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NFC: Fw: Third time is the charm?
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LAW of NATURE
The Endangered Species Act was passed to protect our wildlife. Now what
will protect us from it?
By George Reiger
Field and Stream: March 1995
Last summer, I discovered a fish new to the Commonwealth of Virginia. I
didn't know what it was. In two decades of maintaining a minnow trap in
tidal stream next to my house, I'd never seen anything like it. Since I
also maintain a freshwater aquarium of mixed native and exotic fishes, I
brought the little fish up to the house and plopped it in among my
gouramis, and sheepshead minnows.
Then I forgot about it. Or at least I moved it to the back of my mind.
Actually, a part of me worried that the unidentified fish could be
if it turned out to be a rare species. What if my discovery triggered a
brouhaha like the one spawned by the snail darter?
When I pulled my minnow trap two weeks later, I found ten more of the
mystery fish. I put half in my fish tank and gave half to Karen
Terwilliger, Virginia's endangered species' coordinator, who distributed
them among stare ichthyologists for identification.
The species turned out to be the fat sleeper (Dormitator maculatus), a
subtropical fish most often found in streams flowing into the Caribbean.
Strays have been discovered as far north as the Carolinas, but since my
samples came from a Virginia creek 90 miles above the North Carolina
they're the northernmost known occurrence of this species.
Karen was disappointed the fish wasn't new to science. She consoled me
missing out on probably my only chance to have a species named for me. As
owner of both sides of the stream where the fish was found, however, I'm
relieved it wasn't new. Why am I so concerned about the prospect of a new
creature on my property? The answer is the Endangered Species Act (ESA).
A quarter-century ago, I testified before Congress about the need for a
to provide special protection for endangered species. Since then, merely
the existence of the ESA has helped enhance many Americans' concern for a
spectrum of beleaguered creatures. But it has also created considerable
controversy and, in some cases, actual hardship for those who find such
creatures on their land.
Whether the ESA has led to the restoration of any of the creatures it
protects is arguable. The bald eagle, for example, was recently
recategorized from "endangered" to "threatened," but the improved status
this bird resulted more from public education and the elimination of
certain pesticides than from any particular projects stemming from the
Endangered Species Act. Nevertheless, the reclassification was
by a major publicity campaign designed to demonstrate that the law works
Congress will reauthorize it. As our national emblem, the bald eagle was
the perfect candidate for such public relations, especially since
reclassifying the bird did nothing to change its protected status--a
going back decades before the Endangered Species Act was born.
But why should a law that most everyone supports in principle need a
relations campaign? The answer is that as increasing numbers of obscure
species have been added to the list, and as increasing numbers of
bureaucrats have used the law to trespass on and even take private
property, the ESA needs all the positive PR it can get.
Ironically, the ESA may actually get in the way of some species'
restoration. The northern spotted owl, for example, adapts readily to
nesting boxes much the way wood ducks do. But what woodland owner in the
Pacific Northwest would dare put up a nesting box for spotted owls when
knows that as soon as a pair moves in, he'll cede much, if not all,
management control of his land to the U.S. Fish and Wildlife Service
Robert J. Smith, senior environmental scholar at the Competitive
Institute, suggests that had an Endangered Species Act been in effect in
1900, countless wetland owners and volunteers might not have put up the
nesting boxes that, along with closed seasons, were crucial to the
impressive recovery of the wood duck.
Talk to FWS spokespeople or those representing the National Wildlife
Federation (NWF), and you'll be assured that all the ESA horror stories
you've heard are exaggerations or outright lies Talk to landowners who've
been harried by federal bureaucrats ignorant of or indifferent to the
Constitution's Firth Amendment--which unequivocally states: "nor shall
private property be taken for public use without just
you'll get a very different impression of how the ESA is being used.
The NWF has been leading other environmental organizations in the fight
block bills being introduced to Congress this session and proposals
introduced in state legislatures to protect landowners from governmental
takings. (I also oppose many of these bills, but because I believe the
Constitution protects landowners with a force of law greater than that of
any state or federal statute.)
A recent article in National Wildlife magazine declared, "The whole idea
that the government needs to pay [landowners] not to do bad things is
ridiculous." Most ESA conflicts, however, do not involve industrial
polluters doing bad things. Some don't even involve people seeking to do
anything different with their land that would automatically require
approval of local zoning boards. A number of ESA conflicts involve
ranchers, and foresters who are being told they can no longer do
traditional work on their land. The feds have ordered them to stop
clearing brush, or cutting timber in given areas, but offered no
compensation in return.
