Contractual ecosystem management under the endangered species act: Can federal agencies make enforceable commitments?

Ecology Law Quarterly

Volumn 26, Issue 3, 1999, Pages 489-542

  Melious, Jean O ^a   Thornton, Robert D ^a  

^a NONE

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EID: 0033456622     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (259)

1. 16 U.S.C. §§ 1531-1544 (1994).
2. More than 800 comments were received on the proposed No Surprises rule. See Habitat Conservation Plan Assurances (No Surprises) Rule, 63 Fed. Reg. 8859, 8861 (1998) (to be codified at 50 C.F.R. pts. 17 & 222). The issues raised in the comments included concerns that the policy "was driven solely by the needs of private landowners, and is not in the best interests of the species ...."; concerns that no "commensurate certainties for protection of biological resources" were provided; and concerns that adequate funding was not available, either through agencies or through HCP funding, to implement necessary mitigation measures. Id. at 8861-8864.
3. Several environmental organizations have challenged the No Surprises rule in federal district court. See, e.g., Spirit of the Sage Council v. Babbitt, D.C. Dist. Ct. No. 1: 98CV01873 (EGS).
4. See, e.g., Martha F. Phelps, Candidate Conservation Agreements Under the Endangered Species Act: Prospects and Perils of an Administrative Experiment, 25 B.C. ENVTL. AFF. L. REV. 175, 197 (1997).
5. This concept, which would be considered a truism in other areas of government contracting, is not as well-established in the environmental field. See Robert D. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENVTL. L. 605, 643-45 (1991).
6. 518 U.S. 839 (1996).
7. See generally Amy C. Derry, Note, No Surprises After Winstar: Contractual Certainty and Habitat Conservation Planning Under the Endangered Species Act, 17 VA. ENVTL. L.J. 357 (1998).
8. See U.S. FISH AND WILDLIFE SERVICE & NATIONAL MARINE FISHERIES SERVICE, "TEMPLATE" IMPLEMENTING AGREEMENT § 12.1.a. (1998) [hereinafter TEMPLATE IA] ("No Party shall be liable in damages to any other Party or other person for any breach of this Agreement, any performance or failure to perform a mandatory or discretionary obligation imposed by this Agreement or any other cause of action arising from this Agreement.").
9. 5 U.S.C. §§ 504, 551-559, 701-706 (1994).
10. Act of Mar. 3, 1887, ch. 359, 24 Stat. 505 (codified as amended in scattered sections of 28 U.S.C.).
11. See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 892 (1988); see also infra Part III.A.2.
12. See infra Part III.A.3.
13. A command and control system has been described as one in which "some governmental unit determines what the appropriate level of a given pollutant or activity is, sets the standards, and establishes a way to enforce adherence to these standards." ZACHARY SMITH, THE ENVIRONMENTAL POLICY PARADOX 31 (1995).
14. See, e.g., Beth S. Ginsberg & Cynthia Cummis, EPA's Project XL: A Paradigm for Promising Regulatory Reform, 26 ENVTL. L. REP. NEWS & ANALYSIS 10,059, 10,059 (1996) ("Much has been said and written about the impediments to environmental and economic progress that the current regulatory system presents. The overly prescriptive 'technology enforcing' schemes that prior Congresses created are quickly becoming anachronistic."); William D. Ruckelshaus, Stopping the Pendulum, 12 ENVTL. FORUM 25, 29 (1995) ("What one piece of a right answer [to the question of reforming environmental policy] could look like is slowly emerging from local experiences in this country and from the experience of some other nations. It involves a new sort of consensus process, in which all the significant stakeholders are brought together to hammer out a solution to a set of environmental problems.").
15. See, e.g., Beth S. Ginsberg & Cynthia Cummis, EPA's Project XL: A Paradigm for Promising Regulatory Reform, 26 ENVTL. L. REP. NEWS & ANALYSIS 10,059, 10,059 (1996) ("Much has been said and written about the impediments to environmental and economic progress that the current regulatory system presents. The overly prescriptive 'technology enforcing' schemes that prior Congresses created are quickly becoming anachronistic."); William D. Ruckelshaus, Stopping the Pendulum, 12 ENVTL. FORUM 25, 29 (1995) ("What one piece of a right answer [to the question of reforming environmental policy] could look like is slowly emerging from local experiences in this country and from the experience of some other nations. It involves a new sort of consensus process, in which all the significant stakeholders are brought together to hammer out a solution to a set of environmental problems.").
16. The Clinton administration has made an explicit commitment to ecosystem management. See, e.g., 1 INTERAGENCY ECOSYSTEM MANAGEMENT TASK FORCE, THE ECOSYSTEM APPROACH: HEALTHY ECOSYSTEMS AND SUSTAINABLE ECONOMIES (1995). Ecosystem management is defined as "a comprehensive regional approach to protecting, restoring, and sustaining our ecological resources and the communities and economies that they support. . . . The ecosystem approach integrates ecological protection and restoration with human needs to strengthen the essential connection between economic prosperity and environmental well being." Id. Although ecosystem management has been defined "differently according to discipline and perspective. . . . [a]t the core is the idea that land and wildlife managers should manage ecosystems, not just individual species." Sheila Lynch, Comment, The Federal Advisory Committee Act: An Obstacle to Ecosystem Management by Federal Agencies?, 71 WASH. L. REV. 431, 432-33 (1996) (footnotes omitted).
17. Secretary Bruce Babbitt, Address at the ESRI-ARC/INFO User Conference (May 21, 1996) .
18. See U.S. FISH AND WILDLIFE SERVICE & NATIONAL MARINE FISHERIES SERVICE, DEP'T OF THE INTERIOR, ENDANGERED SPECIES: HABITAT CONSERVATION PLANNING HANDBOOK 3-36 to 3-37 (1996). An implementing agreement will generally define the obligations, benefits, rights, authorities, liabilities, and privileges of all signatories and other parties to the HCP; assign responsibility for planning, approving, and implementing specific HCP measures; specify the responsibilities of state and federal agencies in implementing and monitoring the HCP; provide for specific measures to implement mitigation; establish a process for amendment of the HCP; and provide for enforcement of HCP measures and for remedies if parties fail to perform their obligations under HCPs. See id. at 3-37.
19. See id. at 3-36.
20. See Thornton, supra note 5, at 651-52.
21. See Jeffrey P. Cohn, Negotiating Nature, GOV'T EXECUTIVE, Feb. 1998, at 51.
22. 16 U.S.C. §§ 1531-1544 (1994).
