[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
H.R. 1142, TO ENSURE THAT LANDOWNERS RECEIVE TREATMENT EQUAL TO THAT
PROVIDED TO THE FEDERAL GOVERNMENT WHEN PROPERTY MUST BE USED
=======================================================================
HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
APRIL 14, 1999, WASHINGTON, DC
__________
Serial No. 106-23
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://www.house.gov/resources
______
U.S. GOVERNMENT PRINTING OFFICE
56-932 WASHINGTON : 1999
________________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado ENI F.H. FALEOMAVAEGA, American
JOHN T. DOOLITTLE, California Samoa
WAYNE T. GILCHREST, Maryland NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH, Idaho CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah ADAM SMITH, Washington
KEVIN BRADY, Texas WILLIAM D. DELAHUNT, Massachusetts
JOHN PETERSON, Pennsylvania CHRIS JOHN, Louisiana
RICK HILL, Montana DONNA CHRISTIAN-CHRISTENSEN,
BOB SCHAFFER, Colorado Virgin Islands
JIM GIBBONS, Nevada RON KIND, Wisconsin
MARK E. SOUDER, Indiana JAY INSLEE, Washington
GREG WALDEN, Oregon GRACE F. NAPOLITANO, California
DON SHERWOOD, Pennsylvania TOM UDALL, New Mexico
ROBIN HAYES, North Carolina MARK UDALL, Colorado
MIKE SIMPSON, Idaho JOSEPH CROWLEY, New York
THOMAS G. TANCREDO, Colorado
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
C O N T E N T S
----------
Page
Hearing held April 14, 1999...................................... 1
Statement of Members:
Thomas, Hon. William M., a Representative in Congress from
the State of California.................................... 15
Prepared statement of.................................... 16
Miller, Hon. George, a Representative in Congress from the
State of California, prepared statement of................. 51
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 1
Prepared statement of.................................... 3
Statement of Witnesses:
Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife
Service, U.S. Department of the Interior, Washington, DC... 35
Prepared statement of.................................... 37
DeGennaro, Ralph, Executive Director, Taxpayers for Common
Sense, Washington, DC...................................... 89
Prepared statement of.................................... 91
Gordon, Robert E., Jr., National Wilderness Institute and
Grassroots ESA Coalition, Washington, DC................... 29
Prepared statement of.................................... 30
Heissenbuttel, John, Vice President, Forestry and Wood
Products, American Forest and Paper Association,
Washington, DC............................................. 85
Prepared statement of.................................... 86
Loop, Carl B., Jr., Vice President, American Farm Bureau
Federation, Washington, DC................................. 26
Prepared statement of.................................... 27
Marzulla, Nancie G., Defenders of Property Rights,
Washington, DC............................................. 77
Prepared statement of.................................... 78
Shimberg, Steven J., Vice President for Public and
International Affairs, National Wildlife Federation,
Washington, DC............................................. 41
Prepared statement of.................................... 43
Smith, Bruce, Vice President, National Association of Home
Builders, Washington, DC................................... 51
Prepared statement of.................................... 53
Whitman, Richard M., Attorney-in-Charge, Natural Resources
Section, Oregon Department of Justice, Salem, Oregon....... 73
Prepared statement of.................................... 74
Additional material supplied:
Text of H.R. 1142............................................ 4
HEARING ON H.R. 1142, TO ENSURE THAT LANDOWNERS RECEIVE TREATMENT EQUAL
TO THAT PROVIDED TO THE FEDERAL GOVERNMENT WHEN PROPERTY MUST BE USED
----------
WEDNESDAY, APRIL 14, 1999
House of Representatives,
Committee on Resources,
Washington, DC.
The Committee met, pursuant to notice, at 11:01 a.m., in
Room 1324, Longworth House Office Building, Hon. Don Young
[chairman of the Committee] presiding.
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ALASKA
Mr. Young. The Committee will come to order.
We are going to go ahead with the process. The original
intent, for the members that were told there was going to be a
disputed subpoena issued, that is no longer the case. Secretary
Babbitt has agreed to appear before Mr. Doolittle, and I think
that is the right step forward, and I want to compliment him,
the Department of Interior.
So this is really the first hearing by the Committee on
Resources on H.R. 1142, the Landowners Equal Treatment Act of
1999. I introduced this bill because I believe the Supreme
Court was right when it said in the Dolan case that it is wrong
to force some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.
This is the primary purpose of the 5th Amendment takings
clause.
I think this bill is especially appropriate today, on April
the 14th, the eve on the day on which Americans have to turn
over increasing amounts of their hard-earned income to the
Federal Government. Private property owners pay more in taxes
than any other group in this country. Property taxes are paid
over and above the income taxes levied by the Federal and State
governments and the various sales and use taxes paid. And by
the way, may I suggest that the Federal Government owns over
835 million acres and doesn't pay a nickel in taxes.
Property taxes pay for our local schools, and the
government does not do that. Property taxes pay for our roads,
our police, the fire protection, and many other vital services
that are provided for all of our citizens, not only to property
owners, but to every citizen--even those who do not pay
property tax receive the benefits of property tax. Our private
property owners are the backbone of our society. They pay the
bills. We ought to afford them some respect and gratitude. And
may I suggest any other society that does not have privately-
held property, their governments have failed miserably. Private
property is the soul of our conscious, the soul of our
Constitution.
I support the purposes of the Endangered Species Act.
However, when I voted for ESA--and one of the few remaining
Members that did vote for ESA--in 1973, Congress was not told
that this law would be used to force private property owners to
set aside land for habitat, for species, against their will and
without being compensated for the loss of their property. For
the good of all, these private property people are suffering
the burden of the ESA Act. If they aren't willing to set aside
their land, the Federal Government threatens to put them--and,
in fact, has put them in jail.
The Landowners Equal Treatment Act amends the Endangered
Species Act to require, first, that the Federal Government
avoid using the ESA to take away private property owners' right
to use their own land. May I suggest that if there is
endangered species on that private land, that person must have
been doing something right, or the species wouldn't be there.
But under the present law we punish; we do not reward.
Then, if the land is so important as habitat for endangered
or threatened species, the use of the land cannot be avoided.
The bill requires the government to minimize the impacts on
landowners' right. If that is not possible, it simply requires
the government to mitigate for the impacts by compensating the
owner of the land for using it.
This is a very simple concept and almost identical to the
process used by the Fish and Wildlife Service for its own
compensation when their land is used by other Federal agencies.
If the noise from an airport is a ``use'' of Federal lands,
then certainly forcing landowners to provide habitat for
federally-protected species is an even more intrusive ``use''
of private lands by the public.
The Fish and Wildlife Service is being compensated in the
amount of $26 million simply because they say that noise from
overflights is a ``use'' of their refuge property. According to
the 5th Amendment, private property owners have a right to be
compensated when their property is used by the Federal
Government for Federal public benefit.
Federal agencies do not have the right; yet, they have the
power and clout to force other agencies and private landowners
to pay them millions of dollars. What's good for the Federal
Government is even better for the private citizen. Under H.R.
1142, we will ensure that landowners receive the fair and equal
treatments they deserve.
I would suggest that, if everybody will listen to this bill
and get out of the political rhetoric, that this is a solution
to a very serious problem, and that is a problem that the ESA
is failing. It has not been successful, and it has made the
enemy of the government for the private property owners.
So this is the beginning of a series of a hearings. Mr.
Pombo will be chairing it a little later on and as we go forth.
[The prepared statement of Mr. Young follows:]
Statement of Hon. Don Young, a Representative in Congress from the
State of Alaska
Good morning. Today the Committee on Resources will hear
testimony on H.R. 1142, the Landowners Equal Treatment Act of
1999.
I introduced this bill because I believe that the Supreme
Court was right when it said in the Dolan case that--it is
wrong to force some people alone to bear public burdens which--
in all fairness and justice--should be borne by the public as a
whole. This is the primary purpose of the 5th Amendment takings
clause.
I think this bill is especially appropriate today--April
14--the Eve of the day on which Americans have to turn over
increasing amounts of their hard earned income to the Federal
Government.
Private property owners pay more in taxes than any other
group in this country.
Property taxes are paid over and above the income taxes
levied by both the Federal and state governments and the
various sales and use taxes paid.
Property taxes pay for our local schools, roads, police and
fire protection, and many other vital services provided, not
only to property owners, but to every citizen--even those who
do not pay property taxes. Our private property owners are the
backbone of our society. They pay the bills. We ought to afford
them our respect and gratitude.
I support the purposes of the Endangered Species Act.
However, when I voted for the ESA in 1973, Congress was not
told that this law would be used to force private property
owners to set aside land for habitat for species against their
will and without being compensated for the loss of their
property.
And if they aren't willing to set aside their land, the
Federal Government can put them jail.
The Landowners Equal Treatment Act amends the Endangered
Species Act to require first that the Federal Government avoid
using the ESA to take away private property owners right to use
their own land. Then, if the land is so important as habitat
for endangered or threatened species that the use of the land
cannot be avoided, the bill requires the government to minimize
the impacts on the landowner's rights. If that is not possible,
it simply requires the government to mitigate for the impacts
by compensating the owner of the land for using it.
This is a very simple concept that is almost identical to
the process used by the Fish and Wildlife Service for it's own
compensation when their land is used by other Federal agencies.
If noise from an airport is a ``use'' of Federal lands, then
certainly forcing landowners to provide habitat for federally
protected species is an even more intrusive ``use'' of private
lands by the public.
The Fish and Wildlife Service is being compensated in the
amount of $26,000,000 simply because they say that noise from
overflights is a ``use'' of their refuge property. According to
the 5th Amendment, private property owners have a right to be
compensated when their property is used by the Federal
Government for a public benefit.
Federal agencies do not have that right, yet they have the
power and the clout to force other agencies and private
landowners to pay them millions of dollars. What's good for the
Federal Government, is even better for private citizens. H.R.
1142 will insure that landowners receive the fair and equal
treatment that they deserve.
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Mr. Young. Are there any other opening statements by
anybody on the Committee?
[No response.]
If not, at this time I do welcome my good friend, the
Honorable Bill Thomas, a Republican from California, for being
the first panel up. You are up, Mr. Thomas. Congratulations for
appearing before the Committee.
STATEMENT OF HON. WILLIAM M. THOMAS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Thomas. Thank you very much, Mr. Chairman. I would ask
unanimous consent that my written statement be made a part of
the record.
Mr. Young. Without objection, so ordered.
Mr. Thomas. And I do want to go on record indicating that I
strongly support the chairman's bill, H.R. 1142, and every time
we have a hearing I can present you with additional stories
which reinforce our concern.
But let me say at the outset, in examining this issue, I
have, notwithstanding the full support of the chairman's bill,
decided to introduce three separate bills in an attempt to
break the logjam which appears present if we deal with an
omnibus bill. I just want to briefly mention H.R. 494, which
deals with the process, trying to create a transparency and
openness and the requirement that good science be used to list
and delist. Then H.R. 495, which deals with land management,
and a point that the chairman made, in terms of the societal
desire, but the private property-holder having to pay society's
desire should be just compensation. And then, finally, H.R.
496, which deals with the accidental taking and the habitat
maintenance, which now appears to be totally criminal every
time you take an action.
Let me say they are going to have testimony later about, if
in fact we require compensation, that there are going to be
people playing games and trying to beat the system. It cannot
be worse than the current situation.
I brought just one picture to show you what occurred as the
snowmelt from the very heavy snows in the Sierra began coming
down. We have, as you know, a great depression in the Central
Valley called the Tulare Lake Basin, and if the various rivers
did what they wanted to do, they would refill that every year.
So we have dams along these streams, Lake Success being one of
them.
The problem is we have never been able to get Lake Success
and the Corps of Engineers to build the height of the dam high
enough so that in heavy runoff years we can sustain it. We have
to sandbag it as a temporary dam.
In trying to sandbag it, of course, you back the water up
behind it. What was discovered was these elderberry bushes
which supposedly were the habitat for the elderberry longhorn
beetle. We examined the plants. There was no evidence. Bore
holes and the rest can be done by the biologists. However, our
friends at Fish and Wildlife said, notwithstanding that, if the
water raises, there could potentially be beetles. Having looked
and decided there were none, nevertheless, the private owners
who didn't want that land flooded out in the basin,
agricultural land, had to pay $130,000 to sandbag these bushes
when the lake backed up. And, of course, upon further
examination, there were no beetles.
In another instance a fellow wanted to run a landfill. You
have to realize that for over a decade I represented a county
that was 93 percent government land, and it happens to be the
second largest geographic county in the United States.
Notwithstanding totally surrounded by Federal land, every time
somebody wants to start a private property project, they have
to mitigate acres. In this instance it was an attempt to create
a landfill, a 20-acre landfill plot, and the initial mitigation
was 3 acres for 1, or 60 acres. By the time they finished the
negotiation, he was going to have to put up 380 acres to
mitigate the 20 acres, at about $1,000 to $1,500 an acre. So he
simply decided that the project could not go forward--not
because there isn't a whole lot of Federal land, but because of
this extortion requirement in terms of meeting exorbitant
private property contributions to be able to conduct private
property activities.
Mr. Chairman, it is long overdue that, if society truly
wants to preserve truly endangered species, then the society
ought to pay for it. Right now it is being sustained on the
back of private industry, not that private industry shouldn't
pay its fair share, but 3-to-1 acres, 6-to-1 acres, 10-to-1
acres, when, in fact, most of the area is already owned by the
Federal Government, is simply wrong.
I want to congratulate the chairman on his attempt to break
logjam. As I indicated, if we can't break it by dynamiting it,
perhaps we can operate in several different areas, and move
bills that address particular areas, and find commonality among
those who would like to make some changes, but an omnibus bill
won't approach it.
With that, I want to thank the chairman for the opportunity
to testify.
[The prepared statement of Mr. Thomas follows:]
Statement of Hon. William M. Thomas, a Represemntative in Congress from
the State of California
Mr. Chairman, thank you for the opportunity to give this
statement to the Committee and to discuss the concerns of my
Kern and Tulare County constituents from California's 21st
District. I strongly support the letter and spirit of the
Chairman's bill, H.R. 1142. It is an important step in making
the Federal Government accountable for its actions and
ultimately in building a real and effective species
conservation system.
I have two goals today. First, I want to add to the record
a few new ``horror'' stories to those which I have related in
the past. Those stories reveal more ongoing, arbitrary and
wasteful decisions by Federal authorities. Second, I want to
suggest some ideas that are introduced in my three reform bills
that may help the Committee build a broader coalition to create
a fairer and more effective law to conserve endangered species.
New Tales from the 21st District
My District has been deeply affected by over 20 Federal
endangered and almost 100 candidate species. Kern County
embraces more than 8,000 square miles of desert, mountain and
valley terrain (equal to the size of Massachusetts) including
two important military facilities, Edwards Air Force Base and
the Naval Air Warfare Center at China Lake.
During the heavy flooding of last May in Tulare County,
visitors to Success Lake would have been struck by a remarkable
sight--workers diligently placing sandbags around Elderberry
Trees that line the edge of the Lake. Why? Because despite
entire communities being underwater, U.S. Fish and Wildlife
Service was more concerned about the possible existence and
protection of Elderberry Longhorn Beetles, which might be
injured by local efforts to raise the level of the Lake to hold
back more flood water. The fact that local biologists informed
the Service that no beetles were present did not dissuade the
Fish and Wildlife Service. So, private landowners spent
$130,000 to sandbag 140 Elderberry Trees and are buying
mitigation land and replanting new trees in order to satisfy
the bureaucracy. What alternative did these landowners have?
None, but to pay the extortion money so they can go about the
emergency sandbagging activity and save their farms.
That is how the Fish and Wildlife Service acts during
emergencies. This is how it acts day-to-day. One of my
constituents was starting a recycling business on a 20-acre
plot of land in McKittrick, California. He obtained a permit
from U.S. Fish and Wildlife Service with the proviso that he
mitigate for the presence of endangered species by providing
three acres for every one acre used. No sooner did he do so,
then the Service increased the mitigation requirement from 60
acres to 380, each acre costing $1,000 in the area. How does a
family afford to buy and run a wildlife refuge for the
satisfaction of government bureaucrats? This is simply
extortion, plain and simple.
We Need Real Conservation
To rural landowners, our government is no longer a
protector of rights and freedom. It has become a garbled
operation that collects illegitimate ``protection'' money for
its pet projects, money that can't be collected by legitimate
means, i.e., the appropriations process. It is evidence that
the current system of endangered species protection simply is
not working. Why should rural landowners pay if so-called
wildlife conservationists living in the city aren't paying to
protect species? So, to my colleagues who have resisted reform
of the Endangered Species Act, I issue this challenge: give
landowner incentives a chance. Chairman Young's bill is an
excellent and fair method of accomplishing this.
Other Needed Reforms of the Endangered Species Act
I want to leave with you with some general comments on
other reforms that are needed. As you know, I have introduced
three Endangered Species Act reform bills, H.R. 494--The ESA
Fair Process Reform bill, H.R. 495--Fair Land Management Reform
bill, and H.R. 496--The Liability Reform bill.
The Fair Process Reform bill will ensure open and equal
access to information relied upon by Federal agencies when
making decisions on endangered species. Perhaps the single
worst complaint I have heard about the current Federal system
is that the people who are directly affected by government
decisions and bear the burden and cost of compliance are left
out of the decision process. In their view, it is ``taxation
without representation.'' Landowners are now stuck with paying
the cost of preserving species; yet, they do not have access to
the same information held by the Federal Government and their
input is ignored.
My bill includes provisions for an open access to the
public for scientific studies and underlying study data. It
also replaces the secret listing process with an open hearing
so landowners can participate in the decision making process,
and landowner representatives can cross-examine agency
personnel and experts. My bill also includes provisions to
improve the scientific basis of government decisions such as
minimal information requirements for petitioners, peer review
of multiple scientific studies used to support listing or
government action, and economic impact analysis of its actions
required for listings.
The Fair Land Management Reform bill will ensure that the
government pays for obligations it imposes on landowners. This
bill includes a provision to compensate landowners for
significant government takings. Similar in spirit to Chairman
Young's bill, H.R. 1142, I also include a provision that limits
the mitigation requirements that can be imposed by government.
As described in my example above, a hapless landowner must
sometimes buy nineteen acres in order to use one of his own and
then manage this new ``biology project'' for the government by
putting up fences and hiring biologists for years to look after
the habitat. My bill would limit how much mitigation the
government can require.
The Liability Reform bill will stop unfair government
penalties against landowners. Rural landowners are frustrated
enough at having their lands confiscated for government use. It
adds insult to injury when no species are even on the land, yet
the government continues to impose these onerous burdens and
even the threat of penalties on landowners. Criminal and civil
penalties should be limited to actual and intentional takings
of an endangered species, not accidental or hypothetical ones.
My bill also includes ``Safe harbor'' and ``No surprises''
provisions to end the string of broken promises and added
obligations put on landowners by the government such as those
mentioned in my example above. It is sad that we need a law to
ensure government honesty, but apparently that is needed.
Until such steps are taken, the Act will continue to fail
to achieve its goal of Federal wildlife protection, which
reflects the will of the American people. Chairman Young's
bill, H.R. 1142, will begin to address the fundamental
unfairness in the current system. Rural landowners must now
bear the whole weight of protecting endangered species. H.R.
1142 will restore the balance and spread that responsibility to
all Americans, who benefit from conserving our precious
wildlife.
Mr. Young. Thank you, Mr. Thomas. If I am correct now, the
sandbags cost the private property owners $150,000?
Mr. Thomas. Well, what happened was that they weren't going
to sandbag the lake unless the private property owners were
willing to foot the bill of sandbagging the bushes. So you were
faced with either letting the government flood you or to pay
for the sandbagging, which would then allow them to sandbag the
dam to hold back the water, so that these bushes wouldn't be
damaged.
It was the regional office that said they had to do it. The
people on the ground said there are not beetles in these
bushes. They are probably hosts, but they were not actual
hosts. So the agreement was sandbag bushes, so we can sandbag
the dam, so that we are not flooded.
Mr. Young. But there was no science saying there were bugs?
There was no longhorn elderberry beetle?
Mr. Thomas. That is correct. They are a host bush, but
there was no evidence of beetles being there.
Mr. Young. And what did the Fish and Wildlife say about
that?
Mr. Thomas. That they are potential; therefore, you sandbag
them or we won't allow the dam to be sandbagged. So you are in
the position of having your land flooded or putting up $130,000
to sandbag the bushes so you can sandbag the dam. If it weren't
government doing it, this would be called blackmail.
Mr. Young. The gentleman from Utah.
Mr. Hansen. Thank you, Mr. Chairman. I just want to thank
you for bringing this up. If there has ever been a bill that is
past overdue, it is this one.
Let me just say in the State of Utah, in an area called
Washington County, we have the desert tortoise. Just north of
that we have the prairie dog. We have thousands of acres of
ground that is now being used for retirement homes. I happened
to be in a place with the Secretary of Interior when he offered
these people, ground that goes normally for $22,000 an acre,
$600 an acre because the desert tortoise was on it or the
prairie dog.
Most of us here come out of local government. I remember as
a city councilman when I had to practice imminent domain;
didn't like to do it, but you had to do it to put in a water
system. We paid the person for the property or we went to court
and adjudicated the matter.
When I was in the State legislature and speaker of the Utah
House, we had to take big chunks of ground for the State of
Utah. We paid the person or, if we didn't do that, we
adjudicated it through the court. One way or another, it had a
land trade.
Now we find these things, and people have had ground for
years after years after years, and what do they find? They find
something on it, and we have found instances in Washington
County where Fish and Wildlife has actually picked up a desert
tortoise and carried it to the ground that someone had. And
they have confused to that. We have got that down in statement
form, and it really disturbs me that they have done that.
Therefore, the ground becomes almost useless at that point, and
they say, ``Oh, hey, this ground that is now worth $20,000,
$30,000 an acre for one of the best retirement areas in
America, we will give you $600.''
So what can you do with your ground? Yes, I'll tell you,
folks; you can do one thing. You pay taxes on it. You can keep
paying those taxes. If you don't, the county is going to take
that ground back.
And we find ourselves in a situation all over America--now,
Mr. Chairman, I know this piece that you are doing is very
good. Personally, I feel the listing, delisting, peer review,
and a number of other things--but this is a good stroke into
it. And I just want to compliment you because, as I read the
5th Amendment, I don't know it reads any other way when it
says, ``nor shall private property be taken for public use
without just compensation.'' If this isn't a taking, I don't
know what is, and it is about time Congress acted on it.
And thank you for letting me have that outburst.
[Laughter.]
Mr. Young. That was on Bill Thomas' time.
[Laughter.]
Mr. Thomas. Yes, since my light is still green--in your
opening statement you talked about people who preserve the
land, and then being punished for preserving it. Just in the
break while we were home, the court ruled that Lake Isabella,
which is another dam and a lake behind it on the Kern River,
will not be allowed to fill to its height. Last season, again,
during this enormous runoff, it was more than 500,000 acre feet
behind Isabella Dam. The court has said that it can raise no
higher than 350,000 feet. Why? Because up one fork of the Kern
River is the southwest willow flycatcher. There are only about
two places left in the United States--one outside Phoenix in
Arizona, up in the mountains, and in this area.
For more than 100 years, the southwest willow flycatcher, a
very small bird, has been compatibly mingling with the cattle
grazing in the area, but once it was discovered that this was
one of that last few habitats, government moved in. The Corps
has not purchased land to mitigate, and folks have gone to
court and gotten a restraining order. We are now in danger of
flooding if the runoff is greater than 350,00 acre feet. We
have been told by court order we can't let the reservoir fill
to its natural height when for over 100 years this little bird
has gotten along just fine with the people who were there,
private property, and the way in which the property has been
used. But now, because someone discovered it and government
stepped in, we may, in fact, flood areas, which of course we
will be here asking for taxpayers' help for flooded areas.
Mr. Young. The gentleman from Virginia, Mr. Pickett.
Mr. Pickett. I don't have any questions at this time, Mr.
Chairman. I want to compliment you for introducing this bill,
and I hope you will get the support you need to make sure it
gets passed. Thank you.
Mr. Young. The gentleman from Colorado.
Mr. Hefley. I don't have any questions, either, but, you
know, I remain dumbfounded, Bill, when I hear stories like you
have described to us this morning. It makes me ashamed of our
government that we do not exercise both science and common
sense. I think everybody in this room would say the Endangered
Species Act has done a lot of good things. When I was out in
Colorado and see the bald eagles feeding on the Arkansas River
again, I say it has done a lot of good things. But it is
carried by extremists to such ridiculous extents that it just
makes me ashamed of the government, and I appreciate you
bringing this to us.
Mr. Thomas. In California it is not just the Federal
Government; the State has learned the game as well. And it is,
in fact, extortion of the rankest kind in requiring people to
put up private acres for the private acres that they want to
use, especially when you have got those Federal and State lands
reserved right next to it.
Mr. Young. Mr. Abercrombie, do you have any questions?
Mr. Abercrombie. I am here to learn, Mr. Chairman.
Mr. Young. Very good. Mr. Smith, no questions? The
gentleman from Maryland.
Mr. Gilchrest. Thank you, Mr. Chairman.
Real quickly, Bill, a quick question and a quick comment.
The elderberry trees, which is what I guess are in the
picture----
Mr. Thomas. Yes.
Mr. Gilchrest. [continuing] elderberry bush----
Mr. Thomas. Bushes, yes. And those pass for trees, too,
though.
Mr. Gilchrest. Okay. Now those are the trees that had to be
protected?
Mr. Thomas. Right.
Mr. Gilchrest. Did they grow up from seed?
Mr. Thomas. There are a lot of elderberry bushes in the
area. In fact, they were willing to plant a lot of additional
elderberry trees higher up, above the normal waterline, but
that was not sufficient. What they had to do was protect those
that were down in the flood plain that, if they held back the
water, would have, in fact, been flooded, notwithstanding the
fact that there was no evidence of the presence of beetles. And
we have a lot of elderberry trees that grow wild in that area.
Mr. Gilchrest. The way you present the story really shows a
significant disconnect between people and the ability to
exchange information and come to a reasonable conclusion. I
would agree with Mr. Hefley from Colorado that the Endangered
Species Act has really some significant, positive things, one
of which Joel says there are bald eagles now in certain areas
of his district. I have a bald eagle's nest about a half a mile
from my house that wasn't there even 10 years ago, and there
are more bald eagles coming through. There are even some golden
eagles coming through. So something is beginning to happen. But
we can't break the cycle of a positive, reasonable, respectable
exchange of information between people, the public sector and
the private sector, to fix this problem.
So, Bill, I appreciate your testimony.
Mr. Young. I tell the gentleman from Maryland that all of
us are in support of reasonable and rational conservation, and
that where there is clear evidence, backed by good science, we
have no problem. But what has happened under this is that,
frankly, there is a degree of arrogance. When you have local
biologists on the ground identifying the fact that there are no
beetles present, but 300 miles away the bureaucrat in Fish and
Wildlife says, ``We want these trees sandbagged or you are not
going to get the sandbagging of the dam.'' Notwithstanding what
I think would pass for anybody's examination of good science,
they simply made that kind of a decision. It is a degree of
arrogance on their part that we find most difficult to deal
with.
If, in fact, it is a societal desire to preserve, it ought
to be a societal requirement to pay. If there is mitigation
involved, it ought to be not just private sector mitigation.
There ought to be some way that society and the private sector
can work together. But what we have got in the current law, as
the chairman indicated, is an almost impossible working
relationship. To say to someone that you want to use 20 acres
for a landfill and you have got to go buy us, the public, out
of your private dollars, 380 acres, notwithstanding the fact
that they looked at the 20 acres and there were no endangered
species on it--but it has the potential--that is just wrong.
Of course, the gentleman from Hawaii I think has every
right to be concerned because, I mean, they are first in terms
of endangered species. California is second. As you move east,
there are fewer, since most of those have been killed or eaten,
and all, virtually all of the mitigation concerns are in the
West.
Mr. Abercrombie. Mr. Chairman, I am sure Mr. Thomas knows
that, in terms of endangered species in Hawaii, we go
alphabetically.
Mr. Thomas. Exactly.
Mr. Young. I would like to make one comment before we get
too far away, and I hate to do this because it is going to stir
somebody up. The eagle was never saved by the Endangered
Species Act. Mr. Gilchrest and Mr. Hefley, the eagle was never
saved by the Endangered Species Act. The eagle was saved by the
lack of use of DDT and pesticides.
Mr. Thomas. Exactly.
Mr. Young. But there has never, ever been a shortage of
eagles, but they were dying because of the use of those two
pesticides, or the DDT, but even the scientists will tell you
that the eagle was not saved because of the Endangered Species
Act. And it is always thrown up in my face, ``Look what they
have done with the Endangered Species Act.''
Secondly, I can't understand how Fish and Wildlife can say
that flooding an elderberry tree is going to hurt the beetles.
When I was a young man, most of California was flooded most of
the time, and those elderberry bushes thrived beautifully, and
the beetle, by the way, thrived beautifully, too. I mean, I
can't figure where the science comes in. That is my big
argument, not in my bill, that there is no applyable good
science. So you use the best science available, which is none,
and then they make the private property owner bear the burden
of mitigating and trying to make up for the expenditure or
loss.
I know we get in arguments on the eagles, but check your
scientists and they will tell, it was not the Endangered
Species Act.
The lady from California.
Mrs. Napolitano. Thank you, Mr. Chair. I am very interested
in the bill because it does have some great parameters--not
from my area because I don't have a lot of those endangered
species in my area that need saving. But I am concerned about
the cost to the agency; the Endangered Species Act would have
to pay the landowners fair value for the property. What will
that do to the funding mechanisms, and how would the agency be
able to perform their normal course of duties for other areas
that need to be addressed? That kind of leads me to believe
that somewhere along the line we are addressing a part of the
issue. And I agree, there is a big issue, but what about the
funding mechanisms to be able to carry this forth? And given
that we have to be fair to the landowner, how do we address
that, sir?
Mr. Thomas. I would tell the gentlewoman that there is a
very wide continuum in which this discussion can take place,
since the position now is that you get nothing, and in fact you
have to pay something as a private individual. The gentleman
from Utah indicated that a lot of local governments--and I know
you are familiar with the activities that go on in terms of
imminent domain. There are a number of us who would be willing
to say we would even let government determine the fair value of
the land, rather than the private person, if, in fact, that is
what is needed to move it off the dime. But even if you do
that, there will be a cost involved.
But one of the difficulties with this legislation having
been passed in the 1970's with a goal of where you wanted to go
without a clear idea is that, basically, where we are today is
that there are people who want to use this statute to deny
people legitimate use of private property. If society wants it,
they ought to provide the minimum compensation, and then
however much that is, we ought to have the guts to fund it. So
that you have an orderly process. If society thinks this is
important enough to preserve, and it belongs to someone, and
has value, whatever that minimal value is ought to be
compensated.
It is the idea that right now there are people who want to
run this public project with not just pure private funds, but
extorted private funds beyond what is reasonable, because they
are funding additional programs out of the requirement that
people pay them. That is the problem with the law today.
Mrs. Napolitano. Right, but does this actually address a
mechanism where it can happen?
Mr. Thomas. You will have to ask the chairman in terms of
his particular bill. What I have done is break it down into
three different segments and address the cost of reimbursement
in a separate bill, and I give a number of options in which we
deal with it.
I would tell the gentlewoman that, if that is of interest
to her, I am quite sure we can create a dialogue to come up
with an appropriate way in which we not only determine the
amount that is necessary, but that we create a funding stream
as well.
Mrs. Napolitano. Yes, I am interested, and the unfortunate
part is that I don't know as much as I should on the rest of
California's need for something of this nature.
Mr. Thomas. I will tell the gentlewoman, if she sits on
this Committee for any length of time, she will know more than
she wants to about it.
[Laughter.]
Mrs. Napolitano. I am learning.
Mr. Young. The gentleman from California.
Mr. Pombo. Thank you, Mr. Chairman. I don't have any
questions for Mr. Thomas. Just I think in answer to my
colleague's question, the example that Mr. Thomas brought out I
think is an example of what happens when there is no cost to
the agency. A lot of times that is the problem that we run
into. If there is extorted funds out of the private sector in
order to pay for their regulation, then there is nothing
stopping them from requiring whatever they can dream up. This
just happens to be one example of something that the scientists
would tell you makes no sense, and your own common sense would
tell you it doesn't make any sense. But when there is no cost
to the agency to require it, they can do whatever they want.
We found with our landowners in the Central Valley,
particularly, that if they have the ability to extort the cost
of their regulation from the individual private property owner,
there is just nothing to stop them from doing that. I think
that with me one of my greatest objections to the way the Act
is being implemented today is that there is no cost to the
public for the public's demands on individual property owners.
In our Constitution, the Bill of Rights of our Constitution
was designed to protect the individual's rights from the will
of the majority and from the government. And the 5th
Amendment--``nor shall private property be taken for public use
without just compensation''--is completely ignored under the
current application of the Act because we can just require
whatever we want of an individual property owner. I think that
is why a lot of these debates are stirring in Congress and
throughout the country right now.
But thank you, Mr. Chairman.
Mr. Young. Who is up next on that side of the aisle? Go
ahead.
Mr. Kind. Thank you, Mr. Chairman. I just had a couple of
questions for Mr. Thomas, just to clarify the story that he
painted for us today.
First of all, was there any finding that there were
elderberry beetles anywhere in this proximity, perhaps not on
this property itself, but in the near vicinity?
Mr. Thomas. I am told that, as you follow the stream--and I
know it is difficult to believe that would create flooding at
this time, but when the snows melt and the rains come, they do
fill up--that a significant distance upstream there were some
elderberry trees, but they were way above the flooding line of
the lake.
Mr. Kind. That contained some beetles?
Mr. Thomas. That did contain beetles and bore holes.
