By Carol W. LaGrasse
Early in March, I opened a
surprising e-mail from Tim Wigley, a public relations expert for a consortium
of industry lobbyists whose agenda is to change the Endangered Species Act. He
took credit for the passage of the “Healthy Forests” legislation in
the previous Congress on the basis that his group had “changed the way we
talked” from speaking about “lost jobs, closed mills and devastated
communities” to “protecting habitat needed for wildlife, the air that
we breathe and the water we drink.”
Mr. Wigley’s e-mail
criticized the way I communicated about the Endangered Species Act. He was
apparently remarking about either my white paper on the Act, where I pointed to
the need to protect private property rights, or, more likely, my recent
discussions with American Land Rights Association President Chuck Cushman,
where I disagreed with adopting a public strategy directed at
“strengthening” the Act while leaving out the need to protect
property rights. He admonished me, “We can be as pure and right as we wish
— and we’ll lose again! I’m in this battle to win and so is
Chairman Pombo.”
“As for ESA, I’m first in line in
conservative views and a desire to pay for property takings, etc. But Carol,
don’t mistake the language we use to sell the public on the need for
change — with language which will appear in the bill,” said his
e-mail to my confidential personal address.
Mr. Wigley had addressed a
meeting of property rights and wise use leaders that I had attended in a
hearing room in the Longworth Building of the House of Representatives in
January, but we had never met. The meeting was intended to gather in one place
the leadership of the groups concerned about the problems that landowners and
resource users have had with the thirty-year-old Act. At the meeting, Mr.
Wigley had given a slide presentation about the studies and focus groups that
his consortium, Pac-West Communications, had used to uncover the most appealing
way to deal publicly with changing the Act. He had spoken about the lavish
industry resources that would be directed to “modernization” of the
Act, as his group had decided to refer to it.
House Resources Committee
Chairman Richard Pombo (R, Cal.) had not been present at the January meeting,
but had made an address to the gathering via video conferencing and had
afterwards entertained several carefully framed questions. He had avoided
answering questions about the actual content of legislation that he might draft
related to the Act, but had said, “Whatever the ultimate result, I can
guarantee…that private property owners will have better protection, and
that public land users will have better protection.”
From the
large video screen, the Congressman had urged that fractures be avoided among
the varied groups that want to see the Act changed. He warned against the
possibility that “big landowners would go one way” and “small
property owners and private property rights activists would go in another
direction.” He said, “In my mind, no-one is more important…than
the private property rights groups, the grassroots groups.” But, in answer
to questions, he left almost entirely to speculation by the many experts
present what the bill that he might propose would contain.
However, he
did drop a few hints, mentioning that the public wants to see more of a local
role, that people would like to recover species, protect private property
rights. In response to a question by Robert J. Smith of the Center for Private
Conservation, based in Washington, D.C., about the current situation where
landowners are afraid to have endangered species on their land, he remarked
that, “We can’t be short-sighted. When it comes to saving endangered
species, the only way to save them is to reward them for having a habitat to
save species. If we don’t, we get into the ‘shoot, shovel, and shut
up’ method.”
Rep. Pombo spoke favorably to the grassroots
leaders about Tim Wigley’s group. He said, “I’ve worked with
them for years.”
“Without the grassroots, I cannot pass the
legislation,” he also pointed out.
He asked the grassroots leaders
to follow Mr. Wigley’s direction. “They’ll show you how the
campaign will work,” he advised the grassroots leaders.
Mr.
Wigley’s remarks at the meeting had reflected polling data obtained by the
Tarrance Group, based near Portland, Oregon. He had opened with words much like
those that he used in the e-mail to me: “We used to say ‘our mills
are being shut down.” But, he said, “People in urban areas don’t
care.” The successful Healthy Forests legislation was “about
protecting the air we breathe, water, habitat.”
He told the
assembly, “Don’t use the word, ‘reform.’ Use
‘strengthening’ and ‘updating.’”
Mr. Wigley said
that he represented the forest products, energy, utility, hard rock, petroleum,
and home building industries. He is vice president of Pac-West Communications,
a public affairs and lobbying firm with offices in Oregon, Alaska, and
Washington, D.C. In the past, he was president of the Oregon Forest Industries
Council. He said that his organization, the Save Our Species Coalition,
recognized that the grassroots groups need support.