23. See, e.g., Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 870 (1997) ("One of the more rational conclusions to emerge from America's experience with the Endangered Species Act is that we need to manage ecosystems and protect biological diversity on a scale larger than individual species on the brink of doom. Supported by evidence of a decline in diversity and the crash of environments on which all species depend, 'ecosystem management' and 'biodiversity' have become new catchwords in the vocabulary of natural resources management.") (footnotes omitted). A large part of the effort to design new approaches to environmental protection "has been linked to 'reinventing' the Endangered Species Act - transforming a statute that was originally designed as a species-by-species 'emergency room' regulatory tool or safety net into a comprehensive vehicle for regional multi-species habitat planning in collaboration with state and local governments, private landowners and other interest groups." George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENVTL. L. & POL'Y F. 39, 40 (1996).
24. See, e.g., Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 870 (1997) ("One of the more rational conclusions to emerge from America's experience with the Endangered Species Act is that we need to manage ecosystems and protect biological diversity on a scale larger than individual species on the brink of doom. Supported by evidence of a decline in diversity and the crash of environments on which all species depend, 'ecosystem management' and 'biodiversity' have become new catchwords in the vocabulary of natural resources management.") (footnotes omitted). A large part of the effort to design new approaches to environmental protection "has been linked to 'reinventing' the Endangered Species Act - transforming a statute that was originally designed as a species-by-species 'emergency room' regulatory tool or safety net into a comprehensive vehicle for regional multi-species habitat planning in collaboration with state and local governments, private landowners and other interest groups." George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENVTL. L. & POL'Y F. 39, 40 (1996).
25. Donald Barry, Address to A.B.A. Section on Natural Resources, Energy and Environmental Law, Workshop on Endangered Species (Apr. 6, 1990).
26. The Supreme Court has stated as follows: One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . ." This language admits of no exception. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 173 (1978) (quoting 16 U.S.C. § 1536 (1976)).
27. "Take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect. . . ." 16 U.S.C. § 1532(19) (1994). "Harm" is defined as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife . . . ." 50 C.F.R. § 17.3 (1999).
28. 16 U.S.C. § 1538(a) (1994).
29. 16 U.S.C. § 1540(a), (b) (1994).
30. Michael J. Bean, The Endangered Species Act and Private Land: Four Lessons Learned from the Past Quarter Century, 28 ENVTL. L. REP. 10,701, 10,707 (1998).
31. Endangered species protection under section 9 faces a litany of difficulties. To enforce section 9, the government bears the difficult burden of proving that an activity resulted in the actual death of, or injury to, a listed species. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 692 (1995). Moreover, section 9's take prohibition does not reach activities on land that is unoccupied by endangered species, even if the land has other important environmental values. Land that may be important for species not subject to the ESA's regulatory protections remains unprotected; nor are plants on private land protected. See 16 U.S.C. § 1538(a)(2) (1994). Consequently, a significant percentage of habitat on non-federal land remains beyond the reach of the ESA. A 1996 study concluded that "endangered species on private land appear to be faring much worse than their counterparts on federal land." David S. Wilcove et al., Rebuilding the Ark: Toward a More Effective Endangered Species Act for Private Land (visited Dec. 5, 1996) . The study further noted that "for every species that is rebounding due to the [Endangered Species] [A]ct, there are several more that are still declining. This is especially true for species that depend largely or entirely on private land for their habitat." Id.
32. Endangered species protection under section 9 faces a litany of difficulties. To enforce section 9, the government bears the difficult burden of proving that an activity resulted in the actual death of, or injury to, a listed species. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 692 (1995). Moreover, section 9's take prohibition does not reach activities on land that is unoccupied by endangered species, even if the land has other important environmental values. Land that may be important for species not subject to the ESA's regulatory protections remains unprotected; nor are plants on private land protected. See 16 U.S.C. § 1538(a)(2) (1994). Consequently, a significant percentage of habitat on non-federal land remains beyond the reach of the ESA. A 1996 study concluded that "endangered species on private land appear to be faring much worse than their counterparts on federal land." David S. Wilcove et al., Rebuilding the Ark: Toward a More Effective Endangered Species Act for Private Land (visited Dec. 5, 1996) . The study further noted that "for every species that is rebounding due to the [Endangered Species] [A]ct, there are several more that are still declining. This is especially true for species that depend largely or entirely on private land for their habitat." Id.
33. See Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).
34. See Sweet Home, 515 U.S. at 692.
35. For a discussion of the public controversy over the snail darter, see generally Zygmunt J.B. Plater, In the Wake of the Snail Darter: An Environmental Law Paradigm and its Consequences, 19 U. MICH. J.L. REFORM 805 (1986). The many factors that culminated in the Pacific Northwest "train wreck" are thoughtfully discussed in WILLIAM DIETRICH, THE FINAL FOREST: THE BATTLE FOR THE LAST GREAT TREES OF THE PACIFIC NORTHWEST (1992). See also Andrew J. Huffman et al., Balancing Business Interests and Endangered Species Protection, 39 SLOAN MGMT. REV. 59, 61 ("Even in the spotted owl case, the story has been one not of economic recession but economic transition. . . . Some in the forestry industry deftly placed blame for their economic circumstances on the ESA, while others successfully adapted to its goals . . . .").
36. For a discussion of the public controversy over the snail darter, see generally Zygmunt J.B. Plater, In the Wake of the Snail Darter: An Environmental Law Paradigm and its Consequences, 19 U. MICH. J.L. REFORM 805 (1986). The many factors that culminated in the Pacific Northwest "train wreck" are thoughtfully discussed in WILLIAM DIETRICH, THE FINAL FOREST: THE BATTLE FOR THE LAST GREAT TREES OF THE PACIFIC NORTHWEST (1992). See also Andrew J. Huffman et al., Balancing Business Interests and Endangered Species Protection, 39 SLOAN MGMT. REV. 59, 61 ("Even in the spotted owl case, the story has been one not of economic recession but economic transition. . . . Some in the forestry industry deftly placed blame for their economic circumstances on the ESA, while others successfully adapted to its goals . . . .").
37. For a discussion of the public controversy over the snail darter, see generally Zygmunt J.B. Plater, In the Wake of the Snail Darter: An Environmental Law Paradigm and its Consequences, 19 U. MICH. J.L. REFORM 805 (1986). The many factors that culminated in the Pacific Northwest "train wreck" are thoughtfully discussed in WILLIAM DIETRICH, THE FINAL FOREST: THE BATTLE FOR THE LAST GREAT TREES OF THE PACIFIC NORTHWEST (1992). See also Andrew J. Huffman et al., Balancing Business Interests and Endangered Species Protection, 39 SLOAN MGMT. REV. 59, 61 ("Even in the spotted owl case, the story has been one not of economic recession but economic transition. . . . Some in the forestry industry deftly placed blame for their economic circumstances on the ESA, while others successfully adapted to its goals . . . .").
