Stewards of the Range
PO Box 490
Meridian, ID 83680
www.stewards.us
(P)208-855-0707

Bill Review: Threatened and Endangered Species Act (HR3824)

Filed September 19, 2005 – Amended September 22, 2005

Sponsored by Congressman Richard Pombo (R-CA)

Chairman of Committee on Resources

Date: September 27, 2005

Preliminary Analysis by Fred Kelly Grant, Litigation Chairman

This 74 page major revision of a statute which has had formidable adverse effect on private property is being rushed through Congressional procedures in such fashion that the ordinary grassroots have no chance to adequately review the provisions and state their approval or disapproval. As a result, members of Congress will get input only from special interest groups/organizations, and not from their real constituents. More time is needed for public review.

Following are some critical concerns we have with the bill, however, they do not fully address many of the problems in this legislation.

1. The current Endangered Species Act has been up for reauthorization since 1993. This bill amends and reauthorizes the Act. Therefore, if passed, landowners will have to wait another 30 years to have the same political opportunity to challenge this law.

2. While the term “best available scientific data” definition in Section 1 requires that information considered must comply with the Data Quality Act, the whole meaning of the section is left to regulatory establishment, and since the definition of scientific data available to the Secretary still contains the phrase “regardless of any source,” it will allow the government to accept and act on the same type of scientific data which we have seen presented by anti-property organizations for the past 10 years---totally out of sync with any science favoring use, and peer reviewed only by the anti-property peers. Since “commercial” is being removed from the bill, this revision will directly favor the anti-property organizations with “scientists” within the department who were placed there during the past 12 years.

3. Section 1 defines “jeopardize the continued existence’ in terms of any agency action “reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild.” With or without more restrictive regulations, which may result from the legislation, this expands the government’s reach into use of property by allowing Fish and Game Commissions, which have set forth anti-property “conservation” policies to set the standard for jeopardy. For example, such species as the sage grouse has not been listed as endangered in the Intermountain West. But, for several years Fish and Game Commissions have worked on concepts which would go much further than Fish and Wildlife could go under the ESA. Under such concepts, it would be easy to contend that at least “indirect” results from a use permit would “significantly impede” the state’s “long range” conservation policy. The language could greatly expand the already long arm of the government with regard to private property restrictions. This definition provides the same type of extension of species restrictions, which were possible under CARA several years ago. State Fish and Game Commissions are often more restrictive than the federal government, and this definition together with emphasized cooperation with State Fish and Game Commissions, can greatly impact use restrictions.

4. The 3rd party intervention that is feared by some of the initial reviews of the bill arises as follows:

(a) The bill sets up a procedure for a property owner to seek a determination from the Secretary as to whether a defined use would constitute a violation. If the Secretary does not respond within the time provided by the statute, the property owner is allowed to presume that the use will not be a violation. This would seem to be a property owner-Secretary relationship. But, given the state of other agency regulations, and given the emphasis in all government regulations as to “interested public” involvement, the anti-property organizations will involve themselves in this process to make sure that the Secretary does in fact render an opinion, and one favorable to them. So, any negotiation, which might be allowed by the regulations will no doubt subject the property owner to interference in each of the elements of his proposed use by those organizations who oppose him and his use.

(b) If the Secretary issues an opinion that the use would not be a violation, and if that opinion is considered to be a final agency action, then the anti-property organization can seek judicial review and subject the landowner to continued litigation expense, and, as in cases today, the property owner will have to be involved in that litigation in order to be sure that an active defense will be made of the Secretary’s decision.

(c) This problem could be solved by a provision that stated that the process for issuance of a decision by the Secretary under this section is not subject to third party intervention and does not give rise to a third party cause of action.

5. The 3rd party intervention can also occur unless the compensation section is also limited to negotiations between the Secretary and the property owner. Without such restriction of third party intervention or cause of action, the anti-property organizations can intervene in the process by which the issue of “fair market value” is resolved. These sections involving the process by which the Secretary determines the fate of private property would, normally, be realty processes, which would involve no outside parties. In fact, in many governmental jurisdictions “open meeting” laws contain an exception for real estate transactions and such can take place in “executive session.” Throughout our history, such negotiations regarding property and property valuation have been private negotiations between the “buyer” and the “seller.” Avoiding intervention in the negotiations process should be considered fully. As long as the final decision of the Secretary could be challenged, there should be no constitutional fault in denying 3rd party intervention in the negotiation process. But, without statutory language, there will be no stopping the intervention.

6. In the Section 13 provisions regarding documentation of forgone usage, the bill provides that if the aid recipient and the government cannot agree on the form of documentation as to forgone usage within 60 days, the Secretary may choose the form and may choose lease, easement, or deed restrictions as the form of documentation. This again changes the traditional personality of realty negotiations between willing buyer and willing seller. Neither party in such negotiations traditionally has the final absolute say in the form of documentation, particularly when the form of documentation can place continuing use restrictions on the property involved. What incentive will there be for the government not to simply hold out until the 60 day period ends and then choose an easement which places a governmental dominance on the servitude estate created thereby in the property? The factual accounts of adverse impacts from placement of conservation easements on property are growing by the week. This provision of the bill would be less intrusive if “easement” were removed, but in fact why place the choice in the Secretary rather than in the property owner who has lost value in his property? The premise of this section is that some non-use or loss of use has been imposed upon the property owner, thus “aid” is being offered by the government. The owner suffering the loss should have the final say in the form of documentation of forgone loss.

7. The issue of “ripeness” is intertwined with the 3rd party intervention considerations. The bill does not say when judicial review swings into play with regard to the Secretary’s opinion as to whether the owner’s proposed use is a violation. To avoid the issue, and to protect against 3rd party lawsuits, the bill could provide that a decision by the Secretary that the proposed use is a violation is a final agency decision subject to judicial review if requested by the person who proposed the use.

8. Both the issue of “ripeness” and issues regarding the merits of a “taking” in the sense of Fifth Amendment considerations, relate to the provisions as to compensation. If the decision of the third appraiser is final, does this portion of the bill “trigger” the opportunity to state a takings claim in the Claims Court? That could be taken care of, perhaps, by stating that the third appraiser’s amount constitutes a final agency action. But, does the fact that the Secretary offers an amount as found by a third appraiser adversely effect the property owner’s takings claim on its merits? In other words, does the fact that the government has offered compensation for the loss of use, even if the owner thinks the offer is inadequate, support a government contention that there has been no “taking” without just compensation? At least one legal scholar has offered the opinion that where some value is allowed for the loss of property development rights, a takings claim is evaded. He points to the famous Penn Central case in which the Supreme Court at least implied that the transfer of development rights could be considered enough of value that a takings could be avoided. So, if the property owner is deprived of his full developmental rights, or his full land use, but is offered an amount of compensation, which satisfies the government, has he been deprived of a takings claim on the merits. Even the prospect of such result should cause serious legal research before adoption.