Can regulation evolve? Lessons from a study in maladaptive management

UCLA Law Review

Volumn 55, Issue 2, 2007, Pages 293-358

  Camacho, Alejandro E ^a  

^a Notre Dame Law School ^*

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EID: 38949129348     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (581)

1. E.g., Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 664 (2000) (referring to HCP programs as "experiments");
2. J.B. Ruhl, Regulation by Adaptive Management - Is It Possible?, 7 MINN. J. L. SCI. & TECH. 21, 39-40 (2005) (explaining the "HCP adaptive management experiment");
3. A. Dan Tarlock, Fred Bosselman as Participant-Observer Lawyer: The Case of Habitat Conservation Planning, 17 J. LAND USE & ENVTL. L. 43, 50 (2001) ("HCP experiments represent a potentially important turning point in environmental law.");
4. see also J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757, 847 n.289 (2003) ("The [HCP] program is often included as an example of an innovative performance-based regulatory reinvention.").
5. Lindell L. Marsh, Conservation Planning Under the Endangered Species Act: A New Paradigm for Conserving Biological Diversity, 8 TUL. ENVTL. L.J. 97, 98 (1994);
6. see also David A. Dana, The New "Contractarian" Paradigm in Environmental Regulation, 2000 U. ILL. L. REV. 35, 38-40 (describing the HCP program as the earliest occurrence of the "new contractarian paradigm" in administrative regulation);
7. Jean O. Melious & Robert D. Thornton, Contractual Ecosystem Management Under the Endangered Species Act: Can Federal Agencies Make Enforceable Commitments?, 26 ECOLOGY L.Q. 489, 490 (1999) (describing the HCP program as "the most prominent example" of "one of the most significant advances in environmental law over the last decade"-"the transformation of the command and control model into a contractual model").
8. See, e.g., ARCHON FUNG & ERIK OLIN WRIGHT, DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN EMPOWERED PARTICIPATORY GOVERNANCE (2003);
9. Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions: installment Two, 24 STAN. ENVTL. L.J. 269 (2005);
10. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998);
11. Daniel A. Farber, Revitalizing Regulation, 91 MICH. L. REV. 1278 (1993);
12. Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997);
13. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795 (2005);
14. Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1 (1982);
15. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004).
16. See EDWARD O. WILSON, THE DIVERSITY OF LIFE 254 (1992) (stating that biodiversity loss is the "scientific problem of great[est] immediate importance for humanity");
17. Michel Loreau et al., Diversity Without Representation, 442 NATURE 245 (2006) (statement from nineteen preeminent biologists asserting that "[t]here is ... clear scientific evidence that we are on the verge of a major biodiversity crisis.... Despite this evidence, biodiversity is still consistently undervalued and given inadequate weight in both private and public decisions. There is an urgent need to bridge the gap between science and policy ...").
18. See Global Warming and Wildlife: Hearing Before the Subcomm. on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection of the S. Comm. on Env't and Public Works, 110th Cong. (2007) (statement of Dr. Thomas E. Lovejoy, Director, H. John Heinz III Center for Science, Economics, and the Environment), available at http://epw.senate.gov/ public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=7efcd166-802a-23ad- 4634-25057d9d08bf(partial reprinting), and at rtsp://video.webcastcenter.com/ srs_g2/epw020707.rm (audio recording) ("[E]cosystems will disassemble [as a result of global warming] and the individual species will assemble into novel biological communities: both a nightmare for natural resource managers as well as for the rest of us, as the shuffling of the ecological decks favors opportunistic species such as weeds, pests and diseases.");
19. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION, AND VULNERABILITY-SUMMARY FOR POLICYMAKERS (2007), http://www.ipcc.ch/SPM13apr07.pdf (reporting that 20 to 30 percent of plant and animal species are likely to be at a higher risk of extinction if increases in global average temperature exceed 1.5 to 2.5 degrees Celsius);
20. Chris D. Thomas et al., Extinction Risk From Climate Change, 427 NATURE 145, 145 (2004) (predicting that 15 to 37 percent of existing species will be endangered by 2050 as a result of anthropogenic climate change).
21. See, e.g., Endangered Species Recovery Act of 2007, S. 700, 110th Cong. (2007) (introduced Feb. 28, 2007);
22. Endangered Species Reform Act of 2007, S. 658, 110th Cong. (2007) (introduced Feb. 16, 2007). The U.S. House of Representatives passed a substantial amendment to the Endangered Species Act (ESA) in late 2005, proposing to replace critical habitat requirements and provide incentives, guarantees, and compensation to landowners. See Threatened and Endangered Species Recovery Act of 2005 (TESRA), H.R. 3824, 109th Cong. (2005). A bill addressing similar issues was referred to the U.S. Senate Environment and Public Works Committee. See Collaboration for the Recovery of Endangered Species Act (CRESA), S. 2110, 109th Cong. (2005).
23. See Felicity Barringer, Proposed Changes Would Shift Duties in Protecting Species, N.Y. TIMES, Mar. 28, 2007, at A16 (discussing draft Interior Department regulations to overhaul the ESA by restricting the Department's ability to classify a species as endangered and allowing states to implement parts of the Act);
24. Dan Berman, Secretary Kempthorne Defends Record on ESA, Ethics, E&ENEWS PM, May 25, 2007, http://www.eenews.net/eenewspm/2007/05/25/archive/ 1?terms=Kempthorne.
25. See infra Part I.
26. See 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5) (2004).
27. See Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35,242, 35,243, 35,252 (June 1, 2000) [hereinafter HCP Handbook Addendum].
28. See infra Part I.B.
29. Bradley C. Karkkainen, Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism, 87 MINN. L. REV. 943, 970 (2003).
30. The ESA is primarily administered by the U.S. Secretary of the Interior through the U.S. Fish and Wildlife Service (FWS) for land and freshwater species, and the U.S. Secretary of Commerce through the National Marine Fisheries Service (NMFS) for marine species. See 16 U.S.C. § 1532(15) (2000) (defining "Secretary");
31. id. § 1533(a)(2); 50 C.F.R. § 424.01 (2005) (FWS/NMFS joint regulations).
32. See infra Part II.
33. See Laura H. Watchman et al., Science and Uncertainty in Habitat Conservation Planning, 89 AM. SCIENTIST 351, 356 (2001).
34. 16 U.S.C. § 1536(a)(2).
35. See infra Part III.
36. See Lisa Stiffler, Best-Laid Plans Can't Foresee All - Spotted Owl Is in Decline and Another Bird May Be at Fault, SEATTLE POST-lNTELLIGENCER, May 5, 2005, at A18.
37. See infra Part IV. A.
38. See infra Part IV.B.
39. 16 U.S.C. § 1532(19) (defining "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct").
40. Id. § 1531(a)(5).
41. Id. § 1531(a).
42. See id. § 1531(b);
43. see also Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 699-700 (1995) (acknowledging that the ESA serves to protect vulnerable ecosystems, with listed species functioning as an indicator that the underlying ecosystem is faltering).
44. Listing is based on an assessment of the risk of extinction that relies on "the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). Species may be listed only after public participation and solicitation of independent scientific peer review.
45. See id.; Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, 59 Fed. Reg. 34,270 (July 1, 1994).
46. See 16 U.S.C. § 1533(b) (2000 & Supp. III 2004); 16 U.S.C. § 1538(a) (2000).
47. Action includes any activity "authorized, funded, or carried out, in whole or in part, by Federal agencies." 50 C.F.R. § 402.02 (2005).
48. 16 U.S.C. § 1536(a)(2);
49. see also Tenn. Valley Auth. v. Hill, 437 U.S. 153, 188 (1978) (finding that a jeopardy determination must be made strictly without regard to the costs and benefits of the proposed agency action).
50. 16 U.S.C. § 1533(b)(2) (2000 & Supp. III 2004). If a species is listed, the Services must designate critical habitat in areas in which the species is found or which might provide additional habitat for the species' recovery. See id. However, the FWS had only designated critical habitat for 36 percent of listed domestic species as of June 2006.
51. See EUGENE H. BUCK ET AL., THE ENDANGERED SPECIES ACT (ESA) IN THE 109TH CONGRESS: CONFLICTING VALUES AND DIFFICULT CHOICES 3 (2006).
52. 16 U.S.C. § 1538(a)(1). For threatened species, the take prohibition is not automatic; the FWS may apply the ban at its discretion, see id. § 1533(d), which it has done in most cases, see TIMOTHY BEATLEY, HABITAT CONSERVATION PLANNING: ENDANGERED SPECIES AND URBAN GROWTH 17 (1994).
53. 16 U.S.C. § 1532(19).
54. See Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687 (1995) (determining that the Services' statutory interpretation of "harm" to include "significant habitat modification or degradation" that significantly impairs breeding, feeding, or sheltering patterns was reasonable);
55. Palila v. Haw. Dep't of Land & Natural Res., 639 F.2d 495, 497 (9th Cir. 1981).
56. SEE LAURA C. HOOD, FRAYED SAFETY NETS: CONSERVATION PLANNING UNDER THE ENDANGERED SPECIES ACT 1 (1998).
57. Michael J. Bean & David S. Wilcove, The Private-Land Problem, 11 CONSERVATION BIOLOGY 1, 1-2 (1997).
58. See HOOD, supra note 33, at 1.
59. See id. at 1-2 (reporting that due to limited Services oversight, landowners sometimes destroyed potential habitat before it was discovered);
60. George F. Wilhere, Adaptive Management in Habitat Conservation Plans, 16 CONSERVATION BIOLOGY 20, 23 (2002) (stating that landowners often interfered with monitoring and refrained from reporting species on their property).
61. Craig W. Thomas, Habitat Conservation Planning, in FUNG & WRIGHT, supra note 3, at 144, 146.
62. See BUCK ET AL., supra note 29, at 19;
63. Wilhere, supra note 36, at 22.
64. See HOOD, supra note 33, at 2-3;
65. Thomas, supra note 37, at 146.
66. 16 U.S.C. § 1539(a) (2000). Federal agencies and federal permittees can also circumvent the section 9 prohibitions if one of the Services issues an incidental take statement (ITS) through the section 7 interagency consultation process. See id. §§ 1539(a)(1)(B), 1536(b)(4). Though this Article focuses on the HCP program, many of the same criticisms are also likely to be valid for the section 7 ITS program, which accounts for at least as many incidental take activities as HCPs. An ITS flows from the Services to an applicant through the permitting agency and is in many respects the equivalent of a section 10 authorization. Like an incidental take permit (ITP), an ITS is not available for public examination or comment until it has been finalized.
67. See U.S. FISH & WILDLIFE SERV., ENDANGERED SPECIES ACT SECTION 7 CONSULTATION HANDBOOK 1-12 (1998).
68. 16 U.S.C. § 1539(a)(2)(A).
69. See id. § 1539(c);
70. C.F.R. § 17.22(c) (2005) (FWS implementing regulations);
71. id. § 222.307(c) (NMFS implementing regulations).
72. An "incidental take" is broadly defined as any taking "that result[s] from, but [is] not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant." 50 C.F.R. § 402.02.
73. 16 U.S.C. § 1539(a)(2)(B);
74. see also Gerber v. Norton, 294 F.3d 173, 185 (D.C. Cir. 2002) (finding that the Service, and not just the developer, must determine that the alternatives considered were impracticable).
75. The Services' Habitat Conservation Planning Handbook provides that any mitigation mandated in an HCP must be "commensurate with the impacts," and based on a "sound biological rationale." U.S. FISH &. WILDLIFE SERV. & NAT'L MARINE FISHERIES SERV., HABITAT CONSERVATION PLANNING HANDBOOK 3-19, 7-3 (1996)
76. [hereinafter HCP HANDBOOK]. The HCP Handbook also provides two accommodating factors to consider in determining the sufficiency of proposed mitigation: (1) the extent to which the measures provide substantial benefits to species; and (2) whether the mitigation is the maximum practicable in light of the "benefits and costs of implementing additional mitigation," the applicant's abilities, and the mitigation provided by other applicants in similar circumstances. Id. 46. A 1978 amendment to section 7 allowed federal actions at the cabinet level an extraordinary exemption from the prohibition against jeopardizing a listed species when the action's benefits "clearly outweigh" the benefits of conservation alternatives.
