Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006
It is always an honor to be up here and be at one of Carol's
conferences. I know how carefully she decides to pick her speakers,
and so if you have been invited more than once, it is a special
honor to know that she likes very much what you are doing.
I have had the honor of being here at her tenth national conference, and I was also here at her very first national conference back in 1995 when a prominent speaker that day was a young second-term Congressman by the name of Richard Pombo who had just set out on his efforts to try to reform the Endangered Species Act, which I am supposed to talk about today. Mike Hardiman, who is in the room today, was up here on that day with the Congressman.
Another thing I want to comment on was John Fund's nice talk at lunch and his comment about how most of the leaders of the private property rights movement in America are here in this room today. I would just like to say that there are two people who are sadly missing todayHelen Chenoweth and Wayne Hage. I hope you all will keep their memory deep in your hearts and your minds for everything they did to protect property rights in America. They both passed away this year. Helen died in an auto accident two weeks ago, and Wayne about three months ago with cancer. Anyone who knows the role that they played over the years, knows that there have been few people who have been more dedicated and staunch in fighting for private property rights for all of us. Just keep them near and dear in your hearts.
I would also like to comment briefly about Jim and Sue Chilton
and their case. I have had the honor of staying at their ranch,
and what Jim has said about how lovely and beautiful his wife
is, he also didn't tell you what a great cook she is to do great
Arizona Mexican food like you have never had in your life.
As you know, one of my hobbies is bird watching. I have spent a lot of time down on his allotment that the Center for Biodiversity said has been ruined because of his cows. Well, if you go down into that area, it's a very large area, it's an arid area. The canyons go down into Mexico. Over the years there have been all kinds of development in there. There is something like twenty different mines all through the area, some abandoned, some still there. There are ruins and foundations of old houses that are in there. There are roads going up to some of the mines. There are some little dams that have been built on the streams and so on. There is a lot of impact of human beings on that ground to begin with. To go in and find a bare spot or a hole in the ground like a mine and say that that mine was dug by Jim's cows is stretching things a bit.
Also, the claim that this area has been so destroyed should be commented on. It is interesting. This is sort of a unique area of biodiversity in the United States. Bird watchers and plant people and naturalists from all over the world, literally, come to visit the canyons down in the area where he grazes his cattle, because it has a collection of Mexican species of birds, moths and plants, and it has little fish found nowhere else in the United States. By the way, most of the time, there is no water in that little stream where the Sonoran chub comes up in. There might be a little stagnant pond of water here and nothing else for the rest of the year, and to say that that is critical habitat in any way is really stretching things.
But those are the kinds of arguments and so on that we get
from the groups like the Center for Biodiversity.
Can the ESA be reformed? Apparently it looks like no. We have tried and tried and tried. Congressman Pombo has tried for over a decade. He finally got a very good bill passed out of the House in September of last year, and then it went to the Senate. As many of you are probably aware, the class of '94 when the Republicans took over the House and the Senate and came to Washington to protect property rights and limit the size of government and cut spending and balance the budget and limit terms and so on, they all seem to have vanished. The same names are still there, but nobody is doing that kind of stuff. In fact, a very nice, interesting comment was made on that.
Many of you may know a noted conservative and free market guy
in Washington, D.C., by the name of Stan Evans. In a slightly
different context, and it applies particularly to the Republican's
class of '94, he said, "They all came to Washington determined
to drain the swamp, but they found out it was a hot tub and they
all jumped in." So, unfortunately, that means a lot of them
may be leaving this fall.
Now, what has happened since the Pombo bill passed and went over to the Senate? It's in the Senate Environment and Public Works Committee, chaired by another staunch defender of private property rights who has not capitulated over the years, James Inhofe. Sen. Inhofe is determined to pass the Pombo bill or even a stronger bill if he could, but, unfortunately, the way the committee is, there are ten people called Republicans and eight Democrats and the chair of the subcommittee that has authority over the Endangered Species Act is a Republican by the name of Lincoln Chafee. I think that is where the term RINO (1) came from. In addition to being pro Green, he hates private property rights and he is determined and animatedly refused to move a bill at all, to let any bill go. Not just a bill that had protections of property rights, but no bill. So that made it 9 to 9, and that means that no bill can move out of that subcommittee into the full committee and then onto the floor.
