Disgruntled ex-federal employees found a way to bilk taxpayers out of millions of dollars using the flawed Endangered Species Act

Over a 3‑year peri­od, 2009–2012, Depart­ment of Jus­tice data show Amer­i­can tax­pay­ers foot­ed the bill for more than $53 mil­lion in so-called envi­ron­men­tal groups’ legal fees—and the actu­al num­ber could be much high­er. The real moti­va­tion behind the Endan­gered Species Act (ESA) lit­i­ga­tion, per­haps, could have more to do with vengeance and penance than with a real desire to pro­tect flo­ra and fauna.

On May 7, I spoke at the Four Cor­ners Oil and Gas Con­fer­ence in Farm­ing­ton, New Mex­i­co. Dur­ing the two-day event, I sat in on many of the oth­er ses­sions and had con­ver­sa­tions with dozens of atten­dees. I left the event with the dis­tinct impres­sion that the cur­rent imple­men­ta­tion of the ESA is a major imped­i­ment to the eco­nom­ic growth, tax rev­enue, and job cre­ation that comes with oil-and-gas devel­op­ment. I have writ­ten on ESA issues many times, most recent­ly I wrote about the less­er prairie chicken’s pro­posed “threat­ened” list­ing (which the Fish and Wildlife Ser­vice [FWS] list­ed on March 27) and the Okla­homa Attor­ney General’s law­suit against the fed­er­al gov­ern­ment over the “sue and set­tle” tac­tics of FWS and the Depart­ment of the Interior.

While at the con­fer­ence, I received an email announc­ing that FWS has asked a fed­er­al court for a 6‑month delay in mak­ing a final deter­mi­na­tion on whether to list the Gun­ni­son sage grouse as an endan­gered species—moving the deci­sion past the Novem­ber elec­tions. Up for re-elec­tion, Sen­a­tor Mark Udall (D‑CO) “cheered” the exten­sion request. The E & E report states: Col­orado elect­ed lead­ers “fear the list­ing could have sig­nif­i­cant eco­nom­ic impacts.”

Kent Holsinger, a Col­orado attor­ney spe­cial­iz­ing in lands, wildlife, and water, posit­ed: “Sen­a­tor Udall is among those laud­ing the move—perhaps because a list­ing deci­sion would affect his fate in the U.S. Sen­ate. Gun­ni­son sage grouse pop­u­la­tions are sta­ble, if not on the increase. In addi­tion, myr­i­ad state, local and pri­vate con­ser­va­tion efforts have been put into place over the last decade. Those efforts, and the Gun­ni­son sage grouse, are at risk if the FWS pur­sues listing.”

The report con­tin­ues: “WildEarth Guardians is not oppos­ing the lat­est exten­sion after Fish and Wildlife agreed to some exten­sive new mit­i­ga­tion mea­sures that will be made in the inter­im, includ­ing increas­ing buffer zones around sage grouse breed­ing grounds, called leks, and defer­ring coal, oil and gas leas­ing, said Erik Molvar, a wildlife biol­o­gist with WildEarth Guardians.” It goes on to say: “But the Cen­ter for Bio­log­i­cal Diver­si­ty, which is a par­ty to the set­tle­ment agree­ments with WildEarth Guardians, said the lat­est exten­sion is a bad move for the grouse, which it says has need­ed ESA pro­tec­tions for years.”

Two impor­tant items to notice in the Gun­ni­son sage grouse sto­ry. One, the pow­er the envi­ron­men­tal groups wield. Two, part of appeas­ing the envi­ron­men­tal groups involves “defer­ring coal, oil and gas leasing.”

It is wide­ly known that these groups despise fos­sil fuels. The Cen­ter for Bio­log­i­cal Diver­si­ty (CBD) brags about its use of law­suits to block development—but it is not just oil and gas they block, it is vir­tu­al­ly all human activity.