77. See 16 U.S.C. § 1536(h)(A)(ii). However, only one exemption has ever been executed pursuant to this amendment.
78. See BUCK ET AL., supra note 29, at 5.
79. See BEATLEY, supra note 30, at 19;
80. Robert D. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENVTL. L. 605, 622 (1991).
81. See HOOD, supra note 33, at 30;
82. Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act-A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L 845, 874 n.111 (1997).
83. See Lindell L. Marsh & Robert D. Thornton, San Bruno Mountain Habitat Conservation Plan, in MANAGING LAND-USE CONFLICTS 114, 119-25 (David J. Brower et al. eds., 1987).
84. See MICHAEL J. BEAN ET AL., RECONCILING CONFLICTS UNDER THE ENDANGERED SPECIES ACT 52-57 (1991).
85. See, e.g., BEATLEY, supra note 30, at 17, 19;
86. Graham M. Lyons, Habitat Conservation Plans: Restoring the Promise of Conservation, 23 ENVIRONS ENVTL. L & POL'Y J. 83, 102 (1999).
87. H.R. REP. NO. 97-835, at 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2872;
88. see also HCP HANDBOOK, supra note 45, at 1-2;
89. Thornton, supra note 47, at 624.
90. H.R. REP. NO. 97-835, at 31-32;
91. see also Lyons, supra note 51, at 102 ("Congress was sure to point out the fact that local citizens and environmental organizations supported the San Bruno plan.").
92. See H.R. REP. NO. 97-835, at 32.
93. See Endangered and Threatened Wildlife and Plants; Prohibitions and Permits, 50 Fed. Reg. 39,681, 39,682 (Sept. 30, 1985) (codified in scattered sections of 50 C.F.R. pts. 13, 17).
94. See Friends of Endangered Species v. Jantzen, 760 F.2d 976, 983 (9th Cir. 1985).
95. See George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENVTL. L. & POL'Y F. 39, 40 (1996) (key Interior Department official stating that the HCP reforms represent an effort to transform the ESA from "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");
96. Robert D. Thornton, Habitat Conservation Plans: Frayed Safety Nets or Creative Partnerships?, 16 NAT. RESOURCES & ENV'T 94 (2001).
97. Marsh, supra note 2, at 110.
98. See H.R. REP. NO. 97-835, at 30-31 ("To the maximum extent possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors and among governmental agencies.... This provision will measurably reduce conflicts under the Act and will provide the institutional framework to permit cooperation between the public and private sectors ....");
99. id. at 31 (HCPs should "create a climate of partnership and cooperation").
100. See id. at 30 ("Although the conservation plan is keyed to the permit provisions of the Act which only apply to listed species, the Committee intends that conservation plans may address both listed and unlisted species. In enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element.... [T]he purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.").
101. See id. ("[T]he Secretary shall prescribe terms and conditions to ensure that appropriate measures are taken by the applicant and shall revoke the permit if the permittee is not complying with those terms and conditions.").
102. See id. at 31 ("It is also recognized that circumstances and information may change over time and that the original plan might need to be revised. To address this situation the Committee expects that any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforseen [sic] circumstances.").
103. See Camacho, supra note 3, at 273-75.
104. See Freeman, supra note 3, at 3, 35;
105. Harter, supra note 3, at 6-7.
106. See Lobel, supra note 3, at 371, 395.
107. In addition to the ESA's HCP program, the most commonly cited examples of federal negotiated administrative processes include regulatory negotiation under the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-70 (2000), and the negotiation of Final Project Agreements under the Environmental Protection Agency's Project XL, see Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27,282 (May 23, 1995).
108. See, e.g., FUNG &. WRIGHT, supra note 3, at 6-14;
109. LAWRENCE SUSSKIND ET AL., USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES: A GUIDEBOOK FOR PUBLIC OFFICIALS 19-23 (1999);
110. James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. & SOC. CHANGE 183 (2003);
111. Lobel, supra note 3, at 404-07;
112. Louise G. Trubek & Maya Das, Achieving Equality: Healthcare Governance in Transition, 29 AM. J.L. & MED. 395 (2003).
113. See, e.g., National Environmental Policy Act Revised Implementing Procedures, 69 Fed. Reg. 10,866 (Mar. 8, 2004) (amending the National Environmental Policy Act (NEPA) implementation regulations to incorporate adaptation).
114. See Freeman, supra note 3, at 4;
115. Harter, supra note 3, at 103. Rejecting the view of regulation as an authoritarian exercise of power through static, uniform rules, Jody Freeman suggests that regulation should more appropriately be understood as a set of negotiated relationships analogous to contract.
116. See Freeman, supra note 1, at 548-49;
117. Freeman, supra note 3, at 28-29.
118. See Freeman, supra note 1, at 671.
119. To be sure, there are often substantial differences between these theoretical approaches, not the least of which is that some criticize the extant adopted regulatory innovations, while others support them. See Bradley C. Karkkainen, "Netv Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 474 (2004).
120. See, e.g., Freeman, supra note 3, at 22, 28-29 (promoting harnessing and enhancing the capabilities of private and democratic institutions through processes that encourage broad participation, problem solving, adaptable regulatory solutions, accountability through interdependence and mutual monitoring, and a flexible, engaged agency).
121. ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY 3 (2004);
122. FUNG & WRIGHT, supra note 3, at 15.
123. Camacho, supra note 3;
124. Freeman, supra note 3.
125. Dorf & Sabel, supra note 3, at 286-87;
126. see also CHARLES SABEL ET AL., BEYOND BACKYARD ENVIRONMENTALEM (2000).
127. Joshua Cohen &. Charles Sabel, Directly-Deliberative Polyarchy, 3 EUR. L.J. 313, 313-40 (1997);
128. Dorf & Sabei, supra note 3, at 288.
129. See Freeman, supra note 3, at 27.
130. See Thomas C. Beierle & Jerry Cayford, Dispute Resolution as a Method of Public Participation, in THE PROMISE AND PERFORMANCE OF ENVIRONMENTAL CONFLICT RESOLUTION 53, 63-66 (Rosemary O'Leary & Lisa B. Bingham eds., 2003) (discussing the instrumental, substantive, and normative values of public participation);
131. Dorf & Sabel, supra note 3, at 317 (discussing the fundamental value of direct and continuous participation).
132. See Dorf & Sabel, supra note 3, at 288 (stating that local participation in service-provision evaluation can increase the accountability of regulatoty institutions).
133. See id. at 285 (stating that pragmatism accepts "the impossibility of defining first principles that survive the effort to realize them, as a constitutive feature of thought and action, and not as an unfortunate incident of modern political life").
134. Proponents of "eco-pragmatism" and "jurisdynamics" also emphasize an understanding of the law as a fundamentally iterative process. For a comprehensive justification of eco-pragmatism, see DANIEL A. FARBER, ECO-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL DECISIONS IN AN UNCERTAIN WORLD (1999), and Daniel A. Farber, Building Bridges Over Troubled Waters: Eco-Pragmatism and the Environmental Prospect, 87 MINN. L. REV. 851 (2003).
135. For a complete account of jurisdynamics, see THE JURISDYNAMICS OF ENVIRONMENTAL PROTECTION: CHANGE AND THE PRAGMATIC VOICE IN ENVIRONMENTAL LAW (Jim Chen ed., 2003),
136. and Jim Chen, The Pragmatic Ecologist: Environmental Protection as a Jurisdynamic Experience, 87 MINN. L. REV. 847 (2003).
137. See Dorf & Sabel, supra note 3, at 285;
138. Freeman, supra note 3, at 28-29;
139. Karkkainen, supra note 71, at 496.
140. See Freeman, supra note 3, at 28 ("[A] flexible, adaptive system capable of responding to advances in science, technology, knowledge, and shifting human judgments will produce better rules that are more likely to accomplish legislative goals.").
141. See Camacho, supra note 3, at 295-97;
142. Freeman, supra note 3, at 28.
143. See J.B. Ruhl, Is the Endangered Species Act Eco-Pragmatic?, 87 MINN. L. REV. 885, 936 (2003).
144. See STANFORD ENVTL. LAW SOC'Y, THE ENDANGERED SPECIES ACT 133 (2001).
145. See U.S. Fish & Wildlife Service, Endangered Species Habitat Conservation Planning, http://ecos.fws.gov/conserv_plans/public.jsp (follow "Nationwide" hyperlink under "Habitat Conservation Plans" column, then follow "Regional (Summary) Report" hyperlink) (last visited Oct. 26, 2007).
146. See, e.g., JEREMY ANDERSON & STEVEN YAFFEE, BALANCING PUBLIC TRUST AND PRIVATE INTEREST: PUBLIC PARTICIPATION IN HABITAT CONSERVATION PLANNING, A SUMMARY REPORT 13 (1998).
147. A steering committee is "a group of persons who represent affected interests in a broad-scale HCP planning area and generally oversee HCP progress and development." HCP HANDBOOK, supra note 45, at 3-3.
148. See BEATLEY, supra note 30, at 19;
149. Marsh & Thornton, supra note 49, at 128.
150. See supra notes 51-58 and accompanying text.
151. See ANDERSON & YAFFEE, supra note 88, at 22.
152. 16 U.S.C. § 1539(a)(2)(B) (2000).
153. See id. § 1539(c);
154. C.F.R. § 17.22(c) (2005) (FWS implementing regulations);
155. id. § 222.307(c) (NMFS implementing regulations).
156. The Services extended the period to sixty days, with exceptions for "low effect" HCPs (thirty days), individual permits under a program-level HCP (thirty days), and large-scale, regional, or exceptionally complex HCPs (ninety days unless there was significant participation during HCP development). See HCP Handbook Addendum, supra note 10, at 35,242, 35,256.
157. See Thornton, supra note 47, at 631-32.
158. But see Watchman et al., supra note 15, at 356.
159. See Endangered Species Act Amendments of 1993: Hearings Before the Subcomm. on Clean Water, Fisheries, and Wildlife of the Comm. on Env't and Public Works, 103d Cong. 160 (1994) (statement of Lindell L. Marsh, Siemon, Larsen & Marsh) ("[T]here is a growing consensus that the HCP approach is our best chance to conserve the Nation's biodiversity ....");
160. id. at 228 (statement of Michael A. O'Connell, Director of Habitat Conservation Planning, The Nature Conservancy) ("HCPs provide opportunities to build relationships that achieve public benefit while accommodating private sector needs.");
161. Farber, supra note 81, at 874;
162. jody Freeman, The Contracting State, 28 FLA. ST. U. L. REV. 155, 194 (2000);
163. Marsh, supra note 2, at 110;
164. Steve Vanderheiden, Habitat Conservation Plans and the Promise of Deliberative Democracy, PUB. INTEGRITY, Summer 2001, at 205, 209.
165. See HCP Handbook Addendum, supra note 10, at 35,246-47 ("[W]e maintain that the inclusion of other interested parties in the development of an HCP is ultimately the decision of the applicant. The ESA and its implementing regulations do not mandate public participation before an applicant submits a permit application; only a public comment period after it is submitted and published in the Federal Register.").
166. See HCP HANDBOOK, supra note 45, at 3-3, 3-4 (explaining that applicants may decline such processes if they view them as "giving 'outside interests' too much access," or allow for "the intrusion of outside interests into proprietary or sensitive economic matters").
167. See id. at 3-3.
168. See HCP Handbook Addendum, supra note 10, at 35,247 ("We strongly encourage applicants to include more public participation at all stages of development.");
169. id. at 35,256 ("The Services will strongly encourage potential applicants to allow for public participation during the development of an HCP, particularly if non-Federal public agencies ... are involved.");
170. HCP HANDBOOK, supra note 45, at 3-3 ("[T]he Services should encourage the applicant to provide opportunities to brief or inform representatives of interested parties of key elements or issues to be addressed in the proposed HCP.").