And if Chafee weren't bad enough, John Warner, another supposed Republican on that committee, is also a Green and an anti-property rights guy. So with the two of them working with the ranking member of the committee, Hillary Clinton, and Jim Jeffords of Vermont, there is no way they could move anything. I mean, no matter what Sen. Inhofe might want to do, there is no possibility of going any further on the ESA, and we are going to have to start all over. Perhaps something could get done conceivably in the lame duck session starting on November 13 depending on what happens in the election and what people want to do in lame duck. I don't know. Perhaps people will have more courage and try to do something. We'll see.
But, quickly, to look at a few issues with the Endangered Species Act, a lot of people ask how we could get such a law like this. I mean, this is a nation of God-given, inalienable property rights. All these rights were protected in the Constitution and particularly in the Bill of Rights and the Fifth Amendment. Everyone understood that without property rights no other rights are feasible or possible. Lincoln didn't talk about a nation of the spotted owls, for the red cockaded woodpeckers, and by Karner blue butterflies. It was a nation of the people, by the people, for the people. And yet, we are now in a situation where any people who have even a microscopic little beetle on their land or something like this can be prevented from using their land. They lose all their land and they cannot get a single penny in compensation. How did that come about?
Part of it came about, the impetus for driving this came about,
in the very late sixties and early seventies when you began to
develop the national movement in the United States for national
land use control. Everyone wanted national land use control. Not
just the Democrats, not just the Senator Jackson and Congressman
Udall, who had the Jackson-Udall bill, but Richard Nixon was in
a race with them to see who could come up with the strongest national
land use control bill.
At that time, we already had state land use control bills that got through in Vermont and Oregon, and we have got a very, very strong one that went through in San Diego from a person who later ended up being the governor of California, Mr. Wilson.
In 1969 they passed the National Environmental Protection Act, which Richard Nixon signed into law, and in 1970 that created both the Environmental Protection Agency, EPA, and an obscure little government agency called the President's Council on Environmental Quality. The senior staffer at that time at the CEQ in 1970, '71, '72, '73 was one Bill Reilly, who later became the head of EPA and was George Bush I, George H. W. Bush's closest buddy, who helped direct him in the wrong direction in a lot of things, including global warming and climate change.
One of the first things they did, that Mr. Reilly did as senior staffer at the CEQ, was start looking at what they could do to achieve cost-free national land use control in America. They were very well aware of the inconvenient problems of something called the Fifth Amendment to the United States Constitution. So Bill Reilly got some of his associates from a law firm he had worked for in Chicago, a very liberal law firm, before he went to the federal government, he got three of his associates and you should try to find the book they wrote. It is an amazing book.
Bosselman, Callies and Banta wrote the book, entitled The Takings IssueAn Analysis of the Constitutional Limits of Land Use Control, in which they pointed out that if we as environmentalists want to save everything in the country that we want to save, all the land that we are going to have to acquire for refuges and parks and wilderness areas and preserves and viewsheds and vistas and open space and on and on and on and wildlife habitat, they said we couldn't begin to pay for it. It would bankrupt the country. So we cannot go in and condemn land and use the power of eminent domain because that forces us to pay for it. We are going to have to find a way to skirt this thing called the Fifth Amendment. It's very interesting reading that book because these guys were so bold. They wrote in that book that private property rights are a quaint anachronism that a modern nation can no longer afford. They said, we must move from a concept of private property to a concept of social property in which each and every individual in society has an equal say on how any piece of land is used. This is what they were getting at. They were saying a simple loss of the value of land should not be compensable. To read it, I could just go through and your mind would be boggled at all the stuff that they actually spelled out in there. So they said what are we going to do? How are we going to get around the stumbling block of the Fifth Amendment?
Well, what they decided they were going to have to do is find ways to take property without taking it, taking it so they wouldn't have to pay for it. So we have this thing in which you can use what is called regulatory takings. You go in the back door. You don't take somebody's property, condemn it and take it away from them in eminent domain, and then the government owns it and the private land owner no longer owns it, and you must pay him for it. What you do is just dispossess him of all use of the land. You come in and pass a law and it says, for instance, with the Endangered Species Act, that if your land happens to have habitat that a red-cockaded woodpecker might want to use if it were there, that if you cut down a single tree, you are in violation of the act and you are subject to a fine of up to $100,000 for every case and up to a year in jail term of imprisonment. And that is not a taking because you still have the deed to your land in your bank box. You get all the pleasures of ownership except the use of your land, and you do get the pleasure of paying taxes on land which you can't use. That's what they did.
