants that were candidates for listing as of October 18, 2001. U.S. Fish and Wildlife Service, General Statistics for Endangered Species, at http://ecos.fws.gov/servlet/TessStatReport (Oct. 18, 2001) [hereinafter Species Statistics]. 57. As of October 19, 2001, the FWS' website indicates that 1,249 species have been listed, only 150 species have designated critical habitat. Species Statistics, supra note 56.

58. Senatore & Suckling, supra note 52, at 22. 59. FWS officials have stated that $120 million, or $24 million per year for five years, is required to make listing and critical habitat decisions for all candidate and proposed species. Id.

60. Pygmy Help, WASH. POST, Sept. 2, 2001, at B6.