Mr. Kind. Okay. The other question is, was your office
informed in regards to what Fish and Wildlife was considering
before they issued their final decision requiring the sandbags
and----
Mr. Thomas. Actually, we intervened in an attempt to try to
get a dialogue going between the Corps of Engineers that have
control over Success Dam and Fish and Wildlife, so that we
could mitigate the battle between the two agencies to get the
dammed sandbags up, and that we tried to get Fish and Wildlife
down there on the ground, and that we had local biologists make
the decision to try to speed up the process, and that they
simply refused to go along and said, ``We are not going to
sandbag the dam unless you protect the trees.'' So 140 trees
were sandbagged.
Mr. Kind. Well, how far away was Fish and Wildlife's
office?
Mr. Thomas. I think they are in Sacramento? Yes,
Sacramento. That is 200 miles.
Mr. Kind. Two hundred miles? Okay, thanks for that
clarification.
Mr. Thomas. Yes. Part of the difficulty is that, even when
we get them on the scene, they really are simply there in a
passive way. You can't engage them in a dialogue and quiz them
about why they did this or what they want to do or why they
want to do it. They are simply there to listen, and it is very
frustrating for the locals because it is a one-way comment
structure. And that is one thing, I think, that has to change;
that these people are unwilling to explain why they believe
certain things need to be done. It is very frustrating for
people when a decision comes down like this.
But in the timeframe, I mean, the landowners had nothing to
do. They said, do it, because we need the dam sandbagged.
Mr. Young. Jim----
Mr. Thomas. Excuse me, Mr. Chairman. The long-term
solution, of course, is to raise the height of the Success Dam
by 20 feet, and we have had this bill in asking the Corps of
Engineers to raise the height of the dam. The gentleman from
California, Mr. Radanovich and I share the area. And if we
could raise the dam height by 20 feet, we wouldn't have to make
these kinds of decisions, but that has not been possible in the
recent days, given the money concerns.
Mr. Young. The gentlelady from Idaho, Mrs. Chenoweth.
Mrs. Chenoweth. Thank you, Mr. Chairman. This is a
phenomenal story, Congressman Thomas.
So the Corps of Engineers was in charge of the reservoir
pool level?
Mr. Thomas. Yes.
Mrs. Chenoweth. Well, was there any evidence that you know
of that the Fish and Wildlife Service and the Corps consulted
with one another, or did anyone do a NEPA or an EA with regard
to the impact?
Mr. Thomas. We made sure they communicated with each other
because our timeline was so short; we kind of used our offices
to facilitate the communication between the Corps and Fish and
Wildlife to try to resolve this, as the waters continued to
rise. So there was communication; there was consultation, and
the answer was Fish and Wildlife was not going to let the Corps
sandbag the dam unless something was done about these bushes,
notwithstanding the local biologists saying that the bushes
that were threatened to be flooded, and in fact would have been
flooded, they had no evidence that they contained a beetle.
Mrs. Chenoweth. That is phenomenal. Thank you. Thank you,
Mr. Chairman.
Mr. Young. Mark Udall, any questions?
Mr. Udall of Colorado. Mr. Chairman, I have no questions at
this time. Thank you.
Mr. Young. Okay. The gentleman from California, Mr.
Radanovich.
Mr. Radanovich. Thanks. I have nothing to add other than my
support for the bill, and this is but a number of stories that
seem to happen to us in California. Thank you.
Mr. Young. Okay, Tom Udall.
Mr. Udall of New Mexico. Mr. Chairman, I don't have any
questions at this time, either.
Mr. Young. Mr. Thornberry?
Mr. Thornberry. No.
Mr. Young. Mr. Underwood?
Mr. Underwood. No.
Mr. Young. Mr. Simpson?
Mr. Simpson. No.
Mr. Young. Mr. Inslee?
Mr. Inslee. No.
Mr. Young. Mr. Sherwood?
Mr. Sherwood. No, thank you, Mr. Chairman.
Mr. Young. Mr. Souder?
Mr. Souder. Did you mean Noah when you said California was
flooded?
Mr. Young. Pardon?
Mr. Souder. You said that back when you were young and
California was all under water----
Mr. Young. The valley was flooded. A slip of the tongue
maybe, but Mr. Thomas to get the ``dammed bags built.'' Now I
don't know whether he meant--which way he meant that--
[Laughter]--but I caught----
Mr. Thomas. I will provide a written statement.
Mr. Young. People don't know the history of the California
valley; it used to be flooded actually up until in the 1930's.
Now it, of course, no longer occurs unless they have a dam that
breaks or something else happens.
But the elderberry bushes, which I am well acquainted with
because I have them on my ranch there, we used to get flooded
all the time, and they grew beautifully. We didn't know
anything about beetles. We used the elderberries to make wine
out of it. It made good wine, by the way. I don't know whether
you know that. I don't know whether that is invading the thing
or not.
But if there are no others, I would thank Mr. Thomas and
hope we will continue to have your support as we go through
this process. I know the administration is not happy with this
bill, but we have to get this to the forefront, to the people,
what is really happening with this act with the Fish and
Wildlife.
This is one vote on the rule on the budget. I would suggest
everybody who can be back here no later than 12 o'clock. It
shouldn't take you that long. By 12 o'clock, we will reconvene.
Thank you.
Mr. Thomas. Mr. Chairman, thank you very much for the
opportunity, and thank you for the bill.
Mr. Young. Thank you, Mr. Thomas.
[Recess.]
Mr. Young. The Committee will come to order.
We have panel two: Mr. Carl B. Loop; Mr. Robert Gordon; the
Honorable Jamie Clark; Mr. Steven Shimberg; Mr. Bruce Smith. If
you would take your seats--I would respectfully request that.
I hope we will get other members here very soon. If not, we
will still continue and proceed.
All right, Mr. Loop, you are vice president of the American
Farm Bureau Federation. Welcome to the Committee, and we look
forward to your testimony. We will hear testimony from all the
witnesses. Then we will have a series of questions. Thank you,
Mr. Loop.
STATEMENT OF CARL B. LOOP, JR., VICE PRESIDENT, AMERICAN FARM
BUREAU FEDERATION, WASHINGTON, DC
Mr. Loop. Good afternoon, Mr. Chairman and members of the
Committee. My name is Carl Loop. I am president of Loop's
Nursery and Greenhouses, Incorporated. It is a wholesale plant
operation in Jacksonville, Florida. I am also president of the
Florida Farm Bureau and vice president of the American Farm
Bureau.
We are pleased to offer our support for H.R. 1142, the
Landowners Equal Treatment Act of 1999. This Nation's farmers
and ranchers feed the country and much of the rest of the
world. They also provide food and shelter for most of our
Nation's threatened and endangered species. More than 78
percent of listed species are found on privately-owned lands,
with more than 34 percent being on privately-owned lands
exclusively.
The thrust of the Endangered Species, ES, and its current
administration is that private landowners, through onerous land
and use regulations and broad, far-reaching statutory
prohibitions, are made to bear the entire cost of protecting
listed species that occur on their property. Farmers and
ranchers and small landowners across the country are restricted
from using their property in ways that they have traditionally
used it because of alleged presence of listed species or
because it might someday be habitat for listed species.
We are told that there is a public interest in protecting
these species and that their survival will benefit all of us,
and we agree with that. Farmers and ranchers understand and
appreciate the need of biodiversity and the protection of
plants and animal species. Farmers and ranchers are willing to
further the public interest, so long as the public pays its
fair share. Payment of just compensation for decrease in
property values and restriction on land use caused by ESA
action is a method prescribed in the U.S. Constitution. The 5th
Amendment requires that when private property is taken for
public purpose the cost must be borne by the public through
just compensation to the private landowner. Yet, in many cases
private landowners are told to bear the entire cost of species
preservation through land use restrictions and prohibitions.
The Farm Bureau has led the fight in Congress and the
courts to have the government recognize its responsibilities to
provide just compensation for property values lost as a result
of protecting listed species on private property. Government
agencies such as the Fish and Wildlife Service have steadfastly
refused to recognize this responsibility and have fought every
effort along the way.
You know, we were shocked and amazed to learn that the Fish
and Wildlife Service had demanded, and will receive, more than
$20 million in compensation just because planes will fly 500
feet lower over a wildlife refuge due to the renovation at the
Minneapolis airport. The payments will be made by air
passengers traveling through Minneapolis.
There is no conceptual difference in what the agency
demanded than in what farmers and ranchers have been asking for
for years. If anything, the claims of private landowners are
much stronger because they are constitutional. The 5th
Amendment specifically addresses a landowner's claims, giving
them constitutionally-protected private property rights. The
only real difference between the two situations is that the
agency received compensation without having to fight a lengthy
and costly court action. This is in marked contrast to what the
agency forces small, private landowners to do, if they want to
protect their rights.
That is why the enactment of H.R. 1142 is important and why
the American Farm Bureau Federation supports it. It reinforces
a constitutional guarantee to just compensation, and it also
provides a private landowner should at least be treated no
differently than Federal agencies that receive compensation
when constructive use of the property they manage is adversely
affected.
The bill also sets forth a fair and uncomplicated procedure
that allows private landowner claims for compensation to be as
easily processed as was the demand from the Fish and Wildlife
Service. Procedural equity is as important as recognition of
equal rights. Having equal rights means little if small,
individual private property owners with limited resources
cannot afford to enforce those rights, either financially or in
length of time it takes to receive satisfaction.
H.R. 1142 does not add any new rights not already provided
by the Constitution. Further, it does not do for private
landowners anything that the Federal Government is not already
doing for itself. It merely puts all parties on equal footing
with respect to compensation for regulatory takings.
Mr. Chairman, I have got examples in my written report. In
Florida, as was noted earlier, we are just behind California
and Hawaii in the number of endangered species and have
examples of where the authority of ESA has been abused and has
really been harmful to some of our private landowners.
[The prepared statement of Mr. Loop follows:]
Statement of Carl Loop, Vice President, American Farm Bureau
Federation, President, Florida Farm Bureau Federation
Mr. Chairman and members of the Committee: Good morning. My
name is Carl Loop, Jr. I am president of Loop's Nursery and
Greenhouses, Inc., a wholesale plant nursery operation in
Jacksonville, Florida. I am President of the Florida Farm
Bureau Federation, and also serve as Vice President of the
American Farm Bureau Federation.
We are pleased to offer our support for H.R. 1142, the
Landowners Equal Treatment Act of 1999. This nation's farmers
and ranchers feed the country and much of the world. They also
provide food and shelter for most of our nation's threatened
and endangered species. More than 78 percent of listed species
are found on privately owned land, with more than 34 percent
being on privately owned land exclusively. The vast majority of
open, private land is owned by farmers and ranchers.
The thrust of the Endangered Species Act (ESA) and its
current administration is that private landowners, through
onerous land use regulations and broad, far-reaching statutory
prohibitions, are made to bear the entire cost for protecting
listed species that occur on their property. Farmers, ranchers
and small landowners across the country are restricted from
using their property in ways that it has traditionally been
used because of the alleged presence of a listed species or
because it might someday be habitat for a listed species that
is not presently there.
We are told that there is a ``public interest'' in
protecting these species, and that their survival will benefit
all of us. As stewards of the land, farmers and ranchers
understand and appreciate the need for biodiversity and the
protection of plant and animal species. Farmers and ranchers
are more than willing to further the public interest, so long
as the public pays its fair share.
Payment of just compensation for diminution in property
values and restrictions on land use caused by ESA actions is
the method prescribed in the United States Constitution for
achieving this. The Fifth Amendment to the Constitution
requires that when private property is taken for public
purposes, the costs must be borne by the public through just
compensation to the private landowner. Yet in many cases
private landowners are told to bear the entire costs of species
preservation through land use restrictions and prohibitions.
A number of examples of the types of restrictions can be
found in my home state of Florida, which has the second largest
number of listed species within the continental United States.
A couple of years ago, more than a hundred landowners received
letters from the U.S. Fish & Wildlife Service advising them
that their private property had habitat that could house the
Florida scrub jay, a listed species. Landowners were also
advised that any activity that might alter the scrub habitat on
their property could be a violation of the Endangered Species
Act, subjecting the owner to steep fines or even prison. A few
years earlier, owners of five acre lots near Cross Creek were
advised that they could not use the majority of their property
because of the presence of a bald eagle's nest. In both cases,
little or no regard was given by the Fish & Wildlife Service to
the loss of use or value of the property.
Farm Bureau has for many years led the fight in Congress
and the courts to have the government recognize its
responsibilities under the Fifth Amendment to provide just
compensation for property values lost as a result of protecting
listed species on private property. Government agencies such as
the Fish & Wildlife Service have steadfastly refused to
recognize this responsibility and have fought this effort every
step of the way.
We were therefore both shocked and amazed to learn that the
Fish & Wildlife Service itself demanded and will receive more
than $20 million in compensation just because planes will fly
500 feet lower over a wildlife refuge due to renovations at the
Minneapolis airport. The payments will be made by air
passengers traveling through the Minneapolis airport. We are
not sure whether to be pleased that the agency has finally seen
the error of its past position and recognized the just
compensation requirement of the Fifth Amendment, or to be
outraged that the very same agency that has for years refused
to recognize compensation for lost private property uses now
suddenly turns the table completely when the property it
manages is impacted. The agency seems to be telling farmers and
ranchers, ``Do as I say, not as I do.''
If actions speak louder than words, as they invariably do,
the Fish & Wildlife Service can no longer argue with any
credibility that compensation should not be paid to private
landowners when ESA actions adversely impact the value or use
of their property. Any claims to the contrary are belied by the
agency's behavior in similar circumstances.
There is no conceptual difference in what the agency
demanded than in what farmers and ranchers have been asking for
years. If anything, the claims of private landowners are much
stronger than the claims of the agency, because the Fifth
Amendment to the Constitution specifically addresses the
landowners' claims, giving them a Constitutionally protected
property right. There is, however, no Constitutional right for
compensation to Federal agencies in cases when one public use
has been substituted for another as it was in the Minneapolis
case. The actions of the Fish & Wildlife Service can only be
construed as accepting and reinforcing the argument that we
have been making for years that the Fifth Amendment requires
just compensation in cases where Federal regulations result in
lost property value.
The only real difference between the two situations is that
the agency received compensation without having to fight a
lengthy and costly court action. This is in marked contrast to
what the agencies force small private landowners to do if they
want to protect their rights.
Should government be able to demand and receive
compensation for its lost property values, and deny it in cases
when it causes the loss in value?
Should government, whose duty it is to uphold the rights of
its citizens, be allowed to ignore those rights, yet also be
allowed to assert similar rights when it is affected?
The answer is no. What is good for one should be good for
all.
That is why the enactment of H.R. 1142 is so important, and
why the American Farm Bureau Federation wholeheartedly supports
it. Not only does it reinforce the Constitutional guarantees to
just compensation, but it also provides that private landowners
should at least be treated no differently than Federal agencies
that receive compensation when constructive use of the property
they manage is adversely affected.
The bill also sets forth a fair and uncomplicated procedure
that allows private landowner claims for compensation to be as
easily processed as was the demand from the Fish & Wildlife
Service. Procedural equity is as important as recognition of
equal rights. Having equal rights means little if small,
individual private property owners with limited resources
cannot afford to enforce those rights, either financially or in
the length of time it takes to receive satisfaction.
H.R. 1142 does not add any new rights not already provided
by the Constitution. Further, it does not do for private
landowners anything that the Federal Government is not already
doing for itself. It merely puts all parties on equal footing
with respect to compensation for regulatory takings.
Mr. Young. Thank you, Mr. Loop.
Mr. Gordon.
STATEMENT OF ROBERT E. GORDON, JR., NATIONAL WILDERNESS
INSTITUTE AND GRASSROOTS ESA COALITION, WASHINGTON, DC
Mr. Gordon. Thank you, Mr. Chairman. On behalf of the
Grassroots ESA Coalition and the National Wilderness Institute,
I am Rob Gordon. I am executive director of the National
Wilderness Institute, a private conservation organization, and
a member of the Grassroots ESA Coalition.
The Grassroots ESA Coalition is a diverse and large
coalition of organizations representing everybody from
environmental groups and property owners to ranchers, loggers,
miners, and outdoor recreationists. The coalition is dedicated
to changing the current approach for recovery of endangered
species from the adversarial command-and-control process under
today's ESA to an incentive-based program that encourages
private landowners and citizens to provide habitat for wildlife
and fosters a cooperative relationship between regulators and
the regulated, resulting in long-term benefits to wildlife and
society.
The Grassroots ESA Coalition strongly supports H.R. 1142
and commends you for addressing one of the fundamental flaws of
the current ESA. Today counterproductive Federal regulations
have created disincentives for conservation by preventing
private property owners from using all or portions of their
land if it is considered habitat for a federally-listed
species. The ESA makes wildlife habitat a liability.
Without property rights protection, disincentives are
created for both the property owner and the regulator. The
property owner has a disincentive to maintain and create
wildlife habitat, while the regulator that is not required to
compensate the landowner will take the property owner's land
because it is cost-free, rather than engage in the active
management that is essential for the recovery of endangered
wildlife.
Ultimately, what is lost is more than the trust and respect
for Federal agencies and the loss of personal property. It is
the loss of habitat and a year-round source of food and water
for wildlife and endangered species. Landowners are rewarded if
they manage their land in a way that does not attract
endangered species and are punished for providing endangered
species habitat.
In 1997, NWI completed a peer-reviewed study that measured
the degree to which implementation of the ESA has conserved
federally-endangered and threatened species. This study, which
was based entirely on U.S. FWS data and National Marine
Fisheries Service data, concluded that regulatory mechanisms of
the ESA have entirely failed to recover endangered and
threatened species.
We have created a law which pits rare plants and animals
against property owners. As a result, both lose. The taking of
private property for some environmental public benefit,
likewise, adversely affects the behavior of land managers. The
owner is forced to bear the price of some public good or
benefit, such as preservation of a governmentally-defined
wetland, or even retaining theoretical endangered species
habitat. Because of the perverse incentive structure created by
such regulations, there are often less desirable management
decisions than would otherwise be made.
As a result, the unintended consequence of a policy to
provide some public benefit at a property owner's expense, or
that the resource, and--because it is the sum of cumulative
good deeds--conservation as a whole suffer. At NWI we believe
protecting property rights is the single most important step we
could now take to improve our Nation's conservation efforts.
Current programs create perverse disincentives that devalue
land if it contains rare wildlife or habitat--the last thing
you should do, if you want to make something more plentiful. It
is no accident, I think, that our wildlife and habitat
management successes--and there are many--are the result of
voluntary efforts, not governmental regulation of private
property.
Successful wildlife programs almost invariably occur where
private incentives are allowed to work or, as in our sportfish
and game programs, where consumption or harvesting is used
either as a management tool or as a way to make a government
program pay its own way.
Government environmental regulations which take private
property hurt conservation. If private property were better
protected, each resource manager would be encouraged by
enlightened self-interest to ensure that his resource is not
only valuable today, but in the future as well. As a result,
the individual closest to the resource would have an incentive
to actively engage in determining what are the best practices
for his particular site and situation, as no government
regulator will ever be able to do.
Successful conversation is dependent upon protected private
property. The Grassroots ESA Coalition supports the passage of
this bill, and it would correct one of the fundamental flaws in
the current law that prevents us from having a successful
endangered species conservation effort. In fact, the Grassroots
ESA Coalition favors a complete rewrite of the Endangered
Species Act and anticipates the introduction of an incentive-
based conservation bill for endangered species that benefits
wildlife and people later this year.
We would like to thank you again and submit the mission and
principles of the Grassroots ESA Coalition for the record.
[The prepared statement of Mr. Gordon follows:]
Bob Gordon, Executive Director, National Wilderness Institute
On behalf of the Grassroots ESA Coalition I would like to
thank you, Mr. Chairman, for this opportunity to appear before
the Committee on Resources to testify on H.R. 1142, The
Landowners Equal Treatment Act of 1999.
My name is Rob Gordon. I am the Executive Director of the
National Wilderness Institute, a private conservation
organization and member of the Grassroots ESA Coalition.
The Grassroots ESA Coalition is a diverse and large
coalition of organizations representing everyone from
environmental groups and property owners to ranchers, loggers,
miners and outdoor recreationists.
The Coalition is dedicated to changing the current approach
for recovery of endangered species from the adversarial command
and control process under today's ESA to an incentive based
program that encourages private landowners and citizens to
provide habitat for wildlife, and fosters a cooperative
relationship between regulators and the regulated resulting in
long term benefits for wildlife and society.
H.R. 1142 The Landowners Equal Protection Act of 1999
The Grassroots ESA Coalition strongly supports H.R. 1142
and commends the Chairman for addressing one of the fundamental
flaws of the current ESA. Today counterproductive Federal
regulations have created disincentives to conservation. By
preventing private property owners from using all or portions
of their land if it is considered habitat for a federally
listed species, ESA makes wildlife habitat a liability.
Without property rights protection, disincentives are
created for both the property owner and the regulator. The
property owner has a disincentive to maintain and create
wildlife habitat while the regulator that is not required to
compensate the land owner will take the property owners land
because it is cost free rather than engage in the active
management that is essential for the recovery of endangered
wildlife.
Ultimately what is lost is more than the trust and respect
for Federal agencies and the loss of personal property, it is
the loss of habitat, and a year round source of food and water
for wildlife and the endangered species. Landowners are
rewarded if they manage their land in a way that does not
attract endangered species and are punished for providing
endangered species habitat. A well known example is Ben Cone, a
North Carolina timber land owner, who testified before this
Committee a few years ago.
Mr. Cone had always tried to harvest trees in a way that
provided habitat for wildlife. Campers, hunters and fishermen
used his land because he believes wildlife, tree farming and
outdoor recreation are compatible. But when the endangered red-
cockaded woodpecker arrived on his property, the Endangered
Species Act put 1,000 acres of his property off limits to him.
He spent $8,000 on biologists to make sure he was following the
stringent rules, and figures he lost $1.8 million dollars in
timber that was tied up in the area he could not harvest. He
was prohibited from harvesting these trees because they had
reached an age at which they attracted red-cockaded
woodpeckers. As these trees become older the inner wood often
becomes softer and thereby good insect hunting ground for
woodpeckers.
Because of the perverse incentives of environmental
regulation, Mr. Cone was forced to ensure that no more of his
property was taken because his trees had become old enough to
attract woodpeckers. To protect himself, Mr. Cone harvested his
remaining trees at an earlier age. The end result was that all
parties lost. Mr. Cone had lost part of his property and
reduced management options on the remainder. The red-cockaded
woodpecker lost because once the trees now off limits to Mr.
Cone are gone there will be no more habitat generated on Mr.
Cone's property because he could not afford to allow his trees
to get too old. And, the taxpayer lost because dollars spent on
regulators ended up harming the very bird they were spent to
protect.
Mr. Cone was one of the fortunate land owners that had the
resources to take legal action against the agency administering
the ESA. Eventually a settlement was reached between the two
parties.
Awakening to the Adverse Conservation Impact of the Act
Not only are those who have long been critics of the Act
pressing this point but also some who have, until recently,
argued that the law functioned the way it should. Michael Bean
of the Environmental Defense Fund, for example, told a U.S.
Fish and Wildlife Service employee training session:
There is, however, increasing evidence that at least some
private landowners are actively managing their land so as to
avoid potential endangered species problems. The problems they
are trying to avoid are the problems stemming from the Act's
prohibition against people taking endangered species by adverse
modification of habitat. And they're trying to avoid those
problems by trying to avoiding having endangered species on
their property. . . . Now it's important to recognize that all
of these actions that landowners are either taking or
threatening to take are not the result of malice towards the
red-cockaded woodpecker, not the result of malice towards the
environment. Rather, they're fairly rational decisions
motivated by a desire to avoid potentially significant economic
constraints. In short, they are really nothing more than a
predictable response to the perverse incentives that sometimes
accompany regulatory programs, not just the endangered species
program but others. So that's point one, that the strategies
that have been used to date to conserve this species, the red-
cockaded woodpecker, on private lands have probably contributed
to the loss of the ecosystem upon which that bird depends.
Similarly, Larry McKinney of Texas Parks and Wildlife Department
recently stated:
I am convinced that more habitat for the black-capped vireo and
especially the golden-cheeked warbler has been lost in those
areas of Texas since the listing of those birds than would have
been lost without the Endangered Species Act at all.
Clearly there is increased recognition that the Act is not only
failing in some incentives but resulting in the opposite of what was
intended.
Conservation Under the Endangered Species Act
In 1997 NWI completed a peer reviewed study that measured the
degree to which implementation of the ESA has conserved or is
demonstrably leading to the conservation of federally endangered and
threatened species.
This study, that was based entirely on USFWS and National Marine
Fisheries Service (NMFS) data, concluded that:
The ESA's process for determining whether a species is
endangered or threatened is subjective and often leads to
incorrect determinations. Over 60 percent of listed species are
considered declining or are of unknown status. The regulatory
mechanisms of the ESA have entirely failed to lead to the
recovery of endangered or threatened species. Only two species,
the Aleutian Canada goose and the Virginia round-leaf birch can
be considered as having been reclassified from endangered to
threatened primarily because of the ESA. Although, in both
instances, the beneficial management practices could have been
conducted under other existing authorities. More than half of
the species which are considered to have reached 75 percent or
more of their recovery objectives have reached that point for
reasons other than the successful implementation of the ESA.
Vertebrate species clearly receive a disproportionate share of
funding. Expenditure reports reveal that expenditures by
governmental agencies other than the primary implementing
agencies, the USFWS and the NMFS, account for the majority of
Federal expenditures.
Given the inconsistency and inaccuracy of the USFWS reports,
the agency's ability to conduct meaningful analysis of this
program is questionable. Inaccurate reporting and inconsistent
methodology complicates and decreases the potential for
analysis of the program. The USFWS's lack of collection and
reporting of quantitative data on species over time
substantially frustrates an important means of measurement. The
Department of Interior's inability to collect, maintain, and
make available reliable data for the near 1,000 domestic listed
species casts profound doubt on the notion that the same
Department could reasonably manage a ``national biological
survey'' (Fretwell 1997) of all flora and fauna as has been
recently instituted.
The problems within the ESA are profound and require drastic
revisions or wholesale replacement to create an endangered
species program that will result in real conservation
achievements.
We Can Conserve Species In Peril
The poor record of the current Endangered Species Act does not mean
that we cannot conserve endangered wildlife. Compare the results of the
ESA's regulatory and punitive approach with the record of voluntary,
incentive based efforts which benefit greatly from private property.
Wood ducks and bluebirds came back from very depressed numbers because
thousands of people built artificial nesting boxes that were placed on
private property.
Wood duck boxes built by duck hunters and placed in swamps are
actually better than hollow trees at keeping out predators such as
snakes and raccoons, and as a result of these boxes there are now over
three million wood ducks in America--enough to support an annual
harvest of over eight hundred thousand ducks.
When bluebird fanciers discovered that their favorite bird was
declining primarily because the English starling, an aggressive,
introduced species, was taking too many of the bluebird's nesting
cavities, they designed bird houses with openings too small for
starlings. In the last 15 years, over one hundred thousand bluebird
houses have been built and bluebirds are on the rebound.
Wild turkeys have been restored from severely depleted numbers to
their original range and beyond at the impetus of turkey hunters.
Today, wild turkeys are found in every state except Alaska. The turkey
population is at an all time peak and growing. And the hunters who
organized the restoration effort are now able to harvest five hundred
thousand birds annually.
Why are these private efforts so much more successful than the
Endangered Species Act? Consider the difference between incentives and
regulation. Suppose the Endangered Species Act had been adopted early
in this century--wood ducks, bluebirds and wild turkeys would have been
added to the Federal list and regulated under this law.
How could one convince a landowner to give permission to put a
nesting box on his property?
How many landowners could afford to let the Wild Turkey Federation
release birds on their land if the presence of an endangered species
meant they could no longer use their land?
Conclusions
We have created a law which pits rare plants and animals against
property owners. As a result, they both lose.
Of particular interest to the Grassroots ESA Coalition and NWI is
the relationship between private ownership of land and conservation.
Private land is actually more important to the conservation of rare
wildlife than government land. Although the Federal Government owns
vast amounts of land, private land is often richer in wildlife, plants
and water. When I speak of private conservation I do not refer only to
not-for-profit environmental organizations but also commercial
activities--ranching, farming, forestry, recreation industries and
others--that make tremendous contributions to conservation as a
byproduct of business activity. The North Maine Woods land, for
example, is a vast area--over two million seven thousand acres--of
privately owned commercial forest land that provides not only extensive
wildlife habitat and public recreation opportunities, but contributes
to our economy. Much of this land is still owned by the many
descendants of the original landowners who got the land when Maine
became a state in 1820.
In some cases, conservation is directly related to a business
enterprise. Sea Lion Caves, a for-profit organization, protects the
only mainland rookery of the Steller sea lion. It is a major tourist
attraction on the Oregon coast and receives over 200,000 visitors
annually. Had not the area been privately owned, developed and
protected, especially when the State of Oregon paid a bounty for
slaughtered sea lions, the sea lions caves area would undoubtedly be
void of sea lions and other marine life and this natural wonder would
probably not exist today.
The opportunities to improve the quality of our environment by
creating incentives for property owners are not limited to the case of
Sea Lion Caves but are vast. In Utah, Deseret Livestock's land produce
elk that have a higher calving ratio, preferable bull to cow ratio and
a higher average weight that on adjoining public land. In Texas private
ranchers are providing habitat and thereby maintaining a total number
of a rare African antelope that is greater than in Africa itself. In
these cases not only are the landowners and the species benefiting from
private conservation activities but also the public. If any of these
activities made the property owner vulnerable to taking of his
property, they would surely be reduced in size and scope and might not
occur at all.
Unfortunately, in some environmental circles it is assumed that the
best thing we can do for the environment is to set aside the maximum
amount of land and lock it up from any human influence, preserving
resources from people rather than for them. It is assumed that
governments make good land use decisions and private landowners make
bad land use decisions. But these assumptions are not based on sound,
objective science, and are not verified by human experience.
Many years ago biologist by the name of Garret Harden described a
flaw in the foundation of the thinking of many influential
environmental circles. Hardin argued that when something is owned
communally, each possible user will try to maximize to his benefit to
the detriment of the resource rather than working to make sure the
resource would be increased in value as is the case with private
property. Hardin termed this phenomenon ``the Tragedy of the Commons.''
The taking of private property for some environmental ``public
benefit'' likewise adversely affects the behavior of land managers. The
owner is forced to bear the price of some ``public good or benefit''
such as preservation of a governmentally defined wetland or even
retaining theoretical endangered species habitat. Because of the
perverse incentive structure created by such regulations there are
often less desirable management decisions than would otherwise be made.
As a result, the unintended consequences of a policy to provide some
``public benefit'' at a property owner's expense are that the resource
and, because it is the sum of cumulative good deeds, conservation as
whole, suffer. At NWI we believe protecting property rights is the
single most important step we could now take to improve our nation's
conservation efforts. Current programs create perverse disincentives
that devalue land if it contains rare wildlife or habitat the last
thing you should do to make some more plentiful.
It is no accident, I think, that our wildlife and habitat
management successes--and there are many--are the result of voluntary
efforts, not governmental regulation of private property.
Successful wildlife programs almost invariably occur where private
incentives are allowed to work--or as in our sport fish and game
programs--where consuption or harvesting is used either as a management
tool or as a way to make a government program pay its way.
Government environmental regulations which take private property
hurt conservation. If private property were better protected, each
resource manager would be encouraged by enlightened self interest to
ensure that his resource is not only valuable today but in the future
as well. As a result, the individual closest to the resource would have
an incentive to actively engage in determining what are the best
practices for his particular site and situation as no government
regulator will ever be able to do. Successful conservation is dependent
upon protected private property.
The Grassroots ESA Coalition supports the passage of H.R. 1142. It
would correct one of the fundamental flaws in the current law that
prevents us from having a successful endangered species conservation
effort. In fact, the Grassroots ESA Coalition favors a complete rewrite
of the endangered species Act and anticipates the introduction of an
incentive based conservation bill for endangered species that benefits
wildlife and people later this year.
[The information follows:]
GRASSROOTS ESA COALITION
Mission
A diverse and large coalition of organizations representing
everyone from environmental groups and property owners to ranchers,
miners, loggers and outdoor recreationists has publicly unveiled
principles for establishing a new way to conserve our nation's
endangered species.
The Grassroots, ESA Coalition organizations united to promote these
principles so that the old Endangered Species Act could be reformed in
a way that benefits both wildlife and people, something the old law has
failed to do.
The old law has been a failure for endangered species and for
people. It has not led to the legitimate recovery of a single
endangered species while costing billions of dollars and tremendous
harm. The old way destroyed trust between people and our wildlife
officials. We need to reestablish trust so we can conserve wildlife--no
program will succeed without the support of our farmers, our ranchers,
our citizens.
The old law failed because it is based on flawed ideas. It is
founded on regulation and punishment. If you look at the actual law by
section you see it is all about bureaucracy--consultation, permits, law
enforcement there isn't even a section of the law called
``conservation,'' ``saving'' or ``recovery.''
It is a bureaucratic machine and its fruits are paperwork and court
cases and fines--not conserved and recovered endangered species. What
the Grassroots ESA Coalition and all Americans want to see is a law
that works for wildlife, not one that works against people.
The future of conservation lies in establishing an entirely new
foundation for the conservation of endangered species--one based on the
truism that if you want more of something you reward people for it, not
punish them. The debate that will unfold before the public is one
between methods of conservation.
The old way is shackled to the idea that Washington bureaucrats can
come up with a government solution through national land use control.
Its supporters do not want to acknowledge that the law has failed
because doing so would mean an end to the influence and power they have
under the old system.
The Coalition sees a new way that can actually help endangered
species because it stops punishing people for providing habitat and
encourages them to do so. It creates an opportunity for our officials--
for government--to reestablish trust and work with and earn the support
of citizens. The Grassroots ESA Coalition is working to promote this
new way.