He did not voice
what Mr. Pombo had said and what many in the room remarked privately, that the
industrial groups need grassroots support from those present. Mr. Wigley
offered web sites for the use of grassroots groups. It was soon apparent that
generous direct financial aid to grassroots organizations was available through
him from the unidentified industrial organizations he represented. Events in
Washington during the previous months, including a meeting during November
called by industry interests allied for lobbying purposes as NESARC,(1) had
made it obvious to the grassroots movement that a major industry push was on to
change federal endangered species law during the two-year duration of the 109th
Congress that began in January.
During the days that followed the
January gathering, conversations among property rights and wise groups
speculated about the level of funds that industry had available to dish out to
the grassroots movement. As the weeks passed, concerns about the drift of the
meeting began to open a divide among the grassroots wise use and private rights
organizations. The American Land Rights Association’s Executive Director
Chuck Cushman, who had organized the Longworth event, circulated an e-mail
advising organizations that the terminology “updating” and
“strengthening” the Act should be preferred, rather than
“reforming.” The American Land Rights Association, based in
Battleground, Washington, with a lobbying office in Washington, D.C., is one of
the largest property rights/wise use groups in the country. Chuck
Cushman’s name is synonymous with the land rights movement.
Mr.
Cushman assumed leadership of the Grassroots ESA Coalition, the grassroots
communication system that was informally organized at the January meeting. But
a number of leaders of grassroots organizations began expressing their
disagreement with the tactic of advocating that the Act be
“strengthened.” Although the Act had failed in its mission of
recovering species, it already had such power that it had devastated the
economy of many western communities. Three months after the meeting, in the
course of announcing that the terminology for the Save Our Species Alliance was
receiving acceptance by the grassroots, Mr. Cushman pointed out that the word
“strengthening” was dropped in favor of “modernizing.” He
acknowledged that “a very few” of the Grassroots ESA Coalition
preferred to opt for “reform” and “repeal.” However no
grassroots leaders I’d spoken to ever seriously advocated a strategy to
work in Congress for “repeal,” knowing that it was a red flag and an
impossibility.
Division Crystallizes
However, the split in the movement was more severe. By late March,
Liberty Matters, one of the most respected national grassroots private property
and wise use organizations, sent a letter out across the country warning,
“Right now, there is a full court press on to reauthorize the Endangered
Species Act, led by Republican leaders. House Resources Committee Chairman
Richard Pombo (R - California) and Representative Greg Waldren (R - Oregon),
along with Senators Mike Crapo (R - Idaho) and Lincoln Chaffee (R - RI),
chairman of the Senate Environment and Public Works Subcommittee on Fisheries,
Wildlife and Water, have joined efforts to amend the ESA.”
“This is not good news for landowners,” continued the Liberty Matters
letter. “You might think that Republicans would be working for you, trying
to put strong property rights language in the reform bill. They are not.”
The letter socked the reader with a quote from one of these Republican
leaders in Congress:
“Representative Walden explained their goals
further. ‘It is critical that we modernize and strengthen the 30-year-old
ESA so that it can become a more effective tool for recovering threatened and
endangered species.’”
Dan Byfield, President of the
American Land Foundation and Liberty Matters, was joined in signing the Liberty
Matters letter by Margaret Byfield, Executive Director of Stewards of the Range
and Vice President of Liberty Matters, and Marty McElhaney, Editor of The
McElhaney Report and Secretary of Liberty Matters.
The well-known
writers of the letter brought home their outrage:
“They want to
‘modernize’ and ‘strengthen’ an Act whose most notable
accomplishment has been to wipe out thousands of landowners and entire
industries across this nation, such as the loggers in the Northwest with the
listing of the spotted owl, and the farmers in Klamath Basin because of a
fish.”
The Ivory-billed Woodpecker
Meanwhile, the joint announcement by the United States Department of
Interior and The Nature Conservancy during April that the ivory-billed
woodpecker was not extinct brought to light the depth of the difference between
sectors of the land rights movement.
Chuck Cushman immediately
exploited the discovery to advocate for species restoration. Mr. Cushman’s
American Land Rights Association (ALRA) sent an e-mailed press release
“Extinct Woodpecker Re-discovered in Arkansas,” with the contact
person as Tim Wigley. He thus signaled to many leaders in the national property
rights and wise use movement that ALRA and Mr. Wigley’s industrial
alliance had become intertwined.