171. 16 U.S.C. § 1539(a)(2)(A) (2000).
172. Id. § 1539(a)(2)(B).
173. See Jon R. Luoma, Habitat-Conservation Plans: Compromise or Capitulation?, AUDUBON, Jan.-Feb. 1998, at 36, 43. Indeed, a past FWS director claimed that "[i]f we had our druthers, we'd certainly open up the HCP process to more public involvement. But the way the law's written, it's not our HCP." Id.
174. See NATURAL HERITAGE INST., WHERE PROPERTY RIGHTS AND BIODIVERSITY CONVERGE: LESSONS FROM EXPERIENCE IN HABITAT CONSERVATION PLANNING 20 n.85 (2000) ("Other federal statutes allow stakeholders to help shape natural resource use and protection.... Nothing in the ESA precludes the Services from employing similar measures to involve the public in the HCP development process.").
175. HCP Handbook Addendum, supra note 10, at 35,253.
176. See HCP HANDBOOK, supra note 45, at 3-33. Though limited to situations in which an adopted HCP includes "procedures for incorporating minor amendments so that the public had an opportunity to comment on the process," this provision allows an applicant to make subsequent changes to the HCP without public input as long as the net effect on the species is not "significantly" different than analyzed when the HCP was approved. Id.
177. Several commentators have noted that the Services' developer-friendly interpretations are a result of former Secretary of the Interior Bruce Babbitt's calculated decision to expand usage of ITPs. See David Dana & Susan P. Koniak, Bargaining in the Shadow of Democracy, 148 U. PA. L. REV. 473, 511-12 (1999);
178. John D. Leshy, The Babbitt Legacy at the Department of the Interior: A Preliminary View, 31 ENVTL. L 199, 213-14 (2001) (Interior Department Solicitor's account);
179. Ruhl, supra note 85, at 936;
180. cf. A. Dan Tarlock, Slouching Toward Eden: The Eco-Pragmatic Challenges of Ecosystem Revival, 87 MINN. L. REV. 1173, 1199 (2003) ("[T]he Babbitt Department of Interior promoted AM [adaptive management] to induce stakeholder participation in large-scale, multi-species HCPs, as a way to counter efforts to rollback the ESA.").
181. See infra notes 345-348 and accompanying text.
182. See ANDERSON & YAFFEE, supra note 88, at 30.
183. John Kostyack, Habitat Conservation Planning: Time to Give Conservationists and Other Concerned Citizens a Seat at the Table, ENDANGERED SPECIES UPDATE, July/Aug. 1997, at 51, 52;
184. see also ANDERSON &. YAFFEE, supra note 88, at 9;
185. HOOD, supra note 33, at 43-44;
186. Holly Doremus, Preserving Citizen Participation in the Era of Reinvention: The Endangered Species Act Example, 25 ECOLOGY L.Q. 707, 713 (1999);
187. Michael Lipske, Giving Rare Creatures a Fighting Chance, NAT'L WILDLIFE, Feb./Mar. 1998, at 14, 21-22 ("Landowners and government representatives hammer out the details behind closed doors. Public review typically occurs only after the plan has been created.").
188. See ANDERSON & YAFFEE, supra note 88, at 17. Though applicants were moderately or actively involved before the comment period in 91 percent of the HCPs studied, not one environmental group was even moderately involved before the comment period in 51 percent of the HCPs. See PETER AENGST ET AL., BALANCING PUBLIC TRUST AND PRIVATE INTEREST: AN INVESTIGATION OF PUBLIC PARTICIPATION IN HABITAT CONSERVATION PLANNING 5-3, 5-5 (1998). In only a minority of cases did local governments (40 percent), business groups (28 percent), or independent scientists (28 percent) participate prior to the comment period. See id. at 5-5, 5-6, 5-7, 5-9. Even the higher level of local government participation is misleading; the study found that local government participation was closely correlated with whether the government owned land subject to the HCP. See id. at 5-7.
189. See David E. Moser, Habitat Conservation Plans Under the U.S. Endangered Species Act: The Legal Perspective, 26 ENVTL. MGMT. S7, S10 (2000) (stating that HCPs are "rarely submitted to the FWS 'cold'.... FWS strongly prefers to work with applicants in developing the HCP").
190. See Kostyack, supra note 111, at 52.
191. See AENGST ET AL., supra note 112, at 5-13 ("[O]n average more significant changes occurred before the comment period than during the comment period, or after HCP approval.");
192. id. at xv ("[I]n those cases where public participation resulted in substantive changes to the HCPs, public participation invariably began early in the process....").
193. See THOMAS C. BEIERLE & JERRY CAYFORD, DEMOCRACY IN PRACTICE: PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONS 74-75 (2002) (suggesting that early public participation is effective in incorporating public values and thus leads to better outcomes);
194. Mary Grisez Kweit & Robert W. Kweit, The Politics of Policy Analysis: The Role of Citizen Participation in Analytic Decision Making, in CITIZEN PARTICIPATION IN PUBLIC DECISION MAKING 19, 25-26 (Jack DeSario & Stuart Langton eds., 1987) (describing the negative impacts of only providing late participation opportunities);
195. Stephanie Tai, Three Asymmetries of Informed Environmental Decisionmaking, 78 TEMP. L. REV. 659, 693 (2005);
196. cf. 40 C.F.R. § 1502.5 (2006) (stating that the environmental impact statement (EIS) under NEPA "shall be prepared early enough so that it can serve practically as an important contribution to the decision-making process and will not be used to rationalize or justify decisions already made");
197. Donna M. Nagy, Playing Peekaboo With Constitutional Law: The PCAOB and Its Public/Private Status, 80 NOTRE DAME L. REV. 975, 1062-63 (2005) (describing the Administrative Procedure Act's call for widespread early participation in rulemaking, before policy decisions get "chiseled into bureaucratic stone").
198. AENGST ET AL., supra note 112, at xv ("[P]ublic participation resulted in significant substantive changes to only 3 out of 45 responding HCPs....");
199. see also id. (finding in more than 75 percent of the HCPs studied, public participation led to "only minimal or moderate changes"). 118.
200. See id. app. at A-Weyerhaeuser-5 ("Many considered the time provided for public review 'woefully inadequate considering the technical issues involved and the difficulty in getting documents.'" (quoting environmental representative)).
201. See ANDERSON & YAFFEE, supra note 88, at 17 (finding that outside stakeholders "tended to be more involved during comment periods... than during earlier phases of the planning process when most key HCP decisions are made");
202. BARBARA PEDERZOLI, PUBLIC PARTICIPATION AND BIOLOGICAL SOUNDNESS IN HABITAT CONSERVATION PLANS 75 (1999) (finding that participation occurred during early design phase in only eight of thirty HCPs studied (27 percent));
203. see, e.g., AENGST ET AL., supra note 112, app. at A-Orange County-9 ("The problem was people felt they had already missed the point to really affect the plan and that decisions were already made.'" (quoting local government administrator)).
204. See Luoma, supra note 104, at 43 ("[O]nce HCPs receive that preliminary approval... public comment is considered. But in many cases federal regulators have by that point already been closely involved in developing the HCP.... Fish and Wildlife Service officials have frequently provided extensive technical support... and engaged in detailed give-and-take negotiating.... Public notice [say some critics] comes only when the giving and taking is over.");
205. Patrick Parenteau, Rearranging the Deck Chairs: Endangered Species Act Reforms in an Era of Mass Extinction, 22 WM. & MARY ENVTL. L. & POL'Y REV. 227, 309 (1998).
206. See Thomas, supra note 37, at 159.
207. See id. at 159, 164.
208. See David Ostermeier et al., Habitat Conservation Planning: Current Processes and Tomorrow's Challenges, 2 ENVTL. PRAC. 166, 169, 170 (2000).
209. See AENGST ET AL., supra note 112, at 5-20 (finding that 88 percent of HCP processes employing low levels of participation-minimal interest group involvement, no steering committee, and no independent scientific review-involved strictly private lands, while only 12 percent involved public lands). In contrast, 11 percent of HCP processes providing high levels of participation (multiple interest groups, early involvement, a steering committee, and typically independent scientific review) regulated strictly private lands, while 89 percent involved public lands. See id.;
210. see also Ostermeier et al., supra note 123, at 170 ("Of the thirteen private cases, none had representative participation, six had expanded participation and seven involved only the applicant and service representatives. For public plans, 15 of 18 were either representative or expanded with the remaining three involving the service and permittee only."). This study defined "expanded" participation as "one or more individuals or representatives beyond that required" and "representative" participation as "those in which the intent was to involve representatives of all interests."
211. Ostermeier et al., supra note 123, at 169.
212. See Bradley Karkkainen, Toward Ecologically Sustainable Democracy?, in FUNG & WRIGHT, supra note 3, at 208, 212.
213. See Paul Shigley, Twelve Years and Two Billion Bucks, PLANNING, Aug./Sept. 2006, at 26 (describing a habitat conservation planning process that involved 237 meetings before the release of a draft document).
214. See AENGSTET AL., supra note 112, at 13-6, 13-7.
215. See, e.g., Thomas N. Lippe & Kathy Bailey, Regulation of Logging on Private Land in California Under Governor Gray Davis, 31 GOLDEN GATE U. L. REV. 351, 396 (2001) (quoting a superior court decision that found that a state agency failed to follow its mandated public review procedures: "A believer in orchestration might reasonably conclude [the agency's] actions were intentionally executed to prevent public exposure or comment").
216. Data from an unpublished database indicate that independent scientists were involved in scientific or technical committees in only 14 percent of the 274 HCPs approved before 1999, and that less than 8 percent of HCP processes integrated independent scientific peer review at any stage of the HCP's development. See Defenders of Wildlife, Habitat Conservation Plan Data, at Questions 30, 31 [hereinafter Defenders HCP Data] (on file with the UCLA Law Review).
217. NATURAL HERITAGE INST., supra note 105, at 19.
218. Id. at 20.
219. See HCP Handbook Addendum, supra note 10, at 35,253.
220. See Defenders HCP Data, supra note 129, at Question 31 (revealing that fewer than 8 percent of 274 HCP processes integrated independent scientific peer review at any stage of the HCP's development).
221. See Thomas, supra note 37, at 154. One study found that though applicants were at least moderately involved in 85 percent of responding HCPs during the implementation phase, in only a minority were environmental groups (40 percent), business and development groups (23 percent), or independent scientists (15 percent) at least moderately involved.
222. See AENGST ET AL., supra note 112, at 5-3, 5-5, 5-7. In fact, in only one out of fifteen HCPs did a FWS official report that "the public was very involved in the monitoring of HCP implementation." See id. at 5-8.
223. See Lippe & Bailey, supra note 128, at 393.
224. See HCP HANDBOOK, supra note 45, app. 4, § 14.8 ("Template" Implementing Agreement);
225. Plater, supra note 48, at 872.
226. See supra note 101,
227. See ANDERSON & YAFFEE, supra note 88, at 23.
228. 5 U.S.C. § 552 (2000 & Supp. III 2004).
229. See, e.g., Luoma, supra note 104, at 42-43;
230. infra note 273.
231. See ANDERSON & YAFFEE, supra note 88, at 21, 2 2.
232. Id. at 21 (quoting Dave Whipple of the Washington Department of Fish and Wildlife).
233. See Gerber v. Norton, 294 F.3d 173, 181 (D.C. Cir. 2002) (reprimanding the FWS for withholding from the public a key map showing the location of mitigation, stating "an agency may not turn the provision of notice into a bureaucratic game of hide and seek" (quoting MCI Telecomms. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C. Cir. 1995))).
234. 42 U.S.C. §§ 4321-4370(f) (2000).
235. NEPA requires preparation of an EIS for any major federal action (including permit approval) significantly affecting the quality of the environment. See id. § 4332(2)(C).