38. As one commentator has observed, "[i]t is not possible to imagine the serious, difficult conversations now taking place over western water management, coastal land development, the depletion of aquifers and the impact of marine fisheries without the existence of endangered turtles, salmon, salamanders and their kin -and the law that backs them up. Indeed, it might be said that the Endangered Species Act is in trouble today not because it fails to address diversity and ecosystems, but instead because it is beginning to address them too well." Houck, supra note 22, at 872 (footnotes omitted).
39. See, e.g., Margaret Kriz, Caught in the Act, 27 NAT'L J. 3090 (1995); Charles F. Gauvin, Reauthorizing the Endangered Species Act, FLY FISHERMAN, July 1998, at 18.
40. See, e.g., Margaret Kriz, Caught in the Act, 27 NAT'L J. 3090 (1995); Charles F. Gauvin, Reauthorizing the Endangered Species Act, FLY FISHERMAN, July 1998, at 18.
41. The Fish and Wildlife Service is part of the Department of the Interior. The Secretary of Commerce has jurisdiction over most marine species, including anadromous fish. See 50 C.F.R. §§ 222.23(a), 227.4 (1998) (designates listed species over which the Secretary of Commerce has jurisdiction).
42. See, e.g., Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for the Ecosystem Approach to the Endangered Species Act, 59 Fed. Reg. 34,273 (July 1, 1994).
43. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, § 6(1)(a)(1)(B), 96 Stat. 1411, 1422.
44. More than 90% of the listed species for which the FWS was responsible as of May 1993 have habitat on nonfederal lands. Approximately two-thirds of the listed species have over 60% of their total habitat on nonfederal lands. See U.S. GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES ACT: INFORMATION ON SPECIES PROTECTION ON NONFEDERAL LANDS 1 (1994).
45. Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. 32,178, 32,190 (June 12, 1997). This concept has been recognized as an inescapable fact of species protection by the National Academy of Sciences and by elements of the environmental community. See, e.g., REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING 64-66 (1997); Wilcove et al., supra note 29; John Kostyack, Reshaping Habitat Conservation Plans for Species Recovery: An Introduction to a Series of Articles on Habitat Conservation Plans, 27 ENVTL. L. 755, 757-58 (1997).
46. Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. 32,178, 32,190 (June 12, 1997). This concept has been recognized as an inescapable fact of species protection by the National Academy of Sciences and by elements of the environmental community. See, e.g., REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING 64-66 (1997); Wilcove et al., supra note 29; John Kostyack, Reshaping Habitat Conservation Plans for Species Recovery: An Introduction to a Series of Articles on Habitat Conservation Plans, 27 ENVTL. L. 755, 757-58 (1997).
47. Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. 32,178, 32,190 (June 12, 1997). This concept has been recognized as an inescapable fact of species protection by the National Academy of Sciences and by elements of the environmental community. See, e.g., REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING 64-66 (1997); Wilcove et al., supra note 29; John Kostyack, Reshaping Habitat Conservation Plans for Species Recovery: An Introduction to a Series of Articles on Habitat Conservation Plans, 27 ENVTL. L. 755, 757-58 (1997).
48. See 16 U.S.C. § 1539(a)(2)(B) (1994).
49. See id.
50. See H.R. CONF. REP. No. 97-835, at 28 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871.
51. Id. (emphasis added).
52. See Thornton, supra note 5, at 607.
53. See Babbitt, Daley to Announce Private Land Conservation Programs, U.S. NEWSWIRE, June 5, 1997. Of the fourteen HCPs, twelve were in California, one was in Texas, and one was in Florida. See Michael A. O'Connell & Stephen P. Johnson, Improving Habitat Conservation Planning: The California Natural Community Conservation Model (visited July 21, 1998) .
54. See Babbitt, Daley to Announce Private Land Conservation Programs, U.S. NEWSWIRE, June 5, 1997. Of the fourteen HCPs, twelve were in California, one was in Texas, and one was in Florida. See Michael A. O'Connell & Stephen P. Johnson, Improving Habitat Conservation Planning: The California Natural Community Conservation Model (visited July 21, 1998) .
55. See Division of Endangered Species, U.S. Fish and Wildlife Service, Endangered Species General Statistics (visited Aug. 21, 1998) .
56. See TVA, 437 U.S. at 173.; see also Sweet Home, 515 U.S. at 692.
57. See TVA, 437 U.S. at 173.; see also Sweet Home, 515 U.S. at 692.
58. Secretary of the Interior Babbitt recently stated: If we are going to make this Act work on the ground in the real world, and ask timber companies and developers to make those kinds of concessions . . . , we've got to establish one simple common-sense principle, and that is one bite at the apple - take a good one - thrash it out, then say to the developer, "Okay, a deal is a deal." Bruce Babbitt, Address to the National Press Club Luncheon (July 17, 1996).
59. See, e.g., O'Connell & Johnson, supra note 45, at 2 ("It is no secret among those who study conservation planning that the guarantees and efficiencies (collectively known as 'assurances') promised by HCPs are what brings private landowners to the table and keeps them there."). See generally Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENVTL. L. 137 (1997).
60. See, e.g., O'Connell & Johnson, supra note 45, at 2 ("It is no secret among those who study conservation planning that the guarantees and efficiencies (collectively known as 'assurances') promised by HCPs are what brings private landowners to the table and keeps them there."). See generally Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENVTL. L. 137 (1997).
61. See Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. at 8860.
62. Id. at 8859. The final rule, which was effective on March 25, 1998, codifies with certain changes assurances first provided by the "No Surprises" policy issued in 1994 by the FWS and the NMFS and contained in the joint FWS and NMFS Endangered Species Habitat Conservation Planning Handbook issued on December 2, 1996. See id.; see also Fred P. Bosselman, The Statutory and Constitutional Mandate for a No Surprises Policy, 24 ECOLOGY L.Q. 707 (1997); Eric Fisher, Habitat Conservation Planning Under the Endangered Species Act: No Surprises & the Quest for Certainty, 67 U. COLO. L. REV. 371 (1996).
