By Laura Parker, USA TODAY
Ever since a 3-inch fish protected by the
Endangered Species Act stopped construction of
a dam in Tennessee in 1978, the law has been
known as one of the toughest environmental
laws on the books.
Environmental groups have
used it to halt development in pristine lands
across the nation. Today, the law designed to
protect animals such as the manatee from
extinction also has become a legal tool of
property-rights groups and developers.
Global warming affects species from caribou to
harlequin frogs to coral
In a counterpunch to
environmentalists who have filed lawsuits aimed
at protecting hundreds of plant and animal
species by listing them as endangered or
threatened, property-rights groups such as the
Pacific Legal Foundation are filing lawsuits to
have animals and plants removed from the list so
that development can proceed.
groups have filed dozens of legal challenges
aimed at allowing development on lands set aside
by the U.S. government to help protect
"The conventional wisdom
is that environmental groups exclusively used
this provision in court, but today, the industry
lawsuits challenging critical habitat
designations far outnumber environmental
challenges," says Pat Parenteau, a law professor
at Vermont Law School in South Royalton, Vt.
In a study he published
last August on active litigation involving the
Endangered Species Act, Parenteau counted 45
lawsuits filed by industry groups and five filed
by environmental groups.
Litigating the list
At the forefront of the
movement is the National Association of Home
Builders, which recently prevailed in a legal
battle over Arizona land that had been
designated as a habitat for the cactus
ferruginous pygmy owl. Two environmental groups
have sued to restore the designation, and a
court hearing on the issue is scheduled for
conservative Pacific Legal Foundation, based in
Sacramento, is pressing the federal government
to re-examine several animals and plants on the
Both groups have found a
relatively friendly audience in the Bush
administration, which in recent years has
loosened many of the restrictions in the
Endangered Species Act. Among other things, the
administration has focused on giving private
property owners incentives to protect vulnerable
species, rather than banning activity on such
"We've had property
owners coming to us for years," says Rob Rivett,
chief attorney for the foundation. "Finally, it
became clear we didn't have any choice but to
try to balance the scales."
The foundation, backed by
contributions from foundations of the
conservative Pittsburgh billionaire Richard
Mellon Scaife, began filing lawsuits in the late
1990s, Rivett says. It is involved in more than
30 active suits across the USA.
Last September, the
foundation reached a settlement with the U.S.
government in a lawsuit brought on behalf of the
California Cattlemen's Association, which wanted
a review of the 194 plants and animals listed as
endangered or threatened. Under the settlement,
a review of 10 species must be completed by
2011, Rivett says.
The Endangered Species
Act requires such reviews every five years, but
the U.S. Fish and Wildlife Service lags far
behind, says Renne Lohoefener, assistant
director for the Endangered Species Act at the
Fish and Wildlife Service.
"We simply never had the
resources in terms of people and money," he
says. "As a result, we are way behind in doing
New front in Florida
The foundation is now
representing the Florida Home Builders
Association in a similar lawsuit filed last
November in federal court in Orlando. The
lawsuit seeks to have the status of 106 plants
and animals in Florida reviewed.
The Pacific Legal
Foundation also is challenging the endangered
• Four salmon in four
western states, accusing the government of
counting only natural population to determine
listings, and not counting hatchery salmon. The
suit potentially could ease restrictions on
development and activities around rivers and
streams in Oregon, Washington, Idaho and
• About 20,000 marbled
murrelet birds in Coos County, Ore. County
commissioners hope that delisting the bird would
lead to more logging.
The Endangered Species
Act has prompted litigation from the moment
President Nixon signed it 33 years ago.
"There are more lawsuits
now than there were 20 years ago because there
are more species declining and more habitats
being lost than there were 20 years ago," says
Bill Snape, chief counsel for the Defenders of
Wildlife in Washington, D.C.
There are 1,311 animals
and plants listed as "endangered" or
"threatened," according to Claire Cassel of the
U.S. Fish and Wildlife Service. In 1986, there
were 422 listed, she says.
Mike Mittelholzer, a vice
president at the home builders association, says
his organization's legal challenges are in
response to lawsuits filed by environmentalists.
A bill passed last year
by the U.S. House of Representatives would
eliminate critical habitat protections — and
essentially eliminate litigation.
Most of the legal battles
over the Endangered Species Act are taking place
in rapidly growing urban areas in the South and
In the Tucson fight over
the cactus ferruginous pygmy owl, The National
Association of Home Builders objected to the
government's plan to set aside 1.2 million acres
for the animal and fought to have it removed
from the endangered species list. Last month,
the Bush administration announced it would take
the owl off the list.
That decision prompted
two environmental groups to sue in Tucson
federal court to block the delisting, says
Kieran Suckling, policy director for Center for