[Congressional Record Volume 151, Number 5 (Tuesday, January 25, 2005)]
[Senate]
[Pages S492-S493]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BENNETT:
  S. 164. A bill to provide for the acquisition of certain property in 
Washington County, Utah; to the Committee on Energy and Natural 
Resources.
  Mr. BENNETT. Mr. President, today I am re-introducing a bill which is 
intended to bring to a close the Federal acquisition of an important 
piece of privately held land, located within the federally designated 
desert tortoise reserve in Washington County, UT.
  As some of my colleagues are aware, this is not the first time 
legislation has been introduced in an attempt to resolve this issue. 
Most recently, on December 7, 2004, at the conclusion of the 108th 
Congress, the Senate passed by unanimous consent an amendment in the 
nature of a substitute to H.R. 620, which adopted as title XVI agreed 
upon provisions of S. 1209. Unfortunately, the House of Representatives 
adjourned sine die before it had time to act upon H.R. 620. The 
legislation I am introducing today is virtually the same as the 
language earlier adopted by the Senate, except for a technical 
clarification regarding management of the acquired lands.
  I want to personally express my appreciation to Chairman Domenici and 
his staff for their leadership and assistance on this issue. I would 
also like to thank the ranking minority member, Mr. Bingaman, the 
Department of the Interior, and their respective staffs, for their 
assistance and support of this measure.
  Earlier in July of 2000, I introduced S. 2873, which was referred to 
and reported favorably by the Senate Committee on Energy and Natural 
Resources. In addition, similar legislation was twice approved by the 
House of Representatives, both in the 106th and 107th Congresses. For 
over a decade, the private property addressed by this bill has been 
under Federal control and the Federal Government has enjoyed the 
benefits of the private property without fulfilling its constitutional 
obligation to compensate the landowner. The government's failure to 
timely acquire the landowner's private property has forced the 
landowner into bankruptcy. It is my hope that the time has come to 
finally resolve this issue.
  In March of 1991, the desert tortoise was listed as an endangered 
species under the Endangered Species Act. Government and environmental 
researchers determined that the land immediately north of St. George, 
UT, was prime desert tortoise habitat. Consequently, in February 1996, 
nearly 5 years after the listing, the United States Fish and Wildlife 
Service, USFWS, issued Washington County a Section 10 permit under the 
Endangered Species Act which paved the way for the adoption of a 
habitat conservation plan, HCP, and an implementation agreement. Under 
the Plan and Agreement, the Bureau of Land Management, BLM, committed 
to acquire all private lands in the designated habitat area for the 
formation of the Red Cliffs Reserve for the protection of the desert 
tortoise.
  One of the private land owners within the reserve is Environmental 
Land Technology, Ltd., ELT, which began acquiring lands from the State 
of Utah in 1981 for residential and recreational development several 
years prior to the listing of the species. Moreover, in the years 
preceding the listing of the desert tortoise and the adoption of the 
habitat conservation plan, ELT completed appraisals, cost estimates, 
engineering studies, site plans, surveys, utility layouts, and right-
of-way negotiations. ELT staked out golf courses, and obtained water 
rights for the development of this land. Prior to the adoption of the 
HCP, it was not clear which lands the Federal and local governments 
would set aside for the desert tortoise, although it was assumed that 
there were sufficient surrounding Federal lands to provide adequate 
habitat. However, when the HCP was adopted in 1996, the decision was 
made to include ELT's lands within the boundaries of the reserve 
primarily because of the high concentrations of tortoises. The 
tortoises on ELT land also appeared to be one of, if not the only 
population without an upper respiratory disease that afflicted all of 
the other populations. As a consequence of the inclusion of the ELT 
lands, ELT's development efforts were halted.

  With assurances from the Federal Government that the acquisition of 
the ELT development lands was a high priority, the owner negotiated 
with, and entered into, an assembled land exchange agreement with the 
BLM in anticipation of intrastate land exchanges. The private land 
owner then began a costly process of identifying comparable Federal 
lands within the State that would be suitable for an exchange for his 
lands in Washington County. Over the last 7 years, BLM and the private 
land owners, including ELT, have completed several exchanges, and the 
Federal Government has acquired, through those exchanges or direct 
purchases, nearly all of the private property located within the 
reserve, except for approximately 1,516 acres of the ELT development 
land. However, with the unforeseen creation of the Grand Staircase-
Escalante National Monument in September 1996, and the subsequent land 
exchanges between the State of Utah and the Federal Government to 
consolidate Federal lands within that monument, there are no longer 
sufficient comparable Federal lands within Utah to complete the 
originally contemplated intrastate exchanges for the remainder of the 
ELT land.
  Faced with this problem, and in light of the high priority the 
Department of the Interior has placed on acquiring

