Endangered Species Act Fraud

Environmental shakedown through bastardized application of science, policy, and education. Posted on April 13, 2015 Written by cfact.org

Dis­grun­tled ex-federal employ­ees found a way to bilk tax­pay­ers out of mil­lions of dol­lars using the flawed Endan­gered Species Act

Over a 3-year period, 2009–2012, Depart­ment of Jus­tice data show Amer­i­can tax­pay­ers footed the bill for more than $53 mil­lion in so-called envi­ron­men­tal groups’ legal fees—and the actual num­ber could be much higher. The real moti­va­tion behind the Endan­gered Species Act (ESA) lit­i­ga­tion, per­haps, could have more to do with vengeance and penance than with a real desire to pro­tect flora and fauna.

On May 7, I spoke at the Four Cor­ners Oil and Gas Con­fer­ence in Farm­ing­ton, New Mex­ico. Dur­ing the two-day event, I sat in on many of the other ses­sions and had con­ver­sa­tions with dozens of atten­dees. I left the event with the dis­tinct impres­sion that the cur­rent imple­men­ta­tion of the ESA is a major imped­i­ment to the eco­nomic growth, tax rev­enue, and job cre­ation that comes with oil-and-gas devel­op­ment. I have writ­ten on ESA issues many times, most recently I wrote about the lesser prairie chicken’s pro­posed “threat­ened” list­ing (which the Fish and Wildlife Ser­vice [FWS] listed on March 27) and the Okla­homa Attor­ney General’s law­suit against the fed­eral gov­ern­ment over the “sue and set­tle” tac­tics of FWS and the Depart­ment of the Interior.

While at the con­fer­ence, I received an email announc­ing that FWS has asked a fed­eral court for a 6-month delay in mak­ing a final deter­mi­na­tion on whether to list the Gun­ni­son sage grouse as an endan­gered species—moving the deci­sion past the Novem­ber elec­tions. Up for re-election, Sen­a­tor Mark Udall (D-CO) “cheered” the exten­sion request. The E & E report states: Col­orado elected lead­ers “fear the list­ing could have sig­nif­i­cant eco­nomic impacts.”

Kent Holsinger, a Col­orado attor­ney spe­cial­iz­ing in lands, wildlife, and water, posited: “Sen­a­tor Udall is among those laud­ing the move—perhaps because a list­ing deci­sion would affect his fate in the U.S. Sen­ate. Gun­ni­son sage grouse pop­u­la­tions are sta­ble, if not on the increase. In addi­tion, myr­iad state, local and pri­vate con­ser­va­tion efforts have been put into place over the last decade. Those efforts, and the Gun­ni­son sage grouse, are at risk if the FWS pur­sues listing.”

The report con­tin­ues: “WildEarth Guardians is not oppos­ing the lat­est exten­sion after Fish and Wildlife agreed to some exten­sive new mit­i­ga­tion mea­sures that will be made in the interim, includ­ing increas­ing buffer zones around sage grouse breed­ing grounds, called leks, and defer­ring coal, oil and gas leas­ing, said Erik Molvar, a wildlife biol­o­gist with WildEarth Guardians.” It goes on to say: “But the Cen­ter for Bio­log­i­cal Diver­sity, which is a party to the set­tle­ment agree­ments with WildEarth Guardians, said the lat­est exten­sion is a bad move for the grouse, which it says has needed ESA pro­tec­tions for years.”

Two impor­tant items to notice in the Gun­ni­son sage grouse story. One, the power the envi­ron­men­tal groups wield. Two, part of appeas­ing the envi­ron­men­tal groups involves “defer­ring coal, oil and gas leasing.”

It is widely known that these groups despise fos­sil fuels. The Cen­ter for Bio­log­i­cal Diver­sity (CBD) brags about its use of law­suits to block development—but it is not just oil and gas they block, it is vir­tu­ally all human activity.

In research­ing for this week’s col­umn, I have talked to peo­ple from a vari­ety of indus­try and con­ser­va­tion efforts. The con­ver­sa­tions started because I read some­thing they’d writ­ten about CBD. Whether I was talk­ing to some­one inter­ested in pro­tect­ing big horn sheep, a fish­ing enthu­si­ast, or an attor­ney rep­re­sent­ing ranch­ing or extrac­tive indus­tries, CBD seems to be a thorn in their side. All made com­ments sim­i­lar to what Amos Eno, who has been involved in con­ser­va­tion for more than 40 years, told me: “CBD doesn’t care about the crit­ters. They are cre­at­ing a list­ing pipeline and then mak­ing money off of it.” Envi­ron­men­tal writer Ted Williams, in a piece on wolves, called CBD: “peren­nial plaintiffs.”

New Mex­ico rancher Stephen Wil­meth directed me to a CBD pro­file he had writ­ten. In it he addressed how the CBD’s efforts tar­geted live­stock graz­ing and sought “the removal of cat­tle from hun­dreds of miles of streams.” Wil­meth states: “CBD has ele­vated sue and set­tle tac­tics, injunc­tions, new species list­ings, and bad press sur­round­ing legal action to a mod­ern art form. Con­sent decrees more often than not result in closed door ses­sions with con­ces­sions or demands made on agency pol­icy formulation.”