They came up with this idea, and that has been followed successfully with almost all the major environmental legislation that has occurred since 1973 when this came out and particularly all of that environmental legislation that has dealt with land or land use or habitat, whether it has been the Endangered Species Act, whether it's been things like jurisdictional wetlands saying that if a rancher takes a bulldozer and bulldozes a hole in the ground and then has a windmill to pump some water up to put into it that this is now suddenly navigable waters in the United States. I mean obviously it is not, but that's how they have done it. So since it's not a taking, since it's simply a regulation, they don't have to pay you anything.
They said in this book that what we must do is start a vast
flood of regulatory takings across the nation. We must make regulatory
takings so commonplace, so ordinary, that nobody will think twice
about it. They will just think this is the normal use of the police
powers by the government. Just like they tell you can't drive
over 65 miles an hour on the highway or you can't do a lot of
things like this. People will say that if you say you can't cut
down any tree on your land or any tree over three inches or you
can't use your own irrigation water or you can't plow your own
fields or you can't build your own house on our own land that
this is simple the police powers and that doesn't constitute a
taking. That's how they have managed to achieve this and get around
all this. That's how they got the inordinate power in the Endangered
People still look at the Endangered Species Act, you still have Congressmen, even some of the most conservative Congressmen, who, when we are dealing with the Endangered Species Act, they always talk about the noble intent of the Endangered Species Act. There was no noble intent of the Endangered Species Act. The purpose of the act, sheer and simple, was simply to find a way to abolish the Fifth Amendment to the United States Constitution and to abolish private property rights in America.
A book that is best for you to understand that aspect of it
is the book called Noah's Choice by Plummer and Mann. There is
one brilliant chapter in there, a chapter in which they had long
interviews with the four staffers who actually wrote the 1973
Endangered Species Act, what they were doing, what they knew they
were doing, and what Congress had no idea was going on.
There had been two predecessor acts to the Endangered Species Act, a 1966 act and a '69 act, which had very little teeth and accomplished very little. They simply told the federal government that the federal government must do whatever was practicable to protect endangered species on its lands. Well, no federal agencies want to limit their powers and so on. They wanted to do everything they can on land to get more people on their land to do more things on their land. So the Forest Service always said, well, it's impractical for us to protect the spotted owl because we need to have a sustainable harvest of trees, we need to keep forest community towns going, we have to protect watershed with all these kinds of things. So they never did anything.
These four Greens, unelected Greens, who actually drafted the
bill knew the key spot in the Endangered Species Act was this
word practicable. So they sat down with a fine-toothed comb and
went through and took that out everywhere it occurred in the predecessor
acts. And instead of saying the government must do whatever is
practical to protect endangered species, they said, you may not
take any action which harms a listed species. Period. They had
suddenly and quietly created the most powerful law in America;
it trumped everything else including the Constitution of the United
States and the Fifth Amendment. When they were asked by certain
members of the Congress and when they were also asked by the Congressional
Budget Office as to what would be the consequences of this new
bill of theirs, they said that they sort of bit their tongue and
said, well, probably not much.
It is interesting that they said that everyone in the Congress was asleep at the switch. No one had any idea what we were doing and that their axe was about to be gored. But we knew exactly what we were doing, because we wrote the entire law. And it is interesting to read that, because that will also tell you to go to all these stories about you don't want to find out how sausage is made. Well, this shows you how government laws are made. While this was a relatively small law in the number of pages, the results of this bill have been mind-boggling.
I will just have time to get into one example recently of the things that has been happening, one species, with the Endangered Species Act that increasingly the Greens have been holding up, and the federal government, as a huge success story. If you go to the Fish and Wildlife Service's web page and then click onto endangered species, you will find big stories about the red-cockaded woodpecker, how it's finally been worked out so the red-cockaded woodpecker and the people of the southeastern United States can live in peace, and this is a huge success story, and it proves that the Endangered Species Act is really a great law and really working well.
I will give you a little history on the red-cockaded woodpecker.
This is a woodpecker that has evolved with the southern forest.