63. Id. at 8859. The final rule, which was effective on March 25, 1998, codifies with certain changes assurances first provided by the "No Surprises" policy issued in 1994 by the FWS and the NMFS and contained in the joint FWS and NMFS Endangered Species Habitat Conservation Planning Handbook issued on December 2, 1996. See id.; see also Fred P. Bosselman, The Statutory and Constitutional Mandate for a No Surprises Policy, 24 ECOLOGY L.Q. 707 (1997); Eric Fisher, Habitat Conservation Planning Under the Endangered Species Act: No Surprises & the Quest for Certainty, 67 U. COLO. L. REV. 371 (1996).
64. Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. at 8859.
65. See id. at 8871 (codified at 50 C.F.R. § 17.22(b)(6) (1999)). If a species declines to the point of jeopardy and other recovery efforts are unsuccessful, the permit may be revoked. See Safe Harbor and Candidate Conservation Agreements with Assurances, 64 Fed. Reg. at 32,709.
66. See id. at 8871, 8872 (codified at 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5) (1999); 50 CFR § 222.22(g) (1999)).
67. See id. at 8871 (codified at 50 C.F.R. § 17.22(b)(6) (1999)).
68. See THE NATURAL HERITAGE INSTITUTE, COMPENDIUM OF EMPIRICAL REVIEWS AND SCHOLARLY ANALYSIS OF THE EXPERIENCE WITH HABITAT CONSERVATION PLANNING UNDER SECTION 10 OF THE ENDANGERED SPECIES ACT 7 n.45 (1998).
69. Safe Harbor and Candidate Conservation Agreements with Assurances, 64 Fed. Reg. 32,705 (June 17, 1999).
70. Bean, supra note 28, at 10,706. While it is difficult to gauge how frequently such "species-preempting practices" are undertaken, it is "clear that landowners are commonly advised to engage in them." Id. Developers, farmers, and foresters have all intentionally eliminated habitat in order to avoid ESA strictures. See id. 59. Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. at 32,178.
71. See id. at 32,179, 32,180.
72. See id. at 32,180.
73. Id. at 32,185.
74. See id. at 32,186.
75. See id. at 32,178 (discussing Safe Harbors and noting that "[s]uch proactive management actions cannot be mandated or required by the Act. Thus, failure to conduct habitat enhancement or restoration activities would not violate any of the Act's provisions"); see also Announcement of Draft Policy for Candidate Conservation Agreements, 62 Fed. Reg. at 32,185 (discussing Candidate Conservation Agreements and noting that "[w]ithout such assurances, most property owners and/or agencies will not have as much incentive to undertake candidate conservation agreements on their property").
76. For example, the "driving concern" behind the FWS's adoption of the No Surprises policy was the "absence of adequate incentives for non-Federal landowners to factor endangered species conservation into their day-to-day land management activities." Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. at 8860.
77. In contrast, it would be unconstitutional under the Contract Clause for the states to pass a law "impairing the obligations of contracts." U.S. CONST. art. I, § 10. The Contract Clause does not apply to the federal government. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 732 n.9 (1984); see also Richard H. Seamon, Separation of Powers and the Separate Treatment of Contract Claims Against the Federal Government for Specific Performance, 43 VILL. L. REV. 155, 156 n.4 (1998).
78. In contrast, it would be unconstitutional under the Contract Clause for the states to pass a law "impairing the obligations of contracts." U.S. CONST. art. I, § 10. The Contract Clause does not apply to the federal government. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 732 n.9 (1984); see also Richard H. Seamon, Separation of Powers and the Separate Treatment of Contract Claims Against the Federal Government for Specific Performance, 43 VILL. L. REV. 155, 156 n.4 (1998).
79. See Michael Grunwald, Lawsuit Surge May Cost U.S. Billions; 125 Claims Allege Breach of Contract, WASH. POST, Aug. 10, 1998, at A1.
80. United States v. Winstar Corp., 518 U.S. 839, 860 (1996) (plurality opinion).
81. Because the Federal Savings and Loan Insurance Corporation ("FSLIC") lacked the funds necessary to make up the difference between a failed savings and loan association's (thrift's) liabilities and assets, the Federal Home Loan Bank Board offered healthy thrifts a "cash substitute" to induce them to assume the failed thrifts' obligations. Id. at 849-50. The incentive was an accounting treatment that allowed "supervisory goodwill" to be counted toward regulatory capital requirements. See id. at 858.
82. Pub. L. No. 101-73, 103 Stat. 183 (1989) (codified as amended in scattered sections of 12 U.S.C.); see also Winstar, 518 U.S. at 856.
83. Winstar, 518 U.S. at 857.
84. The Justice Department estimates that damages in similar suits will reach $32 billion. There are 125 Winstar-style lawsuits pending against the federal government. Glendale Federal Bank alone is claiming damages of nearly $4.5 billion. See Margaret Cronin Fisk, Winstar' Litigants Bet on Future Damages Awards, NAT'L L.J., January 11, 1999, at A19.
85. Although the Supreme Court found the government liable by a 7-2 majority, the decision is fractured. Justices Stevens and Breyer joined Justice Souter's full plurality opinion, while Justice O'Connor joined the opinion with the exception of two sections addressing the issue of whether FIRREA constituted a "public and general" act of the sovereign. Winstar, 518 U.S. at 843-910. Justice Breyer wrote a concurring opinion criticizing the unmistakability doctrine. See id. at 910-18. Justices Scalia, Kennedy, and Thomas, who concurred only in the result, argued that the unmistakability doctrine did apply but that the contracts at issue met its requirements. See id. at 919-24. Chief Justice Rehnquist and Justice Ginsburg dissented, concluding that the thrifts did not meet the unmistakability doctrine. See id. at 925-37. Chief Justice Rehnquist, in a section of the dissent in which Justice Ginsburg did not join, also concluded that the sovereign acts doctrine was not satisfied. See id. at 931-34.
86. The Court examined four "special defenses" asserted by the government in response to the thrifts' claims for breach of contract. In addition to the "unmistakability" doctrine, the court examined the rule that an agent's authority to surrender sovereign authority must be delegated in express terms; the doctrine that a government may not in any event contract to surrender certain reserved powers; and the principle that a government's sovereign acts do not give rise to a claim for breach of contract. See id. With the exception of the dissent, the decisions in the case tended to treat these defenses summarily, generally tending to collapse the doctrines into the "unmistakability" doctrine. Therefore, this analysis, like the Court's analysis, will focus primarily on unmistakability.
87. Id. at 889.
88. Id. at 871.
89. Id. at 878.
90. Id. at 879. The plurality defined "sovereign power" to mean "a power that could otherwise affect the Government's obligation under the contract. The Government could not, for example, abrogate one of its contracts by a statute abrogating the legal enforceability of that contract, government contracts of a class including that one, or simply all government contracts." Id. at 879 n.22.