If you think that government bureaucracy works, that welfare stops
poverty and does not need reform or that the DMV and Post Office
operate the way they should, then the old endangered species program is
for you. If you do not, and you want to conserve endangered species
without wasting money, intruding on people's lives and causing more
pain and problems, then the Grassroots ESA Coalition is for you.
Statement of Principles Regarding Endangered Species
The Endangered Species Act has:
failed to conserve endangered and threatened animals and
plants;
discouraged, hindered, and prohibited effective conservation
and habitat stewardship;
created perverse incentives, thus promoting the destruction of
privately owned endangered species habitat; and wasted scarce
conservation resources.
The Endangered Species Act has failed in large part because it has
engendered a regulatory regime that has:
violated the rights of individuals, particularly property
rights;
destroyed jobs, devalued property, and depressed human
enterprise on private and public lands;
hidden the full cost of conserving endangered species by
foisting those costs on private individuals; and
imposed significant burdens on State, county, and local
governments.
We therefore support replacing current law with an Endangered
Species Act based upon these principles:
Animals and plants should be responsibly conserved for the
benefit and enjoyment of mankind.
The primary responsibility for conservation of animals and
plants shall be reserved to the States.
Federal conservation efforts shall rely entirely on voluntary,
incentive-based programs to enlist the cooperation of America's
landowners and invigorate their conservation ethic. Federal
conservation efforts shall encourage conservation through
commerce, including the private propagation of animals and
plants.
Specific safeguards shall ensure that this Act cannot be used
to prevent the wise use of the vast Federal estate.
Federal conservation decisions shall incur the lowest cost
possible to citizens and taxpayers.
Federal conservation efforts shall be based on sound science
and give priority to more taxonomically unique and genetically
complex and more economically and ecologically valuable animals
and plants.
Federal conservation prohibitions should be limited to
forbidding actions intended to kill or physically injure a
listed vertebrate species with exception of uses that create
incentives and funding for an animal's conservation.
Mr. Young. Thank you, Mr. Gordon.
Before I go to Ms. Clark, for those of you in the room, if
you have a mobile phone, shut it off or put it on a shaking
mode, because it is not allowed in this room. It is very
impolite for a person giving testimony to have the shrill ring
of a phone that comes into this room. So keep that in mind,
because you are my guests; I expect you to respect that.
Jamie.
STATEMENT OF JAMIE RAPPAPORT CLARK, DIRECTOR, U.S. FISH AND
WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON,
DC
Ms. Clark. Good afternoon, Mr. Chairman. I appreciate this
opportunity to discuss H.R. 1142, the Landowners Equal
Treatment Act.
The administration is strongly opposed to enactment of H.R.
1142. This legislation will seriously and needlessly undermine
endangered species conservation under the guise of protecting
private property rights. The Secretary of the Interior will
recommend a veto of H.R. 1142, if it is presented to the
President.
Mr. Chairman, since I am not an attorney, I will focus my
testimony on our highly successful efforts to make the
Endangered Species Act more friendly to landowners, and how
H.R. 1142 will compromise those efforts.
Before I begin, though, there has been a lot of discussion
about Minnesota Valley National Wildlife Refuge, and I would
like to briefly address the situation at the refuge, upon which
H.R. 1142 appears, in part, to have been based.
Section 4(f) of the Transportation Act provides that park
and wildlife areas, whether they are Federal, State, or local,
may be utilized for transportation projects only when there is
no viable alternative, and that the project engage in all
possible planning to minimize and mitigate impacts if such an
area should be used or must be used.
When Congress enacted this provision, they intended to
discourage the use of our refuges and parks for transportation
projects and, thankfully, they succeeded. Unlike private
property, public lands have no constitutional protections.
Although section 4(f) does not require payment as if the lands
were private lands taken for governmental purposes, it does
require the action agency to consider all feasible
alternatives, and in the event there are none, to minimize and
mitigate those effects. The mitigation requirement could
generally be met in many ways that don't necessarily involve
cash payments, such by altering designs, changing timing or
location of activities, or other similar measures.
There is no relationship between a statute that
appropriately limits the use of public park, recreation, and
wildlife areas for transportation projects and the provisions
of H.R. 1142, which requires the Service to compensate
landowners from its budget for its statutorily-required efforts
to protect endangered species.
This administration has gone to great lengths to harmonize
endangered species conservation with the protection of private
property rights. We have instituted bold reforms that have
provided greater flexibility and certainty to businesses and
private landowners. We streamlined the consultation and
permitting components of the Endangered Species Act. We are
proud that our efforts have accelerated species conservation
and recovery, while promoting cooperation rather than
confrontation. Key landowner-oriented reforms are discussed in
some detail in my formal statement and in previous testimony
before this Committee.
Increased funding support is essential to continue our
successful record of reform. The President's Fiscal Year 2000
budget request for endangered species is an extremely important
step in providing adequate funding to allow the Service to
provide technical and financial assistance to landowners, to
support candidate conservation agreements, to speed up the
consultation program that assists other Federal agencies, and
to increase and accelerate recovery actions.
The administration has taken great efforts to ensure that
our implementation of the Endangered Species Act is both
scientifically sound and consistently enforced throughout the
country. We believe that, with full implementation of our
reforms and provision of adequate provisions, the Endangered
Species Act will, indeed, protect the biological resources of
our Nation and the constitutional rights of American citizens.
H.R. 1142, if enacted, would likely have drastic
consequences for the public as well as for the Fish and
Wildlife Service. Many agency actions which have not considered
takings by the courts in the past would appear to be
statutorily defined as such by H.R. 1142.
The bill's provision that the funding for the required
compensation program for these new takings is to come from the
annual appropriation of the Fish and Wildlife Service could
well result in a diversion of most, if not all, of the funds
appropriated for the endangered species program into
compensation for landowners. We would have little control over
this result because most of the agency actions that would
trigger the compensation are not discretionary under the
Endangered Species Act. The section 7 consultation and the
section 10 incidental take requirements are law. They don't
become inoperable or suspended because the Service has
insufficient funds to conduct the consultation or evaluate the
HCP.
The work of the Service would grind to a halt. Developers
or landowners whose project might affect a listed species would
have the unhappy choice of postponing their project or
attempting to proceed without the Service's involvement, a
violation of the law subject to suit and injunction by any
interested party and prosecution by the Department of Justice.
Similarly, other Federal agencies would be unable to proceed
with their own projects which might affect listed species or
grant permits of permission to private developers for such
projects.
As a result of the administrative reforms to craft a new
Endangered Species Act, the ESA now produces cooperation
instead of confrontation, and conservation rather than chaos.
Enactment of H.R. 1142 would reverse this situation, to no
one's benefit.
Mr. Chairman, this concludes my testimony, and I would be
happy to answer any questions.
[The prepared statement of Ms. Clark follows:]
Statement of Jamie Rappaport Clark, Director, Fish and Wildlife
Service, Department of the Interior
Mr. Chairman, I appreciate this opportunity to discuss H.R.
1142, the Landowners Equal Treatment Act.
The Administration is strongly opposed to enactment of H.R.
1142. This legislation will seriously and needlessly undermine
endangered species conservation under the guise of protecting
private property rights. The Secretary of the Interior will
recommend a veto of H.R. 1142 if it is presented to the
President.
I have a letter from the Department of Justice, which I
understand has also been provided to the Committee, addressing
the aspects of the bill relating to ``takings,'' and the
operation of the section 4(f) programs of the Department of
Transportation. I will accordingly focus my testimony on our
highly successful efforts to make the Endangered Species Act
(ESA) more friendly to landowners, and how H.R. 1142 will
compromise those efforts.
Before I begin, though, I would like to briefly address the
situation at the Minnesota Valley National Wildlife Refuge,
upon which H.R. 1142 appears, in part, to have been based. The
Committee held a hearing on this issue February 3, at which
both the Service and the FAA testified. It is essential to note
that there was no requirement that the Metropolitan Airport
Authority in Minneapolis compensate us for the impacts their
airport expansion. Section 4(f) of the Transportation Act
provides that park and wildlife areas--whether Federal, State
or local--may be utilized for transportation projects only when
there is no viable alternative, and that the project ``engage
in all possible planning'' to minimize and mitigate impacts if
such an area must be used.
There is no requirement in this statute that compensation
be paid when conservation lands must be utilized for a
transportation project. Government lands have no constitutional
protection against being taken for use by other governmental
projects, and section 4(f) does not require payment as if the
lands were private lands taken for governmental purposes. The
requirement to minimize and mitigate impacts could generally be
met in many ways not involving cash payments, such as by
altering designs, changing timing or location of activities, or
similar measures.
In this particular case, the Department of Transportation
was in a position to fulfill its statutory obligation under
Section 4(f) to avoid harm to public park land by accepting the
local airport authority's decision to replace the refuge
recreational and environmental education facilities which would
no longer be useable by the public after the airport was
expanded. This was presumably due to the popularity of the
refuge public use and environmental education programs with the
local residents, to whom the airport authority is responsible.
Similarly, there was no connection between the decision to
replace the facilities and the Endangered Species Act, for the
simple reason that there are no listed species impacted by the
new runway. The Service had concurred in a ``no effect''
determination under Section 7 of the ESA long before any
decisions were made on replacement of the refuge public use
facilities.
We cannot see any relationship between a statute that
limits the use of park, recreation and wildlife areas for
transportation projects and the provisions of H.R. 1142, which
requires the Service to compensate landowners, from its budget,
for its statutorily-required efforts to protect endangered
species which are already present on their property.
This Administration has gone to great lengths to minimize
the impacts of the ESA on landowners. We have instituted bold
reforms that have provided greater flexibility and certainty to
businesses and private landowners. We have streamlined the
consultation and permitting components of the Federal
Endangered Species Program. We are proud that our efforts have
produced better species conservation and recovery, while
promoting cooperation rather than confrontation.
Key landowner-oriented reforms include streamlining
processes for Habitat Conservation Plans, the use of new tools
like ``No Surprises'' assurances and ``Safe Harbor''
agreements, and greater use of Candidate Conservation
Agreements and special rules under section 4(d) of the ESA.
Habitat Conservation Plans
Section 10 of the ESA accommodates landowners by
authorizing the government to permit ``taking'' of individual
endangered or threatened species by a landowner or local
government incidental to otherwise lawful activities, when the
effects of the taking are mitigated and minimized by
conservation measures. The statutory requirements are
interpreted and detailed in the Service's implementing
regulations, administrative guidelines in the Services' Habitat
Conservation Planning Handbook, and the final ``No Surprises''
rule. For those who are not familiar with it, a copy of that
Handbook is Appendix I to my statement. The statutory
requirements include provisions requiring an applicant to
develop a conservation plan before an incidental take permit
can be issued. Conservation plans under the ESA have come to be
known as ``habitat conservation plans'' or ``HCPs'' for short.
In order to encourage HCP development, the Service has
streamlined the development and application process and
produced the previously-mentioned HCP Handbook as a guide. The
handbook makes a number of improvements over the prior process.
First, it establishes a category of ``low-effect HCPs''
applying to activities that are minor in scope and impact.
These HCPs receive faster handling during the permit processing
phase. Second, the handbook provides clear guidance to Service
personnel about section 10 program standards and procedures.
Third, the handbook outlines numerous mechanisms to accelerate
the permit processing phase for all HCPs. Finally, specific
time periods are established in the handbook for processing an
incidental take permit application once an HCP is submitted to
the Service:
HCP With an Environmental Impact Statement--less than 10
months;
HCP With an Environmental Assessment--3 to 5 months; and
Low-effect HCP--less than 3 months.
In addition, the Service has proposed a Draft Addendum (otherwise
known as the 5-point policy guidance) to the HCP Handbook, so that the
HCP process can even better conserve wildlife while ensuring certainty
for landowners and other applicants. The proposal would improve the way
HCPs are developed and administered in five areas: establishment of
measurable biological goals and objectives, use of adaptive management,
monitoring, public participation and determination of the duration of
the incidental take permits. Explicit goals and objectives will provide
clear guidance for both the applicant and the Service regarding the
purpose and direction of the HCP's operating conservation program.
Incorporating adaptive management into an HCP gives applicants
certainty about what we will require them to do under changing
circumstances and allows the applicant to better assess the potential
economic impacts of such adjustments before agreeing to the HCP; all
parties are assured of a suitable outcome and the HCP process is not
needlessly delayed. Provid-
ing opportunities for education and input in the development of HCPs
will lead to plans having stronger public support.
Regulatory Certainty
In just a few years, the HCP process has been transformed from
relative obscurity to one of tremendous prominence in species
conservation. Prior to 1992, only 14 HCPs were in place. The Service
has now implemented more than 240 HCP's with landowners and is
developing about 200 more. For example, International Paper, a
privately owned forest products company, recently completed an HCP for
the red-cockaded woodpecker that will allow the company to continue its
timber harvest operations by voluntarily expanding and enhancing the
woodpeckers' habitat on the company's own property. HCP's are proving
to be a popular voluntary conservation tool for both the private
property owner and the Service.
In addition to the streamlining of procedural requirements for
developing and approving HCPs, another major reason for the vast growth
in the use of HCPs by landowners is the incentive provided through the
``No Surprises'' policy. This policy guarantees certainty for private
landowners who provide conservation benefits to species. It was
developed to reduce the concerns and fears of private landowners that
further regulatory restrictions might be imposed if they enter into an
agreement with the government.
The Services' No Surprises final rule (February 23, 1998, 63 FR
8859) establishes a simple principle. The Federal Government will not
require, without the consent of the permittee, the commitment of
additional land, water or financial compensation or additional
restrictions on the use of land, water, including quantity and timing
of water delivery, or other natural resources beyond the level
otherwise mutually agreed upon for the species covered by the
conservation plan. These assurances will be provided if the permittee
is abiding by all of the permit terms and conditions in good faith or
has fully implemented their commitments under an approved HCP when
negotiating provisions for unforeseen circumstances.
HCPs have evolved from a process adapted primarily to address
single developments, to one that includes broad-based, landscape-level
planning tools utilized to achieve long-term biological goals. Large-
scale, regional HCPs have significantly reduced regulatory burdens on
small landowners by providing efficient mechanisms for compliance,
distributing the economic and logistical impacts of endangered species
conservation, and bringing a broad range of landowner activities under
legal protection of HCPs.
One of the great strengths of the HCP process is its flexibility.
Conservation plans vary enormously in size and scope and in the
activities they address--from half-acre lots to millions of acres, from
forestry and agricultural activities to beach development, and from a
single species to dozens of species. Another key is creativity. The ESA
and its implementing regulations to establish basic biological
standards for HCPs but otherwise allow creativity on the part of the
applicants. As a result, the HCP program has produced remarkable
innovation. The booklet ``The Quiet Revolution'' provides many HCP
examples (this is Appendix 2 to my statement).
The Safe Harbor Policy will soon be finalized and will create an
incentive for non-Federal landowners willing to proactively conserve
listed species by providing them with regulatory certainty. Landowners
who restore, enhance or maintain habitats for listed species will
receive assurances that the conservation work they undertake will not
result in additional regulatory restrictions on the use of their land.
Landowners are currently implementing almost 40 Safe Harbor agreements
encompassing over 1 million acres for such species as the red-cockaded
woodpecker in the Southeast, the Attwater's greater prairie-chicken in
Texas, and the Aplomado falcon, also in Texas. The Service believes
that this policy will provide substantial benefits for both endangered
species and landowners.
The Service is emphasizing the use of Candidate Conservation
Agreements (CCA's), to conserve declining species before they have to
be listed. Early conservation preserves management options, minimizes
the cost of recovery, and reduces the potential for restrictive land
use policies in the future. Addressing the needs of species before the
regulatory restrictions associated with listed species come into play
often allows greater management flexibility to stabilize or restore
these species and their habitats. For example, two CCA's with Federal
and State agencies and coal companies allowed the Service to withdraw
the proposal to list the southern population of the copperbelly water
snake.
For species which do need to be listed, the Service is expanding
its use of Special 4(d) Rules to minimize the regulatory impact on
landowners of listing species as threatened while providing the
protection necessary for the species' conservation. Section 4(d) of the
ESA authorizes the Secretary to issue such regulations as he deems
necessary and advisable for the conservation of threatened species,
which need not include all of the protections the ESA provides for
species listed as endangered. As an example, the Service is pursuing a
Special 4(d) Rule for the Preble's meadow jumping mouse in Colorado and
Wyoming to allow continuation of certain on-going activities (such as
agriculture) and a level of new development in the mouse's habitat
consistent with the species' conservation needs. The flexibility to
accommodate landowners provided by this section was rarely used by
prior Administrations.
Through its Pilot ESA Private Landowner Incentives Program, the
Service is encouraging the conservation of listed and non-listed
species on private lands. This $5 million program provides incentives
for private landowners to enter into Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances (CCAA).
A significant number of private landowners have expressed an
interest in receiving assurances and in helping to implement
conservation and recovery activities for listed and nonlisted species.
The Safe Harbor and CCAA program will respond to the needs of private
landowners who are interested in managing their lands in an
environmentally-friendly manner and are concerned about the potential
of future land- or resource-use restrictions that may result because of
their proactive initiatives. We expect that during FY 1999, the
majority of the funds and efforts will go to Safe Harbor programs since
many are already underway, but we also will strongly encourage more
active use of CCAA and the expansion of the Safe Harbor program to new
parts of the Nation.
Critical Funding Needs
The Administration recognizes that increased funding support is
essential to continue our successful record of reform. Last year we
requested significant funding increases to carry out these reforms, to
provide greater technical assistance to private landowners and to
greatly expedite recovery of species and their eventual delisting.
The President's FY 2000 Budget Request for Endangered species is
another very important step in providing adequate funding to allow the
Service to provide technical assistance to landowners, to provide for
financial incentives for private landowners to enter into Safe Harbor
Agreements, for candidate conservation agreements, increases in the
consultation program to assist other Federal agencies and to increase
recovery actions.
A copy of our complete budget justification for the Endangered
Species program is Appendix 3 to my statement.
The Administration has taken great efforts to ensure that their
implementation of the ESA is scientifically sound and consistently
enforced throughout the country. We believe that with the full
implementation of our reforms and provision of adequate appropriations,
the Endangered Species Act will protect the biological resources of the
Nation without imposing undue burdens on individual citizens.
Effect of H.R. 1142
Unfortunately, H.R. 1142 does not contribute to these objectives.
It instead undercuts the entire Act. It goes far beyond the
Constitutional standards for takings, instead reviving the more
expansive concepts brought forth in the 104th Congress. The
Administration has testified before this Committee and other committees
of the Congress repeatedly in opposition to these concepts, and I will
not repeat those arguments here.
I would point out that the bill, if enacted, would likely have
drastic consequences for the public as well as the Service. Many agency
actions which have not been considered ``takings'' by the courts would
nonetheless require payment of compensation under H.R. 1142. The bill's
provision that the funding for this compensation program comes from the
annual appropriation of the agency could well result in a diversion of
most, if not all, of the funds appropriated for operation of the
endangered species program into compensation for landowners.
We would have little control over this result because most of the
agency actions which would trigger the compensation are not
discretionary under the ESA; we have no choice but to list, to deny
permits, or to suggest reasonable and prudent but alternatives to
development projects needing Federal permits if that is where the facts
take us. If we were to not take these actions when they were warranted
out of concern for budgetary impacts, we would be in violation of the
law, and could be subject to citizen suit and court orders compelling
us to take the action in question. The adoption of requirements for
compensation does not alter our responsibilities under the ESA.
Taxpayer money spent on compensation for legally required agency
actions is money not spent protecting and recovering the species
needing the protections of the ESA. But the impacts of this legislation
would go far beyond this. While the operation of H.R. 1142 might well
result in no new listings, section 7 consultations or HCP approvals,
the net result would be chaos and paralysis in significant elements of
the development community.
The ESA section 7 requirement that Federal agencies consult with us
before issuing permits for or funding projects which may affect listed
species, and the section 10 requirement for an incidental take permit
for non-Federal actions which might take listed species, are permanent
law. They do not become inoperable because the Service does not have
sufficient funds to conduct the consultation or evaluate the HCP. Any
developer or landowner with a project which might affect a listed
species would have the unhappy choice of postponing their project or
attempting to proceed without the Service's involvement, a violation of
the law subject to suit and injunction by any interested party and
prosecution by the Department of Justice. Similarly, other Federal
agencies would be unable to proceed with their own projects which might
affect listed species, or grant permits or permissions to private
developers for such projects.
Employing the flexibility that past Congresses have built into the
law, the Clinton Administration has used innovation and administrative
reforms to craft a ``New Endangered Species Act.'' As a result, America
now enjoys the success of an ESA that works much better. Major steps
have been taken to make the ESA more effective in conserving endangered
and threatened species while enhancing its flexibility for businesses
and private landowners. The ESA now produces cooperation instead of
confrontation and conservation rather than chaos. Enactment of H.R.
1142 would reverse this situation, to no one's benefit.
Mr. Chairman this concludes my prepared testimony. I would be
pleased to respond to any questions you might have.
Mr. Young. I certainly wasn't surprised, Jamie, what you
were going to say.
The next witness is Mr. Shimberg.
STATEMENT OF STEVEN J. SHIMBERG, VICE PRESIDENT FOR PUBLIC AND
INTERNATIONAL AFFAIRS, NATIONAL WILDLIFE FEDERATION,
WASHINGTON, DC
Mr. Shimberg. Thank you, Mr. Chairman and Members of the
Committee. Thank you for this opportunity to testify here
today.
My name is Steven Shimberg. I am here on behalf of the
National Wildlife Federation, the Nation's largest member-
supported conservation advocacy and education organization. My
written prepared statement details some of the threats to
private property, people, public resources, and endangered
species that are posed by this bill, H.R. 1142, and I ask that
my full statement and the attachments to it be included in the
Record.
Mr. Young. Without objection.
Mr. Shimberg. So that there is no misunderstanding about
our position, the National Wildlife Federation--I am sure it is
no surprise to the Chairman and the Members here--is opposed to
this bill. Instead of proposing meaningful improvements to the
Nation's landmark 25-year-old safety net for its species, this
bill would effectively repeal the Endangered Species Act's
application to private property.
When introducing this bill, the Chairman said, ``The most
effective way to protect endangered species is through the
cooperative and voluntary efforts of private property owners.''
Mr. Chairman, we agree with that statement 100 percent.
The National Wildlife Federation has repeatedly advocated
that the Endangered Species Act can and should be improved with
targeted, common-sense amendments to make the Act work better
for both private landowners and wildlife. Many of these changes
are included in H.R. 960, the Endangered Species Recovery Act,
which was introduced by the Ranking Member of this Committee,
Rep. Miller, and 67 original co-sponsors on March 3 of this
year.
These needed amendments include building in real financial
incentives to private landowners to go beyond the Act's bare
minimum requirement and to take affirmative actions for the
benefit of imperiled species. This can be done through
relatively inexpensive tax law changes and funding initiatives
targeted toward habitat restoration and active management of
habitat.
In addition, as Mark Van Putten, the President and CEO of
the National Wildlife Federation, testified before this
Committee on March 10, we strongly support another alternative
to this bill. I am referring to H.R. 701, the ``Conservation
and Reinvestment Act of 1999,'' and H.R. 798, the ``Permanent
Protection for America's Resources 2000 Act''--proposals by the
Chairman and Rep. Miller that have the potential to establish a
permanent dedicated funding source for early intervention
measures that will prevent the decline of ``nongame'' species
and, in turn, minimize the need for costly endangered species
recovery actions. Nongame species, as you know, Mr. Chairman,
are the roughly 90 percent of species that are not hunted or
fished, nor classified as threatened or endangered. Although we
do have some concerns with some of the details of those two
bills, we are confident we can work out those differences, and
we look forward to working with you, Mr. Chairman, and the
others on this Committee to pass a bill this year.
In short, H.R. 1142 is not necessary. The Endangered
Species Act already has numerous provisions to ensure that
agencies have the flexibility they need to give due respect to
private property interests. Agencies routinely allow economic
activities in and around endangered species habitats to go
forward. They use tools such as ``4(d) rules'' for threatened
species, reasonable and prudent measures, reasonable and
prudent alternatives, and incidental take permits, along with
Habitat Conservation Plans, HCPs.
In over 25 years since enactment of the Endangered Species
Act, courts have decided only four Endangered Species Act
``takings'' cases on the merits, and all of those have found
that the Act did not take private property. In the unlikely
event that private property rights are infringed, despite the
availability of the flexible tools in the Act, the courts
provide adequate remedies for property owners to enforce the
Constitution's 5th Amendment ``takings'' clause.
We strongly support the 5th Amendment's balanced protection
of private property. If a court determines that a government
limit on the use and value of private property goes so far to
be a taking of private property for public use, just
compensation must be paid.
The National Wildlife Federation strongly opposes H.R. 1142
and other ``takings'' bills because they threaten a wide range
of protections of private property, people, and public
resources--protections which do not take private property
rights.
As explained in detail in my prepared statement and the
attachments, this bill should be rejected for a number of
reasons. I will recite quickly six of those reasons:
One, it would create radical, sweeping, new rights--
new rights to extinguish species by giving private
property owners the right to wipe out every acre of a
species' habitat. Under this bill, unless we pay
companies to obey the Endangered Species Act, they will
be free to exterminate endangered species by destroying
the habitat those species need.
Two, this bill would impose unworkable notification
requirements that would needlessly block and delay a
wide variety of emergency actions to save species.
Three, this bill would require windfall payments to
corporations, developers, and other individuals under a
standard that, according to every member of the Supreme
Court, does not warrant compensation.
Four, these windfall payments would bust the budget.
You will hear more about that from another witness on
the second panel.
Five, this bill unjustifiably singles out the
Endangered Species Act.
And six, as Director Clark has mentioned, this bill
would chill enforcement of the Act by requiring that
windfall payments be made from agencies' annual
appropriations.
Mr. Chairman, I will conclude with that. My statement lays
out the extent of opposition to compensation bills that this
Congress has seen on a number of occasions--State and municipal
governments, a wide range of interests. We look forward to
working with you on realistic alternatives to this bill--both
amendments to the Endangered Species Act and the conservation
funding bill that you have proposed.
Thank you.
[The prepared statement of Mr. Shimberg follows:]
Statement of Steven J. Shimberg, Vice President, Office of Federal and
International Affairs, National Wildlife Federation
Mr. Chairman, and Members of the Resources Committee, thank
you for this opportunity to testify before you. My name is
Steven J. Shimberg; I am here on behalf of the National
Wildlife Federation (NWF), the Nation's largest conservation
advocacy and education organization, with over 4 million
members and supporters, 46 state affiliates and 10 field
offices.
My testimony outlines some of the threats to private
property, people, public resources, and endangered species
posed by this Endangered Species Act (ESA) ``takings'' bill,
H.R. 1142, the ``Landowners Equal Treatment Act of 1999.''
Unfortunately, instead of proposing meaningful improvements in
the Nation's landmark 25 year old safety net for species, this
bill essentially would result in a back-door, indirect repeal
of the ESA's application to private property.
The American people have made it clear, over and over
again, that they support the ESA. The ESA plays a unique,
invaluable role in preserving our biological heritage for our
children and grandchildren to enjoy. It also protects the
biological storehouse that provides current and potential cures
for cancer, benefits to crops, scientific, aesthetic, and other
values.
As NWF has repeatedly advocated, the ESA can and should be
improved with the targeted, common sense amendments discussed
below to make the Act more effective at working with private
landowners. This bill, however, is a shotgun blast that would
cripple the ESA and the irreplaceable fish, wildlife and plant
species that depend upon it.
NWF strongly supports the Fifth Amendment's balanced
protection of private property. If a court determines that a
government limit on the use and value of private property goes
so far as to be a taking of private property for public use,
just compensation must be paid.
In over 25 years, however, courts have only decided four
ESA ``takings'' cases on the merits, all of which have found
that the ESA did not take private property.
NWF strongly opposes H.R. 1142 and other ``takings'' bills
because they threaten a wide range of protections of private
property, people, and public resources which do not take
private property rights. As discussed below, this and other
takings bills would delay, block, or be so prohibitively
expensive as to force the government to stop implementing (in
effect, repealing) these protections. A comprehensive
discussion of the major points raised in this testimony
regarding takings bills is contained in the article by NWF
Senior Counsel Glenn P. Sugameli, Takings Bills Threaten
Private Property, People, and the Environment, 8 Fordham Envtl.
L.J. 521 (1997-98), a copy of which is submitted as an
attachment for the Committee's record.
Since 1990, NWF and our state affiliates have been in the
forefront of the broad coalition to protect the property rights
of all people by opposing state and Federal takings bills that
elevate the interests of a few over the rights of all. NWF and
others who oppose takings bills and support the Constitution's
balanced approach are the genuine private property protection
movement.
As explained in detail below, this bill should be rejected
because:
it would create radical, sweeping, new rights to
extinguish species by giving private property owners the right
to wipe out every acre of a species' habitat;
it would result in the extermination of species by
imposing unworkable notification requirements that would
needlessly block and delay a wide variety of emergency and
other actions that are essential to save species;
it would require windfall payments from taxpayers to
corporations, developers and individuals whose property has not
been taken, according to every member of the Supreme Court;
these windfall payments would create a precedent that
would bust the budget and would create perverse incentives by
rewarding proposals to apply for unrealistic development
permits in especially sensitive habitat in order to receive
payments;
it unjustifiably singles out the ESA--in over 25
years, courts have only decided four ESA ``takings'' cases on
the merits, all of which have found that the ESA did not take
private property--this reflects the ESA's flexibility, which
routinely allows economic activities in and around endangered
species habitats to go forward;
it would chill enforcement of the ESA by requiring
that windfall payments be made from the annual appropriation of
the agency that took mandatory or discretionary action to save
a species. This would unjustifiably pressure agency employees
to protect their jobs and programs by always erring on the side
of not protecting endangered species;
the only times that the issue has been presented
directly to voters in statewide referenda or initiatives,
voters have overwhelmingly rejected takings bills;
widespread opposition to takings bills includes the
National Governors Association, National Conference of State
Legislatures, National League of Cities, U.S. Conference of
Mayors, and other state and local government organizations that
have approved resolutions opposing takings payment bills; and a
wide range of national religious denominations, labor,
taxpayer, conservation and other organizations; and
there is a better way--common sense amendments to make
the ESA work better for landowners and wildlife and funding to
prevent species from becoming endangered.
CREATING NEW RIGHTS TO EXTINGUISH SPECIES
Under H.R. 1142, unless we pay companies to obey the ESA, they
would be free to exterminate sea turtles, salmon, grizzlies, manatees,
whooping cranes, and other endangered species.
The bill's alleged purpose is incorrect, it does not ``ensur[e]
that'' private property owners' ``constitutional and legal property
rights will be honored . . .''
H.R. 1142 would create radical, sweeping, new rights to extinguish
species by giving private property owners the right to wipe out every
acre of a species' habitat. Developers could bulldoze sea turtle and
shorebird nesting beaches, and companies could chop down eagle nesting
trees--unless we pay them not to do something they never had the right
to do in the first place.
The unprecedented new rights under this bill would be created at
the expense of public property rights. The laws of each of the 50
states recognize that wildlife within the state's borders represents
property owned by the state for and on behalf of the people of each
state. This public property right has always been understood to limit
the rights of people and companies to use their property at the expense
of wildlife--from hunting season and bag limit restrictions on
landowners' ability to hunt for game on their land to rules designed to
safeguard endangered species. This bill appears to be based on the
mistaken idea that public rights in wildlife should be completely
disregarded.
STRANGLING SPECIES WITH RED TAPE
H.R. 1142 would also create a separate, sweeping immunity from
enforcement of ESA safeguards for species unless and until Federal
agencies have somehow ``given 30 days notice to each owner of the
property directly affected.'' Specifically, the bill provides that:
``An agency may not take any action that is a Federal use of non-
Federal property unless the agency has given 30 days notice to each
owner of the property directly affected.'' The term ``Federal use of
non-Federal property'' is very broadly defined.
This limitation on ESA implementation is absolute and without
exception. Failure to identify, locate, and notify each of many partial
owners of property could permanently bar needed actions to save
species. Apparently, it would not matter if the majority of owners
requested the agency action, or if the one owner who did not receive
notice would have consented, or if the agency was ready and able to
provide the windfall payments required by the other provisions of this
bill.
Even emergency actions would be subjected to this 30 day notice
straightjacket. Agencies would have to stand by helplessly while the
last of a salmon run, for example, is exterminated. This absolute
requirement appears to allow a property owner to take advantage of the
30 day delay to take actions that would wipe out a species. Conversely,
it would seem to apply where an agency action would enhance the
property value while incidentally resulting in, for example, ``any
diminution in the quantity of water received or available for use.''
If this bill had been law, it would have blocked the emergency
action to save the desert tortoise when it was suffering a lethal
respiratory disease several years ago. Today, the community of Clark
County, Nevada is working to implement a conservation plan to save this
ancient reptile--an opportunity that arguably would have been denied if
emergency action to list had not been taken.
Ironically, to fulfill the notification requirement, the bill could
require the Federal Government to inventory every acre of private land
for potential habitat. This draconian notification mandate apparently
requires an unworkable, unjustifiable, gigantic bureaucratic burden to
compile a comprehensive, nationwide Federal database of all owners of
all potentially affected property. Notifying current owners would
require continually updated access to the ever-changing mix of
corporate, partner, and individual owners.
H.R. 1142 would result in the extermination of species by
needlessly blocking and delaying a wide variety of actions that are
essential to save species. Extreme bureaucratic burdens and red tape
would even apply to actions that do not diminish property value (or
even increase the value), if they result in a ``substantial diminution
in'' uses of property that are either ``normal or reasonably
expected.'' Agencies would have to ``make every possible effort to
avoid, minimize, or mitigate'' even extremely minor impacts on property
value or use.
