Last July, Bruce Babbitt arrogantly an-nounced that it was time for Congress to reauthorize the Endangered Species Act (ESA) sending property rights activists and beleaguered landowners into battle readiness mode, and for good reason. Knowing the Clinton Administration’s insatiable appetite for control of private property, there was no reason to expect a change of diet, especially in any legislation that had Babbitt’s blessing.

Then it happened. Before the August break, Congressman George Miller (D-CA) introduced H.R. 2351, the Endangered Species Recovery Act, which carries on the traditions of the current ESA but also includes some dangerous new hooks for landowners. The environmentalists love it. On September 16, U.S. Senators Dirk Kempthorne (R-ID) and John Chafee (R-RI) also introduced an ESA reform bill. This bill, at the time, was the hands-down favorite of Secretary Babbitt.

What is interesting about the Miller and Kempthorne ESA reform efforts is that they contain implicit admissions of the flaws and failures of the current ESA – things that have been pointed out by property rights advocates and landowners for years.

For example, the Miller bill places emphasis on the recovery of species, implying that recovery and de-listing have been conspicuously absent from the ESA’s accomplishments, which is true. The Kempthorne-Chafee bill addresses species recovery, too, but also gives a greater role to the states and to landowners in both the listing process and the preparation and implementation of recovery plans.

This implies that the states and landowners traditionally have been left out of the process. Partly true. In recent years the Department of the Interior has actually allowed these two groups to participate in alleged pre-emptive measures, like voluntary conservation agreements, which they are led to believe will preclude the listing of a species. But then the department continues with the listing.

Unfortunately, these implicit admissions of the ESA’s flaws bring neither closure nor compensation to landowners who have been robbed of their private property rights in the name of the environment. Even though both Miller and Kempthorne do attempt to address these shortcomings in their reauthorization bills, neither corrects the ESA’s single greatest flaw, which is this: The government does not consider a species or its habitat to be protected unless it somehow controls the land.

The ESA has been due for reauthorization since 1992, but horror stories about governmental overreaching have captured the nation’s attention. For the first time, the public began to question the motives behind the environmental movement. Landowners and sympathetic citizens who still believe in the Constitution banded together to protest the regulatory taking of private property.

By 1994, property rights sentiment had grown so strong that environmentalists fought off attempts to reauthorize the ESA for fear the act would be gutted. Babbitt knew he had to do something to improve the image of the Act.

The news of so-called "focus groups" began to circulate. The meetings were intended to bridge the deep chasm that divided environmentalists, the government and landowners. When landowners were given the opportunity to talk, they said, "What we really want is for you to go away and leave us alone. But if you insist on regulating the use of our property, we expect you to compensate us just as if you had taken the land for a highway or a public park." They also said, "Give us a little credit for the fact that if we hadn’t done such a good job of caring for our land there wouldn’t be any species left to protect. We’re not the bad guys."

Babbitt has used time and information to his advantage. Over the past few years, he has used his administrative license to twist the ESA into a perverted "positive" light. For example, with the advent of regional habitat conservation plans, we as tax-paying citizen landowners can now choose between paying the federal government or a local government for permission to use our land. With the advent of Safe Harbor, landowners are being encouraged to come out of the closet. If they will admit they have endangered species or endangered species habitat, government biologists will come to the property and establish a baseline number of species that live there. If the landowner agrees to manage his land for the purpose of increasing that population for a certain time, he can go on with his life at the end of the contract period provided his activities do not cause the population to fall below the baseline.

At least that is what the Department of the Interior has told them. Environmentalists have quite another view and already are challenging the legality of Safe Harbor. If Babbitt wants to prove the current ESA is a flexible Act, he needs to hurry, which is probably one of the reasons he is calling for ESA reform now.

Also before the August break, Sen. Kempthorne introduced S.901, the Conservation Incentives Act, which promises tax breaks, for example, to landowners who place their land in conservation easements with a governmental entity or to certain nonprofit organizations. Beware. These incentives employ the subtle semantics of substitution by offering landowners short-term benefits in exchange for voluntarily giving the government control of their land. The incentives, however, are no substitution for the constitutionally guaranteed compensation by government for the taking of private property.

The concept of incentives is as sinister as the true purpose of the ESA, which, ultimately, is the extinction of private property rights. What other conclusion can be drawn? After all, government control of private property is the only tangible result of the ESA. What few species recoveries and de-listings that have occurred are attributable either to actions other than ESA regulations or to the acknowledgment of scientific error in the listing process.

No matter what actually emerges in the ESA reauthorization bills, two things are unlikely to change. The first is that the government and the environmentalists still will continue to ignore the constitutionally guaranteed rights of landowners. Second, the government still will be unable to afford — either politically or fiscally — to purchase in fee simple the amount of private property it wants to control.

So the trick will be to convince landowners that if they voluntarily limit the use of their property, it will reduce the need to place species on the endangered list. Landowners who place their property into perpetual conservation easements can avoid inheritance taxes and claim income tax credits. But the trade-off is that they will have restricted their land to a specific use for eternity. No matter what new circumstances arise, anyone who owns that land in the future, whether they are heirs or strangers, will be bound by the terms of the conservation agreement.

The outcome will be the same: the government will have gained control of the property for all time. Only, through the use of incentives, it will have avoided the criticism of property rights advocates and at the same time minimized the expenditure of acquisition dollars by offering tax breaks. Under any other situation, this would be called extortion. Don’t fall for it!

When Babbitt addressed the National Press Club on July 17, he said he was ready for reauthorization because he could now point to the successes of the ESA by demonstrating its flexibility. However, his success stories are good only as long as the environmentalists who have manipulated and monopolized the ESA so expertly through lawsuits don’t challenge the legality of Babbitt’s liberal implementation of the ESA.

From the landowner’s perspective, now is not the optimum time for ESA reform. Given the Supreme Court’s recent interpretation of the citizen suit provision of the Act, landowners finally have standing to sue the federal government for damages suffered as a result of the ESA. Too, the longer we operate under the current though legally expired ESA, the greater the temptation will be for environmentalists to sue for strict enforcement of the Act, thereby exposing Babbitt’s false claims about its flexibility.

Lawsuits by landowners would prove that the ESA has been used to rob them of their private property rights. Environmentalist lawsuits would prove that this is exactly the purpose of the ESA. With pressure being applied by both sides, the government eventually would be forced to admit the real goal of the ESA or acknowledge that private property ownership and the free market system are the best hope for an increase in the actual number of species.

If the government admits the former, landowners and private property rights advocates will be vindicated. If it admits the latter, true ESA reform can occur and perhaps the focus will be directed toward actually saving species while the real endangered species, private property owners and the U.S. Constitution, will be on the road to recovery.

The only ESA reform this country needs is ESA repeal and a subsequent return of the sanctity of private property and our constitutionally guaranteed right to control it free from government intervention. But repeal at this time seems highly unlikely. Therefore, property rights advocates are urged to follow the example of the environmentalists and the government: resist ESA reform until the outcome is likely to be in their best interest.

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