Center has won hundreds of lawsuits vs. feds
From a cluttered, borrowed warehouse in an industrial neighborhood on Tucson’s near North Side, a small group of environmentalists is changing the world – one lawsuit at a time.
The Center for Biological Diversity staff brandishes the Endangered Species Act like a blunt-force instrument. Leverage from its petitions and lawsuits – more than 500 in 18 years – helped gain protection for nearly a fourth of the 1,351 endangered or threatened plants and animals in the United States.
The nonprofit organization that started in 1989 as three idealists in a Phoenix apartment, two of them on unemployment after being fired by the U.S. Forest Service, has grown to more than 40,000 members with 11 offices in six states. The center’s budget grew tenfold in the past decade.
In southern Arizona alone, center petitions helped add the Mexican spotted owl, cactus ferruginous pygmy owl and jaguar to the list of endangered species (The pygmy owl was de-listed in 2006 but the center is trying to get it back on the list). Its lawsuits forced the government to protect habitat for spotted owls, Pacific pocket mice and northern right whales. Dozens of plants the center helped protect are so rare they have no common names.
In 2005, the center petitioned Fish & Wildlife to list polar bears as threatened. It is the center’s attempt to show that global warming is affecting wildlife. A listing decision is due in coming weeks.
Critics accuse the center of helping to hobble Fish & Wildlife, the federal agency with the task of protecting the nation’s endangered species. Since 2000, the agency has spent nearly all of its endangered species listing budget complying with court orders arising from lawsuits such as the center’s.
But the lawsuits are only to force the federal government to follow its own laws, center staffers say. The reason behind the relentless litigation is simple, according to co-founder Robin Silver, a professional nature photographer and Phoenix emergency room physician.
“There’s no species that doesn’t deserve protection,” he said.
In 1989, Peter Galvin, Kierán Suckling and Todd Shulke were counting and mapping Mexican spotted owls for the U.S. Forest Service in New Mexico. When they saw that the Forest Service was planning to allow logging in owl territory, they told a newspaper where the birds’ nests were, Suckling said.
“That was the end of our Forest Service jobs,” he said with a chuckle.
Suckling, then a doctoral candidate in philosophy, and Galvin, who was studying conservation biology, moved in with Silver, who had recently written the petition to add the Mexican spotted owl to the endangered species list. Together they formed the nucleus of what would be the Center for Biological Diversity.
Taking a cue from Jasper Carlton, founder of the Colorado-based Biodiversity Legal Foundation, they decided to pursue a legal strategy. They began compiling information on hundreds of endangered species. Eventually they were ready to release their litigation landslide to force listings and habitat designation.
“When we had all of that information together, we came out and started suing. It was a massacre,” Suckling said.
Fish & Wildlife lawyers had decided the Endangered Species Act did not require the government to map critical habitat – areas deemed necessary to the species’ survival – at the time of listing, but judges began to disagree in the mid-1990s, said Hugh Vickery, a former Fish & Wildlife spokesman now with the Department of Interior.
“Very few (habitat designations) had been done up to that point,” Vickery said.
Lawsuits have impact
Lawsuits to force habitat designations soon threw Fish & Wildlife’s endangered species program into gridlock.
Jamie Rappaport Clark, executive vice president for the nonprofit Defenders of Wildlife, who was Fish & Wildlife director from 1997 to 2001, declined to comment about the center’s impact on the agency during her tenure. Marshall P. Jones Jr., Fish & Wildlife director from 2001 to 2007, did not return two messages left at his home seeking comment.
But the impact of lawsuits against the agency is clear. Since 2000, Fish & Wildlife has spent essentially all of its roughly $5 million annual listing budget on court cases, according to the service’s 2008 budget justification. By last year, the agency was almost caught up with listing petitions, and the backlog should be erased this year, the document predicts.
But Clark told a congressional committee in April that Fish & Wildlife is still “in crisis.” Staffing levels are low, and funds have been diverted from endangered species programs when increases are needed, she told a subcommittee of the House Appropriations Committee. She urged the committee to increase endangered species funding from President Bush’s requested $146.5 million to $185.2 million.
The Pacific Legal Foundation, a California-based group that advocates property owners’ rights, has challenged some center lawsuits. Foundation President Robin Rivett accuses the center of exploiting the Endangered Species Act requirement for speedy habitat designation.
The lawsuits force the government to designate habitat before thorough study, Rivett said. Then property owners challenge hasty decisions – a cycle that hampers protection of species by tying up federal resources, he said.
“I don’t think it’s helping. It seems to be litigate first and talk second,” he said.