WINDFALL PAYMENTS
Essentially every payment from taxpayers under H.R. 1142 to
corporations, developers and individuals would be a windfall--because
the payments would be required in situations that would not constitute
a taking under the Fifth Amendment as that provision has been read by
every member of the Supreme Court. The Court has repeatedly and
unanimously rejected the purported takings test that is contained in
H.R. 1142 as contrary to the balanced Fifth Amendment approach, holding
that a law does not ``take'' private property solely because it
diminishes the property's value, and that takings analysis must look at
an overall parcel of property, not just the affected portion.
In contrast, H.R. 1142 would pay companies when there is a 25
percent reduction in the value of a ``portion'' of property. This would
require payments where there is almost no effect on the overall
property value. For example, allowing condominiums or a strip mine on
99.9 percent of a 1,000 acre tract would not be enough, payments would
be required for the one acre wetland buffer zone next to a salmon
stream.
As more than 370 law professors wrote Congress regarding the
similar test in the 1995-96 House and Senate takings bills: ``Not only
has the Court never adopted that radical view of the Fifth Amendment;
no single past or present Justice on the Court has.'' (Copy submitted
for the Committee's record). In 1993, the Supreme Court's Concrete Pipe
ruling (508 U.S. at 642-45) relied upon landmark zoning and land use
cases in unanimously reaffirming the Court's long-standing rejection of
three premises and standards that lie at the heart of those bills and
of H.R. 1142. The Court ruled that because regulatory takings decisions
must consider many factors, including impacts on neighboring homeowners
and the public, ``our cases have long established that mere diminution
in the value of property, however serious, is insufficient to
demonstrate a taking.'' Second, the Court reaffirmed that takings
analysis must focus on the overall property, not just the affected
portion. Third, the Court reiterated the importance of looking at
specific facts, including what the property owner reasonably expected.
In contrast, H.R. 1142 requires payments when there is: a specific
diminution in the value of any affected portion of property, regardless
of reasonable expectations or other factors. This radical redefinition
of takings fails to consider impacts on other people and property.
Corporations would be paid under the bill even if:
they paid little, or nothing, for the property;
the prohibited uses would harm neighboring property
and the public health (as in ESA protections for wetland
habitat that prevents downstream flooding or an aquifer habitat
that serves as a drinking water supply);
they never had a reasonable expectation that they
could violate the ESA; and
they can still make a massive profit on permissible
uses of the property.
H.R. 1142's definition of property extends to impacts of a broad
sweep of Federal actions on ``land, an interest in land, the right to
use or receive water, and any personal property . . .'' The bill
applies to actions that limit the uses of any of these types of
property either to protect habitat on private or public land or as a
condition of a Federal permit. So-called ``personal property'' is owned
by corporations and individuals and essentially means tangible property
that is not real estate. Thus, the bill would cover, for example,
Federal permits that limit use of offshore oil drilling equipment to
protect whales. While a Federal grazing permit has always been held to
be a privilege, not a right, this bill could be read as granting
permittees new rights to be free from limits on their personal property
(livestock) to protect streamside overgrazing on public lands.
Senator Russ Feingold (D-WI) detailed how similar water language in
the 1995-96 Senate takings bill ``could expand the rights of
agricultural water users at considerable cost to the taxpayer.'' ``Fair
market value payments of $100 to $250 per acre foot could be required
if Federal reclamation projects reduced the subsidized water for which
users pay from $3.50 to $7.50 per acre foot. (S. Rep. 104-239, at 82
(additional views of Sen. Feingold)).
Enactment of this bill would cause a flood of costly litigation.
Looking at only the ``affected portion'' would trigger a flood of
claims. For example, claims could be filed whenever erosion or flooding
threats to endangered species (and downstream homes) require one acre
of streamside or floodplain buffer out of a 10,000 acre development. As
Joseph L. Sax, then-Counselor to the Interior Secretary, testified
during the Senate Judiciary Committee hearings on the 1995-96 takings
bills: ``[A]nybody who thinks when you pass a law that says you can be
compensated by the Federal taxpayers when . . . any affected portion of
your property, is reduced by 33 percent, thinks that isn't going to
create a great burgeoning of lawsuits must be smoking something pretty
strong.'' (S. Hrg. 104-535, at 226).
While H.R. 1142 focuses on the ESA, the history of the 1995-96
takings bills demonstrates the immediate, powerful pressure to expand
such bills to cover all Federal laws. While the House passed bill was
limited to the ESA, wetland protections and certain irrigation and
water laws, Senate proponents immediately extended their bills to cover
all laws (S. 605) or nearly all (S. 1954). The absurd and draconian
payments to polluters and others that would have resulted clearly
revealed that the purported property rights principles they embodied
are contrary to the Constitution's balanced approach and to the views
of the American public.
TAKINGS BILLS ARE BUDGET BUSTERS AND CREATE PERVERSE INCENTIVES
Like prior takings bills, H.R. 1142 would force repeal, or block
implementation, of basic protections for people, property, and natural
resources by making them too expensive to enforce.
Then-Office of Management and Budget (OMB) Director Alice M. Rivlin
testified that the OMB estimated that direct spending costs of the 1995
House-passed ESA and wetlands takings bill would be $28 billion over
seven years, with the broader Senate bill costing several times that
amount: ``I want to emphasize that these are not estimates of Fifth
Amendment `takings' due to Federal activities, but instead reflect the
costs of implementing a radical, harmful, and expensive compensation
scheme that would likely encourage unmerited claims.'' (S. Hrg. 104-
299, at 142).
Director Rivlin's estimate was highly conservative. She testified,
for example, that while OMB recognized that the bills would encourage
people to ``game the system, potentially resulting in an enormous
number of claims,'' OMB's estimate ``did not include an estimate of the
number of land owners that, for example, would want to get under the
regulation so that they could make a claim.'' (Id. at 145). The late,
former Senator Paul Tsongas, a strong advocate of a balanced budget,
testified on this precise issue: ``I can tell you as a former real
estate developer who lost money, this is a bonanza because all I would
have to do now is figure out where wetlands are before they are
designated, buy it, submit an application for a shopping center, after
it gets denied, I submit a bill to you and it doesn't cost me
anything.'' (Id. at 147).
Under H.R. 1142, claims would be even easier. For example,
speculators could buy land for $50 an acre, a price that fully and
openly reflects the applicability of the ESA. A week later, they could
then demand payment because the land was ``only'' worth $75 an acre.
Under H.R. 1142, a 50 percent real world gain would appear to be a 25
percent ``reduction in fair market value,'' because the artificial
``fair market value'' of $100 an acre would be calculated ``without
regard to the presence of any species protected under'' the ESA.
H.R. 1142 would distort the economy and investment. Professor
Richard J. Lazarus' testimony regarding the 1995-96 takings bills
logically applies to this bill as well: ``Perverse incentives will
abound. Property owners will propose activities not because of any real
interest in their undertaking, but rather simply so that the holder of
the property right can be denied permission and thus be entitled to
compensation. The law would create an economic incentive for land
owners to engage in the most environmentally destructive activities
possible, short of a classic common law nuisance, in order to force the
land owner not to do so.'' (S. Hrg. 104-299, at 220).
Similarly, then-EPA Deputy General Counsel Gary S. Guzy repeatedly
testified that takings bills would ``create perverse incentives that
discourage cooperation between property owners and regulators to find
ways of allowing development while protecting the environment. . . .
Even more perversely, the bill rewards proposals that are not realistic
or feasible.'' (Id. at 200).
Thus, for example, developers would apply for permits to fill in
especially sensitive habitat in order to collect payments when the
permits are denied. H.R. 1142 would strongly encourage these
applications to be filed even where the alleged development plan would
not make economic sense, as in cases where the overall profit from the
tract would be enhanced by retaining a lake and marketing luxury upland
lakefront acreage.
The Congressional Budget Office (CBO) estimated only the costs of
administering the 1995-96 House and Senate takings bills, stating that:
``CBO has no basis for estimating the additional amount of compensation
that the government might have to pay for cases where property owners
choose to pursue larger claims in court. . . . CBO expects that the
majority of the new suits would involve relatively large claims against
agencies that regulate the use of land or water, particularly the U.S.
Army Corps of Engineers and the Department of the Interior (DOI).'' (S.
Rep. No. 104-239, at 40, 43).
Taxpayers for Common Sense, a budget watchdog group, issued a May,
1996 report stating that the cost of S. 605 could be $100 billion over
seven years, or, more likely, a virtual blank check. A study by the
University of Washington Institute for Public Policy Management
revealed that Washington State's defeated takings legislation
(Referendum 48) could have cost local governments up to $1 billion
annually for takings studies alone and exposed them to payments of as
much as $11 billion.
If H.R. 1142 were to pass, the vast majority of payments would be
to large corporations and developers who are the subject of most of the
regulations and who have the lawyers, appraisers and experts necessary
to demonstrate a ``right'' to payment under the bill's vague standards.
The ingenuity and greed of some giant corporations that oppose limits
on their ability to profit at the expense of others was dramatically
illustrated by a May 1996 Exxon subsidiary's lawsuit claiming that the
$125 million Exxon Valdez tanker had been taken.\1\ The claim
challenged a provision of the Oil Pollution Act of 1990, which was
passed after the Exxon Valdez had spilled 10.6 million gallons of crude
oil, that allowed the ship to operate anywhere in the world except
Prince William Sound, where the spill had occurred. A separate March
11, 1999 Court of Federal Claims decision deferred ruling on the merits
of a Maritrans, Inc. takings claim for more than $200 million to cover
the loss of 37 single-hull tank barges that would be phased out of
service in 2003 by the double-hull requirements of the same Act.
(Docket No. 96-483 C).
---------------------------------------------------------------------------
\1\ See David Whitney, Exxon Wants Notorious Tanker Back on Duty in
Alaska Waters, Anchorage Daily News, Apr. 5, 1996, at A-1.
---------------------------------------------------------------------------
Professor C. Ford Runge's testimony about the 1995-96 takings bills
demonstrated how payments regarding land would reflect the highly
concentrated nature of land ownership: ``[I]f one combines the land
holdings of the large farm operators and timber operators, 2.1 million
land owners own 1,035 million acres of land. That means that 2.65
percent of all private land owners own 78 percent of all private land.
Their size also implies a likely sophistication in dealing with
government programs.'' In contrast, the roughly sixty million owners of
residential property own 3 percent of all private land. (S. Hrg. 104-
299, at 205). Takings bills would benefit the former, large landowner
group to the general detriment of homeowners who depend upon clean air,
safe drinking water, zoning and other laws.
As a practical matter, H.R. 1142 would create an unlimited budget-
busting entitlement; the bill's ``subject to the availability of
appropriations'' language would be overwhelmed by pressure to pay all
those who meet the bill's radical new payment standard. Surely, those
who support this bill would favor paying everyone who they encouraged
to file claims. The alternative would be a cruel hoax. After
encouraging those who have not lost any property rights to spend the
time and expense to hire a lawyer and an appraiser to file and prove a
claim under H.R. 1142, not paying would place them in a worse position
than they are now. Paying only the first claims would ensure that the
biggest companies with the fastest and most expensive lawyers would
drain all available funds.
As a result, H.R. 1142 would compel avoidance of these costs
through repeal or non-enforcement of ESA protections that benefit
people, neighboring property, and public resources. The cost of takings
analysis and notifications mandated by H.R. 1142 would have a similar
effect.
``TROJAN HORSE'' ATTACK ON THE ESA
This bill unjustifiably singles out the ESA. In over 25 years,
courts have only decided four ESA ``takings'' cases on the merits, all
of which have found that the ESA did not take private property. (A copy
of NWF Senior Counsel Glenn Sugameli's legal analysis of the ESA and
takings claims is submitted for the Committee record). This paucity of
cases reflects the fact that the ESA's safeguards that affect land use
are in fact very flexible (indeed, only one of these four cases
involved limitations on the use of land). Congressional Budget Office
and Congressional Research Service reviews of takings claims against
the Federal Government have consistently found that the vast majority
of pending and recently decided cases have nothing to do with
environmental protection laws.
The potential value of property is affected by the enactment,
amendment and enforcement of every kind of Federal, state and local
law: from Antitrust, Bankruptcy, Copyright, Drug, Energy, Food safety,
through the alphabet all the way to Zoning. As Justice Holmes' opinion
for the Court in the first ``regulatory taking'' decision warned,
``[g]overnment hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change
in the general law.'' (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
413 (1922)). In deciding what is a taking, the Supreme Court has
consistently used a balanced approach that reflects this warning.
Harvard Law Professor Frank I. Michelman explained that there is no
``remotely principled basis'' for the approach of limiting the scope of
the 1995 House bill [or the current H.R. 1142] to ``land value losses
stemming from agency actions under two or three selected laws.'' (6
Fordham Envtl. L.J. at 416-17). Prominent ideological supporters of
Federal takings bills agreed with this analysis. For example, Jonathan
H. Adler of the Competitive Enterprise Institute testified that: ``Any
bill that seeks to protect the property rights of Americans must cover
all Federal laws that deprive land owners of the reasonable use of
their land. There is no principled basis upon which to pick and choose
which laws, environmental or otherwise, should be covered.'' (S. Hrg.
104-299, at 222). He repeated this passage in subsequent testimony, but
italicized ``all'' to emphasize the point. (S. Hrg. 104-535, at 205).
See also id. at 82 (``There are a huge number of Federal regulations
which have the effect of taking private property . . . .'') (statement
of Nancie G. Marzulla, President of Defenders of Property Rights).
Narrowing takings bills like H.R. 1142, without any principled
basis, to certain laws reveals that the issue is not property rights,
but a Trojan Horse attack on laws that supporters of the bill do not
like and that are too popular to repeal directly. Under the guise of
protecting property rights, H.R. 1142 would make the ESA too expensive
to enforce.
H.R. 1142 is not necessary. The ESA has numerous provisions to
ensure that the Federal wildlife agencies have the necessary
flexibility to give due respect to private property interests. Agencies
routinely allow economic activities in and around endangered species
habitats to go forward, using tools such as separate ``4(d) rules'' for
threatened species, reasonable and prudent measures, reasonable and
prudent alternatives, and incidental take permits and Habitat
Conservation Plans. In the unlikely event that private property rights
are infringed despite the availability of these flexible tools, the
courts provide adequate remedies for property owners to enforce the
Constitution's Fifth Amendment clause ``nor shall private property be
taken for public use, without just compensation.''
CHILLING ENFORCEMENT OF THE LAW
H.R. 1142 would chill enforcement of the ESA and harm a wide range
of agency programs by requiring that payments ``shall, notwithstanding
any other provision of law, be made from the annual appropriation of
the agency that took the agency action giving rise to the payment . .
.'' This would apply to mandatory agency actions where the agency has
no legal choice except to follow the Congressional mandate. Especially
where there is any question whether a necessary action to save a
species could lawfully be delayed, H.R. 1142 would impose a Hobson's
choice upon agency officials. Implementing the ESA in one case could
result in windfall payments that would divert scarce agency resources,
forcing massive layoffs and cutting off funds needed to enforce the ESA
and other laws. Protection of National Wildlife Refuges, Army Corps of
Engineers flood control activities and Environmental Protection Agency
enforcement of air and water pollution laws could all suffer.
H.R. 1142 would unjustifiably pressure agency employees to protect
their jobs and programs by always erring on the side of not protecting
endangered species. These species often have no room for delay or
error. Extinction is forever. It neither waits for delays nor forgives
errors.
VOTER REJECTION OF TAKINGS BILLS
In statewide referenda, voters have overwhelmingly rejected
legislatively approved takings bills. By the same 60-40 percent margin,
voters repealed a Washington State takings payment bill in November,
1995, and an Arizona takings impact assessment bill in November, 1994.
(In each state, takings bill supporters outspent opponents by 2-to-1).
Supporters of takings recognize that the American people oppose
these bills: the Seattle Times reported that ``R.J. Smith of the
conservative Competitive Enterprise Institute, a Washington, D.C. think
tank, said the defeats in Washington and Arizona may have taught
another lesson--that property rights leaders shouldn't take the issue
directly to voters through initiative or referendum.''\2\ Indeed, there
have been no more statewide ``takings'' initiatives or referenda.
---------------------------------------------------------------------------
\2\ Eric Pryne & David Postman, Ref 48 Defeat Has Louder Echoes: A
Property Rights Stall in Congress, Too?, Seattle Times, Nov. 9, 1995,
at A1.
---------------------------------------------------------------------------
Grassroots opposition to takings bills reflects the fact that these
bills would force taxpayers either to give up needed protections or to
pay billions of dollars to maintain health, safety and other measures
that do not take any property.
WIDESPREAD OPPOSITION TO TAKINGS BILLS
The radical nature of the similar, failed 1995-96 Contract with
America ESA and wetlands takings bill generated bi-partisan opposition,
a Presidential veto threat and strong opposition from a wide range of
national religious, labor, taxpayer, conservation and other groups.
The National Governors Association, National Conference of State
Legislatures, National League of Cities, U.S. Conference of Mayors,
National Institute of Municipal Law Officers (now the International
Municipal Lawyers Association), National Black Caucus of State
Legislators, International Association of Fish and Wildlife Agencies,
and Western State Land Commissioners Association all have approved
resolutions opposing takings payment bills.\3\
---------------------------------------------------------------------------
\3\ NGA 1995 Annual Meeting Resolution 18; NCSL policy resolution
passed July 28, 1994; NLC Resolution #1 adopted Dec. 4, 1994; USCM
Resolution Adopted Jun. 1995; NIMLO Resolution adopted Apr. 8, 1995;
NBCSL Resolution adopted Dec. 1995; IAFWA Resolution adopted Mar. 1996;
WSLCA Resolution adopted Jan. 12, 1995. The NLC, NCSL and WSLCA
Resolutions are reproduced in House Rep. 104-46, at 69-72.
---------------------------------------------------------------------------
A distinguished Member of this Committee, Rep. Tom Udall (D-NM),
was Attorney General of New Mexico when he submitted testimony to the
House Committee on the Judiciary opposing takings bills. He attached a
letter to Congress from Republican and Democratic Attorneys General
representing thirty-three states and territories describing how takings
bills: ``purport to implement constitutional property rights
protections, but in fact they promote a radical new takings theory that
would severely constrain the government's ability to protect the
environment and public health and safety.'' (Reproduced in House Rep.
104-46, at 64-68).
Takings bills have ignited broad opposition on all levels of
government, across political parties, and among a broad range of
groups. Opponents of takings bills include citizens and groups
representing civic associations, labor, taxpayer, planning, historic
preservation, public health, hunting, conservation, and fishing
industry organizations; state and local government officials; and child
welfare, civil rights, religious and senior citizen groups. (S. Rep.
No. 104-239, at 68). These opponents, who are working to protect
people, property and natural resources, range from the League of Women
Voters to the United Steelworkers of America, to the American Public
Health Association. (S. Rep. No. 104-239, at 68).
A broad range of religious denominations have opposed takings bills
from a moral and theological perspective. These include detailed
written testimony submitted by the United States Catholic Conference;
(S. Hrg. 104-535, at 154-158) statements submitted by the National
Council of Churches of Christ in the USA, and by numerous Christian
denominations, including the Evangelical Lutheran Church in America,
United Methodist Church, Presbyterian Church USA, Mennonite Central
Committee U.S., and United Church of Christ; (Protecting Private
Property Rights, H. Jud. Comm. Hrg. 104th Cong. at 41-42, 128-33).
President Clinton promised to veto the 1995-96 House, Senate or any
similar takingscompensation bills. The description in the President's
December 13, 1995 letter to the Senate Judiciary Committee applies
equally to this takings compensation bill: ``S. 605 does not protect
legitimate private property rights. The bill instead creates a system
of rewards for the least responsible and potentially most dangerous
uses of property. It would effectively block implementation and
enforcement of existing laws protecting public health, safety, and the
environment.'' (See S. Rep. 104-239, at 55). Strong bipartisan
opposition repeatedly blocked Senate consideration of takings
legislation in 1996.
A BETTER WAY--COMMON-SENSE ESA REFORMS AND ENACTMENT OF NEW WILDLIFE
FUNDING LEGISLATION
NWF fully supports reauthorizing the Endangered Species Act to
incorporate what we have learned since the last reauthorization in
1988. Four changes should be made to make the ESA work better for both
landowners and wildlife. These changes are included in H.R. 960, the
Endangered Species Recovery Act, which was introduced by the
distinguished ranking Member of this Committee, Rep. George Miller (D-
CA), with 67 original cosponsors on March 3, 1999.
First, Congress should build in real financial incentives for
private landowners to go beyond the Act's bare minimum requirements and
to take affirmative actions for the benefit of imperiled species. This
can be done through relatively inexpensive tax law changes and funding
initiatives targeted toward habitat restoration and active management
of habitats.
Second, Congress should update the Act's habitat conservation
planning (HCP) provisions, so that HCPs work for private landowners and
species. The Clinton Administration has launched a revolutionary change
in the ESA through its use of HCPs--locking in long-term land use plans
for over 7 million acres in just 5 short years. According to several
recent scientific studies, these plans may be undermining the ESA's
recovery goal. Congress will need to clarify that HCPs may not
undermine recovery, and that they must be sufficiently adaptive so that
we can take effective action when they fail to achieve their promised
conservation objectives.
Third, Congress should enhance Federal agencies' accountability for
achieving recovery. Too many species are not making sufficient progress
toward recovery, and agencies have become focused on avoiding jeopardy
rather than fulfilling their statutory obligations to promote recovery.
Agencies with activities affecting imperiled species must make specific
and enforceable commitments to help implement recovery plans.
Finally, Congress should increase citizen participation in key
decisiomaking processes. NWF recently sponsored a study of HCPs by the
University of Michigan, which demonstrated conclusively that plans with
major implications for our biological heritage are being designed
behind closed doors, without input from conservationists, neighboring
landowners, expert scientists and other concerned citizens. Congress
should identify ways for these stakeholders to provide their ideas and
input early in the process, rather than merely inviting comment after
the deal has been struck and after it is too late for any significant
changes to be made.
In addition, NWF strongly supports establishing a permanent,
dedicated funding source for ``nongame'' species (the roughly 90
percent of species that are neither hunted nor classified as threatened
or endangered). Several bills pending before Congress, including H.R.
701, the ``Conservation and Reinvestment Act of 1999,'' and H.R. 798,
the ``Permanent Protection for America's Resources 2000 Act,'' have the
potential for establishing such a permanent funding source. Although
NWF has concerns about certain features of these bills, both could
provide funding for early intervention measures that prevent nongame
species' decline and avoid more costly recovery measures that are
frequently incurred once a species has been listed. We look forward to
working with the sponsors of those bills to ensure the two proposals
are merged in a way that brings out the best in both of them and allows
the broad support necessary for passage.
CONCLUSION
H.R. 1142 would harm the property and other rights of average
Americans because it would impose standards that are contrary to the
Fifth Amendment's balanced protection of private property. The result
would be massive costs to taxpayers, a litigation explosion, more
bureaucracy and inability to enforce the ESA's protections that benefit
people, private property and public resources. We strongly urge that
H.R. 1142 be set aside in favor of common sense ESA amendments and
separate legislation to provide a permanent, dedicated funding source
to prevent species from becoming endangered, both of which can make the
Act work even better for both landowners and wildlife.
Mr. Vento. Mr. Chairman, I would ask unanimous consent to
place Mr. Miller's statement in the record.
Mr. Young. Without objection, so ordered.
[The prepared statement of Mr. Miller follows:]
Statement of Hon. George Miller, a Representative in Congress from the
State of California
Mr. Chairman, I think it is unfortunate that the Committee
will spend time today debating legislation that even its
proponents have acknowledged is not going to become law. We
could be making much better use of the Committee's time by
discussing substantive issues related to the reauthorization of
the Endangered Species Act, instead of once again trying to gut
the law under the guise of protecting private property.
Congress has debated the private property rights and
takings issues repeatedly over the past several years, and the
outcome is always the same. We hear the horror stories about
the impacts of the Endangered Species Act and other
environmental laws. We research these horror stories and find
that the law is usually not to blame, and these bills go
nowhere. Why are we debating this issue yet again?
The bottom line is this; the Courts have repeatedly found
that the implementation and enforcement of environmental laws
to protect the public good do not constitute a taking of
private property and do not warrant compensation under the 5th
Amendment of the Constitution.
As such, H.R. 1142 and bills like it are not, as they are
characterized, a mere protection of private property rights
under the Constitution. Instead, they establish a new statutory
threshold for compensation that is independent of the
Constitution and will, in effect, pay people to comply with the
laws that require the protection of species and the
environment. In this particular case, H.R. 1142 creates a new
taxpayer-funded entitlement for property owners that is not
available under other environmental laws. Moreover, by
requiring that compensation be paid from appropriated funds, it
ensures that the agencies responsible for implementing the ESA
will have little money left to perform their statutory duties
to recover species.
The overwhelming majority of Americans support recovering
endangered species, just as they support laws that ensure we
have clean water and clean air. The Resources Committee should
stop wasting time and money on endless debate on these
peripheral issues which more often than not involve mis-
characterization of the law, and instead do its job and write
legislation to reauthorize the Endangered Species Act that will
ensure that we recover species and get them off the list. That
is the real way to reduce the restrictions on landowners as you
seek to do with this legislation.
I have introduced H.R. 960 which has over 70 co-sponsors to
date; a similar version in the last Congress had over 100 co-
sponsors. And yet we have never even held a hearing on that
legislation. We should move beyond the anecdotal stories and
concentrate on the more difficult but also more important work
of improving the ESA.
Mr. Young. Mr. Smith.
STATEMENT OF BRUCE SMITH, VICE PRESIDENT, NATIONAL ASSOCIATION
OF HOME BUILDERS, WASHINGTON, DC
Mr. Bruce Smith. Good morning, Mr. Chairman. My name is
Bruce Smith, and I a custom builder from Walnut Creek, Califor-
nia. I am also the National Association of Home Builders' 1999
vice president and treasurer. Formerly, I served as chairman of
the National Association of Home Builders' Endangered Species
Subcommittee.
I appreciate the opportunity to testify before you today on
H.R. 1142, the Landowners Equal Treatment Act of 1999. H.R.
1142 goes to the heart of three issues that the National
Association of Homebuilders has long advocated: better
communication between Federal agencies and landowners; timely
negotiations between the two parties, and compensation for an
agency taking under the Endangered Species Act.
The National Association of Home Builders' and its 197,000
member firms support this important legislation. We believe
H.R. 1142 is a reasonable and fair bill that offers room for
the agency and the landowner to negotiate an agreement on the
use of private land. We are pleased that the bill sets out
timelines for compensation payment and ending negotiations, and
timely notice to a property owner affected by an agency's
action.
NAHB strongly believes that the restoration of public
confidence on wildlife conservation laws requires assuring
individual private property owners that their rights will be
respected and protected in the process of attaining the goals
of the Endangered Species Act. Further, we believe it is only
fair that private landowners be given the same consideration
and treatment that the Federal Government agencies are given
when their land is being used for public purposes. It is time
the Congress insists that private landowners receive
compensation as mandated in the 5th Amendment to the
Constitution. H.R. 1142 is the right thing to do for this
country.
Property loss is particularly difficult in our industry for
the small-volume homebuilders. Nearly 60 percent of our members
build fewer than 10 homes a year. These small businesses can
rarely afford the economic impact of losing most, or even part,
of the use of the property they own, and even fewer can afford
the expenses associated with a long court battle to try to
preserve their rights under the 5th Amendment. And none of them
can afford excessive mitigation requirements. In California we
have seen up to 160-to-1 ratio being used against these small-
volume builders in America.
Further, while NAHB appreciates the opportunity to address
these problems in the context of the Endangered Species Act, we
also advocate that similar compensation provisions should be
extended to takings under any Federal environmental statute,
including the Clean Water Act, various national heritage acts,
or any other Federal attempt to regulate land use.
H.R. 1142 is just a first step, but it is a very, very good
step. However, there are other important ESA reform items that
need to be addressed by this Congress. As many members of this
Committee remember in the 104th Congress, H.R. 2275 was
reported by this Committee and addressed many of the reforms
that NAHB continues to seek. These reforms are long overdue and
need to be addressed again and again, until they are passed by
Congress.
To ensure that ESA works at its best, Congress must address
peer review, better availability of scientific data to the
public, the mandating of critical habitat of a species to be
identified at the time a listing decision is made, better
public notice, and codifying the administration's policies such
as no surprises.
ESA needs to be a proactive, rather than reactive, Act.
Citizens and landowners need to be a part of the process, not
punished. This is the only way ESA will be successful and the
only way we can protect and recover important species. These
reforms, including H.R. 1142 here today, are a start to
bringing the American citizen in the process of saving our
species.
Thank you for this opportunity.
[The prepared statement of Mr. Bruce Smith follows:]
Statement of Bruce Smith, National Association of Home Builders
Good Morning Mr. Chairman and members of the House
Resources Committee, my name is Bruce Smith. I am the 1999 Vice
President and Treasurer of the National Association of Home
Builders (NAHB), and formally served as Chairman of NAHB's
Endangered Species Subcommittee. I am a custom builder in
Walnut Creek, California. I appreciate the opportunity to
testify before you today on behalf of NAHB's 197,000 members,
regarding H.R. 1142, the ``Landowners Equal Treatment Act of
1999.''
Bill Overview
First, let me address H.R. 1142. This is a reasonable, fair
bill that offers room for the agency and landowner to negotiate
an agreement on the use of private land. We are pleased that
the bill sets out time lines for compensation payment--within 6
months after an agreement is reached between the landowner and
agency--and time lines ending negotiations if no agreement is
reached. Further, we are pleased that the legislation requires
the Federal Government to give 30 days notice to a property
owner affected by an agency's action, and provides the owner
with the proper information to be compensated. NAHB has long
advocated better public notice to property owners from Federal
agencies regarding the impact of environmental regulations.
These proposed amendments fairly address such concerns and
enhance the certainty in the regulatory process that our
members deserve.
We would suggest two improvements to the bill. The bill
defines ``constructive use'' to include ``the imposition or
enforcement of a prohibition of use of non-Federal property,
the purpose of which is to provide or retain habitat for any
species of wildlife or plant.'' The Federal Government may not
enforce the ESA in a manner that renders an entire plot
unusable; nonetheless, substantial portions of property can be
deprived economically viable uses and rise to the level of a
taking. This question is sometimes referred to as the
``denominator problem.''\1\ The Supreme Court has never fully
addressed this question, although lower courts have held that
the portions of the property to be considered are those for
which certain uses have been denied.\2\ We would thus suggest
adding language defining ``constructive use'' to encompass
``the prohibition of use of non-Federal property or any portion
thereof.''
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\1\ See Keystone Bituminous Coal Association v. DeBenedictis, 480
U.S. 470, 497 (1987); Frank I. Michelman, Property, Utility, and
Fairness: Comments on the Ethical Foundations of ``Just Compensation''
Law, 80 Harv. L. Rev. 1165, 1192 (1967).
\2\ Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.
Cir. 1994).
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Along the same lines, the bill defines ``constructive use''
as ``the denial of a permit under section 10 that results in
the loss of the ability to use non-Federal property in order to
provide habitat for wildlife or plants.'' Our builders have
found that the Federal Government often grants permits with
conditions. These conditions may diminish the market value of
the land by 25 percent or more and should also be defined as
``constructive use.'' We would urge language be added defining
``constructive use'' to include permits that are granted with
conditions that trigger the need for compensation.
NAHB appreciates that the Committee is addressing these
problems in the context of the Endangered Species Act. However,
we would also advocate that similar compensation provisions
should be extended to takings under any Federal environmental
statute, including the Clean Water Act, various national
heritage acts, or any other Federal attempt to regulate land
use. It has been our experience that once Federal agencies got
into the business of regulating land, they have rarely paused
to consider what impact its regulations have on private
landowners and small businesses.
NAHB is pleased to see the introduction of this
legislation. H.R. 1142 is the right thing to do for this
country. NAHB believes strongly that restoration of public
confidence in wildlife conservation laws requires assuring
individual private property owners that their rights will be
respected and protected in the process of attaining the goals
of the Endangered Species Act. Further, we believe it is only
fair that private landowners be given the same consideration
and treatment that the Federal Government agencies are given
when their land is being used for public purposes.
ESA Reform Overview
H.R. 1142 is a first step and a good step. However, there
are other important ESA reform items that need to be addressed
this Congress. Compensation is a major element in any reform;
however, there several other reforms we would like to see
addressed by this Committee and Congress. The ESA imposes some
of the most stringent restrictions on the use of private
property of any Federal statute. The Act's provisions are
mandatory, inflexible, and absolute. Indeed, unlike most
legislative schemes, the statute's requirements are not
moderated by ``where practicable'' or ``where the benefits
exceed the costs.'' There are many reforms that can be
addressed to rectify these inadequacies. Reforms are long over
due and deserve to be addressed by this Committee.
The following reforms of the Endangered Species Act are
important to NAHB:
Require a stricter scientific basis for listing
species and peer review of the science.
Mandate that critical habitat of a species should be
identified at the time the listing decision is made.
Allow for private citizens to play a greater role in
the decision making process and allow for better public notice
of listed species.
Codify the Administration's policy on ``no
surprises,'' ``safe harbor'' and ``candidate conservation
agreements.''
Requiring recovery plans to be finalized under strict
deadlines for each listed species.
NAHB supported S. 1180, the Endangered Species Recovery Act of
1997, introduced by Senators Dirk Kempthorne (R-ID), John Chafee (R-
RI), Max Baucus (D-MT) and Harry Reid (D-NV) in the 105th Congress. The
bill addressed many of the reforms NAHB seeks this Congress. S. 1180
would have provided reasonable balanced reform of the ESA. As a result
it enjoyed support of the Administration, some environmental
organizations, and many industry groups. NAHB was disheartened to see
the bill fail. S. 1180 contained several important ESA reforms that
would have promoted both economic development and species conservation.
NAHB believes this Committee should promote many of the provisions in
the bill again in the 106th Congress.