[[Page S493]]

these lands, BLM officials recommended that the ELT lands be acquired 
by direct purchase. During the FY 2000 budget process, BLM proposed 
that $30 million be set aside to begin acquiring the remaining lands in 
Washington County. Unfortunately, because this project involves 
endangered species habitat and the USFWS is responsible for 
administering activities under the Endangered Species Act, the Office 
of Management and Budget shifted the $30 million from the BLM budget 
request to the USFWS's Cooperative Endangered Species Conservation Fund 
budget request. Ultimately, however, none of those funds was made 
available for BLM acquisitions within the Federal section of the 
reserve. Instead, the funds in that account were made available on a 
matching basis for the use of individual States to acquire wildlife 
habitat. The result of this bureaucratic fumbling has resulted in 
extreme financial hardship for ELT.
  The lands within the Red Cliffs Reserve are ELT's only asset. The 
establishment of the Washington County HCP has effectively taken this 
property and prevented ELT from developing or otherwise disposing of 
the property. ELT has been brought to the brink of financial ruin as it 
has exhausted its resources in an effort to hold the property while 
awaiting the compensation to which it is entitled. ELT has had to sell 
its remaining assets, and the private land owner has also had to sell 
his personal assets, including his home, to simply hold the property. 
This has become a financial crisis for the landowner. It is simply 
wrong for the Federal Government to expect the landowner to continue to 
bear the cost of the government's efforts to provide habitat for an 
endangered species. That is the responsibility of the Federal 
Government. Moreover, while the landowner is bearing these costs, he 
continues to pay taxes on the property. This situation is made more 
egregious by the failure of the Department of the Interior to request 
any acquisition funding for FY 2004 or FY 2005, even though this 
acquisition has been designated a high priority by the agency. Over the 
past several years, ELT has pursued all possible avenues to complete 
the acquisition of these lands. The private land owner has spent 
millions of dollars pursuing both intrastate and interstate land 
exchanges and has worked cooperatively with the Department of the 
Interior. Unfortunately, all of these efforts have thus far been 
fruitless.

  The bill that I am introducing today will finally bring this 
acquisition to a close. In my view, a legislative taking should be an 
action of last resort. But, if ever a case warranted legislative 
condemnation, this is it. This bill will transfer to the Federal 
Government all right, title, and interest in the ELT development 
property within the Red Cliffs Reserve, including an additional 34 
acres of landlocked real property owned by ELT adjacent to the land 
within the reserve. Subject to existing law, the Uniform Appraisal 
Standards for Federal Land Acquisitions and the Uniform Standards and 
Practices for Appraisal Professionals, USPAP, a United States Court of 
competent jurisdiction shall determine the value for the land.
  The bill includes language to allow, as part of the legislative 
taking, for the landowner to recover reasonable costs, interest, and 
damages, if any, as determined by the court. It is important to 
understand that, while Federal acquisitions should be completed on the 
basis of fair market value, when the Federal Government makes the 
commitment to acquire private land, the landowner should not have to be 
driven into financial ruin while waiting upon the Federal Government to 
discharge its obligation. While the Federal Government has never 
disputed its obligation to acquire the property, it has had the benefit 
of the private land for all these years without having to pay for it. 
The private landowner should not have to bear the costs of this Federal 
foot-dragging.
  This legislation is consistent with the high priority the Department 
of the Interior has repeatedly placed on this land acquisition, and is 
a necessary final step towards an equitable resolution. The time for 
pursuing other options has long since expired and it is unfortunate 
that it requires legislative action. Without commenting on the 
Endangered Species Act itself, it would seem that if it is the 
government's objective to provide habitat for the benefit of an 
endangered species, then the government ought to bear the costs, rather 
than forcing them upon the landowner. It is also time to address this 
issue so that the Federal agencies may be single-minded in their 
efforts to recover the desert tortoise which remains the aim of the 
creation of the reserve. This legislation simply codifies the status 
quo by enabling the private land owner to obtain the compensation to 
which he is constitutionally entitled. It is time to right this wrong 
and get on with the efforts to recover the species and I encourage my 
colleagues to again support the immediate enactment of this important 
legislation.
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