Invasion of the Birds

Not since the Alamo have so many come to the aid of Texans for the cause of Liberty. The first call came from William B. Travis over 150 years ago when Santa Anna brought his army of 5,000 to claim Texas for Mexico.

This time it wasn’t an invading foreign army that wanted to claim Texas, it was our own government - the U.S. Fish and Wildlife Service (FWS). Amazingly today, you don’t have to fire a shot to take away someone’s liberty. All you need is an environmental law like the Endangered Species Act (ESA).

This is not the first time the ESA was used to attack property rights in Texas. Back in 1994, it was revealed in a leaked report out of the FWS’s regional office in Austin that they were going to declare parts of 33 Central Texas counties as critical habitat for two song birds – the Black-capped Vireo and the Golden-cheeked Warbler.

That created such an uproar of controversy that over 5,000 landowners marched in protest up to the Capitol steps in Austin and demanded the federal government stay out of Texas. Eventually, that message led to the passage of one of the nation’s strongest private property protection acts, the Texas Real Property Preservation Act in 1995.

Then, late last year it happened again. The Texas Parks and Wildlife Department brought FWS together with a "consensus" group to create an innocent sounding plan called the Central Texas Rare Species Conservation Plan (Plan) — a federal program, authorized by federal legislation, implemented pursuant to federal regulation, guided by federal policy, developed with federal funding, contingent upon federal approval, subject to federal monitoring and enforced under federal law. They called it a "Safe Harbor" plan that was supposed to give "regulatory certainty" to landowners.

But, to have "certainty," a landowner was going to have to sign a 30 year agreement to manage part of their land that was unfortunate enough to have "suitable" habitat for one or both of the birds. In return, the federal government would "assure" no further habitat designations or restrictions would be made on their property for the two songbirds.

Regulations, whether they are federal or state, can be and are changed at the whim of the bureaucrats in power at the time. Safe Harbor is a creation of Bruce Babbitt, Secretary for the Department of Interior. Like so many other schemes of his, Safe Harbor sounds good and seems harmless, but typically, it is nothing more than a way for the government to extort land, money or both from innocent landowners.

Under the current ESA, if you have an endangered species on your land, you are required by law to obtain permission from the FWS before you can utilize your own private property. The process they put you through is called a Section 10(a) permit. And typically, to obtain a permit, FWS requires you to "mitigate." That means you have to set aside a percentage of your land, exchange your land for other land or give them money. In the past, that was called extortion, but today, if you’re the government, anything goes.

In actuality, the government bureaucrats have figured a way to circumvent the Fifth Amendment of the U.S. Constitution. Those who have studied the Constitution know that if the government wants your land for a public purpose, they must compensate the landowner. If it is so important to save every species, then saving them should be considered "for a public purpose" and compensation should be given to the landowner, not the opposite of requiring a landowner to pay the government to use his own land.

The Texas Plan was being created by a number of hand-picked individuals, trade associations, non-governmental organizations and environmental groups like The Nature Conservancy, Sierra Club and Environmental Defense Fund. Not one elected official was invited to participate nor made a part of the process.

Under the Plan, affected landowners within the identified species habitat area were given two choices: 1) "voluntarily" enter into a "Safe Harbor" agreement where they give up their right to remove, modify or disturb "suitable" species habitat on specific parts of their land and be responsible for maintaining this habitat in exchange for permission to use the rest of their property; or 2) refuse to "volunteer" for an agreement and risk having an enforcement action taken against them under the regulations of the ESA should they be unfortunate enough to have bird habitat.

The proponents continually said this Plan was voluntary. Sure, you could "voluntarily" sign one of these agreements, but how many landowners trust the government to keep its word for 30 years? What if during the 30 years the ESA was reformed or better yet, repealed? What if the FWS altered its agreement or the state of Texas, which has a law requiring strict confidentiality of information gathered on private property, lost that great protection?

Even if all the landowners who participated in the program decided later to opt-out, their responsibility to maintain "suitable" habitat would have remained under the ESA. So there really wasn’t any great magic about the Plan. It was good politics and good public relations for politicians, trade associations and bureaucrats, but not good for the landowners it was purportedly going to help.

When word spread about the Plan, there was no putting the genie back into the bottle. Proponents of the Plan and members of the Steering Committee insisted that "misinformation" was being printed, but offered no substantive arguments to counter any of the facts. They even began saying that this wasn’t even a plan, just a "process." One major agricultural trade and insurance organization said "…the American Land Foundation and Liberty Matters are misleading their members and the public by releasing information that scares landowners and boosts their membership."

They continued by saying, "if that group solely exists to slay the great dragon, the last thing leaders of the organization want is for the dragon to be tamed and made more civilized. A tame dragon does not bode well for groups dependent on dues-paying members who are rallied for the sole purpose to fear the great monster." Needless to say, they paid dearly for making those kinds of statements and when all rhetoric ceased, they too opposed the Plan. The "great dragon" had been slain.

Even today, the proponents of the Plan claim it was a good exercise getting all the "stakeholders" at one table to attempt to create regulatory certainty. What they don’t understand, or fail to recognize, is it was and is an exercise in futility. If approved and implemented, the Sierra Club would immediately use the Civil Suit provision under the ESA claiming the Plan didn’t save enough habitat.

Eventually, with the help of thousands of individuals and organizations, the Plan died when the Steering Committee was "discontinued." The proponents of the Plan tried to defend their work, but in the end, they too had to admit that this wasn’t the right solution for a private property state like Texas. They said FWS could not assure that information gathered on private property would remain confidential – a fact Competitive Enterprise Institute, American Land Foundation and Liberty Matters had pointed out in the beginning.

The issue was a wake-up call to landowners and is an example of a much bigger challenge we face in this nation today. The basic problem, of course, is the ESA. But, we have also allowed our representative form of government to be replaced with "consensus-building" groups selected by un-elected bureaucracies.

It is one thing for such groups to make decisions that affect only themselves, but when they make decisions that affect thousands of others outside of the "process," then they put themselves in the position of proposing and implementing public policy. We the people cannot continue to stand by and allow un-elected citizens to determine the land use policies of our nation.

This issue proved that when informed with sound information, the grassroots will affect public policy and defend their constitutionally protected property rights.