The southern forests were always controlled by fire, fires that
burned through on a regular basis and keep out the under-stories
on these very open forests. The woodpecker forages by sort of
climbing up a tree and then he flies down to the base of the next
tree and climbs up that. So if you don't have an open forest,
he can't live in that kind of forest. They were slowly disappearing
for a long period of time, for well over a century as people moved
into the southeast and so on and fought fires, thinking that every
fire was bad, not realizing that fires do have their good functions
in making forests healthy and so on. So its habitat began to vanish
The red-cockaded woodpecker also is the only woodpecker in North America that lives in living trees, drills a hole in a living tree. All the other woodpeckers drill their holes in dead trees. So it takes a long, long time to make the hole to begin with, because you're hammering through very tough living tissue. What they are looking for is they can spot some of the older, giant, mature, long leaf pine trees of the south and also some loblollies. Once they get over about 60 years of age they develop something called red heart rot. A fungus can get into some of the trees and rots the inside of the tree so that once the woodpecker gets through the tough job of getting through the cambium layer, the living layer, then it can easily hollow out a big hole inside and have this really safe place that will last for as long as the tree continues to live.
The only enemy that it has is the southern black snake, which
can actually climb straight up a 70-foot-tall pine tree. So what
they do, since it's a living tree, is they peck all kinds of holes,
little teeny holes, around the entrance hole so sap keeps oozing
all the time. The sap gets inside the scales of the black snake
and it drops off onto the ground. You can spot these easily.
Well, a lot of things happened. As soon as they decided that this was an endangered species, and for all kinds of reasons, they started closing people down. They came up with something like a regulation that nobody can clear-cut a tree within a quarter mile radius circle of any tree that has a woodpecker hole in it, whether it is a nest hole or a roost hole. If you do, you are again faced with up to $100,000 fine and/or a year in jail. Essentially they confiscate your land. And the better a tree farmer you are, the more rational, and you let your trees grow. The average rotation harvest rotation down there was about 90 years. Your father or grandfather planted your trees and somebody harvested them. At 90 years of age, that is when they reached their top economic value. Well, people began quickly learning to cut all their pines when they were about 40 to 50 years old before they got old enough to get red heart disease in them.
Now one of the interesting examples that changed the whole debate over the red-cockaded woodpecker was a fellow by the name of Ben Coon. He was a very wealthy tree farmer. He was independently wealthy, didn't have to cut his trees. In fact, he hated to cut trees. He just almost refused to do it. He would let them die. He had an 8,000 acre plantation down in the lowlands of North Carolina, which he had inherited from his dad. It had been strip cut back in the thirties. He had bought it. Everybody said it was a joke. They called it Coon's folly. He replanted the whole thing, and now it is an unbelievable wildlife preserve. He uses it as a place where he goes to relax and go hunting and fishing himself and take his cronies and so on. He spends $50,000 or $60,000 a year doing improvements for wildlife, putting in wildlife plantings, and so on. Some years ago his land manager said to him, Ben, some of these trees, some of your most valuable trees now are starting to die. You've got a 100-year-old loblolly pine. You really ought to cut those even though you don't want to and take the money you get from those and put it into other improvements on the land. So he talked him into it and he said, fine. He said the only thing we have to do is clear it with the state forester.
The state foresters came and looked at it and said, Ben Coon, your land is occupied. He said yeah, I know. I live here. No, no. It is occupied by red-cockaded woodpeckers. You cannot cut any of these trees or you will go to jail and be fined.
Well, he didn't take much to this. He is a self-made multimillionaire and so on, and he got madder than the dickens. So he called the feds in and had a map of his whole land. He said, you draw me the land that you have stolen from me. I want to see a circle where I can't cut a tree. They said, okay. What's that for? The reason that's for is I want you to know that all the land outside of that, you can fool Ben Coon once but you can't do it twice. There is never going to be another tree on Ben Coon's property that will grow old enough that a red-cockaded woodpecker will even look twice at it. He then began to actually clear-cut trees that were, like, that tall and turn them into toilet papera guy who wouldn't cut a single treeinstead of letting them become a magnificent forest, because of the disincentives of the Endangered Species Act.
Then he began to testify and lecture all over the country.