I would like to discuss in further detail the reforms NAHB believes
should also be addressed in legislation this Congress.
Scientific Data
Currently, the Fish and Wildlife Service (FWS) and the National
Marine Fisheries Services (NMFS) base their listing decisions upon
``best scientific or commercial data available,'' This is vague
language prescribed by the Act but not defined anywhere by law or
regulation. Congress must ensure that FWS extends the Act's protections
only to those species that are truly threatened or endangered, based
upon all appropriate documentation and research. The listing process,
therefore, should be reformed to require a stricter scientific basis
for listing species. NAHB believes that Congress should define ``best
available science'' to include the minimum viable population of
species, the minimum habitat necessary for the species survival, the
species geographic distribution, population, and percentage decline,
and the actual threats to the species. NAHB also believes that an ideal
formal, systematic peer review process would require evaluation of the
methodologies used in the collection of the data. This would assure
that researchers follow appropriate methodologies for gathering and
analyzing data. All data should be field-tested, verifiable, and peer
reviewed. Listing of species affects communities and landowners across
our country every day. It is imperative that listings be made from
sound science.
Data should also be made available to the public. It is important
that a landowner be able to obtain information on a species that may be
on their property.
Critical Habitat
FWS routinely fails to designate critical habitat for listed
species. Congress mandated that the critical habitat of a species
should be identified at the time the listing decision is made ``to the
maximum extent prudent and determinable.'' Only those areas essential
to the protection and recovery of the focal species are considered its
critical habitat. The agency's failure to designate critical habitat
creates severe and unnecessary problems for private landowners. As a
result of FWS' failure to designate critical habitat, FWS regulates
development on all potential habitat. Congress needs to make a
collection of sufficient and appropriate date for critical habitat
designation a requirement and a priority. NAHB also believes that the
Federal Government must weigh the socioeconomic consequences before
critical habitat designations are proposed. It is only fair to the
species and affected communities that critical habitat be identified.
Public Notice/Involvement
Current law has no public notice requirement outside of a Federal
Register notice of proposed listing, and the requirement that a hearing
be held in each affected state if requested within 45 days of final
notice. NAHB believes a system must be established whereby the FWS
would maintain a mailing list of interested parties who would receive
notification of any and all petitions to list, proposed listings and
draft recovery plans. Currently, the Army Corps of Engineers maintains
such a list for proposed actions under the Section 404 program. In this
way, landowners, environmental organizations, and other interested
parties would have sufficient opportunity to comment on these proposed
agency actions. Most individuals, including NAHB members, do not have
the resources to follow every listing that appears in the Federal
Register.
Further, private citizens and communities--especially those
directly affected by conservation decisions--should have a greater
stake and a more prominent role during the ESA decision making
processes. Congress should provide for earlier and more meaningful
opportunities for citizens to participate, more citizen involvement in
recovery plans, and a more prominent role in the consultation process
for applicants for Federal licenses and permits. NAHB has repeatedly
suggested that FWS and NMFS notify private landowners when critical
habitat is proposed on their property. Stakeholder participation in the
process is critical whenever agencies propose to implement significant
changes to existing regulatory processes.
No Surprises/Candidate Conservation Agreements
NAHB believes it is important for Congress to codify three
important administration policies: ``no surprises,'' ``candidate
conservation agreements,'' and ``safe harbor.'' These policies provide
much needed assurances that when a deal is struck between landowners
and their local, state or Federal governments that provide for both
species conservation and the ability of the landowner to use his or her
property, the government cannot come back with new information that
requires further mitigation. This is a critical component in getting
the landowner to the table and providing him or her with much needed
incentive to preserve species. Codifying these policies as law will
neutralize the negative affects of third party lawsuits that challenge
the reasonable efforts of participants and government officials to
cooperate in protecting species.
Recovery Planning
Congress should fortify the recovery planning process envisioned in
the Act by requiring the preparation and use of timely, comprehensive,
effective and cost-effective recovery plans. Presently, many species
are without a viable financially feasible recovery plan. A recovery
plan should be required and finalized under strict deadlines for each
listed species. We also would advocate that the requirement for peer
review of the biological goals within a recovery plan be as least as
stringent as that for listing and delisting decisions. Further, FWS
should adopt a ``least-cost'' alternative in recovery plans, and be
prohibited from adopting a plan until all financial expenditures are
identified. The overall goal is to save species. It is important that
an emphasis is put on recovery.
ESA/CWA Memorandum of Agreement
NAHB submitted comments to the Environmental Protection Agency for
the proposed memorandum of agreement (MOA) with the Fish and Wild
Service and the National Marine Fisheries Service. The intent of the
MOA as stated in the proposed rule is to streamline agency efforts
during ESA Section 7 Consultation. NAHB supports efforts to streamline
the process but opposes the attempt to expand agency authorities under
the Clean Water Act (CWA) and ESA. The Water Quality Standards (WQS),
National Pollutant Discharge Elimination System (NPDES) program, and
the ESA Section 7 Consultation process have existing standards that
should not be complicated. The MOA as proposed establishes too many
levels of involvement and subsequently complicates the WQS, NPDES, and
ESA consultation programs. NAHB's comments focus on recommendations
that adhere to the congressional intent of both the CWA and ESA.
Congress should make clear that ESA considerations should not over ride
the CWA programs.
Fifth Amendment Rights Overview
Finally, let me take a moment to focus on the issue of property
rights. One of NAHB's long-standing policies is to ensure that
landowners are paid just compensation when government takes private
property through onerous and excessive land use regulation. The right
of private property owners to use their land is one of the most valued
tenets of the U.S. Constitution and a bulwark of our democracy. Supreme
Court rulings since the 1980s have reaffirmed the basic principle that
the property rights safeguarded by the Fifth Amendment must be
vigilantly protected and are as important as the speech and privacy
rights protected by the First and Fourth Amendments. None deserve any
less protection compared to the others.
Federal and state governments continue to take private property for
a variety of reasons, thus triggering the requirement that just
compensation be paid to the affected landowner. The Endangered Species
Act (ESA), in particular, continues to be enforced in such a way as to
cross that line drawn by Justice Oliver Wendell Homes nearly seventy
years ago. ``If regulation goes too far,'' he wrote, ``it will be
recognized as a taking.'' \3\ Often,enforcement of the ESA by the U.S.
Fish and Wildlife Service (FWS) does, indeed, ``go too far'' and
deprives property owners of all or a substantial portion of the use of
their property.
---------------------------------------------------------------------------
\3\ PENNSYLVANIA COAL CO. v. MAHON, 260 U.S. 393 (1922)
---------------------------------------------------------------------------
This loss is particularly difficult for the small volume
homebuilder. Over 60 percent of NAHB's membership build fewer than ten
homes per year. These people can rarely afford the economic impact of
losing most of the value of a property they own, and even fewer can
afford the expenses associated with a protracted court battle.
I am not here to argue against the position that the preservation
of endangered species is of national importance. It is of national
importance; however, individual property owners should not bare the
burden of species preservation for the whole nation. As Justice Black
wrote in Armstrong v. United States, ``[t]he Fifth Amendment's
guarantee that private property shall not be taken for a public use
without just compensation was designed to bar Government from forcing
some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.''\4\
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\4\ ARMSTRONG v. UNITED STATES, 364 U.S. 40 (1960)
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NAHB is pleased that Chairman Young and other members of the
Committee have addressed this issue in terms of the Endangered Species
Act in H.R. 1142. Unfortunately, as mentioned earlier, this represents
only part of a larger problem. Many other Federal statutes that
regulate land use, such as the Clean Water Act or Superfund, also raise
the specter of taking private property. These statutes should be
similarly assessed to ensure that property owners who suffer
unconstitutional takings are fairly compensated. We hope that Congress
will look at other aspects of our struggle to realize our members'
Fifth Amendment rights, particularly the need for procedural reforms in
order to guarantee fair access to property owners to the Federal
courts, so their Fifth Amendment takings claims can be resolved on the
merits.
Expeditious access to the Federal Courts remains a priority for the
building industry. Private property owners still lack the ability to
have the merits of a Fifth Amendment claim heard before a Federal court
in a timely manner. NAHB strongly believes that along with compensation
we need to address judicial reforms for private property rights cases.
Last year, NAHB and many members of this Committee supported a bill,
H.R. 1534, the Property Owners Access to Justice Act, which passed the
House of Representatives in October of 1997. The bill was designed to
clear many of the judicial and administrative hurdles property owners
currently face when trying to bring their takings claim to court. The
legislation gave a property owner access to Federal court without
having to spend years in an endless cycle of administrative appeals
with government agencies.
The requirement that property owners should exhaust ``all
administrative remedies'' with an agency before getting their day in
court often results in endless rounds of appeals with the relevant
agency. Property owners have a legitimate expectation to know with some
degree of certainly what rights they have on their own property. H.R.
1534 required the property owner to make at least two applications for
a permit at the local level before going to court, but offered a clear
ending to the process. It is important that a ``final agency'' action
is defined in terms of a private property rights case, otherwise the
process becomes endless for the property owner. Many times the property
owner simply gets out of the process either because it is too expensive
or time consuming to pursue, and hence loses the use of their property.
This is wrong. Private property owners deserve to be heard in court on
takings cases.
The key elements of NAHB's property rights policy include the
following:
Federal legislation and regulation should fully
compensate landowners in an expeditious manner for the value of
their property that is taken or deemed unusable.
Legislation should initiate and/or support appropriate
litigation in Federal and state courts involving takings issues
and other protections of private property rights.
Legislation should adopt a clear statutory definition
of a taking to include not only physical occupation or use, but
regulated uses and/or diminished value.
Federal legislation and regulation should ensure
private property owners the right to exclude people from their
property, including those who wish to enter onto property to
gather data on environmental issues.
Federal legislation should allow property owners more
expeditious access to Federal District Court review of takings
cases.
Conclusion
There needs to be new, proactive approaches developed to protect
endangered species habitat on nonFederal lands in order to achieve the
ESA's goals. There needs to be adequate incentives for non-Federal
landowners to factor endangered species conservation into their day-to-
day land management activities. In fact, recent studies show that, for
species found entirely on private property only 3 percent are
improving, and the ratio of declining species to improving species is 9
to 1. The current ESA is reactive rather than proactive regarding
private land conservation. That is why it is important to reform the
ESA and offer landowner incentives to conserve. In order for the ESA to
be successful the private landowner needs to be vested in the
conservation not punished for owning good species habitat.
NAHB commends Chairman Young and other members of this Committee
for addressing the important issue of compensation for private property
takings. NAHB will continue to fight for landowners' Fifth Amendment
rights under the United States Constitution, and will continue to
advocate further ESA reforms.
Mr. Young. I want to thank the panel for the excellent
testimony and taking the time.
It interesting, I actually have two private people sectors
and one quasi-private, Mr. Gordon, and two, they are basically
government officials. If this Act is working so well, why would
the private sector say it is not working so well, Jamie? Jamie?
And Mr. Thomas certainly doesn't think it is working well. I
mean, where is this cooperating attitude? Does it exist at all?
Ms. Clark. Well, Mr. Chairman, I am certainly--and you and
I have had many discussions about this--well aware that there
are instances that need attention, but the administration has
worked very hard over the last few years to provide incentives
into the current Endangered Species Act, to solicit and
advocate appropriations that allow us to respond more
efficiently and more effectively, to address the technical
assistance responsibilities that we have to implement the
Endangered Species Act.
I get positive feedback all the time from----
Mr. Young. From whom?
Ms. Clark. From private landowners, from States, from other
organizations that are really working with us to protect our
biological heritage.
I am sure that there are instances where it is not working
well, and we have all heard horror stories, many of which the
Fish and Wildlife Service spends a great deal of time refuting.
I am not here to contest or to debate the stories that we are
hearing today or in previous hearings, but I am convinced that
we have worked very hard, in many reauthorization attempts and
certainly administrative, to address the needs of private
landowners.
Mr. Young. Again, my problem is I am not hearing that same
story, and I am concerned that we have a case in Alaska now
where your Department turned down the Corps of Engineers'
recommendation and raised it to another level, which cost not
only a considerable amount of money; it cost my people money.
The end results may be the same thing, but it is a year's
delay. I don't see any working relationship there at all, and
that disturbs me.
In your testimony, Jamie, you say that the Service has gone
to great lengths to minimize impacts of ESA on private
property. If that is true, would you object to language that
requires the Service to avoid and minimize impacts, similar to
the 4(f) Transportation Act language in the starting point?
Ms. Clark. Well, from my perspective, the 4(f) language,
the Transportation Act, is not a compensation language. The
4(f), the Transportation Act, was, indeed, to protect parks and
refuge lands for the public benefit. The Minnesota Valley----
Mr. Young. But you didn't answer the question. Would you
object to that language if it applied to the private property
owner?
Ms. Clark. The current Endangered Species Act in areas has
us minimize and mitigate. We----
Mr. Young. Not on private property, you don't. You require
that private property owner to mitigate by putting property
into your hands, at a tremendous amount of disproportion
acreage. That is what you do with the private property owner.
Again, I go back, do you object to rewarding a private
property owner for having endangered species on his property?
That is the thing that you----
Ms. Clark. Absolutely not. That is the theme behind----
Mr. Young. Then why don't we do it?
Ms. Clark. [continuing] safe harbor; that is the theme
behind a lot of the incentives programs that we have been
developing. We just funded a whole host of projects nationwide
to acknowledge landowners and to provide incentives to conserve
endangered species on their land. We can cite many examples--I
would be happy to do that for the record--where it has been
very positive in the relationship between the Federal
protective requirements of the Endangered Species Act and
private landowners stepping forward to conserve species on
their land.
Mr. Young. But to yield back to me, how does requiring
mitigation reward the owner? If he has an endangered species on
his or her property, and he has been doing an activity and that
species is live and well, and you find the species. In order to
continue to let him continue to do what he has been doing, you
require mitigation, additional acreage. Now how does that
reward? How does that relate to working with one another? That
is big government beating up on the private property owner.
Ms. Clark. Well, the Endangered Species Act does, in fact,
require anyone, whether it is a private landowner or a Federal
agency, to address the taking of endangered species and to
address and to overcome the notion of take of an endangered
species.
Mr. Young. But if I have----
Ms. Clark. You can call it mitigation or call it whatever
you like, but the fact of the matter is, I am kind of mandated
in my position to prevent the extinction of species. We work
with the landowners; we work with Federal agencies; we work
with whoever to ensure that species don't go extinct. And if
that involves affirmatively obligations on behalf of the
private sector or the Federal sector, we try to be as judicious
and as realistic as----
Mr. Young. You and I have had this discussion before. I
just don't like your Service, very frankly. I don't like the
way they conduct themselves and the attitude, ``We're the
Government, and you're the private property owner. We can do to
you whatever we wish to do, and you can't do much about it.''
Now that is what has happened in many cases. You may call them
horror stories and everything else, but that is not the
attitude any agency should have within our democracy and under
our Constitution.
And I have talked to you about this before, and you are not
the only one, but this has gotten progressively worse in the
last six years, where there is, I think, a lack of respect for
the private property owner and his problems or her problems.
When he has a species on that property, there is not much to
give him credit for or reward him to keep the species. I think
Mr. Gordon said it correctly; I think Mr. Loop said it
correctly. I just really think you are leading this country
down to a revolt against you, against the Federal Government.
There is nobody happy with the Federal Government today. I
mean, that is the sad part about it, and that weakens our
democracy and it strengthens this democracy. There is nobody--I
can guarantee, if you walk down the street any other place than
Washington, DC, and ask anybody, ``What do you think about the
Federal Government?'', and there will be a negative response.
That is not healthy.
My time is up. Mr. Vento.
Mr. Vento. Thanks, Mr. Chairman.
Director Clark, does the Fish and Wildlife Service
compensate public agencies for actions that they take to
respond to the Endangered Species Act.
Ms. Clark. No, Congressman, we don't.
Mr. Vento. You have never done that. Do you know what the
scope of the existing Endangered Species Act is as to the
amount of land that might be covered, private land that might
be covered by the Endangered Species Act today?
Ms. Clark. Well, I would agree with one of the statistics
that I heard in earlier testimony that we say that up to 70
percent of endangered species depend on private land for their
existence, but regarding the amount of acreage that endangered
species occupy that is non-Federal, I don't have a good number.
I could check our records, but I don't believe we have a
specific acreage number.
[The information may be found at the end of the hearing.]
Mr. Vento. And it is my understanding that the Airports
Commission payment in Minnesota, my State, was made on the
basis of the recreation and education activities, not on the
basis--and, of course, this overflight issue that takes place--
not on the basis of any type of impact on species, endangered
or otherwise.
Ms. Clark. The 4(f) requirement was made, or the 4(f)
mitigation package was made in response to the Secretary of
Transportation's obligation to minimize and mitigate adverse
effects to public parks and refuges.
Mr. Vento. I mean, the fact is that, in this case, the
visitor center and the recreation activities, interpretative
activities that were going on outside, were rendered--would be
completely adversely affected or completely eliminated
practically on the basis of these overflights. That is my
understanding.
Ms. Clark. Right. It was the effect on the public's land.
It was an effect on the public's enjoyment of Minnesota
Valley----
Mr. Vento. Now does the agency have any constitutional
right or any other right to remedy this sort of situation with
the Department of Transportation or with the Metropolitan
Airports Commission? Do they have any other rights?
Ms. Clark. Not to my knowledge. It is all statutorily
mandated in the Transportation Act.
Mr. Vento. So that is it? They can't go to the 5th
Amendment? They can't go to the----
Ms. Clark. No, they cannot.
Mr. Vento. [continuing] 14th Amendment? This is the only
right they have?
Ms. Clark. To my knowledge, that is the right, which is why
that was incorporated in the Transportation Act. Public lands
and Federal agencies don't have the 5th Amendment right under
the Constitution, but, of course, I am not an attorney. So I
would----
Mr. Vento. No, I know, but that is my understanding.
Ms. Clark. Right.
Mr. Vento. If somebody wants to contest it, they may. But,
I mean, that is the purpose. That is the only remedy that is
available, and it is a pretty weak one at that.
Ms. Clark. That is correct.
Mr. Vento. It has been weakened by the law, the 1997 law
that was passed, which, in fact, had prevented the Fish and
Wildlife Service from, in fact, having any control over any
type of overflight. Is that correct?
Ms. Clark. I believe you are referring to the Refuge
Improvement Act of 1997----
Mr. Vento. Yes, sponsored by our chairman and Ranking
Member.
Ms. Clark. Correct. It enjoyed wide support in the
Congress, and it does not address the overflight issue.
Mr. Vento. It does not address it, but the law actually
precludes the ability of the Forest Service and that law from,
in fact, taking any action for overflights, does it not?
Ms. Clark. Right. Yes, sir.
Mr. Vento. It does? I mean, so it is actually--it isn't a
matter it isn't addressed. It affirmatively states that you
cannot----
Ms. Clark. That is correct.
Mr. Vento. Well, why was that inserted in the bill? Was
that inserted at the request of the administration?
Ms. Clark. I actually don't know what the genesis of that
is. I would be happy to get back to you for the record.
[The information may be found at the end of the hearing.]
Mr. Vento. I can tell you, there is a big problem with
aircraft overflights over a lot of public lands that Members of
Congress are concerned about, the least of which are not just
by the Metropolitan Airports Commission, but by the military,
and the increasing amount of airspace that they occupy.
If this bill, in fact, were stating that it was trying to
provide a right along those lines, I think probably
constitutionally, I guess, you haven't been able to demonstrate
that in terms of private property, but it would be at least
something, I think, to begin to look at. But I don't know where
the relationship is here with this. I mean, I think that it is
your testimony, Director Clark, that this would, in fact,
render the Endangered Species Act null and void; that, in fact,
if you had to pay this type of compensation, that there would
be vast amounts of money. Any action you took under the
Endangered Species Act would surely come across this 25 percent
threshold, especially given the definitions that are in this
bill. So this is just another way to, in fact, repeal the
Endangered Species Act. Maybe that is not the intention, but
that is what the effect is.
Ms. Clark. It certainly would be the effect. It would not
only cripple our ability to implement the Endangered Species
Act and promote species conservation, but it would be a huge
drain on our budget--in fact, probably, categorically, eat up
our entire budget, paralyzing our ability to implement the
other provisions.
Mr. Vento. So if this is a solution, it is an unusual one
in terms of the fact that it completely undercuts the entire
thrust of the Endangered Species Act of law?
Ms. Clark. I would agree with that.
Mr. Hansen. [presiding] The gentleman from Nevada, Mr.
Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman. I
appreciate the opportunity.
To our panel, welcome here today.
Ms. Clark, let me ask a question with regard to the bull
trout listing in the State of Nevada. According to the State of
Nevada's biologists, who have every bit as much experience,
every bit as much knowledge, every bit as much background and
credibility on the bull trout, it was not an endangered
species. Yet, at the insistence of, I believe, the National
Wildlife Foundation, a couple of fishing groups that also
wanted to preserve the area, the Fish and Wildlife Service went
ahead and listed that species to protect the area--at great
harm to some of the people who needed a road to access areas in
that area.
That being said, you go to great lengths in your testimony
to say that you enforce the endangered species law. Yet, what
do you do about this designation of critical habitat?
Ms. Clark. Well, I am not sure I followed the question, but
let me try to answer. First, we added the bull trout to the
Federal list of endangered species to protect the bull trout,
after extended public comment and the evaluation of the science
that we had before us. So, certainly, that was a decision made
for the species.
Mr. Gibbons. Well, the Fish and Wildlife Service for the
State of Nevada disagreed with the idea that it was not an
endangered species.
Ms. Clark. Fair enough. I am sure there are debates on a
number of species.
Mr. Gibbons. So the science is questionable with regard to
what you were doing, but, nonetheless, you used the bull trout
as an excuse to close the road.
But, let's move on, because what we want to talk about is
critical habitat, not endangered species here, that is the
question. Do you use critical habitat, and designate critical
habitat, rather than automatically finding an endangered
species?
Ms. Clark. I am still having a hard time answering your
question because let me explain----
Mr. Gibbons. Well, let me make it a little clearer.
Ms. Clark. Let me see if I can----
Mr. Gibbons. Do you designate critical habitat?
Ms. Clark. We are obligated by the law to designate
critical habitat when we list a species, if it is prudent and
it is determinable. Oftentimes, we don't know the entire extent
of the critical habitat, which is defined as habitat essential
to the recovery of the species at the time we list it. So we
say it is not determinable. That doesn't, though, prohibit us
from protecting the habitat of the species through the
consultation provision, through the incidental take permit
provisions, or through the identification or articulation of
habitat or recovery planning.
Mr. Gibbons. So you are saying here, the testimony before
this Committee is that the Fish and Wildlife Service does
designate, as a matter of law, critical habitat?
Ms. Clark. The Fish and Wildlife Service is obligated by
the Endangered Species Act to designate critical habitat where
it is prudent and determinable.
Mr. Gibbons. Yes, I understand what the law states. I want
you to state for this Committee that Fish and Wildlife Service
does designate critical habitat.
Ms. Clark. Yes, we do. We have done not it on the bull
trout.
Mr. Gibbons. Well, Mr. Shimberg, you mentioned in your
testimony about four cases that--well, first of all, you are a
lawyer, are you not?
Mr. Shimberg. Yes, I am.
Mr. Gibbons. You mentioned four cases that were on point
that have gone to the Supreme Court with regard to endangered
species.
Mr. Shimberg. No, sir, I didn't suggest they went to the
Supreme Court.
Mr. Gibbons. They did not?
Mr. Shimberg. No. It was a Federal Claims court, the Sixth
Circuit court, the district court in Colorado, and the Ninth
Circuit.
Mr. Gibbons. Are there any court cases that have gone to
the Supreme Court with regard to endangered species?
Mr. Shimberg. Yes, but not with regard to takings issues.
Mr. Gibbons. Okay. Thank you, Mr. Chairman.
Mr. Hansen. Thank you. The gentleman from Colorado, Mr.
Mark Udall.
Mr. Udall of Colorado. Thank you, Mr. Chairman.
I want to welcome the panel here today, and thank you for
taking time to appear before us.
I had a couple of questions for Director Clark, but I
wanted to also, as I start, refer back to Chairman Young's
comments about providing incentives for landowners. I am
curious what sorts of things are going on to do that. If I
could, I might mention what has been happening in Colorado.
I think you are aware of the Platte River and some of the
recovery plans that have been put in place there with the State
and the Fish and Wildlife Service and some of the water
districts all coming together. I think it is a pretty creative
and a nice model.
So if you would talk about some of the things you are doing
to provide those kinds of incentives, I think the Committee
would appreciate it.
Ms. Clark. Sure. The Platte River Recovery Program is,
indeed, we believe, a success. It is, I would submit, a great
demonstration of a collaboration among the parties interested
in preserving the integrity and long-term sustainability of the
Platte River.
We have other kinds of situations like the Platte River
that are underway in the Lower Colorado, the Bay Delta,
southern California, and other parts of the country, where we
have multiple constituents, multiple stakeholders working
together to achieve the common ground of economic viability and
species conservation. So those are kind of positive recovery
programs.
We have some other programs that we have instituted
administratively, like safe harbor. Safe harbor is a program
where we provide assurances to landowners or we acknowledge--
provide incentives for landowners to allow species or to
support species conservation on their lands. It is for private
landowners only, in that it, in essence, rewards their good
deeds for endangered species, once we determine a baseline.
Once the baseline is determined, and more of that species
occupies that land, the assurance is given that the landowner
can return the status of that land back to the baseline without
fear of future regulation. So it provides certainty for
landowners that are, in essence, growing endangered species on
their lands.
That received tremendous visibility and acknowledgment
through the Southeast with species like the red cockaded
woodpecker, the State of Texas with species like the apolomado
falcon, and is gaining wider support across the country.
Other kinds of incentives in the habitat conservation
planning program, the incidental take permit program for non-
Federal lands--a little over a year ago, we published a
regulation involving no surprises: that once a deal was made, a
deal was a deal, and that we wouldn't ask for additional land
or water compensation or monetary compensation beyond the terms
of the deal that we made at the time the HCP was signed. So
that provides, kind of alleviates the fear of future
regulation, once a deal has been made with the Federal
Government concerning the management of those lands.
We have recovery incentives programs that we are trying to
lay out through our budget process. It provides incentives and
grants for private landowner and States to do good things for
species' conservation. In fact, it is happening across the
country. There is a lot of tremendous activity being conducted
by non-Federal folks that are really accelerating species
recovery.
Candidate conservation agreements is another one. You know,
we don't need to wait until we need the safety net of the
Endangered Species Act. We are working a lot with the non-
Federal community to address species' needs while we have much
more flexibil-
ity, either through habitat protections or actual species-
specific pro-
tection mechanisms. In laying out that deal, the candidate
conservation agreements, we provide the protection that, in the
event the species ultimately has to be listed anyway, because
that one private landowner can't take care of the entire
species' needs on their lands, the private landowner who has a
candidate conservation agreement won't be asked to do more.
Mr. Udall of Colorado. Okay.
Ms. Clark. So those are some examples, and I would be glad
to get you more for the record.
[The information may be found at the end of the hearing.]
Mr. Udall of Colorado. Well, I would urge you to continue
to working in that way. I believe in Colorado there is a lot of
support for the Endangered Species Act, particularly if there
is more flexibility applied.
Ms. Clark. Right.
Mr. Udall of Colorado. I endorse that approach, and I want
to ask you one last question. As I look over the bill, I note
there seem to be a lot of value judgments in the bill, if I
could quote a couple of places for you.
It refers to ``substantial diminution in the normal or
reasonably expected uses of property'' in one part of the bill.
Then, in another section, it talks about any action to
temporarily occupy property, quote, ``in a manner that is
adverse to the constitutional right of the owner'' under the
5th Amendment.
Now it seems to me, given those kinds of value judgments,
you potentially get a lot of litigation out of this piece of
legislation, and then we end up spending our resources there in
court, rather than doing the kinds of things you are doing.
Would you comment on that?
Ms. Clark. I would certainly comment, and then I would
agree with it. I think there is a lot of subjective
interpretation in this bill that would lend itself to varied
interpretation. It is certainly something that I think the
courts have struggled with for 200 years, and it kind of makes
me glad I am a biologist, not a lawyer.
But I would say that I believe this is clearly the wrong
direction to achieve fairness, flexibility, and species
conservation, because it leaves way too much open to
interpretation. It is something the courts have been grappling
with for many years and haven't achieved.
Mr. Udall of Colorado. Thank you, Mr. Chairman.
Mr. Hansen. The gentlelady from Idaho, Mrs. Chenoweth.
Mrs. Chenoweth. Thank you, Mr. Chairman.
Chairman Young expressed a frustration that the people feel
toward Fish and Wildlife Service, and I think the testimony
that we have heard today clearly indicates why the people are
frustrated. Out West, because there is a conflict between
wildlife and people, the people have to move.
We heard testimony today from Mr. Shimberg that we
shouldn't even try giving people a chance to work with the
agencies--also, from you, Ms. Clark--in opposing the bill; we
shouldn't even try to give people a chance under the law to see
if this would work. We just should go ahead with force.
Let me tell you another reason why people are utterly
frustrated. Mr. Shimberg, who is an attorney, should have
recalled this when Mr. Jim Gibbons asked him about cases that
were successful in the Supreme Court. Because in the Bennett v.
Plennart case, later known as the Bennett v. Spear case, which
was decided unanimously by the Supreme Court, the Fish and
Wildlife Service argued that humans are not within the zone of
interest in the Endangered Species Act. The Fish and Wildlife
Service lost. The Supreme Court ruled with us.
Taking these cases by other agencies, such as the Dolan
case, takings of private property, the Lucas case, were
successful in the Supreme Court. So I just want to say that,
when one comes before this Committee, they should be accurate
in the information that they give the Committee.
I want to ask, Ms. Clark, why did you remove the Tidal
Basin beaver from its natural habitat? What was your reason?
Ms. Clark. This is actually one thing I can't be blamed
for. Fish and Wildlife Service actually was not engaged in the
moving of the beaver. It was actually another agency. Actually,
I heard this morning, those beaver were successfully
transplanted to a better home, I suppose, so they wouldn't eat
the cherry trees. But that was not a Fish and Wildlife Service
initiative.
Mrs. Chenoweth. Which other agency did the moving?
Ms. Clark. National Park Service.
Mrs. Chenoweth. Did you issue a take permit to the National
Park Service?
Ms. Clark. The beaver are not listed under the Endangered
Species Act. It is really governed by the District of Columbia
and the States----
Mrs. Chenoweth. No, no, no, no, no, that makes no
difference. You have the law to follow; you have your own
regulations to follow.
Did you issue a take permit to the----
Ms. Clark. We would only issue a take permit if it was an
endangered species. It is not.
Mrs. Chenoweth. Okay.
Ms. Clark. A take permit was not required.
Mrs. Chenoweth. I see what your answer is. I want to let
you know that I am going to be petitioning the Fish and
Wildlife Service to list the Tidal Basin beaver for this
reason, and then you can justify to me and the rest of the
public why this little critter is not threatened or endangered,
because he is. He is indigenous to this area. This was his
natural habitat. And certainly by virtue of the fact that this
little unit, this little family unit, reestablished itself in
the Potomac, in the Tidal Basin, is an indication of not only
its persistence and perseverance and pioneering spirit, but the
fact that, by nature alone, these species can recover.
I find it absolutely amazing that the agencies, because
this is Federal property, would act according to desires of the
Federal Government on Federal property to protect the Federal
property, to protect tourism, which I think is just fine. But I
would like to see the same kind of consideration given when a
species appears like the slick shot peppergrass, which isn't
even listed as endangered or threatened, but is stopping the
development of a military training range in Idaho, and yet, the
Fish and Wildlife Service and the BLM, and various other
agencies, are stopping progress--under the same set of
circumstances as we found with the Tidal Basin beaver.
I think that your actions, the actions of the Park Service,
in the case of the Tidal Basin beaver, is clearly indicative of
the absolutely incongruity of the way this whole Act has been
applied by individuals. I think that, frankly, this
administration is more interested in carrying out an agenda
than it is in protecting wildlife and endangered and threatened
species.
The Fish and Wildlife Service, by the way, in your
testimony, you indicated that, in response to the overwhelming
local input, this is one of the reasons why the refuge was
established at the Minnesota airport. I find that amazing,
because there was overwhelming reaction in Idaho against your
trying to transplant grizzly bears into our State. The whole
State rose up in arms. The whole legislature, all the county
commissioners, said no. And, yet, unlike what you did in
Minnesota, you didn't respond to the public input in Idaho. You
are still attempting to impose grizzly bears on our State.
Our State is poor. We cannot afford to pay you $26 million
to pay you off. We would expect that you would go under the law
and treat people equally, whether they are rich or whether they
are poor.
It is this kind of inconsistency that is causing people to
be angry and causing people to feel like you aren't at all
interested in having the Federal Government do anything but
create chaos. I would like to see more cooperation and far less
chaos.
Thank you, Mr. Chairman.
Mr. Hansen. Thank you. The gentleman from New Mexico, Mr.
Tom Udall.
Mr. Udall of New Mexico. Thank you, Mr. Chairman. I am not
so sure, if I was a beaver, I would want to locate in
Washington, DC in the Tidal Basin, I will tell you.
Mrs. Chenoweth. Would the gentleman yield?
Mr. Udall of New Mexico. Yes.
Mrs. Chenoweth. Thank you for yielding. I just want to say,
though, that this is its natural habitat, and that little
beaver is indigenous to this area, and that is the criteria
that should be considered. Thank you.
Mr. Udall of New Mexico. Thank you.
Thank you very much for coming, members of the panel. We
really appreciate you being here. We appreciate the expertise
that you bring to this issue.
I have a question or two here for Director Clark. Looking
at your biography, it is apparent that you have served in the
field, and I know you have many other people that serve with
you in the field. When they come in contact with a landowner,
and you have discovered that there is an endangered species
located on an individual landowner's land, have they generally,
for the most, in your experience, been cooperative with you in
terms of trying to work with your agency in terms of the
endangered species?