236. In addition to federal fora for participation, for most development projects necessitating an HCP there typically are other fora (for example, local development permitting) in which stakeholders may have the opportunity to provide input. As a result, focusing exclusively on HCP participation may underestimate the extent of participation opportunities available, as some of the informational and other values of participation not attained through the HCP formation process may be provided in other nodes of participation. Yet, it would be a mistake to suggest that the existence of these fragmented and uncoordinated fora could resolve the participation limitations of the HCP program. Beyond the inefficiency of this fragmented approach, conservation questions considered in HCP deliberations would only tangentially be considered in other fora.
237. See ANDERSON & YAFFEE, supra note 88, at 22;
238. HOOD, supra note 33, at 44-45.
239. See Dotemus, supra note 111, at 713;
240. Kostyack, supra note 111, at 53;
241. Barton H. Thompson, Jr., The Endangered Species Act: A Case Study in Takings and Incentives, 49 STAN. L. REV. 305, 380 (1997) (revealing that 99 percent of HCPs approved between 1994 and 1996 were accompanied only by environmental assessments).
242. See ANDERSON & YAFFEE, supra note 88, at 22.
243. See Doremus, supra note 111, at 713.
244. See ANDERSON & YAFFEE, supra note 88, at 22. Even when an EIS is required, though it may provide an opportunity for stakeholders to comment before negotiations occur, it does not require that stakeholders have access to the negotiations themselves. See id. at 24.
245. See id. at 9;
246. Thomas, supra note 37, at 151-52.
247. ANDERSON & YAFFEE, supra note 88, at 13;
248. cf. AENGST ET AL., supra note 112, app. at A-Weyerhaeuser Willamette-7 (quoting applicant as stating that participation broadened the values and options considered during deliberations).
249. See id. app. at A-Weyerhaeuser Willamette-7 (quoting an applicant employee as stating that public participation can "help diffuse misperceptions from growing out of control"); id. app. at A-Orange County-5 (quoting environmental group representatives as stating that in-depth participation through a steering committee "allowed us time to understand how the plan developed and evolved" and facilitated "communication beyond what you would ever get from written comments and hearings").
250. Jeff J. Opperman & Paola Bernazzani, Comparing Perspectives of Participants and Outside Commentators on Habitat Conservation Plans, ENDANGERED SPECIES UPDATE, May/June 2003, at 79, 84.
251. See AENGST ET AL., supra note 112, app. at A-Clark County-6 (local administrator reporting that many stakeholders believed the steering committee provided a superior forum for resolving species-conservation disputes);
252. ANDERSON & YAFFEE, supra note 88, at 13;
253. Thomas, supra note 37, at 156.
254. See ANDERSON & YAFFEE, supra note 88, at 11, 13 ("HCPs with a greater level of public participation tend to have higher and broader levels of outside stakeholder satisfaction . . .");
255. NATURAL HERITAGE INST., supra note 105, at 21 ("[T]he degree of public acceptance of an HCP is strongly related to the degree of public participation in the development of the plan.").
256. See AENGST ET AL., supra note 112, app. at A-Weyerhaeuser Willamette-7 ("'[P]articipation makes all the difference in the world in terms of product . . . .'" (quoting FWS official));
257. ANDERSON & YAFFEE, supra note 88, at 4;
258. Ostermeier et al., supra note 123, at 170 (reporting that participants believed that a multilateral process led to "better conservation activities");
259. Dan Silver, Natural Community Conservation Planning: 1997 Interim Report, ENDANGERED SPECIES UPDATE, July/Aug. 1997, at 22, 24 (affirming the useful contributions provided by numerous stakeholder groups in a particularly inclusive HCP process).
260. Ostermeier et al., supra note 123, at 170.
261. See HCP Handbook Addendum, supra note 10, at 35, 246.
262. See Karkkainen, supra note 125, at 213-14-
263. See id. at 214.
264. By leaving input to such a late step in the process, the Services likely are adding administrative costs to the process with little apparent benefit.
265. See PETER KAREIVA ET AL., NAT'L CTR. FOR ECOLOGICAL ANALYSIS & SYNTHESIS WORKING GROUP, USING SCIENCE IN HABITAT CONSERVATION PLANS 5 (1999);
266. Francis C. James, Lessons Learned From a Study of Habitat Conservation Planning, 49 BIOSCIENCE 871 (1999);
267. Jocelyn Kaiser, Endangered Species: When a Habitat Is Not a Home, 276 SCIENCE 1613, 1636(1997).
268. See HOOD, supra note 33, at 80.
269. See id.
270. See Elaine K. Harding et al., NCEAS Habitat Conservation Plan Working Group, The Scientific Foundations of Habitat Conservation Plans: A Quantitative Assessment, 15 CONSERVATION BIOLOGY 488, 493 (2001);
271. Watchman et al., supra note 15, at 354 ("[E]ven general trends (whether the species was improving or declining) were unknown for 49 percent of the species addressed by the reviewed HCPs.").
272. See KAREIVA ET AL., supra note 164, at 3 ("[F]or only 56% of the instances in which a listed species might be 'taken' by an activity was the predicted take quantitatively estimated. And only 25% (23 of 97) of species treatments included both a quantitative estimate of take and an adequate assessment of the impact of that take.");
273. id. at 4 ("In many cases, we found that crucial, yet basic, information on species is unavailable for preparers of HCPs.... For example, in only one-third of the species assessments was there enough information to evaluate what proportion of the population would be affected by a proposed 'take.'");
274. Watchman et al., supra note 15, at 354-55 ("Forty-seven of the 97 cases examined presented no estimate of how many individuals would be taken as a result of the proposed activities, and an additional 21 cases gave estimates that were so vague as to provide little aid to planners.");
275. Defenders HCP Data, supra note 129, at Questions 13, 14 (revealing that 50 percent of 274 HCPs did not estimate how many species would be killed or harmed, while 86 percent did not quantify the projected impact on the species' population on a local, regional, or global level). A 2005 investigative report found that 45 percent (forty-one of ninety-two) of HCPs failed to quantify the number of listed species in the plan area, and 57 percent (fiftytwo of ninety-one) failed to quantify the number of species likely impacted by the proposed take.
276. See Robert McClure Si Lisa Stiffler, Troubled Plans, SEATTLE POST-INTELLIGENCER, May 4, 2005, at Al2, available at http://seattlepi.nwsource.com/dayart/20050504/PIanalysisFIX1.gif.
277. Matthew E. Rahn et al., Species Coverage in Multispecies Habitat Conservation Plans: Where's the Science?, 56 BLOSCIENCE 613, 615 (2006).
278. See id. at 616 (finding that nearly two-thirds of species included in the HCP hut unconfirmed to exist in the plan area lacked species-specific conservation measures).
279. See KAREIVA ET AL., supra note 164, at 3 ("Overall, particular mitigation measures commonly suffered from an absence of data indicating they were likely to succeed, leading to a situation in which 'unproven' mitigation measures were relied on in the HCPs.");
280. Watchman et al., supra note 15, at 356 ("[T]he team also found that the specific mitigation strategies chosen often lacked sufficient data to demonstrate their efficacy.");
281. Defenders HCP Data, supra note 129, at Question 25 (finding that 84 percent of 274 HCPs did not provide evidence or cite references that mitigation would work for each species listed on the permit).
282. See Watchman et al., supra note 15, at 356.
283. See KAREIVA ET AL., supra note 164, at 26 ("Overall... for only 57% of the species in the sample did mitigation measures proposed in the HCP address the primary threat to the species to a degree considered 'sufficient' or better.").
284. See Watchman et al., supra note 15, at 356 ("[S]everal HCPs relied heavily on relocation of threatened Utah prairie dogs . . . despite a study available to plan preparers concluding that nearly 80 percent of 480 Utah prairie dogs disappeared or died within three months following relocation. In this case, the proposed mitigation strategy was little better than killing the animals outright.").
285. Dennis Murphy et al., A Statement on Proposed Private Land Initiatives and Reauthorization of the Endangered Species Act From the Meeting of Scientists at Stanford University, in REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING: HABITAT CONSERVATION UNDER THE ENDANGERED SPECIES ACT 214, 214 (1997).
286. See Lee P. Breckenridge, Nonprofit Environmental Organizations and the Restructuring of Institutions for Ecosystem Management, 25 ECOLOGY L.Q, 692, 697 (1999).
287. Dennis Murphy et al., supra note 175, at 214, 219.
288. See RICHARD J. PIERCE, JR. ET AL., ADMINISTRATIVE LAW AND PROCESS 18 (4th ed. 2004) ("An agency is captured when it favors the concerns of the industry it regulates, which is well-represented by its trade groups and lawyers, over the interests of the general public, which is often unrepresented.").
289. For an introduction to the extensive literature on regulatory capture, see MARVER H. BERNSTEIN, REGULATING BUSINESS BY INDEPENDENT COMMISSION 79-94 (1955);
290. Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039,1050-52 (1997);
291. Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211, 212-13 (1976);
292. George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. MGMT. SCI. 3 (1971).
293. See Loggerhead Turtle v. County Council of Volusia County, FIa., 120 F. Supp. 2d 1005, 1013 (M.D. Fla. 2000) ("Where, as here, an agency's special scientific expertise is involved, the Court must be most deferential.... [T]he Secretary's choices are entitled to a presumption of regularity." (internal quotation marks omitted));
294. id. at 1021-22;
295. Nat'l Wildlife Fed'n v. Norton, No. CIV-S-04-0579 DFLJF, 2005 WL 2175874, at *7 (E.D. Cal. Sept. 7, 2005) (holding that in ESA cases, "[d]eference to the agency is especially appropriate [because] the challenged decision relies upon the agency's expertise");
296. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 202 F. Supp. 2d 594, 663 (W.D. Tex. 2002) ("To the extent the Center for Biological Diversity would prefer more protection, the law and standard of review which the Court is bound to apply are on the side of the developers and shoppers.").
297. Out of over 530 approved HCPs, see U.S. Fish Si Wildlife Service, supra note 87, only five have been the subject of reported judicial opinions (with two HCPs subject to judicial review again after judicial invalidation). The opinions upholding permit approval demonstrate the wide discretion provided to the Services.
298. See Ctr. for Biological Diversity, 202 F. Supp. 2d at 617-18 (upholding permit approval on the ground that absence of evidence that mitigation is not the maximum extent practicable is sufficient);
299. Loggerhead Turtle, 120 F. Supp. 2d at 1024-25 (upholding permit approval despite evidence of repeated permit noncompliance by applicant);
300. Norton, 2005 WL 2175874 (upholding revised Natomas Basin HCP). Of the five HCPs, only two have been invalidated permanently.
301. See Gerber v. Norton, 294 F.3d 173, 186 (D.C. Cir. 2002) (nullifying permit because the FWS did not allow public access to a key mitigation map for the HCP);
302. Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1281-82 (S.D. Ala. 1998) (invalidating two permits authorizing the take of the Alabama Beach Mouse in part because the FWS ignored expert opinions);
303. Sierra Club v. Norton, 207 F. Supp. 2d 1310 (S.D. Ala. 2002) (enjoining permit approval for the take of the Alabama Beach Mouse again). Another HCP was initially invalidated only to be upheld after agency revision.
304. See Nat'l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274, 1292-93 (E.D. Cal. 2000) (invalidating the Natomas Basin HCP because the FWS failed to provide any economic analysis or even landowner representations supporting the decision that the chosen mitigation was the maximum extent practicable);
305. Norton, 2005 WL 2175874 (upholding revised Natomas Basin HCP).
306. As one FWS official expressed, the Services expect staff to follow a "satisfied customer" approach to the HCP program, "with the applicant being considered the only customer." ANDERSON & YAFFEE, supra note 88, at 21, 23.