In research­ing for this week’s col­umn, I have talked to peo­ple from a vari­ety of indus­try and con­ser­va­tion efforts. The con­ver­sa­tions start­ed because I read some­thing they’d writ­ten about CBD. Whether I was talk­ing to some­one inter­est­ed in pro­tect­ing big horn sheep, a fish­ing enthu­si­ast, or an attor­ney rep­re­sent­ing ranch­ing or extrac­tive indus­tries, CBD seems to be a thorn in their side. All made com­ments sim­i­lar to what Amos Eno, who has been involved in con­ser­va­tion for more than 40 years, told me: “CBD doesn’t care about the crit­ters. They are cre­at­ing a list­ing pipeline and then mak­ing mon­ey off of it.” Envi­ron­men­tal writer Ted Williams, in a piece on wolves, called CBD: “peren­ni­al plaintiffs.”

New Mex­i­co ranch­er Stephen Wil­meth direct­ed me to a CBD pro­file he had writ­ten. In it he addressed how the CBD’s efforts tar­get­ed live­stock graz­ing and sought “the removal of cat­tle from hun­dreds of miles of streams.” Wil­meth states: “CBD has ele­vat­ed sue and set­tle tac­tics, injunc­tions, new species list­ings, and bad press sur­round­ing legal action to a mod­ern art form. Con­sent decrees more often than not result in closed door ses­sions with con­ces­sions or demands made on agency pol­i­cy formulation.”

In a post­ing on the Soci­ety for Bighorn Sheep web­site titled: Legal tac­tics direct­ly from the Cen­ter for Bio­log­i­cal Diver­si­ty, board mem­ber Gary Thomas states: “The Cen­ter ranks peo­ple sec­ond. By their account­ing, all human endeav­ors, agri­cul­ture, clean water, ener­gy, devel­op­ment, recre­ation, mate­ri­als extrac­tion, and all human access to any space, are sub­or­di­nate to the habi­tat require­ments of all the world’s obscure ani­mals and plants. But these self­ish peo­ple don’t care about any per­son, plant, or ani­mal. The Cen­ter col­lects obscure and unstud­ied species for a sin­gle pur­pose, specif­i­cal­ly for use in their own genre of law­suits. They mea­sure their suc­cess­es not by qual­i­ty of life for man nor beast, but by count­ing wins in court like notch­es in the han­dle of a gun.”

You’d expect some­one like me, an ener­gy advo­cate, to dis the CBD—and I have (CBD is not too fond of me)—but how did it get such a broad-based col­lec­tion of neg­a­tiv­i­ty from with­in the envi­ron­men­tal community?

Ted Williams told me: “Envi­ron­men­tal­ists who are pay­ing atten­tion are not hap­py with CBD.” He has writ­ten the most com­pre­hen­sive exposé on CBD that can be found—for which he was threat­ened with a law­suit. With­out Williams’ work, one has to resort to bits and pieces off the inter­net to put togeth­er CBD’s modus operandi—but there is plen­ty to choose from!

One of the most inter­est­ing ones to catch my eye was a part of the post on SheepSociety.com. There, Thomas points out the fact that the three founders of CBD are ex-For­est Ser­vice work­ers. He states: “To donors, their motives appear altru­is­tic. To the informed, they look more like a 20-year quest for revenge for their firing.”

I am fair­ly well acquaint­ed with CBD, but Thomas’ accu­sa­tion was new to me—though it fit what I knew. (One of the very first pieces I ever wrote, when I orig­i­nal­ly got into this work sev­en plus years ago, was on the one and only legal vic­to­ry ever won against CBD. Ari­zona ranch­er Jim Chilton won a defama­tion suit against CBD with a $600,000 set­tle­ment. Near­ly every­one I talked to as a part of my research for this sto­ry men­tioned Chilton’s name with reverence.