Ms. Clark. Yes, they have. I mean, we can cite example
after example of very successful interactions and very positive
interactions between or among private landowners and Fish and
Wildlife Service employees. We have spent a pretty significant
investment in evolving our agency into one of technical
assistance and one of collaboration and one of more effective
communication. And I won't certainly sit here and say that
there aren't some examples to the contrary, but we enjoy a very
significantly positive relationship with many landowners across
the country.
Mr. Udall of New Mexico. And part of that process, after
you work with them in terms of recovery plans and safe harbor,
and all of that, that requires personnel and funding? I mean,
is your agency adequately funded, do you think, to carry out
these kinds of programs?
Ms. Clark. No, it isn't. In fact, that is why the
President's Fiscal Year 2000 budget request, as its focus for
the Fish and Wildlife Service and our endangered species part
of the budget, highlights the need in the consultation arena,
which is where we conduct the interagency collaboration/
coordination efforts. We have requested a fairly significant
increase to address the demands and the needs for technical
assistance.
What we find more and more is that landowners, whether they
are Federal landowners or non-Federal landowners, need to
understand, and want to understand, what their responsibilities
are, and they want to look for opportunities to, all of us, do
the right thing, and they want incentives. So our budget has
highlighted areas that show budget increases for technical
assistance, budget increases to fund some of these incentives
programs, and budget increases to acknowledge and reward
landowners that want to do the right thing.
Mr. Udall of New Mexico. And it sounds like to me, if you
receive that kind of funding, you could make more of these
situations into win-win situations, rather than----
Ms. Clark. Absolutely.
Mr. Udall of New Mexico. [continuing] having confrontation?
Ms. Clark. I am sure of that, absolutely.
Mr. Udall of New Mexico. Can you elaborate on the practical
effects of this legislation and what it will have on property
owners who are seeking section 10 permits or consultations
under section 7 of the Act?
Ms. Clark. Well, I can venture to guess what will happen.
If, in fact, this kind of compensation language goes through
and the compensation, however it is subjectively determined by
this legislation, is arrived at with the new definitions of
what compensation is occurs, I would imagine it would eat up
our entire budget, our entire appropriation, which is not
suggesting that the rest of the terms and conditions and
responsibilities of the Endangered Species Act evaporate or go
away or are suspended. So what we would have is gridlock in the
Endangered Species Act--with people without permits, agency
actions that are not allowed to go forward, recovery that is
not occurring, and suspending and paralyzing implementation of
the Endangered Species Act.
All of that results in probably cratering endangered
species recovery efforts nationwide, because while all of our
money will be diverted to litigation and compensation, as
defined in this statute, it will allow us little, if any, money
to fund our own technical assistance role or our own
responsibilities to streamline compliance.
Mr. Udall of New Mexico. Thank you, Mr. Chairman.
Mr. Hansen. Thank you, Mr. Udall. The gentleman from
Pennsylvania, Mr. Sherwood, is recognized for five minutes.
Mr. Sherwood. Did you say ``50,'' Mr. Chairman? Thank you,
Mr. Chairman.
And it has been with quite some interest that I have
listened to the testimony today, and I think that this is the
right thing to do when you have organizations like the American
Farm Bureau and the Wilderness Institute and Fish and Wildlife,
and we are all here together talking about it. I think we need
to somehow find some common ground, and I don't think we are
doing that real well.
Landowners, public citizens, Fish and Wildlife, Democrats
and Republicans, we would all like to protect our environment,
and we would all like to protect endangered species, but some
of us are having a real hard time coming to grip with the
incongruity of how private landowners do not deserve just
compensation when we take away their property rights, but the
public sector, who has the power to issue permits, does deserve
to get compensation, for instance, for an airline overflight. I
am not a partisan on either side of this issue, but I think my
point of view is one that we are going to have to explain to
the public in general.
Nobody has helped me today understand why those two issues
are different. I understand, if we would pass this bill and go
this way, that it would impact on Fish and Wildlife revenues. I
can understand where, if they don't have the revenues, they
won't be able to do a lot of the good work that we know that
they do. But, still, nobody has helped me understand the basic
inequality.
I guess I will direct it to you, Director Clark. Can you
help me with this?
Ms. Clark. I can try, and remember, again, I am not an
attorney, but I will try it from the biologist's point of view.
First of all, in the airport example that people are using,
that was not compensation. It clearly was not compensation, and
it certainly wasn't compensation to the Fish and Wildlife
Service. Those monies were to protect the public's interest in
a public refuge, and it is specifically dictated and laid out
in section 4(f) of the Transportation Act. Those monies will
never be seen by the Fish and Wildlife Service. They were a
conduit to kind of replace the--to acknowledge and to address
the adverse effects on the airport, and so it will replace the
public's refuge with other public refuge lands. So it is not a
compensation to the Fish and Wildlife Service.
The compensation issue, as I understand it, is one that is,
especially under the statutes, environmental statutes like the
Endangered Species Act, is one that is debated in the courts,
and is, apparently, routinely debated in the courts. And it is
one that the courts and the Supreme Court have grappled with
for 200 years: What's fair; what's just, and what's
compensatable? And certainly, if, in fact, the courts determine
that a takings has occurred on a case-by-case basis, as
determined by the courts, then compensation is legitimate and
rightful, and we would agree with that.
But the confusion that keeps occurring, or the kind of
intermingling that keeps occurring, between what happened at
Minnesota Valley National Wildlife Refuge and the Minneapolis
airport, and the redefinition of takings under this bill,
should not be mixed because they are apples and oranges. I just
want to be clear that what happened for Minnesota Valley was
not a compensation issue; it was a statutory mandate of the
Secretary of Transportation to not negatively affect or
negatively impact the public's refuges and parks, whether they
are State, Federal, or local, for transportation projects, and
to minimize and mitigate those effects, if, in fact, they could
not be avoided.
I don't know if that helped, but that is how I separate it.
Mr. Sherwood. Well, an attorney I am not, but it would seem
to me that an equal argument could be made for one of Mr.
Loop's members who was unable to use their ground because they
were told it would impact on habitat or a species, that they
would have--any good attorney could make a case that they need
to mitigate their loss. And if we can mitigate the loss for a
public agency, it would seem that we need to mitigate the loss
of private property.
And I am not trying to shut the Fish and Wildlife Service
down. They just redid a creek in my area; it is a wonderful
job. We had a few problems, but we got a wonderful job.
So those are the things we have to work out. But I think if
you don't address this in the general public's mind, it will be
at the peril of the whole program. Thank you.
Mr. Hansen. The gentleman from California, Mr. Pombo.
Mr. Pombo. Thank you, Mr. Chairman.
Ms. Clark, just to clarify what you were just saying, you
said that the Fish and Wildlife didn't get the money; they were
just a conduit for the money?
Ms. Clark. Well, the notion of compensation, as I
understand it, is that it would, quote, ``come to the
landowner,'' for instance. And this issue with the Minnesota
Valley National Wildlife Refuge, the dollars that were arrived
at, or the mitigation scheme that was arrived at, was to
address the adverse effects, as determined under the----
Mr. Pombo. To mitigate their impact----
Ms. Clark. Right.
Mr. Pombo. [continuing] on the refuge?
Ms. Clark. Right, and it will replace--and it will be used
for additional land acquisition and facilities to support the
public's interest in Minnesota Valley National Wildlife Refuge.
It is not bumping up the refuge budget, but it does come
through the Fish and Wildlife Service.
Mr. Pombo. Who is going to administer those new lands?
Ms. Clark. The Minnesota Valley Refuge is administered by
the Fish and Wildlife Service.
Mr. Pombo. And who is going to occupy the new buildings?
Ms. Clark. The Fish and Wildlife Service.
Mr. Pombo. So it does go to the Fish and Wildlife Service?
Ms. Clark. As a conduit for the public--I don't consider
our 500-plus national wildlife refuges to be the Fish and
Wildlife Service's refuges. They are America's national
wildlife refuges. They are the public's refuges. And we happen
to be the manager of those refuges, but we don't own them.
Mr. Pombo. All the government belongs to the people.
Ms. Clark. Right.
Mr. Pombo. We don't have a debate over that.
Ms. Clark. That is exactly what I am saying.
Mr. Pombo. But the money is going to the Fish and Wildlife
Service to mitigate the impact that the expansion of the
airport had on one of the lands that you manage?
Ms. Clark. The money is going through to the Minnesota
Valley National Wildlife Refuge; you are correct.
Mr. Pombo. So it does go in there? I think that the
argument that you are missing in all of this is that, if there
is an impact on the lands that Fish and Wildlife manages, they
want to be mitigated for that. They want there to be mitigation
payments to them, so that they are held whole.
On the other side of this debate is the private property
owner who is impacted by actions of the Fish and Wildlife
Service, who wants you to mitigate your impact on them, and you
don't think that is fair, or you don't think it is within the
law. And that is why so many of us say, you know, it should
only be right that--any impact on the government has to be
mitigated--so any impact on a private property owner should be
mitigated. There is nothing in the Constitution saying that you
have to be held harmless; that you have to be held whole. There
is something in the Constitution that says private property
owners have to be.
Ms. Clark. I agree. I mean, I have never disagreed with the
notion of, if a court found that the Endangered Species Act
constituted or resulted in a takings, that the private property
owners should be compensated. I don't think you have ever heard
a debate out of the administration on that.
On the 4(f) issue, the Transportation Act issue, that is
not what I want or not what the Fish and Wildlife Service
wants. It is what Congress wrote into law, and obligates the
Secretary of Transportation, and conditions the Secretary of
Transportation to do when building a transportation system
nationwide.
Mr. Pombo. Fish and Wildlife makes the decision there, and
Fish and Wildlife makes the decision as to what the impact is,
if any, on that particular refuge. As a condition that was in
held in the law, they call in Fish and Wildlife Service to
negotiate whether or not there is an impact or to discuss
whether or not there is an impact, and to negotiate mitigation
costs.
Ms. Clark. The Secretary of Transportation makes the
decision on what the ultimate mitigation is. In this particular
case, it was done in collaboration--the Secretary of
Transportation, the airport authority, and the Fish and
Wildlife Service worked to determine the appropriate level of
mitigation, but Fish and Wildlife Service does not call the
shots. The Secretary of Transportation has the ultimate
decision authority.
Mr. Pombo. Well, but that is not exactly accurate in terms
of who actually calls the shots. Because we have seen other
cases in other airports where Fish and Wildlife has denied use
or denied ac-
tivities because of the presence of endangered species in those
areas. In this particular area, because there was a sizable
amount of money, it was worked out that there could be--the
extension of the runway could happen; the extension of the
airport could hap-
pen, and the money would come. In other cases there hasn't been
that low impact or negative impact that you found in this
particu-
lar case. Fish and Wildlife is the one that makes the decision.
It
is your biologists; it is your agency who makes the decision as
to what the impact is, not the Secretary of Transportation.
Ms. Clark. The Minnesota Valley Refuge issue had nothing to
do with the Endangered Species Act. There was no endangered
species. There was, in fact, a null effect call made.
Mr. Pombo. See, that is where you are not being real
accurate, because there are endangered species. In your report
you identify bald eagles; you identify endangered species in
the area, and you say there is no impact on those. In other
cases, where there is a nesting bald eagle near a site, you
have denied the ability for a developer, the private property
owner, to proceed in those cases.
Ms. Clark. I understand that, and what I was referring to--
and every case is reviewed individually, and certainly we
debate and negotiate and get refuted all the time. All I was
suggesting is that in the Minnesota Valley/the Minneapolis
airport case, what governed the outcome of that deal was the
Transportation Act, not the Endangered Species Act.
Mr. Pombo. That was your hook to get the money.
Mr. Hansen. The time of the gentleman has expired.
Let me just say this: As you hear those bells go off and
see those lights on the back, we have a vote on the budget
resolution, and in just a moment we will recess, and then
assemble back, and we will start with the last panel, if that
is all right with everybody.
Director Clark, I know you have been very patient. Can I
just ask you some questions, maybe with a five-second
response----
Ms. Clark. Certainly, I will try.
Mr. Hansen. [continuing] if we could? And then I will get
out of here.
I was intrigued by the statement that you made to Mr. Vento
when he said that passage of this bill was tantamount to
killing the Endangered Species Act. I can't really understand
that, except that is kind of an admission that you have got an
awful lot of private land that you are using for habitat. By
any chance, do you know how much private land you now have
habitat? Can you give us a figure on that?
Ms. Clark. I can't give you a specific figure. I would be
happy to see if we have that in our records. I do know that
over 70 percent of our listed species today depend on private
land.
[The information may be found at the end of the hearing.]
Mr. Hansen. What percent was that?
Ms. Clark. Over 70 percent of listed species today depend
on private lands for some part of their life cycle, but I don't
know the amount of acreage.
Mr. Hansen. So if you extrapolated that, you could almost
say 70 percent of it was on private ground? I mean, 70 percent
would be private ground.
Ms. Clark. Well, it would be a tough extrapolation because
you don't know whether----
Mr. Hansen. I know it wouldn't be an accurate
extrapolation, but it----
Ms. Clark. It is fair to say that there is a significant
amount of private lands that are probably occupied by
endangered species.
Mr. Hansen. Also, in the letter from the Justice Department
to Don Young, from the--I don't remember the attorney's name on
this, Mr. Dennis K. Burke, Acting Assistant Attorney General--
in the first paragraph, he says, ``This bill would create a
statutory right to compensation to the context of the
Endangered Species Act regulation. That departs radically from
the standard for just compensation under the 5th Amendment.''
Could you explain that? I can't see where it would depart at
all.
Ms. Clark. Unfortunately, this is where my not being an
attorney is probably a good thing--or a bad thing.
Mr. Hansen. Attorneys are the most overrated profession in
America. So take a stab at it.
[Laughter.]
Ms. Clark. I am beginning to believe that myself.
But I would certainly be happy to refer to Justice for
further explanation.
Mr. Hansen. Go down to the third paragraph. ``Consistent
with that position, ESA''--now here is the part I want to ask--
``It has been the policy of this administration to minimize
impacts on private property.'' I just have a hard time buying
into that, considering the amount of private property that I
have seen impacted in the State that I represent. If anything,
these people feel that they have ruined something that they
have inherited, or they have purchased, and taken it almost
with not any regard and in a callousful manner. Am I just an
exception to the rule? Or is there usually a great working
relationship with private property?
When the Secretary of Interior goes down to Iron County,
Utah, and Washington County, Utah, and this ground now, which
is probably the highest density for retirement that I know of,
and this property is going for $50,000 an acre, which is
unbelievable to me, but it is, and offers them $600 an acre
because there is a slimy slug on it or a desert tortoise, or
whatever it may be, I just stand amazed. If that is
administration to minimize impacts on private property, I would
surely like to see an example of that.
Ms. Clark. I would be happy to provide you numerous
examples of success. Minimizing the impacts on private property
has really been aimed--we have tried to get there through a lot
of the administrative reforms that I talked about earlier, like
safe harbor and candidate conservation agreements, no
surprises. But we have some tremendous success stories
nationwide that I will be happy to provide for the record.
[The information may be found at the end of the hearing.]
Mr. Hansen. You have talked a lot about mitigation. I don't
see the term ``mitigation'' in the bill. I see--in
transportation, but I don't see it in the EPA bill, but I
haven't got time to get into that because we are going to miss
a vote, if we don't leave.
So let me thank the panel, and I appreciate your patience
and being with us. Director Clark, thank you.
If you could be patient, we will be back in just a few
moments. We stand in recess.
[Recess.]
Mr. Pombo. [presiding] The Committee will come back to
order.
I know you are all familiar with the timekeeping. Your
entire statements will be included in the record. If you can
hold your oral testimony to five minutes, it would be
appreciated.
Mr. Whitman, if you are prepared, you may begin.
STATEMENT OF RICHARD M. WHITMAN, ATTORNEY-IN-CHARGE, NATURAL
RESOURCES SECTION, OREGON DEPARTMENT OF JUSTICE, SALEM, OREGON
Mr. Whitman. Thank you, Mr. Chairman. My name is Richard
Whitman. I am the attorney-in-charge of the Natural Resources
Section of the Oregon Department of Justice, and I am here
today testifying on behalf of Oregon Attorney General Hardy
Myers and the Oregon Department of Justice.
The State of Oregon has had significant experience, both
with the effects of listings under the Endangered Species Act
and with takings litigation resulting from efforts to protect
at-risk species. Most of the State of Oregon is now affected to
one degree or another by listings of threatened or endangered
species.
Oregon, for quite some time, has had a wide range of State
and local laws to protect species and their habitat. Many of
those laws predate the Federal Endangered Species Act. As an
example, the Oregon Forest Practice Act requires the state to
inventory significant habitat for threatened and endangered
species, and to then balance protection of that habitat with
economic uses of the property.
Oregon, through such processes, has developed more specific
protections for at-risk species and their habitat, largely
through consensus-based processes that involve both affected
property owners and also involve independent scientific review.
A fundamental premise of Oregon's approach to species
protection, extending over several administrations, has been
that regulatory restrictions on private use of property should
be used as a minimum or baseline, and beyond that, the State
should look to voluntary action and to incentives in order to
achieve public purposes, including the protection of endangered
species.
We are currently active in providing such programs, and one
of the major ones is the Conservation Reserve Program,
administered through the U.S. Department of Agriculture,
through which the State has received significant funding for
farmers to set aside, for a period of 30 years, areas along
streams to protect fish habitat. I think that is an example of
the sort of success story that you were looking for earlier
today.
Attorney General Myers is concerned that H.R. 1142 would
undercut some of these success stories and the State's ability
to continue this type of consensus-based combination of minimum
regulatory requirements, voluntary actions, and incentives. We
believe H.R. 1142 would effectively remove Federal agencies
from any significant role in protecting at-risk species on
private lands. It would do so by requiring compensation for
many Federal agency actions on land-based activities and
essentially all Federal agency actions affecting the use of
water.
Faced with this prospect, we believe that the result would
be that the services would move away from trying to implement
the ESA on private lands, and we believe that that is not in
the best interest of anyone, for several reasons.
First of all, the loss of Federal rules and guidance,
interpreting the section 9 take prohibition of the Endangered
Species Act, would create a loss of Federal uniformity and
would essentially leave it up to the courts to decide on a
district-by-district basis what is a take of an endangered
species under the ESA. So we would have a loss of uniformity, a
loss of predictability for the land-owning community, and we
would create a significant burden for the land-owning community
in making long-term investment decisions.
The withdrawal of the services from implementing the ESA on
private lands would also be a problem for the States. It would
thrust the States, even more than they are already, into the
middle between trying to work with Federal agencies to
implement protections for Fish and Wildlife, and at the same
time trying to create consensus among property owners for what
is reasonable to expect of them.
We have already seen two court decisions at the U.S. Court
of Appeals level, one in Massachusetts and one in Florida,
where the courts have essentially required State agencies to
use their regulatory authorities in ways that avoid the taking
of a species. Well, if we have court decisions forcing States
to do that, on the one hand, on the other hand, we are going to
have litigation from the private land-owning community against
States for taking of their property. It is not a good role for
the States to be in.
In sum, we believe that H.R. 1142 would not ease the
regulatory burden on private property rights. It would simply
shift more regulation to the State level, without providing the
resources necessary to make that burden more tenable for
private property owners, and at the same time disrupting the
complex, but relatively stable, regulatory climate necessary
for private investment.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Whitman follows:]
Statement of Richard M. Whitman, Attorney-in-Charge, Natural Resources
Section, Department of Justice, Salem, Oregon
Hon. Don Young, Chairman, and Members of the Committee:
Thank you for the opportunity to testify today concerning
H.R. 1142. My name is Richard M. Whitman, and I am the
Attorney-in Charge of the Natural Resources Section of the
Oregon Department of Justice. I am testifying on behalf of
Oregon Attorney General Hardy Myers and the Oregon Department
of Justice.
H.R. 1142 attempts to eliminate the economic burdens that
may result from the application of the Federal Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) on private lands.
The State of Oregon has had significant experience in this
arena, particularly since the listing of the Northern spotted
owl as a threatened species in 1990, with the listing of the
marbled murrelet in 1992, and most recently with the multiple
listings of Pacific salmon and steelhead. Most areas of the
state are now affected to at least some degree by listings
under the Federal ESA.
Well before Federal ESA listings began to occur in Oregon,
the State was active in efforts to protect habitat for at-risk
species. Beginning in the late 1970s, Oregon law required
cities and counties to inventory of significant fish and
wildlife habitat on all non-Federal lands, and to adopt
programs to protect such areas while also balancing those
protections with urban, forest and agricultural uses. In the
mid-1980s these laws were expanded into Oregon's Forest
Practices Act, again requiring the protection of significant
habitat, while also maintaining productive forest uses to the
extent possible. In 1995, the Oregon Legislature directed the
Oregon Department of Agriculture to develop proscriptions for
agricultural practices necessary to achieve state water quality
standards and (among other things) protect fish life. Most
recently, in the Portland metropolitan area, the state's
regional government (Metro) adopted rules regulating urban
development along most streams. As with agricultural practice
proscriptions, these regulations are designed to help achieve
state water quality standards as well as to protect the habitat
necessary for fisheries.
One important purpose of these laws is the desire to
provide private landowners with as much long-term certainty as
is possible regarding what uses will and won't be allowed on
private property. Another source of these laws is the State's
traditional ownership and management of fish and wildlife
resources.\1\ As in other states across the country, the Oregon
courts have repeatedly affirmed that wildlife is the property
of the of the state, held by the state in its sovereign
capacity to be conserved and protected for the benefit of and
in trust for its citizens.
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\1\ The Oregon Supreme Court held early on that private uses of
property that destroy habitat essential for the survival of fish and
wildlife constitute a public nuisance. See, e.g. Columbia River
Fisherman's Protective Union v. City of St. Helen's, 160 Or 654, 87 P2d
195 (1939).
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Oregon's active role in regulating activities on non-
Federal lands as they affect fish and wildlife also arises from
the firm belief that the tensions between species' protection
and economic uses of private property are best resolved at the
local, state and regional levels, where there is the best
chance of obtaining some degree of consensus. Only if
protective measures have a broad base of support at the state
and local levels are those measures likely to be sustained over
the long-term.
As the extent of regulatory restrictions to protect fish
and wildlife and other public values and resources grows,
Oregon like many other states is becoming more sensitive to the
economic burden such restrictions place on private property. In
developing new programs to respond to continuing declines in
the populations of various species, Oregon attempts to create a
broad consensus for regulatory protections that function as a
minimum threshold or baseline. These regulatory restrictions
set requirements that are intended to be a reasonable incident
of property ownership that do not require (as a State or
Federal constitutional matter) that property owners be
compensated.\2\ This baseline of regulations is supplemented
with incentives and voluntary measures that provide additional
protections for fish and wildlife species, while avoiding
additional economic burden to property owners. The Federal
Government has been an important source of assistance to the
State in helping to fund such incentive programs.
---------------------------------------------------------------------------
\2\ As Justice Holmes stated in Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922): ``Government could
hardly go on if, to some extent, values incident to property could not
be diminished without paying for every such change in the general
law.''
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The Governor and the Attorney General of the State of
Oregon support the notion that the economic burden of
protecting threatened and endangered fish and wildlife is a
legitimate matter for political (and at some point, legal)
debate. However, they also are concerned that H.R. 1142 is
likely to have certain unintended consequences that would
undermine the purpose of the legislation, as well as the
states' efforts to manage and protect their fish and wildlife
resources.
The first of these unintended consequences stems from
Section 3 of H.R. 1142, which requires Federal agencies to
compensate property owners for ``constructive use'' of private
property. The term ``constructive use'' is broadly defined to
include (among other things) ``the imposition or enforcement of
a prohibition of use of non-Federal property the purpose of
which is to provide or retain habitat for any species of
wildlife or plant determined to be an endangered species or
threatened species.'' Section 9 of the ESA already prohibits
``take'' of listed species. Under the requirement to compensate
for ``constructive use,'' Federal agencies are highly unlikely
to adopt rules that directly prohibit particular uses of
property. Instead, they will (at most) continue to do what they
have done to date: rely on relatively ambiguous rules
interpreting the take prohibition in section 9 of the ESA, and
avoid definitive proclamations concerning what specific actions
they believe violate the statutory prohibition.
There are several problems with this outcome. First, the
uncertainty and ambiguity of the section 9 take prohibition has
already been a major source of concern in the forest industry
in the Pacific Northwest, as well as among water users. Indeed,
a large part of the reason for the State of Oregon's forest
practice regulations defining minimum requirements for the
protection of significant habitat for threatened and endangered
species was the desire of the landowning community to have a
level of long-term certainty so that they could continue to
make the forty to sixty-year investment decisions that are a
necessary aspect of forestry. While the State's regulations may
not have been as protective as some would have liked to see,
they do provide some level of assurance that forest practices
that comply with the State requirements do not result in
``actual injury or death'' of listed species (e.g. a prohibited
``take'' under section 9 of the ESA).
If Federal agencies back away from their statutory role of
helping to define the requirements of the ESA, that void will
almost certainly be filled by an increase in litigation brought
under the citizen suit provisions of the ESA. Such an outcome
is not in anyone's interest, and could well upset the limited
degree of predictability that the landowning community and the
State have achieved over the past eight years. In at least the
short to moderate term, such litigation also is likely to lead
to disparate standards between different circuit and district
courts, as the judiciary is increasingly required to provide
its own interpretation of the ``take'' prohibition in section 9
of the ESA in the absence of the Federal agencies.
Of even more direct concern to the State is the possibility
that some of this litigation will be directed at State
regulatory programs. In several recent court decisions, Courts
of Appeal have held that day-to-day licensing and other
regulatory approvals by state and local governmental may
enjoined as a violation of section 9. Loggerhead Turtle v.
Volusia County, 48 F.3d 1231 (11th Cir., 1998); Strahan v.
Coxe, 127 F.3d 155 (1st Cir., 1997). Under the ESA, Congress
has provided citizens with the right to sue for violations of
the ESA, including the section 9 prohibition on ``taking'' or
causing a ``take'' of a threatened or endangered species. First
in Massachusetts (Strahan), and most recently in Florida
(Volusia County), courts have held that state and local
governments can be required to exercise their authorities to
regulate private activities in a manner that avoids actual
injury or death of protected species.
If Federal agencies are required to move away from actively
implementing the ESA, the states and the courts will
effectively be the only game in town. States will continue to
be sued to force use of their legislative and sovereign
authorities to fill the void created by the departure of the
Federal agencies. They will then be sued by property owners
alleging that they have ``taken'' private property without
compensation. The regulatory burden on private property owners
will not necessarily be eased, and the degree of uncertainty
over what uses of private property are allowed will almost
certainly rise.
These consequences are not idle speculation. When the U.S.
Fish & Wildlife Service listed the Northern spotted owl, the
agency initially tried to clarify how the listing affected
logging operations on private lands through the publication of
guidelines. Since the time these guidelines were invalidated
(for procedural reasons) the Service has generally avoided
taking a definitive position concerning how the ESA take
prohibition applies to activities on private lands (except in
the most egregious cases). In part to provide some degree of
certainty to forest land owners in the face of threatened
citizen suits, the State adopted its own forest practice
regulations designed to avoid clear instances of ``take,''
while also minimizing burdens to private landowners. Now the
State is being sued in a number of cases, not for ``take'' of
species but for ``taking'' private property without
compensation by denying certain harvest plans in close
proximity to owl and eagle nests.\3\
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\3\ These suits are being brought even though the State's
regulations affect only a small portion of the ownerships involved.
None of the cases have been litigated to a final conclusion.
---------------------------------------------------------------------------
H.R. 1142, by requiring Federal agencies to compensate
property owners for a very broad range of actions that may
limit the use of private property, is likely to lead to the
same dynamic the State of Oregon has experienced with the
Northern spotted owl. States that are more active in working in
tandem with the goals of the Federal ESA will bear the brunt of
litigation alleging that compensation is required. Other states
will face litigation attempting to force them to exercise their
licensing and other regulatory authorities to avoid take of
listed species. The only immediate result for private property
owners will be a higher level of uncertainty.
The Oregon Department of Justice is also concerned with at
least one other specific provisions of H.R. 1142. Section 3(b)
of the bill requires compensation for Federal agency action
that result in ``a Federal use of * * * any portion of non-
Federal property * * * .'' This language appears to upset the
long-established requirement under the Federal and Oregon
constitutions that an ownership be considered as a whole when
determining if all or substantially all economic use has been
taken by regulation. Oregon, as many other states, has long
regulated the extent to which property owners may divide their
real property. Oregon's subdivision control laws are a
fundamental component of the State's zoning laws. By preventing
the division and sale of real property in a manner that will
lead to violations of state and local development controls,
these laws ensure that property owners' reasonable expectations
align with zoning laws. Section 3(b) appears to thwart the
traditional rule that State law controls what property
interests are constitutionally protected. We already have
property owners asserting that regulations that restrict a
particular use (the harvest of a relatively small number of
trees) is a taking. By giving property owners apparent free
reign to segment their property in any manner they choose, H.R.
1142 requires compensation for virtually all Federal actions
and undermines the role of State law in determining what the
pertinent property interest is in inverse condemnation actions.
The Federal Government has certain responsibilities
regarding wildlife and fisheries under its legislative
enactments and treaty obligations. Similarly, the states as
sovereign governments owning wildlife as trustees for their
citizens, are the traditional managers of wildlife protection
measures and associated land use controls. Both governments, as
a legal and political matter, must balance these
responsibilities with private property rights.
A blanket Federal requirement that Federal agencies
compensate property owners is not helpful in this context. It
is likely simply to shift more of the burden of species
protection to the states, without increasing the resources
available to make that burden tenable for private property
owners at the same time it disrupts the complex but relatively
stable regulatory climate necessary for private investment.
Simply put, we believe that a far more constructive
approach to meeting the dual goals of increasing the level of
protection of threatened and endangered species, and reducing
the regulatory burden on private property owners is to provide
affirmative incentives to property owners when they go beyond
some minimum regulatory threshold that is reasonable to expect
of all citizens. We respectfully submit that H.R. 1142 is
unlikely to provide any significant relief to private property
owners, that it is likely to shift even more of the burden of
implementing the ESA to the states, and that there are other
more constructive means to achieve the dual goals of species
protection and relief to private property owners.
Compensation for governmental restrictions on the use of
private property to protect threatened and endangered fish and
wildlife is not required as a matter of State or Federal
constitutional law in most circumstances. By legislatively
mandating compensation in a broad range of cases, H.R. 1142
would upset the balance between State and Federal roles in this
complex arena. For these reasons, the Oregon Attorney General
opposes H.R. 1142.
Mr. Pombo. Ms. Marzulla.
STATEMENT OF NANCIE G. MARZULLA, DEFENDERS OF PROPERTY RIGHTS,
WASHINGTON, DC
Ms. Marzulla. Thank you, Mr. Chairman, for the opportunity
to comment on H.R. 1142. I am here on behalf of Defenders of
Property Rights. Defenders is the only national public interest
legal foundation dedicated exclusively to protecting private
property rights.
Based upon our review of the proposed bill and our
extensive experience in representing individual landowners
whose land or water rights have been destroyed by the
application of the Endangered Species Act, we conclude that
H.R. 1142 will go a long way toward protecting the
constitutional rights of property owners and toward protecting
endangered species.
There are two points I would like to emphasize in my oral
remarks. First, the Endangered Species Act affects the
reasonable and beneficial use of millions of acres of private
land. And the second point is that there is often no remedy
under current law for the wholesale destruction of private
property rights.
With respect to the first point, once land has been
identified as habitat or even potential habitat for an
endangered or threatened species, the owner can do nothing with
his land that the U.S. Fish and Wildlife Service does not like.
So, for example, in the case of Mr. John Taylor, an elderly
man who owns a building lot in Fairfax County, Virginia, Mr.
Taylor cannot build even a modest modular home on his land
because it might disturb the nesting habitat of the threatened
bald eagle, which has been known to nest on land across from
Mr. Taylor's building lot.
Or in the case of the Srnsky brothers, who own a home on
land located within the national forest near Elkins, West
Virginia, the Forest Service has not only barred them access to
their home, but has endangered the lives of Tom and David
Srnsky by digging 6-foot-deep tank traps. The Forest Service
told a Federal judge that they believed the tank traps were
necessary to protect the running buffalo clover. Apparently,
Forest Service officials are willing to risk even human safety
in order to protect a plant.
Local farmers in California have had their water taken,
causing their crops to dry up because the water was needed as
habitat for two species of threatened fish. These are not
isolated examples of the harsh impacts of the Endangered
Species Act. In fact, the majority, as we know, the majority of
the habitat designated for endangered species is on privately-
owned land. Once property is identified as habitat or land
necessary for protecting an endangered or threatened species,
there are not simple solutions for the property owners, even
those who lose their constitutional rights as a result.
Filing a lawsuit for just compensation is hardly an easy
answer, even though private property rights is one of our
fundamental civil rights. Takings litigation today is
expensive, arduous, and lengthy. A Justice Department attorney
told one of my clients a couple of weeks ago that his case that
had been filed over a year and a half ago was in its infancy.
The government attorney told him that takings cases often take
10 years in order to reach resolution. In other words, it will
take at least a decade in order to win vindication for his
constitutional rights.
Few people have the financial means or staying power to
endure a decade of litigation against the Federal Government.
Indeed, in the case of elderly litigants, such as John Taylor,
who knows if they can survive long enough to see their rights
vindicated by a court? H.R. 1142 is clearly needed and long
overdue.
And then one final point I wanted to address that was
raised in some earlier discussions by the earlier panel
concerns the issue of whether H.R. 1142 comports with current
case law construing the 5th Amendment. I would suggest that
such case law, while it be interesting and should provide
guidance, is not controlling. Because, as I understand it, H.R.
1142 is creating a new statutory cause of action.
