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 property 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 Battle Ground, 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 The 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 send 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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