91. See id. at 881.
92. Id. at 880-81 (emphasis added).
93. Id. at 881. The Court further observed that the "mere" fact that contracts may raise the cost of government regulation is not a reason to excuse the government from its contractual obligations. In an interesting twist on the "takings" doctrine, the Court stated: "Just as we have long recognized that the Constitution '"bar[s] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,"' so we must reject the suggestion that the Government may simply shift costs of legislation onto its contractual partners who are adversely affected by the change in the law, when the Government has assumed the risk of such change." Id. at 883 (citations omitted).
94. See id. at 889.
95. See id.
96. Id.
97. Id. at 889-90.
98. Id.
99. Horowitz v. United States, 267 U.S. 458, 461 (1925) (quoting Jones v. United States, 1 Ct. Cl. 383, 384 (1865)).
100. See Winstar, 518 U.S. at 892-93.
101. See id. at 894.
102. Id, at 894 n.38 (quoting Perry v. United States, 294 U.S. 330, 353 (1935)). One case interpreting and applying Winstar, Yankee Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed. Cir. 1987), demonstrates clearly the pitfalls of the sovereign acts doctrine. Yankee Atomic involved fixed-price contracts between the government as a supplier of enriched uranium and purchasers of the enriched uranium. The government subsequently passed a law that required the users of the uranium to pay a special assessment intended to help with the cleanup of old uranium enrichment plants. Yankee Atomic claimed that the subsequent assessment violated its contracts with the government. The Federal Circuit upheld the assessment, finding that the contracts between Yankee Atomic and the government did not preclude the government from later imposing the assessment. See id. at 1580. In order to determine whether the subsequent law constituted a "retroactive price increase" or "an exercise of the sovereign's taxing power," the court announced that it was obliged to apply the sovereign acts doctrine. Id. at 1573. To do so, the court stated, it had to decide whether the government was acting for the "purpose" of retroactively increasing the price of its earlier contracts, or if its "purpose" was to solve the problem of cleaning up enrichment facilities. Id. at 1575. Predictably, the court found that the law's "purpose" was to facilitate cleanup. Id. at 1577. It based this conclusion on the fact that the subsequent law did not target all contracting entities; rather, the law applied to all entities that purchased enriched uranium. See id. Because some contracting entities apparently re-sold the uranium, the affected class was not precisely the same as the contracting class. See id. at 1575-76. Based on this test, the government could satisfy the sovereign acts doctrine simply by expressing a public purpose for its subsequent legislative actions and then ensuring that the law affected either fewer or more parties than had entered into the contracts in question. This would not be a difficult drafting test. Yankee Atomic should not, however, have a direct effect on the enforceability of ESA Assurances agreements. The contracts at issue in Yankee Atomic, unlike ESA assurance agreements, did not expressly provide that the government could not impose any additional liabilities on the parties. In Yankee Atomic, even the government admitted that the characterization of the subsequent law would have been different if the original contracts had "contained an express provision that precluded the government from imposing an assessment to fund decontamination and decommissioning costs." Id. at 1573. This observation should help to encourage parties to implementing agreements to specify precisely the future obligations undertaken by the government.
103. Winstar, 518 U.S. at 905.
104. Id. at 906.
105. Id. at 908.
106. See id. at 907.
107. Id. at 937.
108. Id. at 920, 922.
109. Id. at 919 (emphasis in original).
110. Id. at 920.
111. Id.
112. Id. (emphasis In original).
113. Id. at 921 (emphasis in original).
114. Id.
115. Id. (emphasis in original).
116. See id.
117. Id. (citation omitted).
118. Id. (emphasis in original).
119. Id. The concurrence summarily disposed of the government's remaining defenses, noting that the doctrines of "reserved powers" and "express delegation . . . have not been well defined by our prior cases." Id. In any event, reserved powers "would have no force here," and "whatever is required by the 'express delegation' doctrine" is satisfied by the statutory authority granted to federal bank regulatory agencies. Id. at 923. The concurrence noted further that the "sovereign acts" doctrine "adds little, if anything at all, to the 'unmistakability' doctrine . . . ." Id. 108. Id. at 922.
120. Id. at 937.
121. Id.
122. The dissent also discounted the plurality's practical concern that a broad unmistakability doctrine would impair the government's ability to enter into contracts by observing that "[t]he Government's contracting authority has survived from the beginning of the Nation with no diminution in bidders, so far as I am aware, without the curtailment of the unmistakability doctrine announced today." Id. at 929.
123. Id. (quoting plurality opinion).
124. See id.
125. Id. at 935.
126. In Yankee Atomic, the court concluded that "the unmistakability doctrine applies in the present case" in "respect[] [of] the views of the five justices who stated that the application of the doctrine is unrelated to the nature of the underlying contracts." 112 F.3d at 1579. Before discussing unmistakability, however, the court first attempted to apply the "risk-shifting" doctrine, to satisfy Winstar's plurality. The court's analysis thus supports the conclusion that the logical way to analyze a contract under Winstar is to determine whether both the plurality's risk-shifting doctrine and the concurrence's unmistakability doctrine have been satisfied. See id. at 1579. Several recent cases have noted that the scope of unmistakability is "somewhat unclear" after Winstar. See, e.g., Tamarind Resort Ass'n v. Virgin Islands, 138 F.3d 107, 112 (3d Cir. 1998); Pitney Bowes, Inc. v. United States Postal Service, 27 F. Supp. 15, 23 (1998).
127. Grunwald, supra note 67. The Justice Department is not only defending "125 other Winstar-style lawsuits filed by S&Ls and investors" but is also Involved in "hundreds of additional lawsuits, claiming the government has backed out on deals in areas stretching from subsidized housing to nuclear waste to satellite launches." Id. The Justice Department's civil division has asked Congress for an additional $64 million, equivalent to half the division's budget, just to litigate the thrift cases. See id. 117. Winstar, 518 U.S. at 843.
128. As previously stated, this can occur both when Safe Harbors and Candidate Conservation agreements are implemented. See supra note 57 and accompanying text.
129. The ESA explicitly requires federal agencies to "insure" that their actions are not likely to jeopardize endangered species. 16 U.S.C. § 1536(a)(2) (1994); see also Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978). The ESA also explicitly requires federal agencies to undertake actions to recover endangered species. 16 U.S.C. § 1536(a)(1) (1994). In many respects, the ESA imposes obligations on federal agencies to guarantee the well-being of endangered species not unlike the obligations of federal agencies to protect savings and loan deposits.