He became a poster boy for the property rights movement, which
he did not want to be. Small land owners looked at Ben and said
if this can happen to Ben Coon, a multimillionaire, what can we
So if you are a small landowner and have a gate on your property and a lock on that gate, you know your land well enough that you just walk the land with your chain saw and any tree you come to with a hole in it, you cut that down right then and there, cut it up into logs, put it into your log pile, take the one section that has a woodpecker hole in it and burn it in your fireplace, and your property rights are whole.
Now, that's not a very effective way of protecting endangered red-cockaded woodpeckers, nor all the other five or six species of woodpeckers that live in the south or anything else that needs holes to nest in like blue birds and screech owls and flying squirrels. But that is going on all over the south.
He testified before the U.S. Congress and brought the place down. At one point he said, this is amazing. I am going to be fined $100,000 and a year in jail for each tree I take down within this circle. He said, my goodness, he said, things are sure different up here in Washington. He said, you know, down in North Carolina you could murder your wife and you wouldn't even be fined $100,000. All the men in the audience laughed and the women gasped.
People at the Department of Interior got very, very edgy. We got to get rid of this guy. He is our worst enemy. So they cut an illegal deal to make him go away, because they knew if he had to, he had promised he would go all the way to the Supreme Court, and it is such a shame they cut that deal because he would have fought this all the way, and I think that was a 100 percent winnable case.
But what they told him to do, if he would just leave the woodpecker circle a little bit longer, then they have a program of trans-locating these woodpeckers. They will go to a tree somewhere where there is no woodpecker hole and cut out a section like a pie-shaped section and then they will take another piece of tree that they've made a woodpecker hole in it and screw it in. Then at nighttime they will go to Ben Coon's house or his land, reach in the holes at night, take out the sleeping woodpeckers, put them in a sleeve, take them and move them quickly and put them in the new hole on government land somewhere, and when they wake up in the morning they don't know where they are, but it's a nice place and they are non-migratory so they stay there. They could be doing things like this all the time, but they made this one exception just for Ben Coon to make him go away.
Well, then Michael Bean, Mr. Environmental Defense Fund, Mr.
Endangered Species, he gave a lecture to the entire U.S. Fish
and Wildlife Service back on November 3, 1994, at Marymount College.
We were able to sneak one of our interns in there to listen to
it, and it was amazing what he said and gave away. In fact, we
finally got the late Kim Smith with the Washington Times
to file a FOIA request so we could get a copy of the video of
that and then make a transcription of it. It's really amazing.
One of the things he said was, first, he admitted everything that the free market people say. He said, you know, the Endangered Species Act isn't working because it makes people afraid to be good stewards of the land and have habitat on their land because if you have a habitat on your land, the feds will come in and shut you down. He said landowners don't hate wildlife. They don't hate red-cockaded woodpeckers, but this is a normal response to protecting what you own, to go out and to sterilize the land. The Greens won't ever say that publicly, but they will certainly say it privately and they know it. He said what has occurred to me after close to 20 years of trying to make the ESA work is that, from the outside, in all deference to your trying on the inside, is that on private lands at least we don't have much to show for our efforts other than a lot of political headaches. And so new approaches, I think, are desperately needed to be tried because they are not going to be much worse than the existing approaches.
Now he came up with a program called Safe Harbors. Some of you may know. It's essentially a form of extortion in which the government goes to a landowner and says, if you join our safe harbor and agree to say the Endangered Species Act is fine, you don't have any problems with it, and so on, then, after we have surveyed your land and found out what your base level red-cockaded woodpeckers are, if any more red-cockaded woodpeckers show up, then there won't be any more penalties on what you can do on your land. But, see, a lot of things happen. They might find anything on your land. They might find an endangered butterfly on your land when they are doing this survey that you didn't know about and could shut you down for that. Or they could find any kind of thing and report you or turn you in. So they started these safe harbors. What they really were working for they were set up in a way to get non-working landowners to sort of serve as pimps for the Endangered Species Act.
They started in the North Carolina sand hills, and the last time I had done a careful count of how many people were in these safe harbors and what they were doing, forty percent of the people who were in the red-cockaded safe harbors program were horse people. They were horse breeders or had horse farms. Now have you ever been to a horse farm? I mean it is like, hello, it is not out in the middle of the woods. It's all grass. You know, horses run around in the grass and everything like that. So these people maybe had a few little trees around, and they said, hey, this would be nice. Let's join the safe harbor program. We don't have any red-cockaded woodpeckers, but everybody will think we are great and we care about the environment and we will get a Green award and everything like that. So they all joined it.