I dug around and found an inter­est­ing sto­ry from Back­pack­er mag­a­zine that gave cre­dence to Thomas’ claim. The Feb­ru­ary 2003 issue fea­tures a mul­ti-page pro­file on Kier­an Suck­ling, co-founder and exec­u­tive direc­tor. Address­ing the three founders, who were work­ing for the For­est Ser­vice, Back­pack­er reports: “All three

of them were frus­trat­ed by their agen­cies’ inac­tion.” The sto­ry goes on to explain how the three­some “hatched a plan” to peti­tion the For­est Ser­vice and force it to list the spot­ted owl.

Then, I found a 2009 pro­file on Suck­ling in High Coun­try News (HCN). It quotes Suck­ling describ­ing how the roots of his full-time activism start­ed while work­ing for the For­est Ser­vice doing spot­ted owl sur­veys: “We had signed con­tracts say­ing we wouldn’t divulge owl loca­tions, but we went the next day to the Sil­ver City Dai­ly Press, with a map that told our sto­ry. We were fired with­in sec­onds. That was the start of us becom­ing full-time activists.”

These snip­pets help explain Suckling’s ani­mos­i­ty toward the For­est Ser­vice and oth­er gov­ern­ment agen­cies. CBD is glee­ful over its results. It has sued gov­ern­ment agen­cies hun­dreds of times and has won the major­i­ty of the cases—though many nev­er go to court and are set­tled in a back­room deal (hence the term: “sue and set­tle”). Thomas writes: “They are extreme­ly proud to report that sin­gle-hand­ed­ly they deplete the U.S. Fish and Wildlife’s entire annu­al bud­get, approx­i­mate­ly $5 mil­lion, for endan­gered species list­ings year after year by forc­ing them to use their lim­it­ed funds defend­ing law­suits instead of their intend­ed purpose.”

The HCN piece describes Suckling’s approach to get­ting what he wants—which he explains in the New York­er, as “a new order in which plants and ani­mals are part of the poli­ty”: “The For­est Ser­vice needs our agree­ment to get back to work, and we are in the posi­tion of being able to pow­er­ful­ly nego­ti­ate the terms of releas­ing the injunc­tion. … They [fed­er­al employ­ees] feel like their careers are being mocked and destroyed—and they are. So they become much more will­ing to play by our rules and at least get some­thing done. Psy­cho­log­i­cal war­fare is a very under­ap­pre­ci­at­ed aspect of envi­ron­men­tal campaigning.”

“In CBD speak,” adds Wil­meth, “the sug­ges­tion of play­ing by the rules equates to its rules of manip­u­lat­ing pos­i­tive out­comes for its mission.”

Putting the pieces togeth­er, it does appear, as Thomas asserts, that Suck­ling is on a 20+ year “quest for revenge” for being fired—vengeance that Amer­i­can tax­pay­ers are funding.

Suck­ling is an inter­est­ing char­ac­ter. The Back­pack­er sto­ry cites his ex-wife, who said the fol­low­ing: “He’s not teth­ered on a dai­ly basis to the same things you and I are teth­ered to.”

Tier­ra Cur­ry is anoth­er name that comes up fre­quent­ly in CBD cov­er­age. CBD’s staff sec­tion of the web­site lists her as “senior sci­en­tist” and says she “focus­es on the list­ing and recov­ery of endan­gered species.” As Warn­er Todd Hus­ton reports: “Cur­ry has an odd pro­file for an activist. She once claimed to have enjoyed dyna­mit­ing creek beds in rur­al Ken­tucky and tak­ing per­verse plea­sure at send­ing fish and aquat­ic ani­mals fly­ing onto dry land and cer­tain death. Now Cur­ry spends her time fil­ing peti­tions to ‘save’ some of the same ani­mals she once enjoyed killing.”

Per­haps Curry’s fre­net­ic list­ing efforts are her way of doing penance for her child­hood pen­chant of killing critters.

The role vengeance and penance may play in CBD’s shake­down of the Amer­i­can pub­lic is just a hypoth­e­sis based on facts. But the dol­lars paid out are very real.