Thank you. I would be happy to answer further questions you
may have.
[The prepared statement of Ms. Marzulla follows:]
Statement of Nancie G. Marzulla, Defenders of Property Rights,
Washington, DC
I am pleased to be here today on behalf of Defenders of
Property Rights, the only national public interest legal
foundation devoted exclusively to protecting private property
rights. Through a program of litigation, education and
legislative support, Defenders seeks to realize the promise of
the Fifth Amendment of the U.S. Constitution, that private
property shall not be ``taken for public use, without just
compensation.'' Defenders, which is based in Washington, D.C.,
has a large national membership which is comprised of property
owners, users and beneficiaries of the rights protected by the
Constitution and traditional property law. Defenders
participates in litigation when it is in the public interest
and when the property rights of its members are affected, and
has also devoted significant resources to analyzing legislative
proposals concerning property rights at both the state and
Federal level.
Today, I am here to comment on H.R. 1142, the Landowners
Equal Treatment Act of 1999. By amending the Endangered Species
Act to make the Federal Government pay for any unconstitutional
actions it takes under the auspices of that Act, this bill
seeks to prevent the taking of private property for public use
without just compensation, as required by the Fifth Amendment
to the United States Constitution.
INTRODUCTION
Despite the fact that the United States Constitution
imposes a duty on the Federal Government to protect private
property rights, in reality, they are often trammeled by
regulatory actions, such as those taken by the Federal
Government under the Endangered Species Act, 16 U.S.C. Sec.
1531. All too often, environmental regulations such as the
Endangered Species Act destroy property rights on an
unprecedented scale, leaving many owners stripped of all but
bare title to their property. In recent years, courts have done
much to restore vigor to the Fifth Amendment in cases such as
Nollan v. California Coastal Commission, Lucas v. South
Carolina Coastal Council, Dolan v. City of Tigard, and Suitian
v. Tahoe Regional Planning Agency. Nevertheless, cases in which
landowners possess the resources and perseverance to prevail in
court against a taking of the property due to a government
action are few and far between.
As a result, landowners are increasingly being deprived of
most, if not all, economically beneficial uses of their land by
government action and regulation without payment of just
compensation. The Founding Fathers' intent for private property
to be protected was clear. They could never have envisioned,
however, the enactment of such harsh regulatory schemes as the
Endangered Species Act. If the Fifth Amendment is going to be
worth more than the paper it is written on, private property
rights must be vigorously protected. Therefore, we at Defenders
of Property Rights welcome legislative efforts such as H.R.
1142 which are consistent with the constitutional mandate of
protecting private property rights.
I. THE CONSTITUTION IMPOSES A DUTY ON GOVERNMENT TO PROTECT
PRIVATE PROPERTY RIGHTS BECAUSE PROPERTY RIGHTS ARE AN
ESSENTIAL ELEMENT OF A FREE SOCIETY.
As reflected in various provisions in the Constitution, the
Founding Fathers clearly recognized the need for vigorously
protected property rights. They also understood the vital
relationship between private property rights, individual rights
and economic liberty. Property rights is the ``line drawn in
the sand'' protecting against tyranny of the majority over the
rights of the minority.
To the framers of the Constitution, the protection of
individual liberty was essential. The fundamental liberties
guaranteed by the Bill of Rights include freedom of speech and
religion; freedom of press and assembly; the right to bear
arms; the right to trial by jury and cross examination of
accusing witnesses; and freedom from cruel or unusual
punishment. Recognizing that a government could easily abuse
these civil rights if a citizen's property and livelihood were
not guaranteed, the United States Constitution also imposes a
duty on government to protect private property rights.
Thus, within the Bill of Rights, numerous provisions
directly or indirectly protect private property rights. The
Fourth Amendment guarantees that people are to be ``secure in
their persons, houses, papers, and effects. . . .'' The Fifth
Amendment states that no person shall ``be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use without just
compensation.'' In addition to the Bill of Rights provisions,
the Fourteenth Amendment echoes the Due Process Clause of the
Fifth Amendment, stating that no ``State shall deprive any
person of life, liberty or property without due process of law.
. . .'' Indirectly the Contracts Clause of the Constitution
also protects property by forbidding any state from passing any
``law impairing the Obligation of Contracts.'' U.S. CONST. art.
1, Sec. 10.
The Constitution places such strong emphasis on protecting
private property rights because the right to own and use
property was historically understood to be critical to the
maintenance of a free society. The ability to use, enjoy and
exclusively possess the fruits of one's own labor is the basis
for a society in which individuals are free from oppression.
Indeed, some have argued that there can be no true freedom for
anyone if people are dependent upon the state for food,
shelter, and other basic needs. Understandably, where the
fruits of citizen's labor are owned by the state and not
individuals, nothing is safe from being taken by a majority or
a tyrant. Ultimately, as government dependants, these
individuals are powerless to oppose any infringement on their
rights due to absolute government control over the fruits of
their labor.
Accordingly, it is a founding principle of our nation that
private land may not be taken for public use (unless it be
purchased from the owner). This basic principle--that the
government must lawfully acquire private land rather than
merely seize it--is predicated upon fundamental notions of
fairness. As the Supreme Court stated in Armstrong v. United
States, ``[tlhe Fifth Amendment . . . was designed to bar
Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by
the public as a whole.'' 364 U.S. 40, 49 (1960).
The Founding Fathers understood the vital relationship
between private property rights, individual rights, and
economic liberty. However, they could never have envisioned the
growth of government that has occurred of late years. Never
before have government regulations threatened to destroy
private property rights on so large a scale and in so many
different contexts as they do today. In just two short decades,
the United States has developed from scratch the most extensive
governmental regulatory programs in history. Environmental
regulations have become an elaborate web of intricate laws and
regulations covering every conceivable aspect of property use,
yet very few recognize the fundamental importance of property
rights to our Constitution and our system of government under
law.
II. PROPERTY RIGHTS TODAY ARE UNDER SIEGE FROM ENDANGERED
SPECIES ACT REGULATIONS THAT HAVE BEEN AND CONTINUE TO BE
IMPLEMENTED WITHOUT RESPECT FOR OR CONSIDERATION OF PROPERTY
RIGHTS.
The 1973 Endangered Species Act (``ESA'') is today regarded
as one of the most important and powerful environmental laws in
the country. In 1978, the Supreme Court characterized it as the
``most comprehensive legislation for the preservation of
endangered species ever enacted by an nation.'' TVA v. Hill,
437 U.S. 153, 180 (1978). A large component of the ESA is
achieved by prohibitions on certain actions by private
individuals on privately owned land under section 9 of the Act.
Moreover, fifty percent of the endangered species in this
country live on privately owned land and endangered species
habitat is located almost exclusively on private land.
Therefore, it is not surprising that the government's
implementation of the ESA has slowed economic growth, taken
private land without just compensation, and imposed pervasive
and extreme burdens on local communities throughout the nation.
Threats of criminal and civil prosecution, vaguely worded legal
standards, and repeated agency failures to define the
geographical scope of ESA restrictions have severely depressed
property values and caused widespread confusion and economic
losses.
The regulatory definition of ``harm'' under regulations
promulgated pursuant to the ``take'' provision in Section 9 of
the ESA is particularly problematic to landowners. Under
current regulations, ``harm'' is defined to include
``significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding or
sheltering.'' 50 CFR Sec. 17.3 (1994). Despite the fact that
this definition can be read as being limited to the actual
``taking'' of an individual endangered species, in reality this
regulation has been used by the U.S. Fish and Wildlife Service
(``FWS'') to foreclose any use of land that it deems harmful to
the species as a whole. The current regulatory definition as
applied allows the Federal Government to prevent use of land
without regard to the actual presence of an endangered species,
and without regard to any actual physical injury to any member
of the species resulting from use of land.
In this way, FWS has used the ESA's prohibition against
``taking'' an endangered species or its habitat to assert
control over a wide range of private activity on private lands.
Landowners and businesses have been threatened with criminal or
civil prosecution for clearing a fence of brush, cutting trees,
using pesticides, or allowing livestock to graze. Although
there is a permit process which allows activities to proceed
even if they might ``take'' a species, these permits are time-
consuming and expensive to obtain and require the negotiation
and funding of ``habitat conservation plans.'' A measure of how
pervasive and oppressive these restrictions are is that even
though listed species can be conserved through the purchase of
habitat with government funding, as well as through the efforts
of numerous environmental groups, the primary way species are
conserved is through the regulation of private activity on
private lands.
More landowners are also denied the reasonable use of their
private property as FWS continues to list more and more species
for protection and summarily prohibits any use of property
which may affect those species or modify their habitat in any
way. Faced with the grim prospect of the permit process,
criminal prosecution, or large fines, the average landowner
affected by these regulations cannot afford to challenge the
government's actions. Even the most well-financed and dedicated
property owners find themselves in a steep uphill battle just
to get a court to hear their case, not to mention getting the
government to actually pay just compensation if a court orders
it. A few examples of reported and pending cases demonstrate
the struggle faced by property owners when the Federal
Government's actions under the authority of the ESA threaten to
destroy all productive use of their land:
Taylor v. United States
John Taylor, an elderly, retired builder, recently filed a
lawsuit against the Federal Government because for two years,
the U.S. Fish and Wildlife Service (``FWS'') has refused to
grant him permission to build a modular home on his small lot
in Fairfax County, Virginia, unless he agrees to numerous
unreasonable conditions to protect an eagle nest located in a
tree on a neighbor's property. For example, Mr. Taylor's
property remains undeveloped even though he has agreed to
refrain from building during the nesting period when the eagles
inhabit the nest. FWS insists that he agree to contribute to
some of their eagle-related projects, such as new nesting
platforms at an Army research facility nearby or a fish
restoration project in the upper Potomac, and contribute money
to a salmon restoration project (because eagles like to eat
salmon).
U.S. Forest Service v. Srnsky
On the flimsy excuse that it wanted to protect running buffalo
clover, a listed species of plant, the U.S. Forest Service
undertook a campaign that placed the safety--and even the
lives--of two young West Virginians in danger. Living on a
mountaintop, David and Tommy Smsky must traverse a road through
Monongahela National Forest to enter and leave their home. The
Forest Service dug six foot deep ``tank traps'' in this road at
strategic places, trapping these young men atop the mountain
for several days. They were also placed under surveillance by
armed Federal agents, arrested for alleged trespassing, and
scandalously defamed by Federal agents who told neighbors they
were ``Skinheads'' and neo-Nazis. The government does not deny
this behavior; rather, it defends the behavior in the name of
protecting the endangered clover plants through which the
Smsky's road runs.
Sierra Club v. Lujan
The Edwards Aquifer is a 175-mile long underground conduit
which discharges naturally at springs which are the sole known
habitat for the San Marcos fountain darter, Comal Springs
salamander, San Marcos salamander, and Texas wild rice. In
1991, several environmental groups sought an injunction to
require San Antonio, the ninth largest city in the country, to
obtain its drinking water elsewhere, and to compel the State of
Texas to limit other withdrawals from the Edwards Aquifer. In
1993, a Federal judge issued the injunction and encouraged the
city to build a reservoir system at costs estimated in the
billions of dollars. Although the injunction was subsequently
modified, it seems clear that San Antonio--despite its
undoubted right to extract water under state law--will be
required to abandon, at least, a substantial portion of its
water rights in order to comply with the ESA.
III. COURTS ALONE CANNOT ADEQUATELY PROTECT PROPERTY RIGHTS BECAUSE
LITIGATION TO VINDICATE FIFTH AMENDMENT RIGHTS IS A LONG, EXPENSIVE,
AND ARDUOUS PROCESS.
To add insult to constitutional injury, the judicial relief for the
unconstitutional taking of private property is woefully inadequate. It
is not a sufficient answer to the constitutional concerns raised above
to suggest that property owners may simply file ``regulatory takings''
suits against the Federal Government to recover the value of the land
so taken.
The scales of justice are unfairly tipped in favor of the
government when citizens are faced with the threat of losing their
property because of regulatory burdens. Not only are the laws drafted
to ease the litigation burden of the government, but the costs of
takings litigation can range in the hundreds of thousands or even
millions of dollars, too high for the average citizen to bear.
Consequently, many citizens faced with a property rights claim cannot
pursue a legal remedy under the Fifth Amendment. The government, on the
other hand, does not face a similar shortage of resources (at least, in
comparison to the individual property owner), and can often pursue a
vigorous defense of the case without constraint. Adding to the hardship
for the individual, procedural hurdles often bar litigation on the
merits of a property rights claim for anywhere from five to ten years,
or longer. More specifically, the split of jurisdiction between the
claims court and the district court, and the unyielding litigation
posture of the Federal Government deny not only speedy justice, but in
many instances, all justice to those whose property rights have been
violated.
Property owners who believe their property has been taken without
compensation in violation of the Fifth Amendment immediately have a
very difficult choice to make. Both the U.S. Court of Federal Claims
and the Federal district courts have potential jurisdiction over
takings claims. If a property owner seeks injunctive relief, or a court
order declaring the government's action invalid, he must file suit in
the U.S, District Court for his geographic area. If the property owner
merely seeks compensation as guaranteed by the Fifth Amendment, he must
file in the U.S. Court of Federal Claims, located in Washington, D.C.
If the property owner would be equally happy with either relief, he
would have to file two separate lawsuits in two separate courts, being
careful to avoid the pitfalls of a Federal statute which prevents the
property owner from pursuing both suits at the same time. Regardless of
which claim a property owner pursues, and no matter which court he
pursues that claim in, the government will defend itself by arguing
that the petitioner should instead be in a different court. If the case
is dismissed and re-filed in any other court, the government's first
defense will be the same--that the original court has the proper
jurisdiction.
It is also important to remember that the current state of affairs,
the maze-like procedures and hurdles a property owner must overcome
before having his day in court, imposes a heavy burden on those
constitutional rights. Indeed, Justice Brennan observed that the
procedural difficulty in vindicating constitutional rights ``exacts a
severe penalty from citizens for their attempt to exercise rights of
access to the Federal courts granted them by Congress to deny them
`that promptness of decision' which in all judicial actions is one of
the elements of justice.'' County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185 (1959).
In comparison, nothing like this procedural nightmare exists for
claimants seeking to enforce any other constitutional rights. If a
citizen's suit to defend his right to freedom of speech was dismissed
because he had filed in the wrong court, or if a victim of racial
discrimination had lost his case because he asked the court for the
wrong type of relief--imagine how outraged we would be.
Thus far, the courts, in addition to Congress and the agencies,
have failed to provide private property rights with the diligent
protection that the Founding Fathers contemplated. In 1922, Justice
Oliver Wendell Holmes declared that a regulation that went ``too far''
would be recognized as an unconstitutional taking of private property.
Pennsvlvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Since that
time, courts have struggled with the question of when a regulation does
in fact go too far. There has been no clear articulation of when the
exercise of regulatory authority will violate the Just Compensation
Clause.
The Court has identified at least three areas which constitute per
se violations of the Fifth Amendment. In Hodel v. Irving, 481 U.S. 704
(1987), the Court held that destruction of the right to devise private
property violates the Fifth Amendment. In Nollan v. California Coastal
Commission, 483 U.S. 825 (1987), the Court determined that a property
regulation which does not substantially advance its avowed governmental
purpose also constitutes a taking. And, in Lucas v. South Carolina
Coastal Council, 505 U.S. 1003 (1992), the Court held that destruction
of all productive and beneficial uses of private property violated the
Fifth Amendment. Despite these efforts to flesh out Fifth Amendment
guarantees, there are still many open questions in takings
jurisprudence.
As Chief Judge Loren Smith of the Court of Federal Claims has
pointed out, under our constitutional system it is the function of the
legislative, not the judicial, branch to balance competing social and
economic concerns so as to arrive at a definition of ``taking'' which
need not be re-created in an ad hoc, case-by-case manner each time the
court is presented with the issue:
This case presents in sharp relief the difficulty that current
takings law forces upon both the Federal Government and the
private citizen. The government here had little guidance from
the law as to whether its action was a taking in advance of a
long and expensive course of litigation. The citizen likewise
had little more precedential guidance than faith in the justice
of his cause to sustain a long and costly suit in several
courts. There must be a better way to balance legitimate public
goals with fundamental individual rights. Courts, however,
cannot produce comprehensive solutions. They can only interpret
the rather precise language of the Fifth Amendment to our
constitution in very specific factual circumstances. To the
extent that the constitutional protections of the Fifth
Amendment are a bulwark of liberty, they should also be
understood to be a social mechanism of last, not first, resort.
Judicial decisions are far less sensitive to societal problems
than the law and policy made by the political branches of our
great constitutional system. At best, courts sketch the
outlines of individual rights, they cannot hope to fill in the
portrait of wise and just societal and economic policy.
Bowles v. United States, 31 Fed.Cl. 37 (1994). Justices Brennan,
Scalia, Stevens, and Rehnquist have all remarked in their opinions on
the inability of the Supreme Court, quite simply, to arrive at any set
formula for defining when a taking has occurred. The judicial branch
has, appropriately, deferred to the legislative branch to perform the
function which the founding fathers envisioned for it under the
Constitution--to pass legislation which will provide fair and prompt
remedy when Federal regulation results in a taking of private property
without just compensation.
Thus, Congress must revisit the treatment of property rights in
environmental statutes and regulations and make it clear that property
rights are to be considered in both the drafting of regulations and the
implementing of programs. Federal environmental regulatory and
enforcement agencies must give property rights the respect and
deference that the Constitution requires.
CONCLUSION
The complex web of the Endangered Species Act, ripeness
requirements, and inadequate property rights jurisprudence is
jeopardizing both the government's ability to foster a free and
prosperous society and to protect the environment. Effective and
efficient environmental protection can be consistent with recognizing
and securing peoples' property rights. The purpose of the Just
Compensation Clause is not to stop government from acting, but rather,
to make government realize that when it acts to achieve social good, it
may also be singling out individual property owners to bear the
associated costs. If government recognizes and considers these
disproportionate burdens on property owners, it will be able to both
protect the environment and respect property rights. The proposed bill,
H.R. 1142, requires that private property rights are properly protected
when the Federal Government takes action under the authority of the ESA
by mandating that agencies ``make every possible effort to avoid,
minimize, or mitigate impacts on non-Federal property that result in
Federal use of the property'' and prevents agencies from acting until
they have obtained written permission of the private property owner or
paid compensation to the owner.
I would be pleased to answer any questions you may have concerning
my testimony.
[GRAPHIC] [TIFF OMITTED] T6932.012
Mr. Pombo. Thank you.
Mr. Heissenbuttel. Is that close?
STATEMENT OF JOHN HEISSENBUTTEL, VICE PRESIDENT, FORESTRY AND
WOOD PRODUCTS, AMERICAN FOREST AND PAPER ASSOCIATION,
WASHINGTON, DC
Mr. Heissenbuttel. Pretty close.
Mr. Chairman, thank you for the opportunity to testify
today in support of H.R. 1142. My name is John Heissenbuttel,
vice president of forestry and wood products for the American
Forest and Paper Association.
Congress enacted the ESA to protect threatened and
endangered species. That is a goal that our association
supports very strongly. However, support of that goal does not
mean that the resulting is perfect and immune from review.
The ESA, in fact, has been updated periodically since it
was put into place in 1973, most recently in 1988. What AFPA
seeks is balance and common sense in endangered species
protection. Our members are united in the belief that the
national interest is best served by policies that protect
wildlife along with jobs and the economy.
As such, we urge reauthorization and updating of the ESA
based on the valuable lessons we have gained in the 26 years of
experience with the Act. Six ideas for updating the ESA:
First, ensure that the best science is used,
including thorough peer review and quality control
processes. Second, consultation on Federal actions must
be prompt and accurate. Third, private landowners must
be given reasonable compliance and relief procedures
that do not impose an unfair burden for protection of a
public resource. Fourth, the recovery plan must be the
focus of all management and regulatory efforts on
behalf of the species. Fifth, prohibited activities
must be defined in a way that avoids speculative
enforcement. And, finally, private landowners must be
provided incentives to work cooperatively with the
government to protect listed species.
In our view, H.R. 1142 recognizes the inherent inequity of
the practice of making private landowners solely responsible
for the costs of protecting endangered species. A statutory
compensation requirement gives landowners the knowledge that,
if all else fails, the government will be responsible for the
public purpose of species protection.
The mechanism created by H.R. 1142 is essential for other
incentive measures to work. The bill would allow those who
believe that they have a stewardship responsibility, as our
industry does, to work with the law as much as possible, at the
same time it recognizes that when the demands of the Endangered
Species Act exceed the ability of the landowner to economically
cooperate--in fact, the bill establishes public responsibility
to carry out public goals.
Now the Committee has chosen to focus on this one update to
the Endangered Species Act, and we support that effort.
However, as the chairman well knows, there are other issues
that need to be updated in the ESA. I would urge the Committee
to consider updates to the ESA which would complement H.R.
1142.
For example--and this has been mentioned in previous
testimony--in section 10, an incidental take permit process
requires the landowner to prepare a habitat conservation plan,
or HCP, focusing on mitigation of take to be caused on the
listed species by the applicant's activities. While Secretary
Babbitt has instituted various policies which improve the HCP
process, legislative changes are necessary to guarantee those
improvements. We have heard of the no surprises policy--very
helpful in the HCP process. But the fact is that policy is now
being challenged in the Federal court system by our friends in
the environmental community. Unless and until these policies
are put in the force of law, we have no guarantee, as private
landowners, that these helpful policies will be able to be
carried out.
Again, we support the chairman's continued commitment to
updating the ESA and protecting the private property rights of
landowners, wherever and whenever possible. On behalf of AFPA,
we appreciate the opportunity to testify in support of the
chairman's bill today. Thank you.
[The prepared statement of Mr. Heissenbuttel follows:]
Statement of John Heissenbuttel, Vice President, Forestry and Wood
Products, American Forest & Paper Association on behalf of American
Forest & Paper Association
Mr. Chairman and members of the Committee, thank you for
the opportunity to testify today in support of H.R. 1142, the
``Landowners Equal Treatment Act of 1999.''
I am John Heissenbuttel, Vice President, Forestry and Wood
Products, American Forest & Paper Association (AF&PA). AF&PA is
the national trade association of the forest, pulp, paper,
paperboard, and wood products industry. We represent more than
200 member companies which grow, harvest and process wood and
wood fiber, manufacture pulp, paper and paperboard products
from both virgin and recovered fiber; and produce solid wood
products. The association is also the umbrella for more than 60
affiliate member associations that reach out to more than
10,000 companies. AF&PA represents an industry which accounts
for more than eight percent of total U.S. manufacturing output.
It directly employs about 1.5 million people and ranks among
the top 10 manufacturing employers in 46 states. AF&PA member
companies, as a condition of membership, must also commit to
conduct their business in accordance with the principles and
objectives of the Sustainable Forestry Initiative (SFI)sm
program.
The SFIsm program is a comprehensive system of principles,
objectives and performance measures that integrates the
perpetual growing and harvesting of trees with the protection
of wildlife, plants, soil and water quality. It is based on the
premise that responsible environmental practices and sound
business practices can be integrated to the benefit of
landowners, shareholders, customers and the people they serve.
Professional foresters, conservationists and scientists
developed the SFI program. These men and women were inspired by
the concept of sustainability that evolved from the 1987 report
of the World Commission on Environment and Development, and was
subsequently adopted by the 1992 Earth Summit in Rio de
Janeiro. The SFI program participants support sustainable
forestry practices on the lands they manage and actively
promote such practices on other forestlands. This commitment to
sustainable forestry stems from the participants' convictions
that forest landowners have a critical stewardship
responsibility to current and future generations of Americans.
Nationwide, there are more than 9 million non-industrial
private landowners who own 59 peercent or approximately 288
million acres of the total productive private timberland. Most
of these landowners have holdings of less than 100 acres.
Property rights ``takings'' often hurt these smaller landowners
who are least able to afford financial loss and own the
majority of the country's timberland. In comparison, forest
products companies own only 14 percent of the nations
timberland, but they rely heavily on the fiber supply provided
by these small landowners.
Congress enacted the Endangered Species Act (ESA) to
protect endangered and threatened species, a goal which we
support. We believe the principles behind the ESA represent
those qualities which make our society the finest in the world.
However, support of that goal does not mean that the resulting
law is perfect and immune from review. The ESA has been updated
periodically since its enactment in 1973, most recently in
1988. Under Congress' own schedule, the law was due for review
and updating in 1992. That date has long since past and the
need for action grows each year.
As its operating premise, the Endangered Species Act
mandates certain protections of listed species to the point of
their recovery, without regard to the interaction of these
protections with the rest of society. Humans are part of the
diversity of nature and are one of the natural elements that is
capable of causing change, sometimes dramatic change, in the
environment. Humans have modified the natural environment in
North America for hundreds, if not thousands, of years. A
recent example is the virtual elimination of fire from the
environment in the Southeast. A number of species, some of
which are now listed under the Endangered Species Act, were
dependant on those fires for their existence. It would be sheer
folly to require by law that these species be recovered because
that would mean the return of the widespread fires upon which
the species thrive. Yet, that is the literal mandate of the
Endangered Species Act.
AF&PA seeks balance and common sense in endangered species
protection. Our members are united in their belief that the
national interest is best served by policies that protect
wildlife along with jobs and the economy. SFIsm Objective 4
requires AF&PA members to: ``Enhance the quality of wildlife
habitat by developing and implementing measures that promote
habitat diversity and the conservation of plant and animal
populations found in forest communities.''
The Endangered Species Act, often called the ``pit bull''
of environmental laws, grants sweeping powers and authority to
Federal agencies for endangered species protection. It is
weighted heavily in favor of species protection at the expense
of all other considerations. AF&PA's goal is to make the ESA
work for species and people. AF&PA urges reauthorization of the
ESA based on the valuable lessons gained from 26 years of
experience with the Act.
Congress should update the Endangered Species Act in six
key areas:
ensure that the best science is used, including peer
review and quality control processes;
consultation on Federal actions must be prompt and
accurate and, when conducted over a Federal permit required for
a private activity, must have a limited scope;
private landowners must be given reasonable compliance
and relief procedures that do not impose an unfair burden for
protection of a public resource;
the recovery plan must be the focus of all management
and regulatory efforts on behalf of a species, including
consideration of social and economic impacts, relative risks,
costs and alternative recovery strategies;
prohibited activities must be defined in a way that
avoids speculative enforcement;
private landowners must be provided incentives to work
cooperatively with the government to protect listed species.
The Fifth Amendment provides that the government must pay citizens
just compensation if the government takes their property for a public
purpose. In 1973, Congress declared protection of endangered species to
be a proper public purpose. Unlike other environmental laws which
merely regulate how activities are conducted on private lands, the
presence of listed species on your land often means that you are unable
to conduct any activity. It is unfair--it is un-American--to impose the
cost of carrying a public purpose on a few unlucky citizens.
Recognizing the importance of protecting wildlife habitat and of
working cooperatively with the government for the benefit of listed
species does not abrogate the property rights guaranteed to all
Americans by the Fifth Amendment to the Constitution of the United
States.
H.R. 1142 recognizes the inherent inequity of this practice and
resolves the unconstitutional burden by requiring Federal agencies to
obtain written permission from, or provide compensation to, landowners
when the agency takes an action under the ESA or in furtherance of the
ESA that results in use of the landowner's property. A statutory
compensation requirement gives landowners the knowledge that if all
else fails, the government will be responsible for the public purpose
of species protection.
The mechanism created by H.R. 1142 is essential for other incentive
measures to work. The bill would allow those who believe that they have
a stewardship responsibility, as our industry does, to work with the
law as much as possible. At the same time, it recognizes that the
demands of the Endangered Species Act exceed the ability of the
landowner to economically cooperate. The bill establishes public
responsibility to carry out public goals.
We all understand the importance of our local and national
transportation systems. At the same time, we also understand that the
burden caused by the construction of these systems should not be borne
solely by the few property owners in the path of the road or under the
flight path. It is the Constitutional obligation of us all, through the
government, to compensate the few who bear the burden of these public
benefits. Just as the Federal Government receives compensation for the
burden on a Fish and Wildlife Service facility caused by airplanes
landing and taking off at a Minnesota airport, so should landowners
receive compensation if providing habitat for the benefit of listed
species becomes burdensome.
We urge the Committee to consider carefully the particulars in H.R.
1142. An administrative compensation system, including an arbitration
mechanism, is not helpful if it merely creates an extensive
bureaucratic process. We strongly recommend that the Committee consult
experts on arbitration before giving the bill its final approval.
The Committee has chosen to focus on this one update to the
Endangered Species Act, and we support that effort. However, as the
Chairman well knows, there are other issues that need to be updated in
the ESA. With AF&PA members' emphasis on stewardship through the SFIsm
program, I would urge the Committee to consider updates to the ESA
which would complement H.R. 1142 by addressing stewardship issues as
well.
For example, the Endangered Species Act regulates activities of
private parties and states which do not require a Federal permit or
funding by prohibiting any action which would ``take'' listed species.
The law provides, in section 10, an incidental take permit process
which requires the landowner to prepare a habitat conservation plan
(HCP) focusing on mitigation of the take to be caused to the listed
species by the applicant's activities.
Unfortunately, the HCP process generally is expensive, lengthy, and
complex. Many land owners simply cannot afford to pursue it. For
example, the government considers an HCP to be subject to consultation
as a proposed Federal action under ESA section 7, a process which is
redundant and which creates several difficulties for the landowner,
such as ongoing second-guessing by the agency. Also, the authority to
require mitigation in the HCP and permit is relatively unqualified and
has resulted in requirements which exceed by several degrees the effect
of the activity which would be allowed under the permit.
Given the expense and commitment inherent in an HCP, landowners
understandably are often willing to address more species than merely
those listed. The government must recognize the benefit of addressing a
number of species when the landowner chooses to do so. Current policies
tend to create impediments to multi-species HCPs. Moreover, the two
agencies responsible for ESA implementation, the Fish and Wildlife
Service and the National Marine Fisheries Service, have not applied HCP
policies in a consistent manner, causing considerable delay and
frustration among HCP applicants.
While Secretary of the Interior Bruce Babbitt has instituted
various policies which improve the HCP process, legislative changes are
necessary to guarantee those improvements. For example, Babbitt has
issued a ``No Surprises'' regulation which provides landowners,
particularly those who depend on continuing access to natural resources
on their land, certainty when agreeing to conditions in an HCP.
However, this policy is now subject to a challenge in Federal court.
We, therefore, also suggest the Committee consider amendments to the
Endangered Species Act in the following areas:
provide statutory authority for the ``No Surprises'' policy;
authorize the Secretary to issue rules providing incidental
take relief for categories of actions which would have little
effect on listed species;
recognize that since an HCP provides analyses equivalent to a
biological opinion and the agency is consulting with itself,
consultation on an HCP is redundant and unnecessary;
require that mitigation in an HCP be proportionate to the
effect on the species of the take authorized by the HCP and
permit;
authorize recognition that the HCP will provide benefits for
unlisted species and provide assurance that the permit will
cover those species in the event they are later listed without
additional mitigation, without the imposition of excessive
assessment procedures on the applicant;
authority should be consolidated in the Secretary of the
Interior, at least with respect to implementation of the ESA in
non-ocean areas, regardless of the species involved.
Again, we support the Chairman's continued commitment to updating
the ESA and protecting property rights of landowners whenever and
wherever possible. On behalf of the American Forest & Paper
Association, I appreciate the opportunity to offer our views on H.R.
1142, the ``Landowners Equal Treatment Act of 1999.'' I would be happy
to answer any questions you may have.
Mr. Pombo. Thank you.
Mr. DeGennaro.
STATEMENT OF RALPH DEGENNARO, EXECUTIVE DIRECTOR, TAXPAYERS FOR
COMMON SENSE, WASHINGTON, DC
Mr. DeGennaro. Mr. Chairman, thank you for the opportunity
to testify before this Committee today. My name is Ralph
DeGennaro. I am executive director of Taxpayers for Common
Sense. We are a nationwide budget watchdog organization
dedicated to cutting wasteful government spending and subsidy
programs and promoting a balanced budget. We are politically
independent, nonpartisan, seek to reach out to taxpayers of all
political persuasions to work toward a government that costs
less, makes more sense, and inspires more trust. We receive no
government grants or contracts. We have never engaged in any
litigation, except for rare friend-of-the-court briefs.
Taxpayers for Common Sense respectfully opposes H.R. 1142.
We believe this proposal would establish a new entitlement
program that would only increase the burden upon taxpayers.
Rather than creating this complex, new Federal spending direct,
it is TCS's belief that there are simpler and more effective
ways of dealing with the problems addressed by this proposal.
For example, if advocates of this proposal want to repeal
or modify the Endangered Species Act, then they should move to
do so directly, as it is under the jurisdiction of this
Committee, instead of imposing a takings spending program on
the taxpayers. In short, if the Endangered Species Act is
broken, then fix it or repeal it; do not enact H.R. 1142, which
we believe would endanger the taxpayers.
I note that one of the folks from the National Wilderness
Institute, who testified on one of the earlier panels,
basically, said that their report showed that the Endangered
Species Act had completely and utterly failed. If that is true,
then the Committee should repeal it, not impose a cost on the
taxpayers.
Taxpayers for Common Sense believes in property rights and
the payment of just compensation under the 5th Amendment.
However, there is already a venue in which to pursue these
claims: the judicial system. Again, if the courts are broken,
then fix the courts, a matter under the jurisdiction of the
Judiciary Committee.
Passage of H.R. 1142, or similar legislation, would
circumvent the judicial system and allow compensation to be
awarded to individuals and others that have thus far had no
justifiable takings claim. It would go significantly beyond the
scope of traditional court decisions. As Justice Holmes notes
in 1922, quote, ``Government could hardly go on if, to some
extent, values incident to property could not be diminished
without paying for every such change in the general law.''
