Liberty Matters News Service

4/21/97 Volume 1 Issue 8

Another Blow to the ESA

April 10, 1997 the Oregon Supreme Court handed down the second major blow in a month to endangered species regulations. Although this decision is limited to the State of Oregon, it is a major victory for landowners. The Court ruled that Boise Cascade Corporation could sue the State of Oregon for denying the company a permit to harvest 64 acres of privately owned timber which was home to a pair of "spotted owls." The Oregon Department of Forestry, which refused to issue the permit under the State’s endangered species act, argued that the Company had not exhausted all of its administrative remedies. The court disagreed and ruled that the company could file a takings claim against the state. Kurt Smitch, assistant regional director with the U.S. Fish and Wildlife commented, "If courts come down on the side that anytime you’ve got to protect a species, you’ve got to pay for it, that will be very tough on the species." Hopefully, environmentalists are beginning to realize there is a high cost to pay for the theft of American’s property rights.

"Tulloch Rule" Overturned

The Federal District Court in Washington DC handed down a significant wetlands decision in American Mining Congress v. US Army Corps of Engineers by declaring the "Tulloch" rule invalid, stating it did not express the will of Congress. The rule regulated land-clearing and excavation activities in wetlands, requiring a permit for adding materials but not for the removal of materials from wetlands. In this case, the Environmental Protection Agency and Army Corps of Engineers tried to redefine the rule to include "incidental fallback." This means the minor soil movement associated with excavation, such as, soil that is disturbed when shoveled or soil that falls back onto the land out of the bucket being used. The court invalidated the "Tulloch" rule, eliminating the need to acquire a permit for excavation, land-clearing, ditching or channelization activities. Faxback Doc. #113

Babbitt Buries Another Mining Project

Determined to destroy this nation’s ability to produce its own natural resources and wealth, Bruce Babbitt and the Administration are pressuring the DuPont Company to abandon its 38,000 acre Titanium lease in southeastern Georgia. Last year it was gold from the Crown Butte New World Gold Mine outside Yellowstone, then it was super clean burning coal in Utah worth $1 Trillion. The Titanium mine is near the Okefenokee National Wildlife Refuge which Babbitt believes "is not an appropriate neighbor" even though DuPont planned to leave half the acreage as a buffer zone to isolate any potential runoff mitigating possible damage to the swamp. Considering that Titanium is rarely found in these quantities, this is more proof that the Administration and others are driving the U.S. to become importers of basic minerals necessary for every day life.

New York High Court Eliminates 5th Amendment "Takings" Protection

The New York Court of Appeals (the states highest court) handed down decisions in four cases that radically undermine the rights of property owners under the Takings clause of the U.S. Constitution. In each of these decisions the court ruled that an owner has no remedy for a regulatory taking…or even for a permanent physical occupation of his land by government… so long as the taking was authorized by a statute enacted before the owner acquired the property. In other words, all regulations that could conceivably result in a taking of property must be challenged by owners of record at the time of their enactment or the right to object to an uncompensated taking will be extinguished when the regulated property changes hands. Faxback Doc. #105

Earth Day Exposed

The National Center for Public Policy Research has gathered a fact sheet for Earth Day, providing background information debunking the myths espoused by environmentalists. For instance, did you know that the cost of environmental and risk regulations have jumped from $80 Billion per year to $240 Billion since 1971? Also, in 1971, EPA’s budget was $1.2 billion. Today it is $7 Billion and the staff has mushroomed from 5,500 employees in 1971 to 14,370. Order the Earth Day Fact Sheet and send them into your local newspaper and press outlet, or anyone you think should know better. Faxback Doc. # 111

Regional Meetings on American Heritage Rivers Doc. # 112

HR 478 (minor ESA reform) Doc. # 114