The ALRA press release began with the
statement that the discovery was a great testimonial to “good scientific
research” —even though the discovery happened almost by chance and
largely in the absence of scientific research. It pointed to excessive logging
during the early 1900’s as the cause of the demise of the species, an
unnecessary attack on the productive use of the forest harvest to build the
burgeoning American cities and ports at that time. The ALRA press release also
credited “cooperative efforts with public and private land owners”
for the discovery. This is the standard language for federally negotiated and
controlled habitat conservation plans, which small landowners cannot afford,
and the government and land trust acquisition of conservation easements, a
generally perpetual land protection device that has greatly concerned the
grassroots property rights movement.
The press release contained one
quotation to bolster its message, a statement by the president of the
Mississippi River Trust, repeating the same mantra by touting the
“celebration of what can occur when good scientific research is combined
with the cooperative efforts of public and private landowners.” The press
release again quoted the same land trust spokesperson lauding the recovery of
the woodpecker through “cooperative efforts between private land owners
and the public to restore bottomland hardwoods and wetlands” rather than
through excessive regulation.
The reference to bottomland hardwood
forest restoration was in perfect sync with the environmental preservation
groups. The Department of Interior and preservation groups had kept the
confirmed rediscovery of the woodpecker secret for fifteen months so that they
could buy up thousands of acres of land and rights in land. As the discovery
was announced, the environmental groups were about to embark on a
well-coordinated, grand campaign to protect and acquire lands along the rivers
feeding into the Mississippi River, as well as the Mississippi itself.
The one-sided ALRA pronouncement could only add fuel to the campaign of
environmental groups, who were already calling for giant set asides of riverine
corridors along the line of the National Heritage Areas and the Mississippi
River Corridor that we had fought against for over a decade. Environmental
“citizen suits” to stop projects in Arkansas started less than a week
after the discovery of the woodpecker.
The ALRA press release referred
readers to the web site of the Save Our Species Alliance (SOSA) affiliated with
Tim Wigley’s consortium. At the top of the SOSA home page are the words
“The Endangered Species Act is good law with good intentions.”
The headline on another SOSA web page, which invites new members into
the organization, announces the intention to “Update and Strengthen the
Endangered Species Act.” Then the web site repeats its theme that,
“The Endangered Species Act is a good law with good intentions,” and
calls for “balanced and scientifically-supported changes to the ESA, which
will update and strengthen the Act to make it more efficient and effective in
recovering and saving species at risk.”
The web site reiterates
the words “update and strengthen” a number of times, with no mention
of protecting private property rights. Asking for people to “Join
us,” the web site proclaims, “We’re a grassroots coalition to
save our species by updating and strengthening the Endangered Species Act. Join
our grassroots leaders list.” The SOSA web site thus conveys the
importance to industry of the top grassroots leaders gathered that day in
Washington, D.C. The grassroots leaders generally were hampered by the lack of
one thing, which Mr. Wigley had made clear he had plenty of—money.
The web site of the Mississippi River Trust, the organization featured
in the ALRA press release, emphasizes preservation of the wildlife in “the
forests and beneath the waters of the Mississippi and smaller feeders.”
Its home page links to the Land Trust Alliance, the giant national coalition of
land trusts, who are decimating private property ownership in this country by
acquiring land and conservation easements for non-profit and government
ownership. The Nature Conservancy, the world’s wealthiest land trust, had
played a large role in acquiring private property in Arkansas between the date
when the discovery of the ivory-billed woodpecker was confirmed and when the
discovery was revealed to the public.
The ALRA press release also
linked to the Birding America web site, which features the discovery of the
ivory-billed woodpecker and sightings that are not officially confirmed. That
was it. The press release made no mention of private property rights, contrary
to many years of effort by the property rights movement to convey the idea that
the best way to protect the environment and save species was by protecting
private property rights. ALRA disregarded the opportunity presented by the
announced discovery of the ivory-billed woodpecker to call attention to the
importance of protecting private property rights by changing the Endangered
Species Act. For instance, a link to the web site of the Center for Private
Conservation at the Competitive Enterprise Institute or to this organization,
the Property Rights Foundation of America, would have led e-mail recipients to
information about the superiority of private property rights to protect
wildlife. The discovery presented an obligation to whichever land rights groups
were financially able to warn about the danger to private property owners in
America’s heartland posed by the environmental groups who would be
mounting a campaign to save land for the woodpecker.