130. Winstar, 518 U.S. at 848; see also id. at 850 ("This treatment was, of course, critical to make the transaction possible in the first place . . . .").
131. Id. at 849-50.
132. Id. at 853-54.
133. See, e.g., Ann Gibbons, Mission Impossible: Saving All Endangered Species, 256 SCI. 1386, 1386 (1992) ("[In 1992], the FWS had $42.3 million and the National Marine Fisheries Service had $8.2 million to manage 648 species. For comparison, notes Michael Bean, chairman of the wildlife program at the Environmental Defense Fund, the federal government spent far more this year - $300 million - to support state conservation programs for game and sportfish . . . . As a result, government officials have to make a wrenching Sophie's choice - to pick which species they will help to survive.").
134. See Robert D. Thornton, The No Surprises Policy is Essential to Attract Private Dollars for the Protection of Biodiversity, ENDANGERED SPECIES UPDATE, July/Aug. 1997, at 65.
135. See Winstar, 518 U.S. at 868.
136. See id. at 868-69.
137. Id. at 869.
138. See Kriz, supra note 34; Gauvin, supra note 34.
139. Id. at 883.
140. Id. (quoting Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)).
141. Id. Justice Breyer's separate concurring opinion also emphasized this point, stating that it would be "unsatisfactory" to "draw the line - i.e., to apply a more stringent rule of contract interpretation - based only on the amount of money at stake . . . ." Id. at 917.
142. See id. at 883.
143. See id. at 890-91. The dissent also concluded that the government's statutory authority defeated any claim that express delegation had not been satisfied. See id. at 923.
144. Id. at 890 (quoting 12 U.S.C. § 1725(c) (1988) (repealed 1989)).
145. See id. at 891 (citing 12 U.S.C. § 1730h(d) (1988) (repealed 1989)).
146. Agencies of "the United States can, without the authority of any statute, make a valid contract." Jessup v. United States, 106 U.S. 147, 152 (1882); accord Moses v. United States, 166 U.S. 571, 585-87 (1897). The federal executive branch may "within the sphere of the constitutional powers confided to it . . . enter into contracts" so long as those contracts are "not prohibited by law, and [are] appropriate to the just exercise of the executive's other statutory or constitutional powers. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). The FWS' enabling statute provides that it may "take any such steps as may be required for the development, management, conservation, and protection of fish and wildlife resources." 16 U.S.C. § 742(f) (1994). This authority thus includes the power to enter into contracts.
147. See supra notes 50 and 57.
148. 16 U.S.C. § 1531(c)(1) (1994); see also Bosselman, supra note 51, at 721 n.64.
149. 16 U.S.C. § 1539(a)(1), (a)(2)(b) (1994) ("The permit shall contain such terms and conditions as the Secretary deems necessary and appropriate to carry out the purposes of this paragraph . . . .").
150. 16 U.S.C. § 1539(a)(2)(A)(iv) (1994).
151. H.R. CONF. REP. No. 97-835, at 28-30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871; see also Thornton, supra note 5, at 624-25; Bosselman, supra note 51, at 724.
152. See supra note 74.
153. Winstar, 518 U.S. at 904-05.
154. Id. at 904.
155. Id. at 908.
156. Id. at 921 (emphasis in original).
157. Id. at 857.
158. Some environmental organizations and other critics of the HCP process might disagree with this observation. Critics have charged "(1) that HCPs may undermine species recovery because they can allow for impacts to species that are not fully offset, (2) that HCPs are developed without adequate biological information or scientific review, (3) that small-scale HCPs can lead to piecemeal habitat destruction and fragmentation, and (4) that meaningful public participation occurs infrequently." PETER KAREIVA ET AL., USING SCIENCE IN HABITAT CONSERVATION PLANS 6 (1998). The most comprehensive review of the scientific underpinnings of HCPs to date concludes that "[a]lthough our analysis points to several shortcomings of HCPs, we acknowledge that the HCP process is new, complex, and difficult. In general, the FWS and NMFS are doing a good job with the data that are available." Id. at 4; see also Charles Mann & Mark Plummer, Qualified Thumbs Up for Habitat Plan Science; Assessment of Habitat Conservation Plans, 278 SCI. 2052 (1997). Furthermore, the planning process is improving as HCPs begin to be based on habitat, rather than focusing on specific species. See KAREIVA ET AL., supra at 36.
159. Some environmental organizations and other critics of the HCP process might disagree with this observation. Critics have charged "(1) that HCPs may undermine species recovery because they can allow for impacts to species that are not fully offset, (2) that HCPs are developed without adequate biological information or scientific review, (3) that small-scale HCPs can lead to piecemeal habitat destruction and fragmentation, and (4) that meaningful public participation occurs infrequently." PETER KAREIVA ET AL., USING SCIENCE IN HABITAT CONSERVATION PLANS 6 (1998). The most comprehensive review of the scientific underpinnings of HCPs to date concludes that "[a]lthough our analysis points to several shortcomings of HCPs, we acknowledge that the HCP process is new, complex, and difficult. In general, the FWS and NMFS are doing a good job with the data that are available." Id. at 4; see also Charles Mann & Mark Plummer, Qualified Thumbs Up for Habitat Plan Science; Assessment of Habitat Conservation Plans, 278 SCI. 2052 (1997). Furthermore, the planning process is improving as HCPs begin to be based on habitat, rather than focusing on specific species. See KAREIVA ET AL., supra at 36.
160. Of course, the wildlife agencies' budgetary limitations have this de facto effect on a continual basis. See, e.g., Wilcove et al., supra note 29, at 2 ("The most common explanation for why more endangered species aren't improving is a lack of money . . . . Presently, only a small fraction of the protected species are improving. The decline in the amount of dollars available per species makes it unlikely that significant increases in the number of improving species will occur in the foreseeable future.").
161. Winstar, 518 U.S. at 883.
162. See infra Part II.D.
163. The thrifts sued "the United States in the Court of Federal Claims, seeking monetary damages on both contractual and constitutional theories." Id. at 858.
164. In fact, with respect to one of the thrift parties, the Court explicitly discussed "the failure to specify remedies in the contract . . . ." Id. at 869 n.15. As one commentator has noted, "despite Justice Souter's insistence, there is no indication in the record that the FHLBB, the FSLIC, or 'the Government' ever 'agreed to pay damages in the event that such failure to perform caused financial injury.' It would be mere question-begging on Justice Souter's part to accept this approach to the problem, but accept it he does." Michael P. Malloy, When You Wish Upon Winstar: Contract Analysis and the Future of Regulatory Action, 42 ST. LOUIS U. L.J. 409, 442 (1998) (footnotes omitted).
