A RECENT DECISION BY A FEDERAL judge, resulting from a lawsuit originally filed back in the late 1990s, may seriously jeopardize a builder's right to develop environmentally sensitive lands in situations where the builder already holds a federal permit.

The decision asks the Fish and Wildlife Service and the National Marine Fisheries Service to rethink the “no surprises rule,” adopted by the federal government in 1998. The rule, which protects builders, loggers, and miners from unforeseen environmental compliance requirements, essentially says “a deal's a deal” and a federal permit cannot be revoked.

The original lawsuit contesting the federal government's permit rules was filed by the Spirit of the Sage Council, which is the lead organization for six Native American, community, and environmental groups. Spirit of the Sage has been fighting the government and industry groups, including builders and developers, on environmental and endangered species issues for several years.

This specific case dates back to 1998. In February of that year the federal government issued the no surprises rule, and Spirit of the Sage promptly filed a lawsuit that summer challenging the rule.

Roughly one month before a July 1999 summary judgment hearing was scheduled on the no surprises rule, the federal government issued its “permit revocation rule” that says federal permits can be revoked only when the survival of a species is at stake. Spirit of the Sage filed a lawsuit over the revocation rule, claiming that the government issued the edict without a proper public comment period. The group contends that since the revocation rule was never fully discussed, the government wound up with a lopsided system in which a permit could be revoked to save a species, but not modified to support the recovery of a species.

“The problem is that some federal permits are issued for 10, 20, even 50 or 100 years,” says Eric Glitzenstein, the attorney representing Spirit of the Sage. “If scientists do research and find something 25 years down the road after a permit is issued, the government should be able to modify a permit to protect that habitat,” he says.

Last December, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ordered the two federal agencies to rethink their rules for granting permits that allow land development in protected areas, as well as the rules for when the federal government can revoke a permit to protect wildlife under the Endangered Species Act.

This past June, Judge Sullivan put teeth into the order, requiring the agencies to report back to the court with revisions based on public comment no later than Dec. 10 of this year, and stopped the government from issuing any new development permits with no surprises assurances until at least Dec. 10.

Builders aren't taking the decision lightly, especially since many species whose survival is imperiled are found on private property and close to developed areas.

“As far as we're concerned, a permit shouldn't be revoked unless under the most stringent circumstances,” says Duane Desiderio, an NAHB vice president. “If a species would go extinct then it would be appropriate to revoke a permit.”

The other groups filing the lawsuit along with Spirit of the Sage include the Shoshone Gabrielino Nation, a co-founder of the council; the Biodiversity Legal Foundation, a Boulder, Colo., environmental group; the National Endangered Species Network; the Humane Society of the United States; the Klamath Forest Alliance, a California nonprofit group; and the Mountaineers, one of the oldest conservation groups in Washington state.

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