The Endangered Species Act requirements leave judges little choice but to side with the center, Rivett said.
“It’s like shooting fish in a barrel when it comes to critical habitat,” he said.
In July, the foundation sued Fish & Wildlife on behalf of the Arizona Cattle Growers Association, challenging more than 8 million acres of Mexican spotted owl habitat in Arizona, New Mexico, Utah and Colorado. Much of the land is unsuitable for the owls, and the habitat designation didn’t adequately assess the economic impact on residents, the foundation claims.
The center is not apologetic about the lawsuits that follow almost every petition for listing.
“The best thing we can do is tell science like it is. If we do that, we win,” said Executive Director Michael Finkelstein.
And win they do. The center has won 86 percent of the cases, Galvin said.
Rancher fought back
Jim Chilton Jr., whose family has raised cattle in southern Arizona for more than 120 years, is among a handful of litigants who beat the center. In 2003, Chilton sued for defamation after the center put photos on its Web site claiming to show damage his cattle caused on his land, which is in critical habitat for the threatened Sonora chub and Chiricahua leopard frog.
Chilton sued after the center challenged his grazing lease on Coronado National Forest land.
“I had been attacked, attacked and attacked. I had to decide if I was a wimp or a cowboy. I stood up, I cowboyed up like a cowboy should,” Chilton said.
The center claimed the photos – one of which showed damage caused by campers – were posted by mistake, but a jury awarded Chilton $600,000 in January 2005. He collected in December after an appellate judge upheld the jury decision and the state Supreme Court refused to hear another appeal.
Though the center has sued the government more than 460 times in the past two decades, it sees government as the solution to environmental woes. Individuals can’t protect flora and fauna from global warming, but governments can, Finkelstein said.
“I personally believe this can only be solved by good government,” he said. “We believe the important laws are on the books. Yes, we could have more, but just enforcing the laws we have is a huge step.”
Suckling maintains that to protect plants and animals, we have to protect ecosystems. But for now, the fight will be species by species, Suckling said.
“An ecosystem is not a legally protected entity. A plant or animal species is,” he said.
The center thrust itself into Tucson’s consciousness in 1997, when it petitioned to have the 7-inch-tall cactus ferruginous pygmy owl listed as endangered. The same year the center sued to force designation of habitat. The owl was listed late in 1997, and more than 700,000 acres of southern Arizona were deemed its habitat, virtually halting development on large stretches of northeast Pima County land.
The center asked the courts in spring 1998 to block construction of a high school in Amphitheater Public Schools district because the school’s proposed site was in owl habitat. Fearing a public backlash, other environmental groups balked at the case, Suckling said.
“They looked at it and said, ‘We aren’t going to sue a school district.’ We didn’t feel like we had a choice,” he said.
The high school, Ironwood Ridge, was eventually built and the owl was removed from the endangered species list in 2006 when Fish & Wildlife determined it was not a distinct species.
But the fight is not over. Last March, the center petitioned Fish & Wildlife to re-list the pygmy owl.
The center, according to legend as related by Suckling, sent its first mass mailing for donations after Suckling obtained a box of printed address labels from another environmental group’s office.
That seed list of about 3,000 potential members has grown to more than 40,000 members including blues musician Bonnie Raitt, who gave the center more than $10,000 in 2006, and Swiss billionaire Hansjörg Wyss, who last year pledged $10 million over five years.
“Just two years ago we were 15,000 (members),” said Finkelstein, who has occupied his Spartan executive director’s office for three years.
Rank and file members contribute about a third of the center’s budget, major donors another third and foundations the rest. The center tries not to rely on major donors, Finkelstein said.
“It’s better to rely on 50,000 $50 donations than a few million-dollar ones,” he said.
In 1996, the center’s budget was $383,000, mostly from the Pew Charitable Trusts and Turner Foundation.
The budget rose to $3.8 million by 2006, and donations should top $6 million this year, Finkelstein said.
Suckling hopes to add to the center’s list of 11 offices – the most recent, in Vermont, opened this month, and an office in the Southeast is planned.
“Eventually, I think we need to cover the entire United States,” Suckling said.
Loving the work
The pay is meager for center staff. Lawyer salaries start in the low $30,000s and go up to the $50,000 range for senior attorneys, but money isn’t the draw, Finkelstein said.
“Everyone is just driven by the subject. That’s why they take less,” he said.
Attorney Kassie Siegel, director of the center’s climate program and lead author of the petition to list the polar bear, agreed. She works “crazy hours,” but she is not alone, she said.
