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002-'t35 Secretary Babbitt has made i/ clear that he in/ends to pursue creative approaChes /0 endangered species conservation. 22 . life. " Sweet Home Chapter o[Communities v. Lujan, 806 F. Supp. 279, 284 (D.D.C 1992). In an even more far.reaching decision the Eighth Circuit has held that registration of above- ground use of strychnine by the Environmental Protection Agency (EPA) violated the ESA be- cause endangered species died after consuming strychnine-laced bait. De[enders o[ Wildlife v. EPA, 882 F.2d 1294, 1295 (8th Cir. 1989). De[enders o[ Wildlife is significant because the coun noted that the EPA's registration of strych- nine constituted a "taking" because "strych- nine can be distributed only ifit is registered." Thus, the Eighrh Circuit has established a type of "but for" test to determine whether an action violates the taking prohibition of section 9. FWS has relied on this authoriry to assen that local agency zoning decisions concerning develop- ment in the habitat of an endangered species require an FWS permit. Just as the revival of diplomatic relations with China in 1972 could only have been undenaken by a president with the an- ticommunist credentials of Richard Nixon, the search for new and innovative ways to avoid "economic train wrecks" under the ESA is peculiarly suited to a Secretary of the Interior with the environmental credentials of Bruce Babbitt. In the early days of his admin- istration Secretary Babbitt has made it clear that he intends to pursue creative approaches to en. dangered species conservation that move the ESA away from its single species focus toward the conservation of biodiversiry. Secretary Bab. bill has also initiated actions that suggest a de- sire to balance endangered species protection with moderate doses of concern for the eco- nomic effects of the ESA. Simultaneous with his announcement of the listing of the California gnatcatcher, for example, Secretary Babbitt pro- posed the first-ever use of a "special rule" un- der section 4 (d) of the ESA to allow some amount of development in the habitat of a listed species pending completion of habitat conser- vation plans for the gnatcatcher and other coastal sage scrub species in southern California. The announcement of the gnatcatcher spe. cial rule was followed immediately by the Forest Summit on the spotted owl controversy attended by President Clinton, Secretary Babbitt, and three other members of the Clinton Cabinet. At the summit, President Clinton announced that he was looking for solutions to the spotted owl issue that would make everyone unhappy. Although the jury is likely to be out for some time on the Clin. (on administration's attempts to resolve the rag- ing controversies over logging in old.growth forests and home-building in southern California NR&EjSUMMER 1993 coastal sage scrub, these initiatives signal a will- ingness by the new administration to risk antag- onizing its environmental constituency to discover elusive common ground between en- vironmental and economic interests on endan- gered species matters. Although President Clinton's and Secretary Babbitt's willingness to explore innovative ap- proaches to reconciling endangered species conflicts is welcome, the track record of the last decade with the habitat conservation plan- ning proces.s i.s not encouraging. The Habitat Conservation Planning Experience In 1982, Congress amended the ESA to au. thorize the incidental taking of listed species by private persons in accordance with approved habitat conservation plans (HCPs). 16 u.s.c. S; 1539(a). Section 10(a) emerged directly out of an historic conservation planning effon be. tween warring environmentalists and develop- ers on San Bruno Mountain on the San Francisco Peninsula in nonhern California. Hailed at the time as a model for how environmental and de- velopmental interests can cooperate to protect endangered species while allowing for eco- nomic development, the "model" has proven difficult to replicate. A decade after the first HCP, we are still searching for a paradigm for the resolution of endangered species conflicts involving private propeny. Section 10(a) authorizes the Department of the Interior (Depanment of Commerce for ma- rine species) to permit activities that result in the "taking" of endangered and threatened species "if such taking is incidental to, and not the pur- pose of, the carrying out of an otherwise lawful aaivity." 16 u.s.c S; 1539(a)(I)(B). In orderro obtain this "incidental take permit," an applicant is required to submit a conservation plan speci- fying (I) the impact of the taking; (2) steps to minimize and mitigate the impacts; (3) what al- tematives to the taking the applicant considered and the reasons why the altematives are not being utilized; and (4) other measures that the secretary may require. Before issuing the permit, the Secretary must find that (I) the taking will be incidental; (2) the applicant will, to the maximum extent practicable. minimize and mitigate the impacts of such taking; (3) the applicant will ensure that adequate funding for the plan will be pro- vided; (4) the taking will not appreciably re- duce the likelihood of the survival and recovery of the species in the wild; and (5) the measures, if any, required [by the Secretary] . . . will be met. Congress stated that section 10(a) was in. :1 II