Then lots of golf courses started joining it because, once you have carved out your golf course, you have made your fairway and your tees and your fairways and your holes, you don't cut any more trees. I mean the trees that are between this fairway and the next fairway you want there as buffers. So they were joining these things, and they were saying, this is a great success.
They recently made the entire state of North Carolina a safe
harbor. You can go look at it.
You might have seen recently in July, August, and September. A little town of Boiling Springs Lake in North Carolina has come in the news everywhere. Over the past six months landowners there have been clear-cutting thousands of trees to keep them from becoming homes for the endangered red-cockaded woodpecker despite the fact that this program is a great success. Since February the city has issued 368 logging permits in the town of 4,000 people, a vast majority without accompanying building permits. Because in January the Fish and Wildlife Service notified the town that development, i.e., that means somebody is building their own house on their own piece of property, that development was threatening the red-cockaded woodpecker. The Fish and Wildlife Service said it was going to issue new maps declaring the entire neighborhood throughout this little community as stringently protected habitat designation for the red-cockaded woodpeckers. Guess what happened. This started the North Carolina chain saw massacre. After all, a treeless lot would never be able to be declared or designated a red-cockaded woodpecker habitat. Yes, a bare treeless lot is not very attractive, not as attractive as a well treed, well landscaped lot, but at least you still own it, you can still use it.
Along roadsides down there now there are windrows of pine chips, of bark from all the clearing of dense pine stands. The mayor recently complained because, from the waterfront lots across this little lake she lives on, all the waterfront lots she can see have all been stripped of trees down to what she called a sandy wasteland, and the mayor is now threatening to issue a one-year moratorium on lot clearing permits. Well, remember the night of the chain saw massacre. I would predict that that happens or there may be a rash of spontaneous generation forest fires throughout the town.
One landowner down there, Bonner Stiller, who is a Republican member of the state assembly, had been holding two wooded half-acre lots for 23 years. He said they have finally developed a value and then to have all that taken away from you. Well, he found a solution. He stripped both lots of all their long leaf pine trees before the feds came up there to map, so his property rights are whole again. By the way, the town had been designated, there was a sign outside of the town that says the entire town is, or now was, a bird sanctuary. I've talked to some of the landowners down there, and in the photos I have seen, it looks like going into a logging operation out in the forest, you know, just huge piles along the sides of roads of 50-, 60-foot long tree trunks and then big loaders there coming up and loading these on their trucks and taking them away, as essentially they turned the town into a desert in order to protect their property rights.
These are the things that have been going on over and over
and over with Endangered Species Act from day one. Again, as we
have always pointed outthe data is out therein all
the time we have had the Endangered Species Act since 1973 there
have been essentially no true recoveries of any species that have
been on that list. A few species that have recovered, actually
legitimately recovered, have recovered for reasons other than
having anything to do with the ESA.
Recently, most of the ones that are on there were things when you say, whoops, you list something and then you find out years later that it never should have been on the list anyhow, because people only counted one spot. They didn't count all over the country and you find them everywhere, so then you have to take them off the list. It's called original data error. That happens over and over and over.
There are possibly three things that could just barely be called recoveries. They're so weak that it's almost embarrassing. One of them is a little cinquefoil plant, a teeny ground-creeping plant that lives on the northernmost areas at high elevation of the Appalachian Trail, growing through New Hampshire and on into Maine. The reason it was endangered is because the trail went right over it, and every time another person would walk along it, the person would tramp on it and crush these. So they were vanishing. Well, somebody finally figured out the idea of, hey, let's move the trail thirty feet to the east. They did it, and now they can say that is a great recovery of the Endangered Species Act. You could have done it. Anybody could have figured out how to do that, but that is not what the ESA is about. There was nothing noble in it. There was nothing in there really to help nature recover. It was an effort to find a way to circumvent private property rights protection by the Fifth Amendment to the U.S. Constitution, and that is why it's failing to achieve what its purported goals were, to protect species, because that's not what it is for. It is to un-protect people. Thank you.
(1) RINO - Republican in name only