The rift among the
property rights groups solidified into two distinct sides. One side visibly
moved in the direction of industry and the greens, while the other stood fast
to protect private property rights. The property rights advocates pressed Rep.
Pombo for a look at the bill that he would be sponsoring. Concern had been
intensifying for months that the property rights movement would not be able to
view the bill in time to have any influence on its contents or outcome.
The Co-signed Property Rights Letter
During May, a different letter warning about the possible
reauthorization of the Endangered Species Act was circulated to grassroots
leaders by David Ridenour of the National Center for Public Policy Research and
Peyton Knight of the American Policy Center, warning that “A number of
Members of Congress - including those who ought to know better - have even
talked of strengthening the law.”
“Strengthening the ESA
would have disastrous consequences for endangered wildlife, private property
rights and U.S. National security,” read the letter, asking for
signatories to a letter of protest to be delivered to Rep. Richard Pombo,
Chairman of the House Resources Committee. and Senator James Inhofe, Chairman
of the U.S. Senate Committee on Environment and Public Works.
During
June, the National Center for Public Policy Research delivered the co-signed
letter to Rep. Pombo, arguing against the industry viewpoint. The letter minced
no words. It build up to its central point:
“There are some who
say the ESA needs to be ‘strengthened.’ “In truth, the ESA is
arguably the most powerful statute on the books. It has opened the floodgates
to regulatory takings of private property for which landowners receive no
compensation. As such, the ESA is a direct affront to the U.S.
Constitution’s Fifth Amendment, which clearly states:
“‘Nor shall private property be taken for public use
without just compensation.’”
Enumerating a number of
reforms to address the infringements, economic depredations, and perverse
incentives of the ESA, the letter continued:
“A new ESA should
be rooted in principles on which this country was founded, and should be
commensurate with the creative, innovative talents of our people. At a minimum,
an ESA for the 21st century should include:
“Compensating
landowners for any taking of their property resulting from the ESA.”
The list of 50-plus prominent, wide-ranging signers of the letter began
with Grover Norquist, who is President of Americans for Tax Reform, and Phyllis
Schlafly, President of Eagle Forum. Two of the final signatories were Amy
Ridenour, President of National Center for Public Policy Research, and Tom
DeWeese, President of American Policy Center.
The leaders of numerous
nationally influential organizations that set the pace in defending private
property rights signed the letter. Some of these in addition to those already
mentioned, were Margaret H. Byfield, Stewards of the Range; Ron Arnold, Center
for Defense of Free Enterprise; Craig Rucker, Committee for a Constructive
Tomorrow; Dan Byfield, American Land Foundation and Liberty Matters; Bill
Moshofsky, Oregonians in Action; Matt Bennett, Treekeepers.org; and Brian
Bishop, Rhode Island Wise Use.
The letter provoked a storm. One of the
results, after insistence by a core of property rights leaders, was a meeting
with Rep. Pombo’s top committee staff, followed by a meeting, with barely
a day’s notice, with the Representative himself. Mr. Pombo finally
divulged his draft proposed ESA bill to the property rights leaders.
The conflict between sectors of the property rights movement took a new turn.
On June 22, Chuck Cushman, who was not a signatory to the co-signed letter,
circulated it to his e-mail list. He wrote:
“Don’t Miss This
ESA Letter to Pombo and Congress…
“This is a great example of
the kind of letter all of us need to send our Representatives and Senators. In
fact, you can send a copy of this one with your comments added if you
want…
“This letter is so good, more organizations need to sign
on. American Land Rights endorses the letter and so should you. Here’s how
you can make a difference.
“Action Items:
“1. Take the
letter, add a few comments of your own at the top to introduce it, and send it
to your Representative and both Senators. Please don’t edit the letter but
you are free to add even more of your own personal comments if you
wish…”
He also urged that individuals and organizations who
want to sign sent a note to him.
“Make it clear that you want to sign
on to the ESA letter.”
Rachel Thomas, an acclaimed grassroots property
rights leader, sent a broadcast e-mail from her base in Arizona two days later:
“Wednesday, I received an email from the American Land Rights
Association urging recipients to sign a coalition letter signed by 53
organizations to Rep. Richard Pombo on ESA reform. The coalition effort that
has been spearheaded by The National Center for Public Policy Research,
American Policy Center, Competitive Enterprise Institute and Liberty Matters.
These people and I met with Representative Pombo last Thursday in D.C. to voice
our concerns about any new ESA bill.