In a post­ing on the Soci­ety for Bighorn Sheep web­site titled: Legal tac­tics directly from the Cen­ter for Bio­log­i­cal Diver­sity, board mem­ber Gary Thomas states: “The Cen­ter ranks peo­ple sec­ond. By their account­ing, all human endeav­ors, agri­cul­ture, clean water, energy, devel­op­ment, recre­ation, mate­ri­als extrac­tion, and all human access to any space, are sub­or­di­nate to the habi­tat require­ments of all the world’s obscure ani­mals and plants. But these self­ish peo­ple don’t care about any per­son, plant, or ani­mal. The Cen­ter col­lects obscure and unstud­ied species for a sin­gle pur­pose, specif­i­cally for use in their own genre of law­suits. They mea­sure their suc­cesses not by qual­ity of life for man nor beast, but by count­ing wins in court like notches in the han­dle of a gun.”

You’d expect some­one like me, an energy advo­cate, to dis the CBD—and I have (CBD is not too fond of me)—but how did it get such a broad-based col­lec­tion of neg­a­tiv­ity from within the envi­ron­men­tal community?

Ted Williams told me: “Envi­ron­men­tal­ists who are pay­ing atten­tion are not happy with CBD.” He has writ­ten the most com­pre­hen­sive exposé on CBD that can be found—for which he was threat­ened with a law­suit. With­out Williams’ work, one has to resort to bits and pieces off the inter­net to put together CBD’s modus operandi—but there is plenty to choose from!

One of the most inter­est­ing ones to catch my eye was a part of the post on SheepSociety.com. There, Thomas points out the fact that the three founders of CBD are ex-Forest Ser­vice work­ers. He states: “To donors, their motives appear altru­is­tic. To the informed, they look more like a 20-year quest for revenge for their firing.”

I am fairly well acquainted with CBD, but Thomas’ accu­sa­tion was new to me—though it fit what I knew. (One of the very first pieces I ever wrote, when I orig­i­nally got into this work seven plus years ago, was on the one and only legal vic­tory ever won against CBD. Ari­zona rancher Jim Chilton won a defama­tion suit against CBD with a $600,000 set­tle­ment. Nearly every­one I talked to as a part of my research for this story men­tioned Chilton’s name with reverence.

I dug around and found an inter­est­ing story from Back­packer mag­a­zine that gave cre­dence to Thomas’ claim. The Feb­ru­ary 2003 issue fea­tures a multi-page pro­file on Kieran Suck­ling, co-founder and exec­u­tive direc­tor. Address­ing the three founders, who were work­ing for the For­est Ser­vice, Back­packer reports: “All three of them were frus­trated by their agen­cies’ inac­tion.” The story goes on to explain how the three­some “hatched a plan” to peti­tion the For­est Ser­vice and force it to list the spot­ted owl.

Then, I found a 2009 pro­file on Suck­ling in High Coun­try News (HCN). It quotes Suck­ling describ­ing how the roots of his full-time activism started while work­ing for the For­est Ser­vice doing spot­ted owl sur­veys: “We had signed con­tracts say­ing we wouldn’t divulge owl loca­tions, but we went the next day to the Sil­ver City Daily Press, with a map that told our story. We were fired within sec­onds. That was the start of us becom­ing full-time activists.”

These snip­pets help explain Suckling’s ani­mos­ity toward the For­est Ser­vice and other gov­ern­ment agen­cies. CBD is glee­ful over its results. It has sued gov­ern­ment agen­cies hun­dreds of times and has won the major­ity of the cases—though many never go to court and are set­tled in a back­room deal (hence the term: “sue and set­tle”). Thomas writes: “They are extremely proud to report that single-handedly they deplete the U.S. Fish and Wildlife’s entire annual bud­get, approx­i­mately $5 mil­lion, for endan­gered species list­ings year after year by forc­ing them to use their lim­ited funds defend­ing law­suits instead of their intended purpose.”

The HCN piece describes Suckling’s approach to get­ting what he wants—which he explains in the New Yorker, as “a new order in which plants and ani­mals are part of the polity”: “The For­est Ser­vice needs our agree­ment to get back to work, and we are in the posi­tion of being able to pow­er­fully nego­ti­ate the terms of releas­ing the injunc­tion. … They [fed­eral employ­ees] feel like their careers are being mocked and destroyed—and they are. So they become much more will­ing to play by our rules and at least get some­thing done. Psy­cho­log­i­cal war­fare is a very under­ap­pre­ci­ated aspect of envi­ron­men­tal campaigning.”

“In CBD speak,” adds Wil­meth, “the sug­ges­tion of play­ing by the rules equates to its rules of manip­u­lat­ing pos­i­tive out­comes for its mission.”

Putting the pieces together, it does appear, as Thomas asserts, that Suck­ling is on a 20+ year “quest for revenge” for being fired—vengeance that Amer­i­can tax­pay­ers are funding.

