It was surprising news when the Center for Biological Diversity announced it had signed an out-of-court agreement regarding endangered species with its longtime adversaries at the U.S. Fish & Wildlife Service. With a decade-long winning streak in court, the Tucson-based Center has become arguably the most important entity in the Endangered Species Act debate. Why wouldn't the organization want to continue kicking butt in court, especially since Gail Norton had replaced Bruce Babbitt as head of the Interior Department? Many of the answers to that question are surprisingly simple and are based largely on both sides' concern over some species that could disappear within the next 12 months. And, it is important to note that although the Center and the federal government have become friends this one time, there is no reason to believe conflicts will not continue in the future. In fact, the Center has filed new lawsuits against the federal government over protection of species since the agreement was announced at the end of August — and the agency has decided not to place on the endangered list one of the species that was the subject of the agreement. The agreement has drawn mixed reviews, with developers' reactions ranging from cautious to hostile, and environmentalists generally saying neutral or good things. The National Association of Home Builders criticized the agreement, saying that the Interior Department needs to focus on revising the Endangered Species Act. Under the agreement, the Center gave the Fish & Wildlife Service more time to make decisions on eight critical habitat designations for species that have already been declared endangered or threatened. The Fish & Wildlife Service agreed to use the $600,000 it would have spent on the critical habitat designations for making decisions on the status of 29 species. The federal officials agreed to make emergency listings for three species, make final decisions on 14 candidate species, propose eight other species for protection, and make decisions on four Endangered Species Act petitions. This activity marks a turnaround from November 2000, when the Fish & Wildlife Service announced a moratorium on new listings. Since the agreement was signed, the agency has announced decisions and rules regarding a number of the involved species, which include five animals and one plant that live in California. Those actions and others to come in the near future would not have occurred without the agreement, said Chris Tollefson, a spokesman for the Fish & Wildlife Service in Washington, D.C. Everyone agreed that the species involved appear to have suffered major losses in recent years and need immediate attention, he said. "It really was not adversarial at all," said Kiernan Suckling, the Center's executive director. "We and the Fish & Wildlife Service had a common concern, which was that species are not getting protected." One of the major effects of the settlement was to highlight the Fish & Wildlife Service's lack of funding to carry out the Endangered Species Act. The agency estimates that tackling the full listing backlog — including implementation of 83 court orders — would cost $120 million. Yet the agency's listing budget this year is $6.3 million, and the agency has hesitated to ask for a major appropriation increase. The agreement "would never have been necessary if, over the years, the Congress had provided Interior with the resources it needed to enforce the act in a systematic, timely way," The New York Times opined in an editorial. Added David Henkin, a Honolulu-based attorney for Earthjustice Legal Defense Fund, "What this agreement really underlines is the need for the Fish & Wildlife Service to acquire sufficient funding for its listing program." Suckling said that for all the disputes his organization has had with the Fish & Wildlife Service, he believes the agency really does care. "This is an agency that is under tremendous political pressure," Suckling said. Most of that pressure has been applied by officials from the West who believe strongly in private property rights. But recently, U.S. Sen. Harry Reid (D-Nevada) has led a contingent urging greater funding for Endangered Species Act programs. Curiously, Suckling believes that species advocates may have more success on the ground — especially in California — under the Republican administration than under the regime of Bill Clinton and his Interior secretary, Bruce Babbitt. Babbitt tried to achieve consensus and compromise on Endangered Species Act issues, and was the major proponent of Habitat Conservation Plans, especially in California (see CP&DR, June 2001, March 1998, December 1997, April 1994). But hard-core environmentalists have criticized HCPs as political answers to scientific problems, and have railed against HCPs' "no surprises" provision, under which landowners cannot be required to spend more money or set aside additional resources for species covered by the HCP. Suckling said that Babbitt was never interested in the type of deal that Norton was willing to cut after only four months of negotiation. Suckling argues that Babbitt wanted to appease California developers, some of whom he has gone to work for since leaving office. On the other hand, Bush was trounced in California during the election and has shown little interest in reaching out to anyone in the state. "Oddly, I think California developers may have less influence under the Bush administration than they did with the Clinton administration," Suckling said. So, does the settlement signal a new truce among an odd couple? "We're hopeful it will set a tone for the future," Fish & Wildlife Service spokesman Tollefson said. "We'd like to make the Endangered Species Act work better." The agency, he said, has been inundated with litigation and has spent most of its money on court orders and settlements from those lawsuits — rather than on systematically addressing rare species. "As has been proven, the litigation route is not the most effective. It doesn't benefit species," Tollefson said. Suckling spoke of a "new trust" and said the agreement shows that the Center is willing to work with federal regulators. But Suckling made clear that future activities — or inactivity — of the Interior Department might be the subject of legal action. "If lawsuits have become part of the listing system, it's only because politics have taken up residency in the heart of the listing system. Lawsuits are the one thing we can use to counter that," he said. Nor should builders and government officials consider existing HCP's safe, Suckling vowed. Some of the new listings should force changes to HCPs, especially Southern California plans that account for the yellow-legged frog, he said. "We're not going to accept that a deal is a deal even if it means the extinction of a species. That is precisely why we have an Endangered Species Act," Suckling said. Contacts: Kieran Suckling, Center for Biological Diversity, (360) 468-2810. Chris Tollefson, U.S. Fish & Wildlife Service, (202) 208-5634. David Henkin, Earthjustice Legal Defense Fund, (808) 599-2436. Center for Biological Diversity's settlement website: www.sw-center.org/swcbd/press/settlementesa.html