“I’m working evenings, and I’m working weekends and my co-workers are here, too. It’s not like anybody is telling us we have to, we just love the work so much,” she said.
The center also cuts costs by having its headquarters in a small warehouse near West Drachman Street and North Main Avenue borrowed from a gem dealer, who kicks them out for three weeks each winter during the Tucson Gem, Mineral & Fossil Showcase.
The corporate uniform is T-shirts and sneakers for everyday work, and dogs are welcome in the cluttered office, where three worn sofas and a battered coffee table serve as reception area and conference room.
Education is not a prerequisite for employment, though 29 of the 54 staffers have science degrees, 15 are lawyers and 39 hold at least master’s degrees. Perpetual motion is a priority.
“What we expect is all action, all the time,” Suckling said.
The center’s work goes far beyond biology for Suckling, who has a master’s degree in philosophy from the State University of New York at Stony Brook. There are deep cultural bonds between people and animals that start soon after we are born, he said. From Garanimals to stuffed animals to familiar icons such as Big Bird, we wrap our children in wildlife from birth, he said.
“We don’t surround them with images of people. We surround them with images of animals,” said Suckling, who carries photos of hundreds of endangered species in his PDA.
If we lose the diversity of species, we lose part of ourselves that many of us might not realize exists. Wildlife gives us context, Suckling maintains.
Though the facts seem bleak – potential extinction of the polar bear within 50 years is an example – center staffers are convinced they have made and can continue to have an impact, Finkelstein said.
“Why would we be here if we didn’t believe we were making a difference?”
ON THE WEB
U.S. Fish and Wildlife Service endangered species page: www.fws.gov/endangered/wildlife.html
Fish and Wildlife polar bear page: http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm
Center for Biological Diversity: www.biologicaldiversity.org
Pacific Legal Foundation: www.pacificlegal.org
CENTER’S S. ARIZONA FOCUS
ferruginous pygmy owl
• Range: Southern Arizona and northern Mexico, but mainly ironwood forests near Tucson and Marana
• Listed as endangered, 1997; de-listed 2006
• The center petitioned Fish & Wildlife in 1997 to list the owl as endangered, then sued three times to force the listing, which severely limited development on more than 700,000 acres of owl habitat in southern Arizona. In 2001, developers challenged the listing in court, and in 2006 the owl was removed from the endangered species list. In March 2007 the center petitioned Fish & Wildlife to re-list the owl.
Tucson shovel-nosed snake
• Range: Southern Pinal County
• The center petitioned Fish & Wildlife in 2004 to list the rare and largely unstudied snake as endangered. The agency has not responded.
Mexican spotted owl
Strix occidentalis lucida
• Range: Utah, Colorado, Arizona, New Mexico, Texas and norther Mexico
• Listed as threatened, 1993
• Center co-founder Robin Silver wrote the petition to list the owl in 1989, then from 1994 to 2001 the center sued Fish & Wildlife three times and the Forest Service twice over habitat designation. The critical habitat – 8.6 million acres in four states – was finalized in 2004.
• Range: From Argentina to southern Arizona and New Mexico.
• Listed as endangered, 1997
• The center sued in 1997 to list the jaguar as endangered, then sued again in 2007 to force designation of critical habitat and a recovery plan. Earlier this month, Fish & Wildlife announced it would not write a recovery plan because the animals in the United States are not a breeding population, but simply males that roam into the United States from a breeding population in Mexico.
Chiricahua leopard frog
• Range: Streams and wetlands in parts of Arizona, New Mexico and northern Mexico
• Listed as threatened, 2002
• The center petitioned Fish & Wildlife in 1998 to list the frog as endangered, then sued a year later and again in 2001 when the agency did not respond. Fish & Wildlife issued a recovery plan in 2007, but did not designate critical habitat.
Empidonax trailii extimus
• Range: Breeds in parts of California, Arizona, New Mexico, Colorado, Nevada and Utah. Winters from southern Mexico to northern South America
• Listed as endangered, 1995
• The center petitioned Fish & Wildlife in 1992 to list the bird as endangered, then sued Fish & Wildlife four times between 1992 and 2007 over habitat designation. Fish & Wildlife announced in 2007 that its 2005 habitat designation will stand.
Center for Biological Diversity
P.O. Box 710
Tucson, AZ 85702-0710
• Telephone: (520) 623-5252
• Toll-free: (866) 357-3349
• E-mail: email@example.com
BY THE NUMBERS
• 40,000-plus members
• 11 offices in six states
• $3.8 million budget
• $6 million annual donations