165. Winstar, 518 U.S. at 869-70 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 264 cmt. a (1981)).
166. Id. at 894.
167. Id.
168. Id. at 880.
169. The dissent pointed out this assumption, observing that "the plurality's reading of additional terms into the contract so that the contract contained an unstated, additional promise to insure the promisee against loss arising from the promised condition's nonoccurrence seems the very essence of a promise implied in law, which is not even actionable under the Tucker Act . . . ." Id. at 930.
170. See Template IA, supra note 8, § 12.1.a. While the FWS and the NMFS have diverted from the template implementation agreement on numerous occasions, they have not been willing to abandon the "no monetary damages" provision. The agencies claim that the clause is a response, not to Winstar, but the Anti-Deficiency Act, which precludes federal agencies from spending funds without a Congressional appropriation. Personal Communication with Dep't of the Interior, Associate Solicitor for Conservation and Wildlife (May 1998).
171. Id. at 881 ("Nor do the damages respondents seek amount to exemption from the new law . . . .").
172. See Seamon, supra note 66, at 155.
173. Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721.
174. 5 U.S.C. § 702 (1994). (emphasis added). Claims under § 702 must be founded on agency action "for which there is no other adequate remedy in a court . . . ." Id. § 704.
175. 5 U.S.C. § 702 (1994).
176. 28 U.S.C. § 1491(a)(1) (1994) (emphasis added).
177. See United States v. King, 395 U.S. 1, 3 (1969); see also Seamon, supra note 66, at 182-83.
178. See infra Part III.C.
179. See Seamon, supra note 66, at 183; see also Vipul N. Nishawala, Sovereign Immunity, Judicial Review, and the Notion of "Entitlement" in the Administrative Procedure Act, 62 GEO. WASH. L. REV. 949, 955-56 (1994).
180. See Seamon, supra note 66, at 183; see also Vipul N. Nishawala, Sovereign Immunity, Judicial Review, and the Notion of "Entitlement" in the Administrative Procedure Act, 62 GEO. WASH. L. REV. 949, 955-56 (1994).
181. Seamon, supra note 66, at 184 (citing S. REP. No. 94-996, at 11-12 (1976)).
182. 487 U.S. 879, 880 (1988).
183. Id. at 882.
184. Id.
185. The Tucker Act provides the Claims Court with concurrent jurisdiction over claims against the United States for amounts up to $10,000. 28 U.S.C. § 1346(a)(2) (1994).
186. The Secretary of Health and Human Services had refused to reimburse Massachusetts for a category of its expenditures under its Medicaid program. See Bowen, 487 U.S. at 882. Massachusetts requested declaratory and injunctive relief and asked that the order of the Departmental Appeals Board be set aside. See id. at 887. A resolution in the state's favor, while "affect[ing] far more than any money past due," id. at 889 (quoting Massachusetts v. Secretary of Health and Human Services, 816 F.2d 796, 799 (1987)), would also require the Secretary to pay money to Massachusetts. See id. at 893.
187. Id. at 895 (quoting Maryland Dep't of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985) (Bork, J.) (internal citations omitted)).
188. Id.
189. Id. at 900-01. The government also argued unsuccessfully that section 704 of the APA barred the state's claim. Section 704 provides that "agency action[s] made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 (1994) (emphasis added). The Court rejected the government's argument that the availability of monetary relief in the Claims Court constituted an "adequate remedy" under section 704. The Court observed that the parties would be involved in a "rather complex ongoing relationship," Bowen, 487 U.S. at 905, and concluded that the "naked money judgment" available from the Claims Court would not be an adequate substitute for prospective relief. See id. at 880. This argument could help parties to ESA assurance agreements who are also in a "complex ongoing relationship" with the federal government in which money damages may not constitute adequate relief in some circumstances. A number of ESA implementation agreements cover millions of acres of land and have terms of 50 years or more. The benefit of the bargain in these agreements is much more complex than the right to develop identified property. Rather, the HCP establishes a set of land management standards applicable to all of the property in the HCP. The primary objective of the landowners and local government participants is long-term regulatory certainty and predictability that will allow them to accomplish other personal and societal objectives - contract rights that are not easily satisfied by a money judgment.
190. Id. at 895.
191. 925 F.2d 1272 (10th Cir. 1991).
192. Id. at 1274.
193. Id. at 1277.
194. Id.
195. Id. at 1278 (citation omitted).
196. Id at 1279.
197. Id. at 1278 n. 12.
198. Id. at 1278 n. 11 (quoting Bowen, 487 U.S. at 910 n.48).
199. Id.
200. Seamon, supra note 66, at 186.
201. 967 F.2d 598 (D.C. Cir. 1992).
202. Id. at 612.
203. Id. at 613.
204. Id.
205. Id. (emphasis added).
206. In North Star Alaska v. United States, 14 F.3d 36 (9th Cir. 1994), the Ninth Circuit held that the district court did not have jurisdiction over a contractually-based claim. The court observed that "Bowen could be interpreted as taking a more expansive view of district court jurisdiction under
207. 136 F.3d 641 (9th Cir. 1998).
208. The contract at issue governed work performed from 1942-45. See id. at 643. The cleanup obligations at issue in Tucson arose under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675(1994). See id. 197. See Tuscon Airport, 136 F.3d at 644-45.
209. Id. at 645. Citing Bowen, the court further found that General Dynamics did not have an adequate remedy in the Court of Federal Claims under section 704. Id. at 645-46.
210. Id. at 646 (alteration in original).
211. Id. (quoting North Side Lumber Co. v. Block, 753 F.2d 1482, 1485 (9th Cir. 1985)). The court also cited United States v. King, 395 U.S. 1, 3 (1969), a short opinion in which the Supreme Court merely affirmed that the jurisdiction of the Court of Claims excludes equitable matters. The claim in King did not arise from a contract.
212. Id. at 648.
213. Id. at 644.
214. Id. The facts of the case further appeared to influence the Ninth Circuit's analysis. The court observed, rather incoherently, that "the scenario before us involves one branch of the federal government in 1991 questioning the conduct of government contractors a half century earlier when the public policy of our government was not the protection of the environment, but to crank out combat aircraft by the thousands to crush the military around the globe aligned against us." Id. at 643-44.