In an April 8, 2014, hear­ing before the House Com­mit­tee on Nat­ur­al Resources, fifth-gen­er­a­tion ranch­er and attor­ney spe­cial­iz­ing in envi­ron­men­tal lit­i­ga­tion, Karen Budd-Falen talked about the need for ESA reform, as four dif­fer­ent House bills pro­pose: “Pub­lic infor­ma­tion regard­ing pay­ment of attorney’s fees for ESA lit­i­ga­tion is equal­ly dif­fi­cult to access.” Address­ing HR 4316—which requires a report on attorney’s fees and costs for ESA relat­ed litigation—she says: “It should not be a rad­i­cal notion for the pub­lic to know how much is being paid by the fed­er­al gov­ern­ment and to whom the check is written.”

As she reports in her tes­ti­mo­ny, Budd-Falen’s staff did an analy­sis of the 276-page spread­sheet run released by the Depart­ment of Jus­tice (DOJ) list­ing lit­i­ga­tion sum­maries in cas­es defend­ed by the Envi­ron­ment and Nat­ur­al Resources Divi­sion, Wildlife Sec­tion. She explains: “The spread­sheets are titled ‘Endan­gered Species Defen­sive Cas­es Active at some point dur­ing FY09-FY12 (through April 2012).’ Although the DOJ release itself con­tained no analy­sis, my legal staff cal­cu­lat­ed the fol­low­ing statistics.”

Budd-Falen then shows how she came up with the near­ly $53 mil­lion fig­ure of tax­pay­er mon­ey paid out over an approx­i­mate 3‑year peri­od. How­ev­er, she then shows how her own Free­dom of Infor­ma­tion Act requests have proven “that the DOJ does not keep an accu­rate account of the cas­es it defends”—making the actu­al dol­lar fig­ure much higher.

Budd-Falen has stat­ed: “We believe when the cur­tain is raised we’ll be talk­ing about rad­i­cal envi­ron­men­tal groups bilk­ing the tax­pay­er for hun­dreds of mil­lions of dol­lars, alleged­ly for ‘reim­burse­ment for attor­ney fees.’”

Budd-Falen’s research shows that for groups like CBD—who sue on process not on substance—it real­ly is about the money.

Eno believes that for the CBD, it isn’t about the crit­ters: “CBD endan­gers the endan­gered species pro­gram on mul­ti­ple fronts.

* First, their peti­tions and list­ing suits use up sig­nif­i­cant finan­cial and per­son­nel resources of both Office of Endan­gered Species and solic­i­tors office in DOI. This means less fund­ing and per­son­nel devot­ed to species recovery.

* Sec­ond, CBD suits antag­o­nize and jeop­ar­dize recov­ery pro­grams of coop­er­at­ing fed­er­al land man­age­ment agen­cies, par­tic­u­lar­ly USFS and BLM.

* Third, their suits have ham­pered for­est and grass­land man­age­ment there­by invit­ing for­est fires which endan­ger both human and wildlife (sage grouse) com­mu­ni­ties through­out the west.

* Fourth, CBD suits antag­o­nize, alien­ate and cre­ate finan­cial hard­ship for affect­ed pri­vate land own­ers, there­by reduc­ing both pub­lic sup­port and ini­tia­tives and active assis­tance for list­ed species recovery.”

Despite numer­ous attempts, the ESA has not had any major revi­sions in more than 25 years. The Wall Street Jour­nal states: “The ESA’s mixed record on wildlife restora­tion and its impact on busi­ness have made the law vul­ner­a­ble to crit­ics.” Groups like CBD have twist­ed the intent of the law. Reform is now essential—not just to save tax­pay­er dol­lars, but to put the focus back on actu­al­ly sav­ing the species rather than, as Wil­meth calls it: “the bas­tardized appli­ca­tion of sci­ence, pol­i­cy, and education.”