Consider the case of the golden-cheeked warbler. Approximately 13,000
of these neotropical birds breed in stands of mature ash-junipers
called cedars) mixed with oak and elm on 300,000 to 500,000 acres across
thirty-three counties of Central Texas. The FWS listed the golden-cheeked
warbler as endangered in 1990, and last year it did, or didn't--depending
on whether you're talking to a landowner or a bureaucrat--consider
designating as many as 800,000 acres as "critical habitat" in order to
protect the warbler everywhere in its breeding range. Again, depending on
whether you're talking to a landowner or a bureaucrat, this designation
either crippling or means very little. The FWS claims that it uses
"critical habitat" only in reference to "ecological management." Section
however, prevents owners of critical habitat from obtaining federally
backed loans, insurance, water and sewage hookups, and possibly even
maintenance of public roads running through their land.
After near-riotous hearings were held regarding the proposed designation,
then-Texas Governor Ann Richards wrote the Secretary of the Interior
demanding that, (italics are hers):
"1) The FWS should abandon all plans for designating critical habitat for
the golden-cheeked warbler in thirty-three Central Texas counties
"2) The FWS should exempt normal agriculture and ranching activities in
Central Texas from restrictions developed to protect warbler habitat.
"3) The FWS should refrain from listing the swift fox or the jaguar as
threatened or endangered, and should work with the state to evaluate all
listed species to identify those who could be downlisted or delisted....
Listing the jaguar as an endangered species in the United States is not
appropriate, as it has long since vanished from this country.
"4) The Department of Interior, with leadership from your office, should
initiate a thorough review of The Fish and Wildlife Service's overall
approach to implementing The Endangered Species Act in Texas.
Knowing that Ann Richards was running the race of her life for reelection
(she eventually lost), fellow Democrat Bruce Babbitt, Secretary of the
"The Fish and Wildlife Service's work thus far clearly indicates that, if
the appropriate habitat conservation plans are implemented within a
reasonable period of time, the designation of critical habitat for the
warbler will be neither necessary nor prudent because it will provide no
net benefit to the species. I have therefore instructed the U.S. Fish and
Wildlife Service to cease work on warbler critical habitat designation."
In the same letter, however, Secretary Babbitt added these qualifying
"...as a practical matter, traditional ranching and farming activities
not hinder warbler conservation. Regrowth cedar that has invaded cleared
fields is also not habitat, and can be cleared without concern. Most
warblers live on rocky slopes. Since most agricultural and building
activity does not occur on rocky slopes, these activities should not
"Most" and "should not" are not the same as "all" and "will not," as
developer David Trotter of Austin has discovered. His property on Canyon
Creek near Austin not only hosts golden-cheeked warblers, it contains
Tooth Cave ground beetles, Kretschmarr Cave mold beetles, Tooth Cave
pseudoscorpions, Tooth Cave spiders, and possibly even Bone Cave
and black-capped vireos. Consequently, the FWS demanded that Trotter
"convey through donation to an appropriate entity approved by the
721 acres of his land "to ensure that it is protected in perpetuity."
In addition, the FWS requires "reasonable and prudent measures necessary
and appropriate to minimize 'incidental take of warblers." This includes
"(1) [that Trotter] acquire and donate to an appropriate entity an
additional 873 acres of land in the Bull Creek, Cypress Creek or north
Austin watersheds for the warblers; [and] (2) contribute operation and
maintenance funds for the 873-acre warbler preserve to an appropriate
entity approved by the Service."
I thought we'd outlawed Communism at home and fought it abroad precisely
prevent governmental officials from promulgating directives like these. I
thought our Constitution's Fifth Amendment would always protect us from
having our property seized, or our use of it compromised, by any agency
the government "without just compensation."
David Trotter has satisfied every condition of "common good" so far as
State of Texas and his local zoning commission is concerned. If the
government wants more than that, then it has to pay for it. The FWS
reimburse Trotter as custodian of the endangered species on his land or
him fair-market value for the property before taking it for a public
A FEDERAL NIECHANISM IS ALREADY in place to provide money for just
such compensation. Known as the Land and Water Conservation Fund (LWCF),
is designed to protect open space of every kind, from wild and scenic
rivers to city parks. LWCF's income derives from offshore oil and gas
leases and last year totaled nearly $1 billion.
Congress, however, is reluctant to spend this money because unspent funds
go back into general revenues. Last year, for example, less than
of the money available was appropriated to buy land for the National Park
and National Wildlife Refuge systems. Yet if Americans care as much about
biodiversity as the ESA implies we do, we should demand that Congress use
the LWCF to protect endangered species.
More than half of all U.S. endangered species are found on private
property. If landowners were provided with information, encouragement,
incentives rather than threats, most would do an excellent job of
the wildlife--including endangered species--found on their properties.