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The triumph of the blind Texas salamander and other tales from the Endangered Species Act.

The Endangered Species Act is the most innovative, wide-reaching and successful environmental law that has been passed in the past quarter century. I can cite case after case: the resurgence of the American alligator, the fact that the skies are once again graced by many bald eagles, and that the Peregrin falcon is moving from near extinction to the threshhold of de-listing, The opponents of the Endangered Species Act know these facts. So they have come at us in a different direction, advocating a new and radical concept - that any government action lowering the value of someone's property creates a right to be compensated by the U.S. Treasury. For example, H.R. 1388, styled as the "Just Compensation Act of 1993," would require federal agencies to compensate property owners "for any diminution in value" caused by any regulatory action taken under environmental laws, including, right at the top, the Endangered Species Act.

Let's examine the implications of this proposed raid on the public treasury. The Kesterson National Wildlife Refuge in California is one of the great migratory bird stops on the Pacific flyway. But a few years ago, the waterfoul were dying, and they were deformed at birth. It turned out to be selenium poisoning running off into the refuge from nearby farm irrigation wastewater. Under the Endangered Species Act, I tell the farmers: Clean up the pollution, or we'll sue you. But under this new proposal, I am undeniably causing "a diminution in value" of a property right - it will cost those farmers money to clean up. They'll comply, but then they'll send me the bill! The old legal maxim, "make the polluters pay," would be replaced by a new legal rule: "It pays to pollute; the government will reimburse your costs."

If H.R. 1388 were to pass, who knows what would be next. When the Environmental Protection Agency bans pesticides that have been found to cause cancer, the chemical companies that have incurred loses will send the bill to our government. When the Food and Drug Administration takes a breast implant off the market, the companies will send the bill to the FDA. Where do you stop? There will never enough money to pay everyone for eve government regulation.

In fact, the American courts have ways recognized that the reasonable regulation of land use is both constitution and in the public interest. Every day, in every part of the country, city councils and county zoning commissions routinely make land use decisions that affect land value, adding to some land while subtracting from others. Consider my hometown, Flagstaff, Arizona, located high in the pondersa forests of northern Arizona. About 10 years ago, the City Council used its zoning powers to pass a law making it a crime to cut down a pine tree on private land inside city limits unless it is to make space for improvements authorized by the planning and building codes. The residents of Flagstaff supported the law. People like to live there because you can smell the perfume of the pine forest in the air, and you can see an extraordinary horizon in every direction. Admittedly, they have subtracted from the freedom of a landowner who wants to saw down every pine tree on his lot, but they are protecting the overall image of their town. Palmdale, California has an ordinance prohibiting the removal of Joshua trees from private land. And there are myriad other examples.

It is undeniable that the Endangered Species Act limits the ability of some landowners in some places to do anything they want - to raze the forest, to bulldoze the habitat, to dry up a stream which contains an endangered species. And after listening to our opponents, I figured there must be some cases. of egregious abuse. We went to the Court of Claims, where there are hundreds of "takings" cases of all kinds being filed in waves of protest, and you know what we found? In the 20 years of this Act, when we've listed some 800 species, there has not been a single case alleging a taking under the Endangered Species Act. The fact that the Fish and Wildlife Service has never come close to a constitutional taking does not end the matter. The government has a higher obligation to the citizens who elected us than simply staying out of court.

The first step is to ask: Are there public lands that can be the core of the protection scheme? Have you read about the California spotted owl? No. You know why? By good fortune 99 percent of their habitat is on public land up in the Sierra Nevada and northern California. Whenever we can rely on public land, we do.

Another approach is flat-out mitigation. Take the example of the desert tortoise in the Great Basin of Nevada, California and Arizona. Several years ago, the city fathers of Las Vegas, a boom town if there ever was one, discovered that all subdivision land had already been taken by the desert tortoise. It got there first. So, we worked out a plan that said to the developers, "as you bulldoze tortoise habitat for subdivisions, we will levy a surcharge on each lot, like a surcharge for water, sewage and roads, that we will use further out to buy up private lands that are inholdings in the public domain to set up tortoise reserves." We can re-arrange the protection landscape.

In some cases management changes work. The endangered red cockaded woodpecker hangs out all around the South. But it's a more manageable bird than the spotted owl. It has to live in an old growth pine tree, but ifs not at all picky about its neighbors. You'll find them living on golf courses, backyards - all you have to do is make sure it's got good shelter, and the supermarket is not too far away. It also has excellent family values. It's a monogamous critter. And the young ones stick around to help raise the next generation. Really an admirable bird, worthy of our protection. So we got the Georgia-Pacific company to develop a plan for their biologists to travel ahead of the logging crews, identify the old growth woodpecker trees and keep a modest habitat circle around that tree. This procedure will impact maybe one percent of their timber land.

In Texas, we had one that looked like a train wreck in the making. Along the Balcones escarpment in central Texas, there are marvelous springs that give rise to the headwaters of rivers that run down to the Gulf of Mexico. As fate would have it, large spring-fed pools hold a few uncharismatic critters living at great depths, including the blind Texas salamander. But pumping outside San Antonio was lowering the groundwater table which was drying up the pools. And it looked like a disaster. The politicians were going wild: "It's going to be people or the blind Texas salamander - a future for Texas or turn it over to cave dwelling invertebrates." We took a close look and found that what Texas really needed was a groundwater management plan. The Texas legislature, in a quiet thoughtful process, has now passed its first groundwater management plan in history, which will protect the pools and make San Antonio's water supply more secure.

Why do you keep reading stories about hardships? The tough case is a small landowner on a strategic piece of property. When a species is listed, there is a freeze across all of its habitat for two to three years while we construct a habitat conservation plan which will later free up the land. The Readers Digest story is always about a small landowner caught in this regulatory freeze. So I've told the Fish and Wildlife Service that we want to reduce, the inconvenience to a bare minimum on a guy who's saying, "I'd like to clear an acre to build a house for my mother-in-law." We can do that with new concepts, like a transition habitat plan.

The Endangered Species Act is not the problem. The problem is that the people who have administered it haven't creatively explored the range of possibilities in this wonderfully expansive law. I believe that we can preserve the incomparable biodiversity of the American landscape and we can accommodate a reasonable expectation of any landowner. All we have to do is work together.
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Title Annotation:excerpt from Secretary of the Interior Bruce Babbitt's October 1993 speech to the Society of Environmental Journalists at Duke University; using the property rights cause to avoid financial responsibility for remedying pollution conditions that harm wildlife
Author:Babbitt, Bruce
Publication:E
Date:Apr 1, 1994
Words:1392
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