“Noted ALRA’s Chuck
Cushman, ‘This is so good, more organizations need to sign…’ But
why does the ALRA instruct people to sign the letter and send to Chuck Cushman?
He is in no way connected to this action.
“But there is something
you need to know about ALRA - My sources tell me that Chuck Cushman was not
invited to sign the letter because he was not believed to be on the same side
as us on this issue.
“I received information from several sources
that earlier this year, Chuck Cushman urged people to talk about
‘strengthening, updating and modernize’ the ESA instead of
speaking of either ‘reform’ or ‘repeal’ of
this horrible law…I was even told our side were not to even talk about
things like ‘property rights’ because it would decrease the
chance of a new ESA bill being passed.
“Chuck may be urging people
to sign the letter as a means of diluting the strong property rights message of
the letter as he encourages people to ‘add their own message’ to the
letter before sending it to their elected representatives.”
“…I think that everyone should know that it is The National
Center for Public Policy Research, American Policy Center, Competitive
Enterprise Institute and Liberty Matters who are looking out for us. They are
doing everything they can to be sure our property rights are protected in any
new ESA bill.”
Ms. Thomas urged that everyone be “on the same
page” with these organizations and that anyone who wanted to sign onto the
letter should contact David Ridenour, even if the person had already sent an
e-mail to Chuck Cushman “thinking you were signing onto the property
rights letter.”
David Ridenour quickly responded to the apparent
attempt to co-opt his letter. Noland MacKensie Canter, III, of Copilevitz &
Canter, LLC, the legal counsel for the National Center for Public Policy
Research, sent a registered letter to Mr. Cushman complaining about his
inviting his addressees to “take the letter, add a few comments of your
own at the top to introduce it, and send it to your Representatives and both
Senators.”
Mr. Canter wrote, “You are, in effect, encouraging
your addressees to infringe the copyright owned by the Center on its behalf and
on behalf of the consortium…of which it is a member.” Mr. Canter
wrote, “You are hereby formally advised to cease and desist making any use
of the ESA Letter and, further, to notify the persons who received your e-mail
that any unauthorized use of the ESA Letter will be regarded by the Center as
an infringement of copyright.”
Draft ESA Bill
Revealed
It was already June 20 when Rep. Pombo made the
complete draft of his 73-page “Threatened and Endangered Species Recovery
Act of 2005” available to several property rights leaders. The bill was
more detailed and elaborate than a draft would be expected to be, especially
after nearly six months of committee work.
In the bill, local, state
and tribal participation in species preservation is meticulously spelled out,
exactly as Rep. Pombo had promised. In addition, accessibility of U.S. Fish and
Wildlife Service data would be facilitated by posting on the web. New
protections for landowners include a provision to reimburse applicants for
expensive professional studies needed for environmental impact assessments. The
bill would tighten the selection of critical habitat to formal designations by
regulatory promulgation. There is also an effort to reduce citizen lawsuits.
As promised, the bill proposes exhaustive requirements to improve the
quality of science related to endangered species determinations. “Best
available scientific data” would be required, but, even with the good
intention, the lengthy parameters for this requirement were nebulous. The
oft-criticized situation where a species is locally declared endangered because
its population is low in a region at the edge of the range, but it is plentiful
elsewhere, would be corrected by requiring the assessment of the population of
the species throughout its range to determine its status.
As industry
had been so visibly advocating, the draft bill emphasizes species recovery, and
brings a new level of accountability for the effectiveness of the ESA. However,
although this direction could provide relief if species are removed from
protected lists and if regulators adhere to the bill’s requirement that
recovery plans be non-regulatory, the new requirement could spell a burden to
property owners, considering that the goal of species recovery could
precipitate more restrictions under habitat preservation.
Moreover, the
fundamental change of the Act to a system of rewards, which Mr. Pombo had
promised in January, was missing. Even with the revisions the bill would
accomplish, the demeanor of the bill as a regulatory approach remained.
In addition, the bill would bring in a new regulatory domain dreaded by
the property rights and wise use movement, new protections of endangered
species from “invasive species.”(2) For several years, property
rights activists have warned that the new green agenda of regulating property
to get rid of what are termed invasive species could be a burden to landowners
beside which the ESA could pale in comparison,
Private
Property Rights
The heart of the matter for private property
rights activists was, of course, the bill’s treatment of private property
rights and the need to change endangered wildlife protections to a voluntary
basis. The property rights movement was concerned that if the Endangered
Species Act were reauthorized without protecting private property rights, the
chance would be gone for many years to address this fundamental deficiency. A
section of the bill proposes compensation for regulatory takings. Without
direct reference by citation, the bill seems to incorporate, with extreme
brevity, wording from U.S. Supreme Court decisions.