307. See Camacho, supra note 3, at 271, 296.
308. See K. Shawn Smallwood et al., Environmental Auditing: Indicators Assessment for Habitat Conservation Plan of Yolo County, California, USA, 22 ENVTL. MGMT. 947 (1998) (discussing the need for assessment of ecological indicators in HCPs to ensure that the habitat remains suitable to sustain species);
309. Watchman et al., supra note 15, at 356.
310. See Habitat Conservations Plans: Hearings Before the Subcomm. on Fisheries, Wildlife, and Drinking Water of the S. Comm. on Env't and Pub. Works, 106th Cong. 150 (1999) [hereinafter Hearings] (statement of Monica P. Medina, General Counsel, National Oceanic and Atmospheric Administration) ("Because HCPs are at the limits of our scientific capability and knowledge, extensive monitoring and adaptive management strategies are essential.").
311. See id. at 30, 52, 64-65, 150.
312. See Endangered and Threatened Wildlife and Plants; Prohibitions and Permits, 50 Fed. Reg. 39,681, 39,684,39,688 (Sept. 30,1985) (codified at 50 C.F.R. pts. 13, 17).
313. 50 C.F.R. § 17.22(b)(3) (2005) (endangered species); id. §17.32(b)(3) (threatened species);
314. see also id. §222.307(d) (NMFS reporting and inspection regulations).
315. HCP Handbook Addendum, supra note 10, at 35,254.
316. Id. at 35,253.
317. Id.;
318. see also id. at 35,254 ("Effects and effectiveness monitoring includes, but is not limited to, the following: 1, Periodic accounting of incidental take that occurred ... ; 2. Surveys to determine species status... ; 3. Assessments of habitat condition; 4. Progress reports on fulfillment of the operating conservation program... ; and 5. Evaluations of the operating conservation program and its progress toward its intended biological goals.").
319. See id. at 35,254.
320. At the applicant's discretion, HCPs may use oversight committees composed of "species experts and representatives of the permittee, the Services, and other affected agencies and entities" in order "to ensure proper and periodic review of the monitoring program and to ensure that each program properly implements the terms and conditions of the incidental take permit." Id. at 35,255. Additionally, if the parties so negotiate, nonpermittees may conduct all or portions of the monitoring. See id.
321. See Karkkainen, supra note 71, at 495;
322. Thomas, supra note 37, at 144, 153-55.
323. See NATURAL HERITAGE INST., supra note 105, at 28.
324. See KAREIVA ET AL., supra note 164, at 28-29 (discussing a study funded by the American Institute for Biological Studies).
325. See id. at 28;
326. Defenders HCP Data, supra note 129, at Question 36 (revealing that 35 percent of 274 HCPs failed to require effectiveness monitoring, 23 percent provided little description of the effectiveness monitoring program adopted, 33 percent provided only a general description of what would be monitored, and only 9 percent contained a detailed description of an effectiveness monitoring program).
327. See KAREIVA ET AL., supra note 164, at 28;
328. Wilhere, supra note 36, at 21.
329. See Watchman et al., supra note 15, at 5.
330. See KAREIVA ET AL., supra note 164, at 28-29.
331. See Cameron W. Barrows et al., A Framework for Monitoring Multiple-Species Conservation Plans, 69 J. WILDLIFE MGMT. 1333,1334-35 (2005) (asserting that most multispecies HCPs simply layer single-species monitoring measures on top of one another). A more recent but unscientific investigative report of large HCPs found that 29 percent (twenty-seven of ninety-two) of the HCPs reviewed failed to include any monitoring program. McClure & Stiffler, supra note 168;
332. see also HOOD, supra note 33, at xiv, 35 (concluding that most of the twenty-four HCPs analyzed have insufficient monitoring);
333. NOSS ET AL., supra note 175, at 59 (finding that HCPs typically either lacked monitoring procedures or included only a bare requirement that plans be modified based on monitoring data);
334. PEDERZOLI, supra note 119, at 63, 105 (finding a clear monitoring plan proposed in only eighteen of the thirty HCPs studied);
335. Defenders HCP Data, supra note 129, at Questions 26, 27, 38 (indicating that only 6 percent of 274 HCPs tied monitoring to biological goals, and 80 percent, lacked specific criteria for determining the effectiveness of mitigation measures).
336. See Thomas, supra note 37, at 154-55.
337. See infra Part IV.A.
338. For example, one FWS official is tasked with (among other duties) overseeing compliance for eleven HCPs in the State of Washington covering nearly 2.2 million acres. See Robert McClure Si Lisa Stiffler, Too Often, Inadequate Science Hampers Habitat Planning, SEATTLE POST-INTELLIGENCER, May 4, 2005, at Al.
339. See 16 U.S.C. § 1539(a)(2)(B)(iii) (2000).
340. See KAREIVA ET AL., supra note 164, at 28 (finding that 98 percent of the HCPs studied delineated funding sources for proposed mitigation, but only 77 percent had significant funds set aside to pay for mitigation when the HCP was adopted).
341. See HOOD, supra note 33, at 82;
342. Defenders HCP Data, supra note 129, at Question 42 (finding that only 48 percent of 274 HCPs provided the funding for mitigation and other HCP activities before or at the time the take would occur);
343. id. at 44, 45 (finding that though 22 percent of the HCPs analyzed depended on local, state, or federal government funding to implement mitigation, only 4 percent received public funding approval before the ITP was granted).
344. There have been growing concerns that the San Bruno plan is underfunded to address the evolution of the mountain from grasslands to coastal scrub that presents a risk to the endangered butterflies. See Emily Fancher, Butterfly Paradise Lost?, SAN MATEO COUNTY TIMES, July 22, 2004, at Cl;
345. Paul McHugh, San Bruno's Mounting Challenge, S.F. CHRON., Sept. 19, 2002, at C12.
346. See STANFORD ENVTL. LAW SOC'Y, supra note 86, at 153-54.
347. See Daniel A. Hall, Using Habitat Conservation Plans to Implement the Endangered Species Act in Pacific Coast Forests: Common Problems and Promising Precedents, 27 ENVTL. L. 803, 824 (1997).
348. See Lyons, supra note 51, at 102.
349. See Thomas, supra note 37, at 155;
350. ECOS Conservation Plans and Agreements Database, http://ecos.fws.gov/ conserv_plans/public.jsp (last visited Feb. 28, 2007) (indicating that there is no record of the FWS revoking a single ITP for over 450 listed HCPs).
351. See, e.g., Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F. Supp. 2d 1005, 1023-25 (M.D. Fla. 2000) (upholding decision not to revoke permit despite evidence of repeated applicant noncompliance).
352. See Freeman, supra note 3, at 16-17.
353. See Watchman et al., supra note 15, at 356.
354. See, e.g., Rebecca J. McLain & Robert G. Lee, Adaptive Management: Promises and Pitfalls, 20 ENVTL. MGMT. 437, 444 (1996).
355. See Freeman, supra note 3, at 30-31.
356. See Wilhere, supra note 36, at 21.
357. See infra note 249 and accompanying text.
358. See HCP Handbook Addendum, supra note 10, at 35,248.
359. Changed circumstances are defined as "circumstances that can be reasonably anticipated." Id. at 35, 253.
360. See 50 C.F.R. §§17.22(b)(5), 17.32(b)(5) (2006).
361. See Endangered and Threatened Wildlife and Plants; Prohibitions and Permits, 50 Fed. Reg. 39,681 (Sept. 30, 1985) (codified at 50 C.F.R. Pts. 13, 17);
362. id. at 39,684 ("Incorporation of modification procedures into a conservation plan at the outset should ensure both that the affected species will be conserved regardless of changed conditions and that the applicant's activities are not unduly interrupted when the new conditions take effect.").
363. See 50 C.F.R. §17.22(b)(1)(iii);
364. id. §17.32(b)(1)(iii) (FWS);
365. id. § 222.307(g) (NMFS). The HCP and ITP also must describe the agreed range of management and mitigation strategies and the process by which management and funding decisions are made and implemented.
366. See HCP Handbook Addendum, supra note 10, at 35, 253.
367. HCP HANDBOOK, supra note 45, at 3-22.
368. Cf. Camacho, supra note 3, at 294;
369. Freeman, supra note 3, at 28-30 (discussing the value of provisional solutions).
370. See HCP Handbook Addendum, supra note 10, at 35, 252.
371. See id. The Services distinguish between passive and active adaptation: Passive adaptation is where information obtained is used to determine a single best course of action. Active adaptation is developing and testing a range of alternative strategies.... [A]n active approach may pose too much of a risk to the species; therefore, a more passive approach may be the best course of action. Id. (citation omitted).
372. See, e.g., National Environmental Policy Act Revised Implementing Procedures, 69 Fed. Reg. 10,866, 10,880 (Mar. 8, 2004) (making adaptive management an explicit goal of the NEPA, 42 U.S.C. §§4321-4370f (2000));
373. National Environmental Policy Act Procedures, 72 Fed. Reg. 45,998 (proposed Aug. 16, 2007) (to be codified at 36 C.F.R. pt. 220) (proposing to incorporate adaptive management into the U.S. Forest Service's NEPA regulations).
374. See HCP Handbook Addendum, supra note 10, at 35,245.
375. As stated by the Services, adaptive management strategies [(1)] identify the uncertainty ... ; (2) develop alternative strategies and determine which experimental strategies to implement; (3) integrate a monitoring program that is able to detect the necessary information for strategy evaluation; and (4) incorporate feedback loops that link implementation and monitoring to a decisionmaking process (which may be similar to a dispute-resolution process) that result in appropriate changes in management. Id. at 35,252.
376. Id. ("Possible significant data gaps that may require an adaptive management strategy include, but are not limited to, a significant lack of specific information about the ecology of the species or its habitat..., uncertainty in the effectiveness of habitat or species management techniques, or lack of knowledge on the degree of potential effects of the activity on the species covered in the incidental take permit.").
377. See id. at 35,248-49 ("We believe that an HCP that fails to address significant data gaps will not meet the issuance criteria of the ESA.").
378. See id. at 35,252 (stating that because "stakeholder involvement in the development of many HCPs, including the adaptive management design, is largely at the discretion of the applicant," this can inhibit experimental design and thus the effectiveness of the adaptive-management approach).
379. See id. at 35,253 ("When an HCP [or] permit... incorporate[s] an adaptive management strategy, it should clearly state the range of possible operating conservation program adjustments due to significant new information, risk, or uncertainty. This range defines the limits of what resource commitments may be required of the permittee.").
380. See 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5) (2006).
381. Wilhere, supra note 36, at 27.
382. See Christopher S. Mills, Note, Incentives and the ESA: Can Conservation Banking Live Up to Potential?, 14 DUKE ENVTL. L. Si POL'Y J. 523, 532-34 (2004).
383. 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5).
384. See Fred P. Bosselman, The Statutory and Constitutional Mandate for a No Surprises Policy, 24 ECOLOGY LQ. 707, 722-23 (1997).
385. See 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5).
386. See Watchman et al., supra note 15, at 358;
387. see also Defenders HCP Data, supra note 129, at Questions 26-27, 38-40 (finding that 22 percent of 274 HCPs explicitly tied monitoring to adaptive management, 35 percent incorporated adaptive management into the HCP, and 11 percent provided a procedure for modifying the level of take or mitigation based on specific criteria).
388. See KAREIVA ET AL., supra note 164, at 41 (finding that 45 percent of the thirty-eight cases with insufficient data included a discussion of adaptive management, while 77 percent of the forty-eight cases with adequate data did so);
389. Watchman et al., supra note 15, at 358.
390. See KAREIVA ET AL., supra note 164, at 29 (finding that 88 percent of HCPs incorporating adaptive-management protocols had clear monitoring programs, while less than 30 percent of HCPs without adaptive management included adequate monitoring procedures).
391. See Robert McClure & Lisa Stiffler, Special Report, A License to Kill, SEATTLE POST-INTELLIGENCER, May 3-5, 2005, available at http://seattlepi.nwsource.com/specials/ licensetokill. The report analyzed ninety-eight HCPs covering plan areas of at least one hundred acres. Id.
392. See McClure & Stiffler, supra note 168.
393. Rick Sayers, head of the FWS's HCP program, recently stated: "Once the permits get approved, we tend to move quickly on to what's the next permit that needs to be looked at and reviewed, rather than spending a lot of time and energy working with the approved permits making sure everything is going the way it should go." McClure Si Stiffler, supra note 203;
394. see also id. ("That whole cluster of issues [HCP monitoring and evaluation] didn't really get the attention it deserved . . . We never got around to it.'" (quoting former Secretary of the Interior Bruce Babbitt)).