215. The Supreme Court did review another Ninth Circuit case, Blue Fox Inc. v. Small Business Administration, 121 F.3d 1357 (9th Cir. 1997), rev'd sub nom. Dep't of the Army v. Blue Fox Inc., _ U.S. _, 119 S.Ct. 687 (1999). Blue Fox involved a subcontractor's equitable lien against funds held by the United States Army, based on a prime contractor's failure to pay. The Ninth Circuit cited Bowen and found that section 702 constitutes a waiver for such a claim. See Blue Fox, 121 F.3d at 1361. The court emphasized that the fact that the claim was not statutorily derived did not mean that it was excluded from the waiver of sovereign immunity, noting that "there is no requirement in Bowen or the APA that the specific relief requested be statutorily granted. That is, a party need not rely upon a statute in order to obtain federal court jurisdiction under the APA." Id. This reasoning appears, on its face, to conflict with the Ninth Circuit's analysis in Tuscon Airport Authority, which concluded that section 702 did not waive the claim because the claim was not statutorily based. The Supreme Court could have clarified this issue in Blue Fox. It did not address the absence of a statutory basis for the claim, however, seizing instead on a narrower issue: the Ninth Circuit's claim that Bowen waived immunity for equitable actions. Observing that section 702's waiver of sovereign immunity only applied to relief other than "money damages," the court found that liens, whether equitable or legal, are "merely a means to an end of satisfying a claim for the recovery of money." Blue Fox, 119 S.Ct. at 692. On this basis, and without venturing to analyze the ambiguities surrounding the scope of section 702, the court held that section 702 did not waive sovereign immunity for equitable liens on government property. See id. at 693.
216. The First Circuit briefly considered this issue in Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 4-5 (1st Cir. 1989) (rejecting "last ditch" request based on Bowen for district court jurisdiction over contractual action).
217. Randall S. Abate & Carolyn H. Cogswell, Sovereign Immunity and Citizen Enforcement of Federal Environmental Laws: A Proposal for a New Synthesis, 15 VA. ENVTL. L.J. 1, 7 (1995) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 42 (1992) (Stevens, J., dissenting)).
218. See, e.g., id.; Rebecca Heintz, Note, Federal Sovereign Immunity and Clean Water: A Supreme Misstep, 24 ENVTL. L. 263 (1994).
219. See, e.g., Bowen v. Massachusetts, 487 U.S. 879 (1988); Far West v. Office of Thrift Supervision, 930 F.2d 883, 884 (Fed. Cir. 1991) (finding that a "sue and be sued" clause waived the government's sovereign immunity to a contractual specific performance claim); see also infra note 243 and accompanying text.
220. Bowen, 487 U.S. at 921 (citations omitted).
221. Seamon, supra note 66, at 207.
222. 644 F.2d 1361 (9th Cir. 1981).
223. The Tucker Act applies to claims in excess of $10,000. Federal district courts have concurrent jurisdiction over claims of less than $10,000. 28 U.S.C. § 1346(a)(2) (1994).
224. In re Liberty Constr., 9 F.3d 800, 801 (9th Cir. 1993) (quoting Pacificorp v. Federal Energy Regulatory Comm'n, 795 F.2d 816, 826 (9th Cir. 1986)).
225. Id. at 802 n.7.
226. 930 F.2d 883 (Fed. Cir. 1991).
227. Id. at 888.
228. Id. at 887-88.
229. Id. at 888.
230. Id.
231. Id.
232. Id.
233. Id. at 889.
234. Id. at 891.
235. Id.
236. Id.
237. Id. at 890 (citations omitted).
238. Id. at 890.
239. Id. at 892 (citations omitted).
240. Id. at 892-93.
241. 16 U.S.C. § 1540(g)(1)(A) (1994).
242. Id.
243. The citizen suit provision itself only addresses violations of a statute or regulation, implying that current law must support the suit.
244. SeeTransohio Savings Bank v. OTS, 967 F.2d 598, 609-11 (D.C. Cir. 1992).
245. 798 F.2d 1521 (D.C. Cir. 1986).
246. Id. at 1523-34.
247. Id. at 1523. In North Side Lumber Co. v. Block, 753 F.2d 1482, 1486 (9th Cir. 1985), the Ninth Circuit held that "the Tucker Act does not impliedly forbid relief on [a] statutory claim and thus does not preclude a § 702 waiver of sovereign immunity on that claim." The court in North Side found that the federal district court had jurisdiction over timber companies' claim that enforcement of timber sales contracts would violate federal statutes, including the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531 (1994). North Side, 753 F.2d at 1486.
248. See U.S. CONST. amend. V.
249. See Lynch v. United States, 292 U.S. 571, 579 (1934).
250. See U.S. CONST. amend. V; 28 U.S.C. §§ 1346(a)(2), 1491 (1994); see also Narramore v. United States, 960 F.2d 1048, 1051 (Fed. Cir. 1992).
251. See Sun Oil Co. v. United States, 572 F.2d 786, 817-18 (Ct. Cl. 1978).
252. See, e.g., Wan Chang Corp. v. United States, 282 F.2d 728 (Ct. Cl. 1960).
253. See Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 (1986).
254. In Winstar, 518 U.S. at 878-80, the Court writes: "[A] contract with a sovereign government will not be read to include an unstated term exempting the other contracting party from the application of a subsequent sovereign act (including an act of Congress), nor will an ambiguous term of a grant or contract be construed as a conveyance or surrender of sovereign power . . . . The application of the doctrine [of unmistakability] will therefore differ according to the different kinds of obligations the Government may assume and the consequences of enforcing them (emphasis added). The plurality then discusses the applicability of the doctrine, or when it should be applied, not its application, or how the doctrine should be applied when applicable. See id. The plurality opinion thus provides little guidance as to the scope of unmistakability. Whether or not the plurality's view of unmistakability (when applicable) is as broad as that of the concurrence is difficult to discern from the decision.
255. Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. at 8871 (quoting Donald J. Barry, Implementation and Reform of the Endangered Species Act, Remarks at Conference on Biodiversity Protection, University of Colorado School of Law (June 10, 1996)).
256. See, e.g., Madera Irrigation Dist. v. Hancock, 985 F.2d 1397, 1404 (9th Cir. 1993) (finding that a contractual provision stating that a federal agency's price for irrigation water "shall not exceed charges made to others . . . for the same class of water and service" did not constitute an unmistakable surrender of the government's sovereign authority to charge more for water service "with a higher operation and maintenance cost").
257. See supra Part III.B.
258. For West, 930 F.2d at 888.
259. Brief for Respondent Glendale Federal Bank, United States v. Winstar Corp., 1996 WL 144162, at *39 (1996) (No. 95-865).