The first
circumstance apparently reflects the 1994 Supreme Court decision in Dolan v.
Tigard. Under the bill, exactions required from property owners by government
without a “rough proportionality” between the stated need for the
required dedication and the impact on the proposed use of the property are to
require compensation. Takings compensation under that clause of the bill would
be based on the comparison of the appraised value before and after the
government restriction. The bill would not theoretically improve the position
of the property owner from that established in Dolan, but its provisions would
help by stipulating the method of doing the calculation for the compensation,
if it were not for a property transfer clause discussed below and another
aspect of complying with the ESA that puts an almost insurmountable roadblock
in the way of pursuing takings compensation. This roadblock is the fact that it
is next to impossible for a landowner to work his way through the endangered
species regulatory process to get to a place providing a venue to request
compensation.
In the second set of circumstances in the bill, the
government would have to compensate if its action deprives the owner
temporarily or permanently of all or substantially all economically beneficial
or productive use of the property or of the part affected by the action without
a showing that such deprivation “inheres in the title itself.” In the
circumstance of a 100 percent regulatory taking, the language complies with the
Supreme Court’s 1992 holding in Lucas v. South Carolina Coastal
Commission.
The language seems to be an improvement on the current
jurisprudence for temporary and partial takings. In 1987 the Supreme Court did
require compensation to the property owner for a temporary taking, in the First
English Evangelical Lutheran Church ruling.
However, in 2002 the
Supreme Court ruled against the property owner requesting temporary taking
compensation for bureaucratic delay in Tahoe-Sierra Preservation Council v.
Lake Tahoe Regional Planning Agency and refused to set down a threshold rule to
compensate for a temporary taking. That created a need for statutory change
such as the provision of the bill that might improve the position of the
property owner. However, the property transfer clause discussed below weighs
the temporary taking compensation feature in this clause down. A lease
provision would have to be spelled out. The provision needs more clarity and
needs to be tied to a statutory clause delineating a feasible procedure through
the regulatory hoops to reach the point of applying for compensation.
A
third clause provides for government compensation for a partial taking in
limited circumstances, where the value of the property is diminished by 50
percent or more as a result of the application of the Act. The Supreme Court
has historically allowed uncompensated partial takings, whether for taking all
economic use of part of a parcel or for the taking part of the value of the
complete parcel. Currently, the Supreme Court is refusing to clarify the issue
of compensation for partial takings. Even though the Pombo bill would take a
step in the direction long avoided by the Supreme Court, the bill’s
proposed partial taking compensation is still deficient.
A 50 percent
trigger would be unjust. If a thief robs half the money in a person’s
wallet, the person has still been robbed and the thief would not be acquitted
on the grounds that he only took half the value! Any regulatory taking should
be compensated. However, if a trigger is used, it should be so low that it is
merely for the purpose of foreclosing costly lawsuits where compensation is
potentially irrelevant. The government should not be able to impose a
regulation that results in a taking of private property without paying, except
to protect from nuisance such as pollution or danger to public health and
safety. The Oregon Measure 37, which provides compensation of any regulatory
taking except those classically provided under nuisance and the like, is a
well-thought guide to parallel federal legislation; wording built around that
in the Oregon law should have been used.
However, as in the two
previous clauses, because property rights infringements under the ESA involve a
stream of directives, threats, and negotiations, distinguished by the lack of
clarity of the legal status of the landowner, who runs the risk of fines or
imprisonment if he chooses to not comply, a way through the process needs to be
created even to get compensation at the 50 percent trigger. That need would be
eliminated were the protections of endangered wildlife made voluntary.
Furthermore, the bill has a peculiar stand-alone clause requiring that
the landowner transfer the property interest to the government if compensation
is given for a regulatory taking (“if a claim is paid under this
section”). This is the opposite of the successful 2004 Oregon Measure 37
referendum, which simply compensates for the appraised loss of the property
interest, rather than require that the title to the property be split or
forfeited. Measuring a regulatory taking by comparing “before” and
“after” appraisals would be much easier to implement in the case of
zoning, however, than for endangered species.