395. The U.S. Government Accountability Office (GAO), changed in 2004 from the General Accounting Office, reported that the Services allocated $2 million in fiscal year 2001 for all HCP monitoring and implementation (a small sum considering the more than 450 HCPs nationwide), and that field staff spend only 2 percent of their time on monitoring activities. See U.S. GEN. ACCOUNTING OFFICE, ENDANGERED SPECIES PROGRAM: INFORMATION ON HOW FUNDS ARE ALLOCATED AND WHAT ACTIVITIES ARE EMPHASIZED 12, 17 (2002), http://www.gao.gov/new.items/d02581.pdf.
396. See Thomas, supra note 37, at 152-54.
397. See Barrows et al., supra note 200, at 1334;
398. Marj Nelson, The Changing Face of HCPs, ENDANGERED SPECIES BULL., July/Aug. 2000, at 4 (describing several HCPs that successfully integrated adaptive-management programs).
399. See Barrows et al., supra note 200, at 1335 (asserting that few multispecies HCPs use adaptive ecosystem-based monitoring, and those that do rely on flawed assumptions).
400. See McClure & Stiffler, supra note 203.
401. See Bosselman, supra note 239, at 723-26;
402. supra notes 238, 240 and accompanying text.
403. See supra notes 167-175 and accompanying text.
404. See NATURAL HERITAGE INST., supra note 105, at 24.
405. See John Kostyack, Reshaping Habitat Conservation Plans for Species Recovery: An Introduction to a Series of Articles on Habitat Conservation Plans, 27 ENVTL. L. 755, 764 (1997);
406. J.B. Ruhl, Taking Adaptive Management Seriously: A Case Study of the Endangered Species Act, 52 U. KAN. L. REV. 1249, 1279-80 (2004) (stating that the No Surprises rule is essentially a risk-allocation measure among private and public sources).
407. But see John Kostyack, Surprise!, 15 ENVTL. F. 19, 21 (1998);
408. Parenteau, supra note 120, at 299;
409. Thomas, supra note 37, at 167-68 (recommending repeal of the No Surprises rule as antithetical to adaptive management).
410. See, e.g., NATURAL HERITAGE INST., supra note 105, at 32-35;
411. K. Shawn Smallwood et al., Using the Best Scientific Data for Endangered Species Conservation, 24 ENVTL. MGMT. 421 (1999);
412. Watchman et al., supra note 15, at 357.
413. See The Endangered Species Act: The Role of Habitat Conservation: Hearing Before the Subcomm. on Env't and Nat. Resources of the Comm. on Merchant Marine and Fisheries, 103d Cong. 150 (1993) (statement of Michael Bean, Chairman, Wildlife Program, Environmental Defense Fund) ("Because HCPs are new, they represent a sort of experiment in new approaches to conservation. Intelligently judging the success or failure of that experiment will require a significant commitment to monitoring the actual implementation of approved plans.").
414. See supra Part I.B.
415. See, e.g., Negotiated Rulemaking Act of 1990, 5 U.S.C. §§561-70 (2000);
416. Environmental Protection Agency's Project XL, Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27,282 (May 23, 1995);
417. see also Freeman, supra note 3, at 36-37.
418. See Barry L. Johnson, Introduction to the Special Feature: Adaptive Management-Scientifically Sound, Socially Challenged?, 3 CONSERVATION ECOLOGY (1999), http://www.consecol.org/ vol3/iss1/art10 ("[A]daptive management considers change and cooperation as inherent to management.... To help develop new institutional arrangements, we might apply adaptive management experiments not just to the resource, but also to institutions themselves.");
419. Ruhl, supra note 85, at 935 n.221.
420. See HCP HANDBOOK, supra note 45, at 3-6 ("[The Services'] function as agency representatives is to provide guidance about statutory and policy standards and to help facilitate development of a suitable mitigation program that satisfies the requirements of section 10; it is not to dictate every element in the HCP. The option to ignore or modify Service recommendations remains with the applicant . . . .").
421. See Ostermeier et al., supra note 123, at 171 ("[I]n the vast majority of HCPs evaluated, little up-front attention appears to have been given to designing and/or clarifying HCP management processes. For example, in only two cases did participants indicate significant early discussion, and subsequent approval, of an overall framework for establishing and clarifying roles, setting guidelines, sharing assumptions and expectations, and establishing rules for role implementation, including who would play the roles.").
422. See id. ("[P]rocess management and a decision framework normally evolved as cases progressed with a default strategy of'deciding as we go.'").
423. See id. ("In the absence of open clarification, assumptions about roles and who would play them were made by both service and non-service participants, and problems often surfaced when these assumptions were inconsistent.").
424. See, e.g., Hearings, supra note 184, at 9-10 (statement of Peter Kareiva, NMFS) (calling for a centrally organized and publicly available database on existing HCPs);
425. Jamison E. Colburn, The Indignity of Federal Wildlife Habitat Law, 57 ALA. L. REV. 417, 452 n.142 (2005).
426. See Endangered Species Recovery Act of 1997, H.R. 2351, 105th Cong. (1997). This bill would have required permittees to submit an annual report (to be made public) detailing the status of species in the affected area, the take's impacts on the species, and whether the biological goals of the HCP were being met. Id. § 108(a)(2)(D)(i), (ii). The Secretary of the Interior would have had to review and report on the progress of each HCP every three years. Id. § 108(a)(3)(A). The bill also would have created a "Community Assistance Program" that would include a regional office liaison for property owners and local governments. Id. § 108(a)(12).
427. See Endangered Species Recovery Act of 1997, S. 1180, 105th Cong. §5(k) (1997) (proposing a National Academy of Sciences review and report on the development and implementation of HCPs).
428. See Notice of Availability of a Draft Addendum to the Final Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 64 Fed. Reg. 11,485, 11,488 (Mar. 9, 1999). The proposed guidance required a database "to track incidental take permit issuance and compliance," including summary information about each HCP and suggested inclusion of information on the monitoring program, reporting deadlines, the incidental take's nature and effect, the conservation program's status, periodic audits, and field visits. Id.
429. The final Services guidance omitted without explanation any mention of such a database. See HCP Handbook Addendum, supra note 10;
430. John D. Leshy, The Babbitt Legacy at the Department of the Interior: A Preliminary View, 31 ENVTL. L. 199, 212 (2001).
431. See supra notes 112, 124, 129, 167-169, 171 and accompanying text.
432. See Hearings, supra note 184, at 9 (statement of Peter Kareiva, NMFS) ("There's a lot of information out there that we already have, and it's not as though we have to undergo a national initiative for great basic research. Part of the challenge is just organizing that information with a little bit of energy.");
433. id. at 10;
434. id. at 27 (statement of Stuart Pimm, Professor, University of Tennessee) ("[The FWS] would seem to be an obvious place to deposit Habitat Conservation Plans.... [T]his should not be a particularly onerous task. The plans themselves are documents that can very simply be uploaded onto a website or assembled onto CDs.").
435. See, e.g., EPA LIBRARY NETWORK WORKGROUP, EPA LIBRARY NETWORK: CHALLENGES FOR FY 2007 AND BEYOND (2005), http://www.peer.org/docs/ epa/06_9_2_librarywork.pdf;
436. Press Release, Pub. Employees for Envtl. Responsibility, EPA Closing Its Headquarters Library October 1 (Sept. 21, 2006), available at http://www.peer.org/news/news_id.php?row_id=751;
437. Press Release, Pub. Employees for Envtl. Responsibility, EPA Closing Its Midwest Library (Mar. 16, 2006), available at http://www.peer.org/news/ news_id.php?row_id=660. Though the administration claims it hopes to eventually increase access by making collections available online, some libraries have already disposed of their holdings, and scarce funds have been allocated to digitize current collections.
438. See Darren Samuelsohn, EPA: Sen. Boxer Clashes With Administrator Over Library Closures, GREENWIRE, Feb. 6, 2007, http://www.eenews.net/Greenwire/2007/02/06#l;
439. Press Release, Pub. Employees for Envtl. Responsibility, EPA Hastily Disposing of Its Library Collections (Nov. 20, 2006) [hereinafter Press Release, EPA Disposing], available at http://www.peer.org/news/_id.php?row_id- 786. Ironically, the EPA is spending more money closing libraries than it asserted it would save from the closures.
440. See Press Release, EPA Disposing, supra;
441. cf. Rebecca Renner, Scientists Set to Lose Access to EPA Libraries, 40 ENVTL. SCI. & TECH. 5831 (2006) (describing that the operations of the libraries saved researchers and the public money).
442. See, e.g., Gerber v. Norton, 294 F.3d 173,177 (D.C. Cir. 2002) (stating that the plaintiff was forced to request copies of HCP documents through a Freedom of Information Act (FOIA) request);
443. Thomas, supra note 37, at 164 ("Anyone who has searched for an HCP... understands the transparency problem. One can purchase copies... but this is an expensive and time-consuming proposition.");
444. Telephone Interview by Dan Cory with Robert McClure, Reporter, Seattle Post-Intelligencer (July 21, 2006) (recounting that in attempting to collect documents for almost one hundred HCPs, some regional FWS offices required FOIA requests or in-person document review).
445. See U.S. Fish & Wildlife Serv., Environmental Conservation Online System, http://ecos.fws.gov/ecos_public/index.do (last visited Feb, 28, 2007).
446. See U.S. Fish & Wildlife Serv., ECOS: Conservation Plans/Agreements Reports, http://ecos.fws.gov/conserv_plans/public.jsp (last visited Oct. 5, 2007).
447. See id. (follow a region hyperlink under the "Habitat Conservation Plans" column; then select an individual report or the "Regional (Summary) Report").
448. See id.
449. See U.S. Fish & Wildlife Serv., ECOS Conservation Plans and Agreements Database, Regions 3, 6, http://ecos.fws.gov/conserv_plans/public.jsp (follow the "Region 3" and "Region 6" hyperlinks) (last visited July 7, 2007). Regions 3 and 6 are the only offices that provide any documents (for three and nineteen HCPs, respectively) for viewing through the Environmental Conservation Online System (ECOS).
450. See id. Region 2 also supplies its own online library that includes some HCP-related documents.
451. See U.S. Fish & Wildlife Serv., FWS Southwest Region (Region 2) Ecological Services Electronic Library, http://www.fws.gov/southwest/es/ library (last visited July 7, 2007).
452. See U.S. Fish Si Wildlife Serv., ECOS Conservation Plans and Agreements Database, Choose a Habitat Conservation Plans Report, http://ecos.fws.gov/conserv_plans/servlet/gov.doi.hcp.servlets.PlanReportSelect? region=9&type=HCP (follow the "Regional (Summary) Report" hyperlink) (last visited July 7, 2007).
453. NATURAL HERITAGE INST., supra note 105, at 23.
454. See Telephone Interview with Greg Thomas, President, Natural Heritage Institute (June 27, 2006).
455. See id.
456. See Thomas, supra note 37, at 155. The Nature Conservancy has created NatureServe.org, a publicly available electronic database that serves as a repository of scientific data about endangered and threatened species. See NatureServe, http://www.natureserve.org (last visited Feb. 28, 2007). However, no data on HCPs is included in the database. See id.
457. For example, it might be reasonable for an HCP to adopt a contingency-planning measure instead of a more comprehensive adaptive-management protocol on the assumption that it is more effective when the HCP relies on substantial reliable information about the effect of a proposed take on a listed species. Yet, without monitoring and assessing the effectiveness of the adopted process as compared to those adopted for other HCPs, such an assumption is never tested.
458. Generally, each applicant must rely primarily on her own experiences, with at best incomplete data on what practices might be most cost effective to implement. As in other regulatory contexts, an HCP process may involve a repeat player such as an attorney representing successive applicants in negotiating HCPs. Such a participant of course would inform an HCP process with her experience (for example, by relying on language from previously negotiated HCPs when drafting later ones). Although this experience may make the process more economical, it would almost certainly fall short of a more systematic, comprehensive approach to regulatory learning.