Let's look at the budget implications. Nobody should vote
for this bill under the illusion that it would be no big deal
in the Federal budget. It is true that compensation payments
under H.R. 1142 would be from appropriations, but enactment of
this bill would create a legitimate expectation of
compensation. Indeed, the only thing worse than enacting this
bill would be for Congress to enact it with the intention of
somehow avoiding paying every penny of every claim qualified
under its terms.
Because Congress would, of course, want to keep its
promise, want to pay those claims, this would, in essence,
create an entitlement program. Indeed, the cost of this new
spending program would be almost impossible to control or
predict, but would surely reach billions of dollars. How would
this be handled? Probably through more supplemental
appropriations bills, which are already among the most abused
parts of our budget process.
H.R. 1142 would establish broader criteria for filing
takings claims. Historically, the courts have based
compensation for claims on the value of the entire property. By
allowing compensation for impacts on only a small fraction of
the property, it would provide an ill-defined nature that would
undoubtedly result in unwarranted compensation, and possibly
overcompensation. Let's look at three possibilities.
First, speculation on fair market value. Property owners
would be compensated for the fair market value of their
property without regard to the presence of any species
protected under this Act. Accordingly, speculators could buy
land for a price already reduced with good knowledge that
Endangered Species Act regulations applied to that land. The
speculator could then demand compensation for full market
value. That is an abuse.
Secondly, claims for compensation could be filed for
development that never would have occurred. The bill would
allow property owners to file claims to want to develop an
affected parcel in order to receive compensation, even if that
person never had had the intention or resources of developing
the land.
Finally, third--and I think this is the most outrageous
section of the bill--it would allow property owners to be
compensated for the right to use or receive water, and for
compensation for any diminution of water. The bill would
mandate compensation of property owners for the fair market
value of water that they receive at subsidized rates from the
taxpayers.
For example, in the California Central Valley, a couple of
years ago, contract rates for water ranged from $3.50 to $7.50
per acre foot, but the fair market value of that same water
ranges from $100 to $250 per acre foot. Taxpayers for Common
Sense would argue that, if this bill is enacted, it ought to
have an amendment on there that says that those who are
currently receiving water at less than the fair market value
should be paying that price for the water.
Finally, and most broadly, this bill would set a precedent
and open a slippery slope. Why is the Endangered Species Act
special? It really isn't. Is it any worse than wetlands laws?
Is it any worse than the Clean Air Act? Is it any worse than
the airline safety laws? Does it impose any more burdens on
private parties than Federal deposit insurance laws? No. I
think, in fairness, if we are going to compensate those who
feel they have takings under the Endangered Species Act, then
Congress ought to be enacting broader legislation that
compensates everybody who feels like they have any diminution
of value from any Federal law. That would be hundreds and
hundreds of billions of dollars.
Thank you.
[The prepared statement of Mr. DeGennaro follows:]
Statement of Ralph DeGennaro, Executive Director, Taxpayers for Common
Sense
Good afternoon. Mister Chairman thank you for the
opportunity to testify before this Committee. My name is Ralph
DeGennaro and I am the Executive Director of Taxpayers for
Common Sense (TCS).
TCS is dedicated to cutting wasteful government spending
and subsidies and keeping the budget balanced through research
and citizen education. We are a politically independent
organization that seeks to reach out to taxpayers of all
political beliefs in working towards a government that costs
less, makes more sense and inspires more trust. Taxpayers for
Common Sense receives no government grants or contracts. TCS
has never engaged in litigation, except for ``friend of the
court'' briefs on rare occasions.
TCS opposes H.R. 1142, the Landowners Equal Treatment Act
of 1999. TCS believes that this proposal would establish a new
entitlement program that would only increase the burden upon
taxpayers. Rather than creating a complex new Federal spending
program, it is TCS' belief that there are simpler and more
effective ways of dealing with the issues raised by this
proposal. For instance, if advocates of this proposal want to
repeal or modify the Endangered Species Act, then they should
move to do so directly, instead of imposing a takings spending
program on the taxpayers.
Taxpayers for Common Sense believes in property rights and
the payment of just compensation under the Fifth Amendment of
the Constitution. However, there is already a venue in which to
pursue these claims: the judicial system.
The passage of H.R. 1142 or similar legislation would
circumvent the judicial system and allow compensation to be
awarded to individuals and corporations that, thus far, have
had no justifiable ``takings'' claim. This legislation goes
beyond the scope of traditional court decisions, in that the
courts have generally not allowed a takings claim simply for
diminution in value of the property. In the 1922 Supreme Court
case that created the notion of a ``regulatory taking'',
Pennsylvania Coal Co. v. Mahon, Justice Holmes noted that
``government hardly could go on if to some extent values
incident to property could not be diminished without paying for
every such change in the general law.''\1\ This principle was
recently reaffirmed in the Concrete Pipe case in 1993, when the
Supreme Court unanimously ruled that diminution in value by
itself is insufficient to demonstrate a taking.\2\
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\1\ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,413 (1922).
\2\ Concrete Pipe & Products v. Construction Laborers Pension
Trust, 508 U.S. 602, 645 (1993).
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Indeed, as former Office of Management and Budget Director
Alice Rivlin testified in 1995, bills similar to H.R. 1142 ``go
far beyond longstanding constitutional tradition . . . and . .
. seek to pay people to obey the law.''\3\
---------------------------------------------------------------------------
\3\ Alice M. Rivlin, Prepared testimony before the Senate
Environment and Public Works Committee, July 12, 1995, p. 1.
H.R. 1142 Would Create New Uncontrollable, Unpredictable
---------------------------------------------------------------------------
Entitlement Program
Nobody should vote for this bill under the illusion that it
will be no big deal in the Federal budget. It is true that
compensation payments pursuant to H.R. 1142 would be
technically ``subject to the availability of appropriations.''
But enactment of H.R. 1142 would create a legitimate
expectation of compensation. The only thing worse than enacting
H.R. 1142 would be for Congress to enact it with the intention
of somehow avoiding paying every penny of every claim qualified
under the terms of H.R. 1142. Because Congress would of course
want to keep any promise implied in H.R. 1142, enactment of the
bill would in essence create an entitlement program.
The cost ceiling of this new spending program would be
almost impossible to control or predict. Federal agencies would
be overwhelmed by claims. The Budget and Appropriations
Committees would ultimately be responsible for writing and
approving funding bills that somehow both allocated money to
ongoing activities and paid compensation claims. Doing this
within any set budget caps would be almost impossible.
Furthermore, this payment scheme would have significant
unintended consequences and likely lead to more supplemental
appropriations bills to pay unexpectedly large claims.
Supplemental appropriations bills are already among the most
abused aspect of the budget process, and H.R. 1142 would likely
make it much worse.
H.R. 1142 Would Leave the Government Liable for Hundreds of
Millions, if Not Billions
TCS believes that the true cost scenario could conceivably
have no limit. In 1995, the Congressional Budget Office stated
that for S. 605, the Omnibus Private Property Rights Act of
1995, CBO had ``no basis for estimating the additional amount
of compensation that the government might have to pay for cases
where property owners choose to pursue larger claims in
court.'' \4\ Although this statement was in reference to
legislation that applied to a greater number of programs, it is
still applicable to a bill that targets only the Endangered
Species Act, due to the broad criteria for compensation
established in H.R. 1142.
---------------------------------------------------------------------------
\4\ U.S. Congressional Budget Office, ``Cost Estimate for S. 605,
Omnibus Property Rights Act of 1995,''
H.R. 1142 Would Establish Broader Criteria for Filing
---------------------------------------------------------------------------
``Takings'' Claims
Historically, the judicial branch has based compensation
for claims on the value of the entire property. H.R. 1142 would
require compensation for impacts on only a small fraction of
the property. The bill would require the Federal Government to
pay a property owner when Federal agency action reduces the
value of the affected portion of the property by 25 percent or
more. For example, if a coal mine is allowed to mine 99 percent
of its area and is required to stop mining in 1 percent of its
area due to ESA regulations, then the company could still sue
if that 1 percent met the standards of diminishment. Using this
calculation would almost always result in a taking, even if the
value of the property as a whole had stayed the same or risen.
This loose standard would invite manipulation of the system at
taxpayer expense.
The ill-defined nature of H.R. 1142 would undoubtedly
result in unwarranted compensation, and possibly
overcompensation in certain cases. Let's look at three
possibilities:
Speculation on ``Fair Market Value''
Property owners could be compensated for the ``fair market
value'' of the property ``without regard to the presence of any
species protected under this Act.'' Accordingly, speculators
could buy land for a price already reduced by good knowledge
that Endangered Species Act regulations applied to certain
sections of the land. The speculator could then demand
compensation for ``full market value'' of the land because the
agency would not be allowed to take the ESA regulations into
consideration.
Furthermore, the Federal regulatory programs that are often
alleged to infringe on property rights, such as ESA, were
initiated over 25 years ago. In a December 1998 report, the CBO
stated that ``arguably, anyone who bought property since then .
. . should have known, to varying extents, that the property
was or might be subject to regulation.'' Many of those owners
may have bought their property at a discount that reflected the
incidence or risk of Federal regulation.''\5\
---------------------------------------------------------------------------
\5\ U.S. Congressional Budget Office, ``Regulatory Takings and
Proposals for Change,'' prepared December 1998, p. xiii.
---------------------------------------------------------------------------
Claims for Development That May Never Have Occurred
Takings legislation could also allow property owners to
file claims for development that might never have occurred.
Under H.R. 1142 and similar bills, a property owner would only
have to claim to want to develop affected parcels in order to
receive compensation. For example, it is probably true that
many landowners do not want to harvest timber on their land.
However, H.R. 1142 would allow all landowners to claim they
want to harvest timber on their land and they should be
compensated because they cannot do so.
Water Claims
Perhaps the most outrageous section of H.R. 1142 allows
property owners to be compensated for the ``right to use or
receive water.'' This section would extend additional
protections to recipients of federally subsidized water at
significant expense to the taxpayer. Thus far, takings claims
in regard to the right to receive water have been relatively
unsuccessful. H.R. 1142, like previously proposed takings
bills, would mandate compensation for ANY diminution of water.
This kind of claim has already been rejected by the court
system, specifically by the Ninth Circuit Court of Appeals in
the 1995 Westlands Water District case.
The provisions governing water rights as property in H.R.
1142 would allow for further subsidization of agricultural
water users. The bill would mandate compensation of property
owners for the ``fair market value'' of water that they receive
at subsidized rates. As there is a significant difference
between what water users pay for the water at subsidized rates
and ``potential compensation awards,'' this provision of H.R.
1142 could represent enormous costs to taxpayers. For example,
as Senator Feingold cited in his 1996 dissenting views, in
California's Central Valley, the contract price for water
ranged from $3.50 to $7.50 per acre foot. However, the fair
market value of that same water ranged from $100 to $250 per
acre foot (Sen. Rpt. 104-239). This difference could hold the
government and taxpayers liable for millions. TCS would argue
that if this bill were to become law, all water users should be
required to pay fair market value for the water they receive
before there is any ``taking.''
H.R. 1142 Sets A Precedent
H.R. 1142 would set a precedent that could lead to
enactment of broader takings legislation that would target any
number of Federal statutes. In fact, history has shown this to
be true. In the 104th Congress, the House passed a similar bill
that targeted the Endangered Species Act, the Clean Water Act,
and certain irrigation laws. After that bill's passage in the
House, the Senate introduced and passed out of the Judiciary
Committee S. 605, the Omnibus Private Property Rights Act of
1995, which set virtually no limits on takings claims.
Mr. Pombo. Thank you. Mr. DeGennaro, I will just start with
you.
I agree with you on your last point, that Congress ought to
pass broader legislation to compensate owners for all laws and
their takings. In fact, the House did pass such legislation a
few years ago with a two-thirds majority vote out of the House,
and the bill was never taken up in the Senate. But at this
time, under the Endangered Species Act, this is legislation
that this Committee has jurisdiction over. But I do agree with
you that it should be broader in terms of compensation.
Mr. DeGennaro. Mr. Chairman, of course, my point was that
we shouldn't start on that slippery slope at all, pursuing----
Mr. Pombo. I know what your point was. I know what your
point was, but I think the slippery slope was started when our
Founding Fathers signed their name onto the Constitution and
put the Bill of Rights, the first 10 amendments to it. I know
that there are people that feel that this is a slippery slope,
but I hold it in much higher regard than that.
In terms of your three examples citing abuses of this, I
don't know how familiar you are with appraisals and fair market
value of property. The speculative value on a piece of property
is not the fair market value of that property. You can buy one
of Mr. Heissenbuttel's member's land in the middle of a forest
in California and say that you want to build a 100-story
highrise on it and that is your intention, and you go in and
get a fair market value of that property. No appraiser in the
country is going to value it as if you could have put a 100-
story highrise building on it. All it is is what it is, and
that is the fair market value of it.
It is kind of a strawman to put up--to say that people will
say that they are going to develop something and want the
develop value of that property, when there is no chance that
that property would have ever been developed. Coming from a
State like California, I am somewhat familiar with the
challenges in developing land, and the appraised value of those
properties is dependent upon the ability to do that.
In terms of water, many States include water as a property
right. In this country, water is governed by the States; at
least in the West it is governed by the States, not by the
Federal Government, and many States consider it a property
right. If you are taking water away from a piece of property,
especially in the West, you are devaluing that piece of
property, and taking value away from that. Most of these people
that have bought that have bought with it that water right
attached, and if you take that water right away, you are taking
away part of their bundle of property rights away from them.
That is why many people are so concerned about that.
I would like to ask you a question, and I have read a lot
of stuff that your organization has put out. But one thing I
haven't seen was that it is very difficult for Fish and
Wildlife, or anyone else, to bring forward successes of the
Endangered Species Act. It is very difficult, very tortured for
them to say, this is what we have gotten for our money.
They spend somewhere in the neighborhood of between $500
and $800 million a year. Have you come out, has your
organization come out, in favor on behalf of the taxpayers of
repealing or reforming the Endangered Species Act because of
the waste of money that is currently under that system?
Mr. DeGennaro. No, we have taken no position on that
question. I would be glad to look at that and try to get back
to you about that.
Mr. Pombo. Well, I would appreciate that. It seems there
are a lot of wastes of government money that are out there.
[The information may be found at the end of the hearing.]
Mr. DeGennaro. Mr. Chairman, about your earlier point, you
note that States govern the water, and I am sure that is true
in large part. It is fair to say that Federal taxpayers do
subsidize water. I think with respect to the taxpayers who pay
those costs, that is something that should be considered in the
mix.
Mr. Pombo. It absolutely should be considered, and I will
agree with you on that point, that it should be considered. I
know if you were aware--you bring up the Central Valley
Project, and I am not sure if you are aware that many of those
property owners had prior water right that was given to the
Federal Government in exchange for a water contract of water
that was going to be delivered by the Central Valley Project.
So they gave up their water right in exchange for a water
contract. That water contract is pertinent to the land that
comes with it. So if it costs the Federal Government a
substantial amount of money--and it did cost hundreds of
millions of dollars to develop that project--they got the
water. The Federal Government had no water. They got their
water by taking water right away from individual property
owners in exchange for water contracts. That is where the water
came from.
Now there has been a substantial amount of money that has
been spent by the taxpayer, and I do concede to you that that
is legitimate point, but when you go out and buy land in the
Central Valley of California, you are buying land with water or
you are buying land without water. If you are buying it with
water, you are paying two or three times as much, and sometimes
considerably more than that, because you are buying that water
right or that water contract that is pertinent to it.
If the Federal Government steps in and says, ``We changed
the rules. We are taking the water away from you,'' you have
taken something away from that individual property owner, who
happens to be a taxpayer as well.
Mr. DeGennaro. Yes, we would be delighted to receive market
value for water provided by Federal projects.
Mr. Pombo. Well, that is a considerable amount of money.
And if that is what we could get for it, we would gladly take
it, I can guarantee you.
Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman.
I have a quote here from a former fish and wildlife
administrator for the State of Texas, who said that, quote,
``The incentives are wrong. If I had a rare metal on my
property, its value goes up, but if a rare bird occupies the
land, its value disappears.'' We have got to turn it around to
make the landowner want to have the bird on his property.
Do any of you have any comments about that? Is there a way
to provide incentives for people to do good things with their
land without just the government coming in and taking things,
at great expense to the taxpayers?
Mr. Heissenbuttel. Just a couple of ideas: I mentioned the
no surprises policy that Secretary Babbitt has developed, a
good idea. It would be better if it was based on law rather
than regulation. That has helped make habitat conservation
plans more affordable for both large and small landowners, and
it takes away the terror of investing in a habitat conservation
plan, only to find that another species shows up down the road.
So there are opportunities to take away the terror of finding a
listed species on your property.
Mr. Duncan. We were talking a few minutes ago, and I was
discussing the fact that today over 30 percent of the land in
this country is owned by the Federal Government, and another
little over 20 percent is owned by State and local governments
and quasi-governmental units. That amount has been growing in a
very rapid way in the last 20 or 30 or 40 years. We don't seem
to have gotten the message out that a very important part of
our prosperity has been based on private property, and that is
one of the things that has differentiated our economy from that
of places like the former Soviet Union, for example.
Mr. DeGennaro, I can tell you, there are very few Members
of Congress who have voted against more Federal spending than I
have. That has put me on the same side with your group on many
occasions.
The reason I do that is not out of any selfishness or
anything, but, you know, we forget up here, because we read
about the salaries of these athletes, and this is a very upper-
income area up in this area, but we forget that the average
person in this country is making less than $25,000 a year, and
I am not talking about in poverty areas. The typical family is
a husband and wife both working, grossing $45,000 or $50,000 a
year--maybe. After taxes and so forth, that doesn't leave them
a lot of extra money.
So what I see happening, though, is these environmental
extremists, who almost always come from very wealthy families
or very wealthy backgrounds, seem to want government units,
whether Federal, State, or local, to take over more and more
and more property. So I can you tell you, I wish that we didn't
have to have a bill like this. What I wish is that I wish the
government at all levels would stop taking so much property in
the first place. The fact is the Grace Commission, several
years ago, recommended that the Federal Government sell off
much of its land. Yet, you can't get these extremists to agree
for the Federal Government to sell hardly anything. I mean,
they shout in horror.
But since your group calls itself a taxpayers' group, would
you be in favor of the Federal Government selling off some of
this land, so we could get some money back for the taxpayers?
Mr. DeGennaro. We would be willing to look at proposals to
do that. I would say, we do recognize--I don't think you
disagree with this, and I appreciate your leadership on many
taxpayer issues--we do recognize that some of these lands are
taxpayer assets that we hold in common. So I don't think we are
opposed in principle to the idea that the taxpayers together,
as a community, as a country, own things.
Now if there are specific proposals to sell specific things
for specific reasons, I think we would be very glad to look at
that.
Mr. Duncan. Well, I just think we are getting to a
dangerous point here. I mentioned State and local governments,
but there are these quasi-governmental units. In my area that
is a big thing, and that doesn't count as Federal, State, or
local land, but it is the same as public ownership. If you keep
doing away with more and more and more private property, you
are going to slowly destroy a big part of the American dream.
People aren't going to be able to buy homes except on cookie
cutter lots. You are going to force more and more people into
smaller and smaller areas. That is going to create pollution
problems and traffic problems and crime problems.
I mean, we really hope, Ms. Marzulla, that your
organization is starting to call attention to the fact, because
this is a message that I think we really need to get out to the
American people--that we are really doing away with private
property in this country in a fairly rapid way. Are you
concerned about that?
Ms. Marzulla. Very much so. In fact, I would add one
additional thought, in addition to our basis of economic
prosperity. Private property is really our basis of freedom----
Mr. Duncan. That is right.
Ms. Marzulla. [continuing] particularly, when you look at
the division of ownership of Federal and State land. Justice
O'Connor, in one of her decisions that she authored for the
Supreme Court about 10 years ago, made it very clear that the
State and local ownership of land versus even Federal ownership
of land helps protect individual liberties. So the ownership of
private land, and even local ownership of land, all devolves to
the protection of the individual. So it is a very important
point.
Mr. Duncan. Well, and I will tell you another thing that we
need to emphasize, also, is that the worse polluters in the
world have been the socialist and communist countries. It is
just a natural human tendency that people take better care of
land that is in private ownership than they do land that is in
public ownership, and, boy, you can see example after example
of that. I mean, these housing projects that we had to blast
down after 20 years in existence, even though they had been put
up at huge expense, private property is good for the
environment, but we don't seem to have gotten that message out,
either, or we have trouble getting it out.
Thank you. Thank you very much.
Mr. Pombo. Mrs. Chenoweth.
Mrs. Chenoweth. Mr. DeGennaro, is your office here in
Washington?
Mr. DeGennaro. Yes.
Mrs. Chenoweth. Do you spend most of your time in
Washington?
Mr. DeGennaro. Yes.
Mrs. Chenoweth. Do you get out to the Northwest very often,
to our western country?
Mr. DeGennaro. Not very often; certainly, not as much as
you.
Mrs. Chenoweth. You have quite an interesting background:
budget analyst for Friends of the Earth, and now you published
the Green Scissors report.
Mr. DeGennaro. We are the lead co-author; the lead author
of that report is Friends of the Earth.
Mrs. Chenoweth. And didn't you just recently publish a new
Green Scissors report advocating tearing out the dams on the
Columbia and Snake River?
Mr. DeGennaro. Yes. No, I am not trying to distance myself
from the Green Scissors report. I am just trying to give credit
to the lead organization on the report. But we stand behind
that report, and we agree with its recommendations. Yes, we
did.
Mrs. Chenoweth. I find your questions about water and the
value of water, which is pertinent to the land, interesting,
because there is an economic dynamic I don't think you have
considered at all. The fact is that most of those retaining
facilities, those dams, have been paid off a long time ago by
ratepayers or irrigators in the Northwest. Now, unlike the
California Valley Project, as it has been altered by CVPIA, the
ratepayers and the irrigators in the Northwest have paid off
the facilities to the Corps of Engineers and to the Bureau of
Reclamation. To advocate tearing out facilities that are still
very, very good, and still supply low-cost hydropower and
irrigation to the Northwest, at great cost to the ratepayers,
to the irrigators, to the entire Northwest, seems ludicrous to
what your organization stands and in a juxtaposition to what
your organization stands for.
So I appreciate Mr. Pombo's response to you about water,
because I clearly don't believe that this decision and
recommendation by Green Scissors was very thoughtful in terms
of its economic impact.
Mr. DeGennaro. Right. I would be very glad to elaborate on
the taxpayer rationale for removing the four Lower Snake River
dams.
First----
Mrs. Chenoweth. Well, I don't want to----
Mr. DeGennaro. Okay.
Mrs. Chenoweth. [continuing] get into that right now. I
have some other questions that I would like to ask you, but I
would love to discuss that with you very seriously, because I
think there are some economic impacts you haven't considered.
Mr. DeGennaro. One thing there, I think, just to highlight,
that may be of special interest to you, is that, under some of
the current projections, more and more water would need to be
taken out of the Snake River to augment the flows, or something
like that, and that could be a significant impact on southern
Idaho. I think removing the dams would actually protect the
water in southern Idaho.
Mrs. Chenoweth. Actually, the dams are almost a whole State
away from southern Idaho. I live out there, and I would love to
be able to discuss it with you.
Your testimony states that the bill would expose the
government to billions of dollars of liability. Are you telling
this Committee that there are billion of dollars of privately-
owned property that the government is using as habitat for
wildlife against the wishes of the owners, and without
compensating these owners for public use? And do you think that
is right? Do you think that is fair?
Mr. DeGennaro. No, what I would say, that the provisions of
the bill are so loosely drawn, and I stated that there are
three, at least three, examples here where we believe there
would be significant overcompensation. In other words, people
would be compensated in cases where they should not be. That is
what gives you a price tag into the billions.
Mrs. Chenoweth. Well, actually, I don't think that you
really understand what this bill is doing, because this bill
isn't based on the concept of taking or of diminished value of
property. It is really based on the concept that, if the
government uses privately-owned property for the benefit of the
general public, and for a very laudable goal, delineated any
public purpose, it should compensate the owner for the use of
their property.
Now would it be your position that, when the Federal
Government chooses to use private property for any public
purpose, the owners are not entitled to be compensated? For
example, if the government needs a place to house refugees from
Kosovo in the near future, can they bring them into this
country and allow them to use your home, your personal home,
and your property as a place to stay, without your permission
and without compensating you? Is that your position?
Mr. DeGennaro. Of course not.
Mrs. Chenoweth. Thank you.
I have a question for Nancie Marzulla.
Mr. Pombo. I ask unanimous consent the lady be given an
additional two minutes.
Mrs. Chenoweth. Thank you.
Mrs. Marzulla, what is the average time that it takes for a
person who files a taking suit in Federal claims court, under
the current law, to receive a final determination regarding
that claim?
Ms. Marzulla. Well, according to the Justice Department, at
least in informal discussions that I have with them, it is at
least a decade. If you look at some of the more well-known
takings cases, it can go up toward two decades. Looking at
Florida Rock or Love Lady's Harbor or Presault, a case where we
represent Mr. Presault, his case has been in litigation for
almost two decades now. So it is an extraordinary amount of
time.
Mrs. Chenoweth. What types of costs are involved in filing
a claim for a takings into the claims court?
Ms. Marzulla. Well, Defenders represents clients on a pro
bono basis, but for private litigants it is enormously
expensive, because there are filing costs, and of course all
the attorneys' fees that continue to rack up through the years,
as the case goes through the litigation process. So it can be
hundreds of thousands of dollars.
Mrs. Chenoweth. In your opinion, does Congress have the
power to enact legislation protecting private property owners'
rights and provide relief that may go beyond that provided by
the courts under the existing 5th Amendment judicial
precedence?
Ms. Marzulla. Absolutely. In fact, I would go so far as to
say they have the duty, because the 5th Amendment mandates or
requires that government pay just compensation when private
property is taken for a public use. But the way I view this
bill is that it really is a way to implement the government's
authority or to further proscribe the government's authority
when it takes actions under the Endangered Species Act. I don't
view it as a definition or attempt to define the scope of the
5th Amendment just compensation clause, but rather to describe
or delineate how the government is to act toward private
property owners in the course of regulating land under the
Endangered Species Act.
Mrs. Chenoweth. Mrs. Marzulla, in Mr. Shimberg's testimony,
he indicates that his organization opposes legislation that
elevates the rights of the minority over the majority. Now
doesn't the Bill of Rights, including the 5th Amendment,
provide for the protection of the rights of the majority, too?
Ms. Marzulla. I think that is the very purpose of the Bill
of Rights. It is to ensure that the individual or the
minority--in this case the property owner who has been singled
out to bear the burden of achieving a public good--to ensure
that those rights are protected. That is the very purpose, the
constitutional heart, so to speak, of the 5th Amendment.
Mrs. Chenoweth. Thank you, Mr. Chairman.
Mr. Pombo. Mr. Whitman, I wanted to ask you a couple of
questions about your testimony. I felt it was somewhat curious,
a couple of the statements that you made, and I just wanted to
clarify.
You are opposed to this legislation because of the
compensation provisions that are in there, the very purpose of
the bill; that you don't feel that it would work or it is
justified to have the compensation provisions for a government
taking private property for habitat like that. Is that somewhat
accurate as to what your position is?
Mr. Whitman. Our position is that we believe that, in fact,
under this bill, notwithstanding the provisions in the
legislation that appear to require compensation, the effect of
it, since there was not actually--or may not be--an
appropriation to fund the fund the bill, that the services
would back away from implementing the ESA on private land.
Mr. Pombo. Yet, when you used an example of a successful
program, you used the conservation reserve program, which is
compensation to property owners for using their property. And
you say that is a success, and yet, you oppose compensating
other property owners, if we are going to use their property
for habitat.
Mr. Whitman. Mr. Chairman, if I might try to clarify that
for you, the conservation reserve program is, I think, a very
good example of the Federal Government providing incentives for
private property owners to do the right thing. It requires
private property owners to go above and beyond what is required
by regulation. Also, under State law, there is a State match to
that program, and that State match, again, extends even further
in contribution of private owners to habitat protection, by
extending the time period under that program.
Mr. Pombo. It is just seems to me like you would be in
favor of this legislation, maybe with some amendments or some
change, in order to expand what you hold up as an example of a
success.
Mr. Whitman. I think it is fair to say that, if Congress
could come up with a rational way of providing incentives for
private property owners to go above and beyond what is required
by regulation, that the Oregon attorney general would support
it with that, yes.
Mr. Pombo. Well, I think we are attempting to do that. I am
very much in favor of doing that. I have introduced any number
of pieces of legislation that would do exactly, I think, what
you are talking about. But you have to be able to get there
from here. And, unfortunately, what is happening under the
current implementation of the Act is that they don't have to
pay for it, so they don't. They just take it. And that is the
problem. There is no way, other than legislation like this, to
make the Federal Government sit down and say, ``We want to use
this land as habitat,'' or ``This land is habitat, and we want
to protect that habitat, and we want to work out some kind of a
cooperative agreement, so that it is better habitat than it is
now, or that you continue to use it as habitat.''
You have to be able to get there from here. If we continue
doing what we are doing right now, the person that is paying
the bill on this is the private property owner. I brought up a
few minutes ago that it was between $500 and $800 million a
year to implement the Endangered Species Act. As close as we
can tell--we have had hearings on this, and that is about as
close as we can tell, but the amount of money that is being
paid by private property owners is many, many billions of
dollars. It is mandated by a bureaucratic decision of an
interpretation of the law on each individual property owner,
and they are the ones that are really paying the bill on this
for what we perceive as a benefit to society as a whole,
because we made that decision, that we did not want these
species to become extinct.
Ms. Marzulla, I wanted to ask you, on the takings cases
that you are familiar with--and I know you are a land use
attorney, and have been involved with this for a long time--the
takings cases that you are familiar with take many years and
hundreds of thousands of dollars to work their way from
initially filing a claim and take it all the way to what
ultimately will be a Supreme Court challenge.
With the example that you brought up, Mr. John Taylor, can
you give me a ball park idea as to what the property value is
of the lot that we are talking about? Can you give me some idea
of what that lot is worth?
Ms. Marzulla. I don't know exactly, but I would guess it is
maybe $25,000 to $40,000 at most.
Mr. Pombo. So, in your opinion, it would not go over
$100,000 in value----
Ms. Marzulla. No.
Mr. Pombo. [continuing] for that particular lot? If this
gentleman were paying attorneys' fees--and I understand he is
an elderly gentleman--and if he were fortunate enough to live
the 10 years to take this case all the way through, and you sat
down with him and you were honest with him, and you told him it
is going to take $200,000 or $500,000, or whatever the figure
may be, to take this all the way through, and he has a piece of
property that is worth less than $100,000, what are his choices
at that point?
Ms. Marzulla. Well, under that scenario, I don't feel as if
I could ethically recommend to him that he pursue litigation,
if his property was worth what it is.
Mr. Pombo. Okay. So he is sitting there with a piece of
property that he can't use, and the government has effectively
taken away the value of his property because they have told him
he can't use it. He can't build a house on it. There is no
value left in that piece of property. And, yet, it is not worth
enough to justify taking it and filing a claim. So what does he
do with the property?
Ms. Marzulla. Well, the U.S. Fish and Wildlife Service has
suggested that he can donate it to the Nature Conservancy.
Mr. Pombo. And that would take care of his problem?
Ms. Marzulla. I guess that would be one option.
Mr. Pombo. And he would donate that, and there would be
some, if he had an income, there would be some tax advantage to
donating that?
Ms. Marzulla. Of course, that has been his response to the
Fish and Wildlife Service, which is, he doesn't have a
sufficient income to where he would benefit from the tax
writeoff that he might get from donating the property.
Mr. Pombo. So even that, they have just basically taken
away all value of his property, and he has no benefit, because
of a lack of income, to donating it to a nonprofit?
Ms. Marzulla. That is correct.
Mr. Pombo. So if this legislation were enacted, would he
have another avenue that he could pursue that would somehow
compensate him for his loss?
Ms. Marzulla. Absolutely, and I think the additional
benefit that it would provide is the arbitration provision,
whereby he could enter into binding arbitration, and possibly
get a speedier resolution of the case, rather than pursuing a
lengthy, as he has, pursuing lengthy litigation. We filed our
complaint on March 15. The government has 60 days to respond,
and then from there, it goes on with discovery and various
motions. It may be years before we get any kind of resolution
of this case.
Mr. Pombo. Let me ask you this: Let's say, instead of one
lot, he owned a thousand lots. Under your understanding of the
current implementation of the law, he would be able to mitigate
his impact on that one site, and be able to develop the rest of
the lots, and have some income off of that. So this legislation
is more designed to help a small, individual property owner,
who has nowhere else to go, than it is a major property owner
who happens to own a thousand lots or 100,000 acres?
Ms. Marzulla. Absolutely. The person who doesn't have any
land to trade off or the ability to use his land or have the
resources to make cash mitigation payments, or in the case of
Mr. Taylor, donate money to salmon restoration plans or eagle
educational facilities in national parks or forests. Those
people have other avenues of buying their way out of the
harshness of the Endangered Species Act. But people like Mr.
Taylor, who really don't have any resources or additional land
to negotiate with, they are really stuck.
Mr. Pombo. A final question: In your professional opinion,
is it legislation like this that the small property owners need
in order to be able to deal with the Federal bureaucracy?
Ms. Marzulla. Absolutely. The way the system works now, it
is not a level playing field. The property owner has really
nothing at his disposal to demand respect for his
constitutional rights or demand fair treatment. And this sort
of legislation would help level the playing field.
Mr. Pombo. Thank you very much. I thank the panel for your
testimony. There may be further questions that will be
presented to you in writing. If you could answer those in
writing for the Committee, they will be included in the
Committee hearing.
I would like to apologize to the panel for the delay with
us having to run over for votes and everything. I appreciate
your patience. Thank you very much.
And the hearing is adjourned.
[Whereupon, at 2:36 p.m., the Committee was adjourned.]