The Pombo bill’s
property transfer clause seems to set up the landowner for hoped-for
compensation through a sort of defacto eminent domain, but circumvents the
eminent domain procedure law. It would place the landowner between Scylla and
Charybdis, in having to decide whether or not to ask for compensation for a
regulating taking. He would find himself ruminating, “Should I try to get
50 percent compensation or whatever and cut a deal for a transfer of a property
interest, or should I give up the idea of compensation and try to find a way
around the regulatory hurdles?” He is back to the old inverse taking
debacle, and unable to afford the litigation. If it were practical, he’d
be better off going to court than to take 50 percent compensation if the
property rights infringement fit the Dolan decision, because under that
decision the property owner would not have to transfer the property interest in
order to receive compensation for an exaction that amounted to a regulatory
taking. And certainly, no property owner would file for compensation for a
temporary taking under the bill’s provision.
Moreover, the section on
compensation outlines no procedure to facilitate the filing of the claim.
Unlike the model for a property rights ombudsman provided by the State of Utah,
which was promoted to Congress, the bill fails to designate an advocate to
facilitate the landowner’s cause. To put it another way, unlike the
bill’s provisions for the participation of the states in the cooperative
agreements to protect endangered species, the bill provides few details to give
guidance for the promulgation of rules of procedure for utilization of the
compensation provisions, which may be contradictory anyway.
Another Shell Game
While the Resources Committee
toiled away on 73 pages of proposed legislation with industrial lobbyists near
at hand, none of the many grave difficulties presented by the Pombo bill were
disclosed to the grassroots property rights movement. Five months had passed
from the time of the January meeting of grassroots property rights and wise use
leaders in Washington with Rep. Pombo present over the video conferencing
equipment. With the expressed intention to pass the bill during late July or
sometime during August, little time remained. For these many months,
communication about the bill had been foreclosed, with the grassroots movement
subjected to platitudes from industry and the Resources Committee about the
need to stand together and wait, to trust.
It was as though the leaders
of the property rights movement were set up to be players in a shell game.
Industry, in conjunction with the grassroots leadership that it co-opted, kept
the movement’s devoted property rights advocates preoccupied with language
to supposedly be solely used to communicate with the public, while the framers
hid the bill under the table. Industry thereby succeeded in deftly exploiting
one important leader of the movement to keep other leadership of the movement
out of their way during the time when the grassroots should have had the most
influence.
With a voluminous draft and its countless, inscrutable
cross-references before them, the grassroots property rights movement will be
hard-pressed to dissect the provisions, decide where the key areas of
contention lie, and finally distribute information on its positives and
negatives while lobbying effectively about areas of concern. Reports have even
circulated that the regulatory takings compensation section could be “the
first to go” during congressional negotiations or a House-Senate
compromise. The fact that the framing of the compensation section is more
conceptual than practical bears out the idea that it could be dropped by the
wayside, much like the entire contradictory mishmash offered as a property
rights bill by Senator Bob Dole during the Newt Gingrich era.
Considering that the grassroots property rights movement was kept in
the dark and manipulated during at least the past six months, what option
remains for its leaders? The movement is already out in the cold. The ESA bill
serves industry rather than private property rights and should be rejected.
_______
Notes:
(1) NESARC, or the National Endangered Species Act
Reform Coalition, based in Washington, D.C., has been around a long time. It
applauded Rep. Billy Tauzin (D., - La.) in 1993 and Jack Fields (R., - Tex.) in
1993 when they introduced the Endangered Species Act Procedural Reform
Amendments. NESARC’s Washington staff includes an executive director, four
attorneys, and the communications director. Their board of directors includes
representatives of western power distribution companies, electric production
cooperatives and consumer organizations, the tree fruit industry, American Farm
Bureau Federation, recreational boating manufacturing, National Association of
Home Builders, National Water Resources, and the National Grange. NESARC is a
member of the Save Our Species Alliance. (2) “Invasive species” are
species non-native to either North America or to the particular area under
consideration, depending on the policy of the agency involved. American
Agriculture and horticulture are dependant on species that are non-native to
North America. The definition in the Pombo bill is: “The term
‘invasive species’ means any species that-is not indigenous to the
habitat of an endangered species or a threatened species, is not grown for food
or fiber or other human use, and may significantly degrade the value of the
habitat for, or otherwise pose a risk to, such endangered species or threatened
species.”
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