459. See, e.g., BEAN ET AL., supra note 50, at 13 ("[T]he complexity, duration, and sheer magnitude of the process often limit participation by small landowners, environmental interests, and other 'shallow-pocketed' parties. Indeed, the inability of such parties to participate in the time-consuming, highly technical, and costly process may be more of a problem than having so many of them as to make the process difficult to manage.");
460. Albert C. Lin, Participants' Experiences With Habitat Conservation Plans and Suggestions for Streamlining the Process, 23 ECOLOGY L.Q. 369, 398 (1996) (finding insufficient biological knowledge as the most frequent cause of delay).
461. See Karkkainen, supra note 71, at 495 (" [Responsibility for negotiating HCPs and enforcing their terms was a responsibility assigned to regional and field offices, each operating largely by its own lights.").
462. The FWS has reported substantial staff attrition due to the overwhelming workloads that result from insufficient funding. See Hearings, supra note 184, at 119, 387 (statement of then FWS Director Jamie Rappaport Clark).
463. See id. at 11 (statement of Dr. Dennis Murphy, University of Nevada, Reno) ("My sense is that we can infer greatly from other systems and other species, and we're losing that opportunity.").
464. HCP Handbook Addendum, supra note 10, at 35, 242-57.
465. 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5) (2004).
466. See supra notes 152-160 and accompanying text.
467. It is important to recognize that regulatory adaptation does not merely serve to increase conservation and participation. The Services' regulatory program must be adaptively managed to ensure that it is not needlessly costly as well. An adaptive approach considers the benefits and costs of regulatory processes, including the administrative costs of implementing participatory or adaptive requirements. In doing so, an adaptive HCP program would focus on how to optimize the effectiveness and cost effectiveness of participation and adaptation in promoting environmental, economic, and democratic goals.
468. See Ruhl, supra note 255, at 1278 ("[T]he agency's use of adaptive management itself must be continuously monitored and evaluated to guard against opportunistic abuses.").
469. See Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. 50, 71-74 (2001);
470. Ruhl, supra note 255, at 1278.
471. See Ruhl, supra note 255, at 1278 ('"[F]ront end' regulatory instruments.. .can be manipulated just as easily [as adaptive-management processes]... to open the possibility of politically-motivated implementation.").
472. See J.B. Ruhl, Prescribing the Right Dose of Peer Review for the Endangered Species Act, 83 NEB. L. REV. 398, 411-12 (2004).
473. See J.R. DeShazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV. 1443, 1468 (2003) (finding that institutional identities had a more significant effect on ESA listing and funding decisions than biological factors);
474. Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397, 402 n.21 (2004);
475. Andrew Metrick & Martin L. Weitzman, Patterns of Behavior in Endangered Species Preservation, 72 LANDECON. 1, 12 (1996) (concluding that more charismatic species receive more ESA funding).
476. SEE OFFICE OF THE INSPECTOR GEN., DEP'T OF THE INTERIOR, INVESTIGATIVE REPORT ON ALLEGATIONS AGAINST JULIE MACDONALD, DEPUTY ASSISTANT SECRETARY, FISH, WILDLIFE AND PARKS (2007), http://www.doioig.gov/upload/ Macdonald.pdf (finding that a Interior Department political appointee had improperly edited scientific reports to discourage the classification of endangered species).
477. See, e.g., Terry M. Moe, The Politics of Structural Choice: Toward a Theory of Public Bureaucracy, in ORGANIZATION THEORY: FROM CHESTER BARNARD TO THE PRESENT AND BEYOND 116 (Oliver E. Williamson ed., 1990) (describing a study of the Occupational Safety and Health Administration, which found that fluctuations in elected officials' preferences resulted in changes in agency policymaking);
478. Susan K. Snyder & Barry R. Weingast, The American System of Shared Power: The President, Congress and the NLRB, 16 J.L. ECON. & ORG. 269, 269-70 (2000) (summarizing empirical literature on the political influence on regulation);
479. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control! Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765 (1983) (describing the political influence on the implementation of policies by the Federal Trade Commission).
480. Though some may be understandably skeptical that Congress may be interested in making the HCP program more rigorously self-reflective, there are nonetheless credible reasons to believe the political branches should find it attractive. Beyond the direct argument that systematic program monitoring and evaluation is sensible, there is evidence of a mounting political recognition of the value of cultivating regulatory program accountability through systematic program monitoring and assessment. Certainly, the increasing influence of the Office of Management and Budget (OMB) in regulatory oversight substantiates this. See John D. Graham et al, Managing the Regulatory State: The Experience of the Bush Administration, 33 FORDHAM URB. L.J. 953, 965-75 (2006) (analyzing the George W. Bush Administration's management of federal regulation through OMB oversight). Specifically, in February 2006, the OMB launched ExpectMore.gov and its Performance Assessment Rating Tool (PART) aimed not only at assessing but also publicizing the successes and failures of all regulatory programs. See generally ExpectMore.gov Home Page, http://www.whitehouse.gov/ omb/expectmore/index.html (last visited Feb. 27, 2007).
481. See Endangered Species Act Amendments of 1988, Pub. L. No. 100-478, 102 Stat. 2315 (1988);
482. Endangered Species Act Amendments of 1982, Pub. L No. 97-304, 96 Stat. 1426 (1982); Endangered Species Act Amendments of 1979, Pub. L. No. 96-159, 93 Stat. 1225(1978).
483. See, e.g., Endangered Species Recovery Act of 2007, S. 700, 110th Cong. (2007) (approved by Senate Finance Committee, Sept. 21, 2007);
484. Endangered Species Reform Act of 2007, S. 658, 110th Cong. (2007);
485. Endangered Species Compliance and Transparency Act of 2006, H.R. 4857, 109th Cong. (2006);
486. Threatened and Endangered Species Recovery Act of 2005 (TESRA), H.R. 3824, 109th Cong. (2005);
487. Collaboration and Recovery of Endangered Species Act (CRESA), S. 2110, 109th Cong. (2005);
488. Critical Habitat Enhancement Act of 2005, H.R. 1299, 109th Cong. (2005).
489. See, e.g., Sound Science for Endangered Species Act Planning Act of 2002, H.R. 4840, 107th Cong. (2002);
490. Common Sense Protections for Endangered Species Act of 2000, H.R. 3160, 106th Cong. (2000);
491. The Endangered Species Recovery Act of 1997, S. 1180, 105th Cong. (1997);
492. Endangered Species Conservation and Management Act of 1995, H.R. 2275, 104th Cong. (1995).
493. See Allison A. Freeman, Sen. Lincoln Sees More Room for ESA Tax Incentives Next Year, ENV'T SI ENERGY DAILY, Nov. 15, 2006, http://www.eenews.net/EEDaily/2006/11/15#7 [hereinafter Freeman, ESA Tax Incentives];
494. Allison A. Freeman, Oversight, Not Rewrite, in Store for ESA, ENV'T SI ENERGY DAILY, Nov. 9, 2006, http://www.eenews.net/EEDaily/2006/11/09#6.
495. See Barringer, supra note 7.
496. See KEYSTONE CTR., THE KEYSTONE WORKING GROUP ON ENDANGERED SPECIES ACT: HABITAT ISSUES-FINAL REPORT 16 (2006), http://www.keystone.org/spp/documents/ ESA%20Report%20FINAL%204%2025%2006%20(2).pdf;
497. Allison A. Freeman, Sen. lnhofe Ready to Take Over ESA Rewrite, E&ENEWS PM, Apr. 4, 2006, http://www.eenews.net/eenewspm/2006/04/04#2.
498. See KEYSTONE CTR., supra note 307, at 13-15;
499. Steven A. Burns & Jeffrey H. Wood, Moving Toward Recovery: A Southeastern Analysis of the Threatened and Endangered Species Recovery Act of 2005 (H.R. 3824), 21 J. LAND USE SI ENVTL. L. 23, 48-51 (2005);
500. Freeman, ESA Tax Incentives, supra note 305.
501. See Burns & Wood, supra note 308, at 25, 30;
502. Colburn, supra note 265, at 444;
503. Kostyack, supra note 255, at 760.
504. As of the FWS's most recent report to Congress, a majority of listed species (63 percent) are considered to be of uncertain or declining status or are possibly extinct. See U.S. FISH & WILDLIFE SERV., RECOVERY REPORT TO CONGRESS: FISCAL YEARS 2001-2002, at 10 (2002), http://www.fws.gov/ endangered/pdfs/2001-2002_full_report.pdf.
505. See Threatened and Endangered Species Recovery Act of 2005, H.R. 3824, 109th Cong. § 13 (2005);
506. KEYSTONE CTR., supra note 307, at 19-23;
507. Freeman, supra note 305.
508. See, e.g., Endangered Species Recovery Act of 2007, S. 700, 110th Cong. (2007);
509. Threatened and Endangered Species Recovery Act of 2005, H.R. 3824, 109th Cong. § 13 (2005);
510. U.S. GEN. ACCOUNTING OFFICE, USDA CONSERVATION PROGRAMS: STAKEHOLDER VIEWS ON PARTICIPATION AND COORDINATION TO BENEFIT THREATENED AND ENDANGERED SPECIES AND THEIR HABITATS (2006), http://purl.access.gpo.gov/GPO/LPS78714.
511. See, e.g., Hearings, supra note 184, at 119 (statement of Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks) ("Without increased funding, we will not be able to adequately monitor HCPs to the extent desired by both supporters and critics of the HCP program.").
512. See supra note 247 and accompanying text.
513. See Thomas, supra note 37, at 155. Though not incontrovertible, it is telling that in a 2005 survey, 92 percent of 414 FWS scientists reported that they did not believe the agency "has sufficient resources to adequately perform its environmental mission," and 85 percent reported that funding to implement the ESA is inadequate. UNION OF CONCERNED SCIENTISTS SI PUB. EMPLOYEES FOR ENVTL. RESPONSIBILITY, U.S. FISH &. WILDLIFE SERVICE SURVEY SUMMARY 2 (2005), http://www.peer.org/pubs/surveys/2005_fws_survey.pdf (internal quotation marks omitted).
514. Similarly, 81 percent of 124 NMFS scientists responded that the NMFS lacked sufficient resources "to adequately perform its environmental mission." UNION OF CONCERNED SCIENTISTS & PUB. EMPLOYEES FOR ENVTL. RESPONSIBILITY, NOAA FISHERIES SURVEY SUMMARY 2 (2005), http://www.peer.org/pubs/surveys/2005_noaa_survey.pdf (internal quotation marks omitted).
515. Land and Money Mitigation Requirements in Endangered Species Act Enforcement: Oversight Hearing Before the H. Comm. on Resources, 106th Cong. 102 (1999) (statement of then FWS Director Jamie Rappaport Clark) ("We don't, quite frankly, have the resources to go back and evaluate whether the terms of these HCPs that have been . . . negotiated and approved, are actually being carried out.");
516. AENGST ET AL., supra note 112, app. at A-Weyerhaeuser Willamette-10 (quoting FWS biologist as stating that most HCP staff recognize the irritations and difficulties of participation but disregard its usefulness).
517. See PUB. EMPLOYEES FOR ENVTL. RESPONSIBILITY, 1998 PEER SURVEY OF USFWS SPECIAL AGENTS, at Questions 2, 3 (1998), http://www.peer.org/ pubs/surveys/1998_usfws_ lawenforcement.pdf.
518. See Hearings, supra note 184, at 23 (statement of Dr. Dennis Murphy, University of Nevada) ("[W]e're never going to get [to recovery] if we have to go through an appropriations process to respond to crises; that we really do need a pool of money, an endowment of sorts that can be tapped, hopefully conservatively, to resolve problems.").
