Spirit of the Sage Council v. Norton (No Surprises Rule)


U.S. District Court for the District of Columbia

NAHB Involvement


The most recent phase of this decade-long litigation began in November 2005, when environmental groups again challenged the "No Surprises Rule" back in the district court after the D.C. Circuit had declared the previous litigation moot and vacated the district court decision.

NAHB completed its briefing defending the merits of the "No Surprises Rule" in September 2006, and oral argument took place on May 30, 2007.

On Aug. 30, 2007, after years of litigation, NAHB has secured a victory on the merits. The district court upheld the validity of the No Surprises and Permit Revocation rules. The decision establishes the principle that incidental take permits and habitat conservation plans under the ESA do not need to meet a "recovery" level of protection -- a significant development in the case law. As the Council has not appealed, this case is now over.