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.”