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NMFS Attorney Sees God Squad on Horizon for BIOP Lawsuit by Bill Rudolph NW Fishletter, January 31, 2003

A lawsuit environmental and fishing groups filed against the federal government over its hydro BiOp could have "big implications" for regional power bills and may end up being reviewed by a group of top federal officials called the "God Squad," a government attorney said last week. If the squad reviews the lawsuit [National Wildlife Federation v. NMFS], they may ultimately determine the fate of ESA-listed Columbia River salmon, said Sam Rauch, a Department of Justice attorney who represents the National Marine Fisheries Service. Rauch was speaking at a Seattle legal education conference.

The seven-member "God Squad," headed by Secretary of the Interior Gale Norton, has the power to override government decisions with respect to ESA enforcement. Other squad members are the Secretary of Agriculture, the Secretary of the Army, the Chairman of the Council of Economic Advisers, the Administrator of the National Oceanic and Atmospheric Administration and one individual from the affected state.

Officially called the "Endangered Species Committee," the squad was established in 1978 by an amendment to the 1973 Endangered Species Act. It has only been called into action three times to deal with proposed federal agency actions that have been determined to cause "jeopardy" to any listed species.

Such actions may receive an exemption from the ESA if five members of the committee determine that the action is of regional or national significance, that the benefits of the action clearly outweigh the benefits of conserving the species and that there are no reasonable and prudent alternatives to the action.

Uncertainty over the success of future BiOp fish mitigation efforts is a "big issue" in the lawsuit, Rauch said. The lawsuit argues that dam operations shouldn't be given a "no-jeopardy" decision on their impacts to ESA stocks based on unspecified off-site mitigation to improve fish numbers.

Rauch said he doubted the lawsuit would lead to dam removal. But he said the God Squad would likely be called into action. In addition to Columbia River salmon, other potential candidates for the squad include Klamath Basin suckerfish and a minnow found in the Rio Grande River of New Mexico, he said.

But another DOJ attorney disagreed. Eileen Sobeck, deputy assistant attorney general for environment and natural resources, said the God Squad was not a useful tool for resolving ESA conflicts because it was such a cumbersome and time-consuming process. However, she thought that it may resurface in possible legislation this year.

Jokingly, Sobeck told the group she sometimes daydreamed that the perfect policy wonks on TV's "West Wing" would solve these issues and lead us "out of the ESA morass." Sobeck said litigation over ESA critical habitat issues was "gridlocked" by conflicting court decisions, inflexible time schedules and insufficient funding.

ESA Reform Unlikely
Though strong critics of the federal Endangered Species Act now head major Congressional committees, it's still doubtful the ESA will undergo any major overhaul during this session of Congress, said Washington, DC attorney Steven Quarles of Crowell & Moring.

With the House floor still controlled by moderates, Quarles said it's not likely that Rep. Richard Pombo (R-CA) will get his ESA agenda passed. Pombo supports more economic considerations in the listing process, more scientific peer review and compensation for private landowners whose property is tied up by critical habitat concerns.

Likewise, said Quarles, liberals such as George Miller (D-CA) are not likely to get anywhere with their own attempts at reform. "His bill is not going anywhere, either," said the DC attorney, who chairs his firm's natural resources and environment group.

Without any omnibus ESA re-authorization bill in the works, like the attempt a few years ago sponsored in the Senate by Dirk Kempthorne (R-ID), Max Baucus (D-MA) and others, Quarles said "there's nothing in it" for politicians to address the ESA at this time. He said it wasn't pressure from environmentalists that killed Kempthorne's bill, but "the right-wing property rights advocates that did it."

Quarles said a "slim-fast" version of the Pombo legislation may move, with a focal point that wasn't visible two years ago. The new focus is on the issue of "critical habitat," after a series of adverse judicial decisions has forced government agencies to re-think critical habitat designations in their ESA consultations. That's where major administrative reform is likely, Quarles added.

Though the Bush administration has created a task force for ESA reform, Quarles said money problems at agencies may keep much from happening. He said NMFS and the USFWS are two of the most "budget-straited" agencies in government at the present time.

National Wildlife Federation attorney John Kostyack said none of the major players in Congress support Pombo's legislation and that a "serious disconnect exists between these guys and most people over the ESA." He said a poll indicates that 78 percent of the public support maintaining or strengthening the ESA.

Kostyack said the administration knows how to take the teeth out of the ESA in more subtle ways. But he sees a continuation of what's been going on for the past couple of years; that is, actions of agency heads, like the Interior Department's Gail Norton "de-emphasizing the stick and emphasizing the carrot," but providing no new funding to compensate landowners over critical habitat.

Though the environmental attorney said it was difficult to predict what was going to happen, the law needed to be improved, especially to provide dollar incentives for private landowners to help biodiversity conservation.

Quarles said the funding problem was brought home when it was pointed out that Washington, DC residents spent as much on pizza every year as the federal government spends on implementing the ESA.

Quarles said the government promised a new template for designating critical habitat in ESA consultations last fall, but it's still not out, and conflicting opinions on critical habitat issues in two district courts have only made the situation more confusing. He noted that 40 percent of the state of California is now listed as critical habitat for one listed species or another.

New ESA Wrinkle
Earthjustice attorney Patti Goldman described a recent case in Oregon where environmental and fishing groups have filed a citizen lawsuit [Pacific Rivers Council et al v. Brown] against the Oregon State Forester which challenges his approval of certain logging practices that the groups allege "take" ESA-listed coho.

Perkins-Coie attorney Galen Schuler pointed out that it's a confusing situation that pits state law against the ESA, and has 10th Amendment implications. "Every local government and state agency should have concerns," Schuler said, because such suits can penalize agencies for trying to incorporate ESA concerns into their regulations. He said the state of Oregon would probably be better off not issuing permits for the logging practices since "they're less likely to be liable for take if they're not protecting." (On Jan. 28., the Oregon Forestry Board temporarily suspended the need for loggers to submit a written plan or get approval before harvesting timber on steep slopes, removing the link between the state forester and "take" of coho." Plaintiffs had filed for an injunction last May to stop all logging on steep slopes on state and private lands until the case is settled. A hearing on the injunction is scheduled for Feb. 11).