519. See NATURAL HERITAGE INST., supra note 105, at 29 (proposing a federal trust for funding conservation activities beyond those required of applicants to meet biological goals). In this vein, a 1997 Senate bill proposed a Habitat Conservation Insurance Program that would provide up to $10 million of federal funding for additional mitigation measures to address unforeseen circumstances. Endangered Species Recovery Act of 1997, S. 1180, 105th Cong. §5(m) (1997); S. REP. NO. 105-128, at 46 (1997).
520. See, e.g., HCP Handbook Addendum, supra note 10, at 35,252;
521. AENGST ET AL., supra note 112, at 5-15 ("USFWS staff strongly felt that public participation increased the cost and length of HCPs ...."),
522. See Hearings, supra note 184, at 97 (statement of Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks) ("[We should] be able to develop more of a template HCP that could be utilized readily, pulled off the shelf in a particular area for certain species, and use that as a way of streamlining the cost and the process.");
523. id. at 10 (statement of Peter Kareiva, NMFS) ("[I]f we did produce data bases, if we put energy into that, subsequent effotts would go much faster .... Any data that you put in a computer data base for any of those HCPs will inform future conservation plans that touch on those same species.");
524. Wilhere, supra note 36, at 27 ("The information obtained from one HCP can be applied to future HCPs and other conservation programs. The amount of research and monitoring needed by future HCPs could be reduced and the efficiency of conservation measures could be increased.").
525. See supra notes 154-156 and accompanying text; cf. Camacho, supra note 3, at 312 (summarizing empirical data suggesting that implementing additional collaborative procedures in environmental and land use regulation may decrease administrative costs in the long run);
526. Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285, 1339-40 (2003) (discussing the ways in which increased public participation, though potentially more costly up front, can reduce overall costs by minimizing future conflicts among the affected parties).
527. See Wilhere, supra note 36, at 22 ("The costs of research and monitoring make adaptive management seem relatively expensive. But if all costs are considered, then adaptive management may be relatively inexpensive over the long run. In theory, investments in reliable information should yield excellent returns in the sustainable use of natural resources.");
528. supra note 155 and accompanying text.
529. Cf. Freeman, supra note 3, at 17 (arguing that the EPA's failure to adequately address its enforcement responsibilities is a product of not only inadequate resources bur also institutional incentives).
530. Cf. Natural Community Conservation Planning Act, CAL. FISH & GAME CODE §§ 2800-2835 (West 1998 & Supp. 2006) (codifying the California habitat conservation program, which includes detailed public participation, monitoring, and adaptive-management requirements).
531. Cf. Doremus, supra note 111, at 715-16 (discussing the oversight role of advisory committees).
532. See Hearings, supra note 184, at 212-13 (statement of Gregory Thomas, Natural Heritage Institute);
533. Watchman et al., supra note 15, at 358 ("A ... precautionary approach would be to build more independent scientific review into the HCP development process. Teams of qualified scientists could be assembled to review topics such as data gaps for species commonly addressed by HCPs or the evidence of the efficacy of specific management and mitigation techniques. Such scientific reviews could reduce uncertainty for both landowners and imperiled species by vastly improving the information available for future plans.").
534. Cf. Harter, supra note 3, at 103 (suggesting that a negotiated rule should be "sustained to the extent that it is within the agency's jurisdiction and actually reflects a consensus among the interested parties");
535. Lawrence Susskind & Gerard McMahon, The Theory and Practice of Negotiated Rulemaking, 3 YALE J. ON REG. 133, 164 (1985);
536. Patricia M. Wald, ADR and the Courts: An Update, 46 DUKELJ. 1445, 1468 (1997).
537. See NATURAL HERITAGE INST., supra note 105, at 20 ("Demonstrated ability to contribute substantively to the issues on the table without undue delay may be made the price of admission.").
538. See, e.g., AENGST ET AL., supra note 112, app. at A-Riverside-9 ('"You might have very few environmental people and a preponderance of property owners and Building Industry-Association and Farm Bureau folks. And that... was because the environmental groups were all volunteers, it was very difficult for them to attend the monthly meetings.'" (quoting a local official)).
539. See id. at 5-2 (finding that for six of thirty-five HCPs, the applicant or the FWS "provided citizens with financial support to participate").
540. See Watchman et al., supra note 15, at 358 ("[Uncertainty could be further minimized by providing greater opportunities to adjust plans during implementation in response to new information or changing environmental conditions.").
541. See Thomas, supra note 37, at 167.
542. See AENGST ET AL., supra note 112, at 5-2;
543. cf. Sean P. Ociepka, Casenote, Protecting the Public Benefit: Crafting Precedent for Citizen Enforcement of Conservation Easements, 58 ME. L. REV. 226, 2.30-3.3 (2006) (discussing the recent judicial recognition of citizen enforcement of conservation easements notwithstanding unclear statutory provisions and limited precedents). Alternatively, the National Research Council or another outside reviewer could serve as a valuable source of accountability in HCP implementation.
544. Though the Services could administer these functions, Congress could also lodge such responsibilities with the GAO, which has experience in serving a coordinating and assessment role for regulatory programs.
545. See NATURAL HERITAGE INST., supra note 105, at 20, 37.
546. See Leigh Raymond, Cooperation Without Trust: Overcoming Collective Action Barriers to Endangered Species Protection, 34 POL'Y STUD. J. 37 (2006) (evaluating two multilateral HCP negotiations and concluding that the Services served a critical role as mediator, directing hostile parties toward an agreeable solution).
547. See Endangered Species Recovery Act of 1997, S. 1180, 105th Cong. §7(b)(5) (1997) (proposing training of federal personnel on conflict resolution and improving HCP implementation on private property).
548. See id. §7(a) (proposing a program to provide educational materials and technical assistance to parties interested in developing HCPs and conservation measures).
549. Cf. AENGST ET AL., supra note 112, app. at A-CLARK COUNTY-9 ('"Keeping it totally open and inclusive has the typical downsides: people get irritated, it takes forever, and costs more-but there is no other way.'" (quoting a local HCP administrator)).
550. See ANDERSON & YAFFEE, supra note 88, at 13 (finding that public participation increased the information available to develop HCPs).
551. See Dorf & Sabel, supra note 3, at 288 (stating that participation in evaluating regulatory provisions can serve to increase the accountability of regulatory agencies).
552. See McClure & Stiffler, supra note 203 ('"Our biggest source of information is third party input-people writing letters saying someone didn't get a permit or take an action." (quoting Bob Pine, Austin FWS habitat conservation director). This official acknowledged that his regional department rarely does its own inspecting. See id.
553. Cf. Freeman, supra note 1, at 663.
554. Even so, it is not at all clear that such an approach is the most effective, or even an effective, method for gathering and assessing scientific data. Certainly, a model that relies on the input of those most affected by the particular decision, as well as the input of independent scientists, may allow for consideration of more data than that developed by the Services alone or the more cost-effective collection of data. Indeed, existing evidence suggests that participation provides valuable information to the Services in developing HCPs. See supra notes 153, 159-160 and accompanying text.
555. See Hearings, supra note 184, at 296 (statement of Don Rose, Manager, Land Planning and Natural Resources, Sempra Energy) ("About 90 to 95 percent... of the professionals in the wildlife agency, the service, are biologists. They do not have the other disciplines necessary, in my opinion, to carry out what is needed for a comprehensive HCP.");
556. STEVEN LEWIS YAFFEE, PROHIBITIVE POLICY: IMPLEMENTING THE FEDERAL ENDANGERED SPECIES ACT 162 (1982) ("While science can and should inform choice, rarely can it do so definitively. Most policy choices involve fundamental questions of social value-issues for which technicians have only one voice among many. The central issues of the endangered species case-determining what is ethical behavior and what is valuable to protect at what cost-require individual and group assessments of what is moral and what is valued. Economics and biology only help us slightly in making those choices.").
557. See, e.g., Gerber v. Norton, 294 F.3d. 173, 185-86 (D.C. Cir. 2002) (finding that the Services, and not just the developers, must determine that the alternatives proposed are impracticable based on economic and other considerations);
558. HCP HANDBOOK, supra note 45, at 3-35.
559. 16 U.S.C. § 1539(a)(2)(B)(ii) (2000).
560. See Wilhere, supra note 36, at 23 (stating that the Services do not require applicants to provide financial data on draft HCPs for Services to make a "maximum extent practicable" finding). In the same way, whether the applicant provides "adequate funding," 16 U.S.C. § 1539(a)(2)(B)(iii), for implementation of the HCP is an economic assessment. Even the finding of whether a take "will not appreciably reduce the likelihood of the survival and recovery of the species," id. § 1539(a)(2)(B)(iv), involves a judgment as to whether a species' reduction is indeed "appreciable," a determination for which no widely accepted scientific criteria has been developed, see Wilhere, supra note 36, at 26.
561. See supra notes 238-240, 254-256 and accompanying text.
562. See Doremus, supra note 295, at 71-72 ("Providing appropriate incentives for the generation and disclosure of information ... is critical to the effective protection of endangered species on private land.").
563. See Lobel, supra note 3, at 377;
564. cf. John Kostyack, supra note 309, at 764 ("To ensure adequate funding for corrective action, the Administration should ensure that responsibility is properly divided between private and public sources.").
565. See AENGST ET AL., supra note 112, at 5-10 (indicating that 71 percent of surveyrespondents said that the applicant was the primary catalyst of the HCP effort).
566. See id. at 5-3 ("Applicants were moderately or actively involved in 91% of HCPs . . . before the NEPA comment period, 83% during the comment period, and 85%) after HCP approval.").
567. Cf. J.B. Ruhl & James Salzman, The Effects of Wetlands Mitigation Banking on People, NAT'L WETLANDS NEWSL., Mar.-Apr. 2006, at 1 (finding that the wetlands mitigation banking program's emphasis on permittee incentives led to larger-scale distributive effects).
568. See, e.g., Endangered Species Recovery Act of 1997, S. 1180, 105th Cong. §5(h) (1997) (proposing the Habitat Conservation Planning Loan Program, which would have provided no-interest loans to states and municipalities to assist in plan development).
569. See id. § 5(m) (proposing grants to HCP parties to perform additional mitigation measures to address unforeseen circumstances).
570. Cf. Endangered Species Recovery Act of 2007, S. 700, 110th Cong. (2007) (introduced Feb. 28, 2007) (proposing tax credits and deductions for landowners who engage in habitat conservation efforts on their property).
571. See Thomas, supra note 37, at 167;
572. Wilhere, supra note 36, at 27 ("More and better adaptive management would be encouraged by compensating permittees for the reliable information they produce . . . that benefits the conservation of a species.").
573. See Endangered Species Act: Incentives to Encourage Conservation by Private Landowners; Hearing Before the Subcomm. on Environment and Natural Resources of the H. Comm. on Merchant Marine and Fisheries, 103d Cong. 81 (1993) (statement of Larry McKinney, Texas Parks and Wildlife Department) (describing an unadopted proposal for a "federal tax penalty, or severance tax ... levied on lands converted to uses not compatible with the support of endangered, threatened and candidate species, or significant biodiversity habitat.... Moneys from the tax penalty would help fund the various incentive programs").
574. See Jonathan Remy Nash, Trading Species: A New Direction for Habitat Trading Programs, 32 COLUM. J. ENVTL. L. 1 (2007) (discussing habitat-conservation trading schemes generally);
575. Wilhere, supra note 36, at 27.
576. See supra Part V.A.
577. See Wilhere, supra note 36, at 27.
578. See Defenders HCP Data, supra note 129, at Question 46 (finding that the permittee posted a performance bond or other funding source to pay for unanticipated additional costs in fewer than 10 percent of the 274 HCPs studied).
579. See Wilhere, supra note 36, at 27 ("Ultimately, the entire bond could be returned with interest when it is demonstrated that an HCP will not result in any unacceptable damages. Such a demonstration would depend on a satisfactory reduction in uncertainty, which might be obtained only through adaptive management.").
580. See NATURAL HERITAGE INST., SUPRA note 105, at 17.
581. See id. Conversely, HCPs should require more extensive mitigation when there are significant information gaps about a species' condition or the proposed take's effect.