Suck­ling is an inter­est­ing char­ac­ter. The Back­packer story cites his ex-wife, who said the fol­low­ing: “He’s not teth­ered on a daily basis to the same things you and I are teth­ered to.”

Tierra Curry is another name that comes up fre­quently in CBD cov­er­age. CBD’s staff sec­tion of the web­site lists her as “senior sci­en­tist” and says she “focuses on the list­ing and recov­ery of endan­gered species.” As Warner Todd Hus­ton reports: “Curry has an odd pro­file for an activist. She once claimed to have enjoyed dyna­mit­ing creek beds in rural Ken­tucky and tak­ing per­verse plea­sure at send­ing fish and aquatic ani­mals fly­ing onto dry land and cer­tain death. Now Curry spends her time fil­ing peti­tions to ‘save’ some of the same ani­mals she once enjoyed killing.”

Per­haps Curry’s fre­netic list­ing efforts are her way of doing penance for her child­hood pen­chant of killing critters.

The role vengeance and penance may play in CBD’s shake­down of the Amer­i­can pub­lic is just a hypoth­e­sis based on facts. But the dol­lars paid out are very real.

In an April 8, 2014, hear­ing before the House Com­mit­tee on Nat­ural Resources, fifth-generation rancher and attor­ney spe­cial­iz­ing in envi­ron­men­tal lit­i­ga­tion, Karen Budd-Falen talked about the need for ESA reform, as four dif­fer­ent House bills pro­pose: “Pub­lic infor­ma­tion regard­ing pay­ment of attorney’s fees for ESA lit­i­ga­tion is equally dif­fi­cult to access.” Address­ing HR 4316—which requires a report on attorney’s fees and costs for ESA related litigation—she says: “It should not be a rad­i­cal notion for the pub­lic to know how much is being paid by the fed­eral gov­ern­ment and to whom the check is written.”

As she reports in her tes­ti­mony, Budd-Falen’s staff did an analy­sis of the 276-page spread­sheet run released by the Depart­ment of Jus­tice (DOJ) list­ing lit­i­ga­tion sum­maries in cases defended by the Envi­ron­ment and Nat­ural Resources Divi­sion, Wildlife Sec­tion. She explains: “The spread­sheets are titled ‘Endan­gered Species Defen­sive Cases Active at some point dur­ing FY09-FY12 (through April 2012).’ Although the DOJ release itself con­tained no analy­sis, my legal staff cal­cu­lated the fol­low­ing statistics.”

Budd-Falen then shows how she came up with the nearly $53 mil­lion fig­ure of tax­payer money paid out over an approx­i­mate 3-year period. How­ever, she then shows how her own Free­dom of Infor­ma­tion Act requests have proven “that the DOJ does not keep an accu­rate account of the cases it defends”—making the actual dol­lar fig­ure much higher.

Budd-Falen has stated: “We believe when the cur­tain is raised we’ll be talk­ing about rad­i­cal envi­ron­men­tal groups bilk­ing the tax­payer for hun­dreds of mil­lions of dol­lars, allegedly for ‘reim­burse­ment for attor­ney fees.’”

Budd-Falen’s research shows that for groups like CBD—who sue on process not on substance—it really is about the money.

Eno believes that for the CBD, it isn’t about the crit­ters: “CBD endan­gers the endan­gered species pro­gram on mul­ti­ple fronts.

* First, their peti­tions and list­ing suits use up sig­nif­i­cant finan­cial and per­son­nel resources of both Office of Endan­gered Species and solic­i­tors office in DOI. This means less fund­ing and per­son­nel devoted to species recovery.

* Sec­ond, CBD suits antag­o­nize and jeop­ar­dize recov­ery pro­grams of coop­er­at­ing fed­eral land man­age­ment agen­cies, par­tic­u­larly USFS and BLM.

* Third, their suits have ham­pered for­est and grass­land man­age­ment thereby invit­ing for­est fires which endan­ger both human and wildlife (sage grouse) com­mu­ni­ties through­out the west.

* Fourth, CBD suits antag­o­nize, alien­ate and cre­ate finan­cial hard­ship for affected pri­vate land own­ers, thereby reduc­ing both pub­lic sup­port and ini­tia­tives and active assis­tance for listed species recovery.”

Despite numer­ous attempts, the ESA has not had any major revi­sions in more than 25 years. The Wall Street Jour­nal states: “The ESA’s mixed record on wildlife restora­tion and its impact on busi­ness have made the law vul­ner­a­ble to crit­ics.” Groups like CBD have twisted the intent of the law. Reform is now essential—not just to save tax­payer dol­lars, but to put the focus back on actu­ally sav­ing the species rather than, as Wil­meth calls it: “the bas­tardized appli­ca­tion of sci­ence, pol­icy, and education.”

Related Posts

• BACKGROUND TO THE WILDLANDS PROJECT
• The Dis­ap­pear­ing States
• Com­mit­tee Report Uncov­ers Lack of Inde­pen­dence & Account­abil­ity of Peer Review Process for ESA List­ing Decisions
• Who Owns the Envi­ron­men­tal­ist Movement?
  Filed Under: Natural Resources, Property Rights, Wildlands Network
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