[House Report 104-579]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-579
_______________________________________________________________________
SILVIO O. CONTE NATIONAL FISH AND WILDLIFE REFUGE EMINENT DOMAIN
PREVENTION ACT
_______
May 16, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2909]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2909) to amend the Silvio O. Conte National Fish and
Wildlife Refuge Act to provide that the Secretary of the
Interior may acquire lands for purposes of that Act only by
donation or exchange, or otherwise with the consent of the
owner of the lands, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
Purpose of the Bill
The purpose of H.R. 2909 is to provide that the Secretary
of the Interior may acquire lands for the Silvio O. Conte
National Fish and Wildlife Refuge only by donation or exchange,
or otherwise with the consent of the owner of the lands.
Background and Need for Legislation
The National Wildlife Refuge System is comprised of Federal
lands that have been acquired for the conservation and
enhancement of fish and wildlife. Totaling about 91.7 million
acres, the System provides habitat for hundreds of fish and
wildlife species and is overseen by the U.S. Fish and Wildlife
Service. The first wildlife refuge was established by President
Theodore Roosevelt at Pelican Island, Florida, in 1903. At
present, the System is comprised of 508 refuges, located in all
50 States and the five U.S. Territories. These units range in
size from the smallest, the Mille Lacs National Wildlife Refuge
in Minnesota, which is less than one acre, to the largest, the
19.3-million-acre Arctic National Wildlife Refuge in Alaska. In
the last decade, 85 refuges and approximately 3.6 million acres
have been added to the System.
On February 5, 1991, Congressman Silvio O. Conte (R-MA)
introduced H.R. 794, a bill to establish a Fish and Wildlife
Refuge on the Connecticut River. The Congressman (who
represented western Massachusetts) was a long-time supporter of
the Refuge System, both in his capacity as the Ranking Minority
Member of the Appropriations Committee and as a representative
on the Migratory Bird Commission.
Congress cleared an amended version of H.R. 794 in November
1991. The final measure not only established the Refuge, but
also named it in honor of the Congressman, who had passed away
shortly after he introduced the bill. ``The Silvio O. Conte
National Fish and Wildlife Refuge Act'', Public Law 102-212,
was signed into law by President George Bush on December 11,
1991. The Act directed the U.S. Fish and Wildlife Service to
designate the Refuge's boundaries, and to use its legal
authorities to acquire land within those boundaries. The Act
also established a Conte Refuge Advisory Committee and
authorized construction of up to four Refuge education centers.
The Service approved the Final Environmental Impact
Statement (FEIS) on the establishment and operation of the
Conte Refuge in December, 1995. The plan adopted in the FEIS
proposes that the Service or its partners protect 78,395 acres
of habitat in Connecticut, Massachusetts, New Hampshire, and
Vermont over the next 15 years. This plan attempts to protect
the important habitat areas along the entire length of the
Connecticut River.
Due to budgetary constraints, the Service recognizes that
it lacks the funds to purchase all this property. Therefore,
the agency intends to cost-share acquisitions with State and
local conservation agencies and land trusts. The Service plans
to accomplish this goal not only through direct acquisition,
but also through less expensive means such as conservation
easements, the acquisition of development rights, donations, or
purchases that generate tax benefits for the seller. The
Service also intends to conduct habitat restoration, research
and monitoring, and environmental education in the Connecticut
River basin.
There are several mechanisms by which lands are placed in
the Refuge System: (1) withdrawal from the public domain by
Executive Order or public land order; (2) purchase or lease of
fees or easements using authorities granted in several statutes
(e.g. Migratory Bird Conservation Act, Refuge Recreation Act,
Endangered Species Act, Fish and Wildlife Act, North American
Wetlands Conservation Act); (3) establishment by Acts of
Congress; (4) donations to the Federal Government; (5)
cooperative agreement with, or transfer from, other government
agencies; and (6) exchanges between private parties, corporate
landowners, or other government agencies and the Service. The
primary sources of funding for refuge acquisitions are annual
appropriations from the Land and Water Conservation Fund and
the Migratory Bird Conservation Fund (which is funded from the
purchase of annual duck stamps and refuge entrance fees).
The Fish and Wildlife Service, like other Federal, State
and local governments, has the power of eminent domain. Eminent
domain is the power of the State to take private property for
public use. Federal eminent domain power is derived from the
5th Amendment to the Constitution, which states that ``private
property may [not] be taken for public use, without just
compensation''. However, it is the Service's policy to acquire
lands only from willing sellers. The Service will use
condemnation only to:
Determine the legal owner (clear title);
Settle a difference of opinion on value; and
Prevent uses which would cause irreparable damage to
resources which the refuge was established to protect.
In the last ten years, less than 2 percent of the Service's
acquisitions nationwide were acquired through the use of
eminent domain. Since 1989, all condemnation actions have been
to clear title or determine value. These are so called
``friendly'' condemnations in which the action is taken with
the consent of the landowner.
Whatever the means used by the Service to acquire property,
the agency is required by law to pay fair market value as
determined by an appraisal which conforms to uniform Federal
appraisal guidelines for land acquisition.
The Silvio O. Conte National Fish and Wildlife Refuge
Eminent Domain Prevention Act of 1996 directs the Secretary to
acquire lands for the Refuge only when such an acquisition is
accomplished with the consent of the landowner. Under this bill
friendly condemnations could be carried out to determine the
value of the property or to clear title so long as the
landowner consents to the action. These are the two primary
situations in which the Service condemns property.
Committee Action
H.R. 2909 was introduced on January 31, 1996, by
Congressman Charles F. Bass (R-NH). The bill has been
cosponsored by Congressmen William H. Zeliff, Jr. (R-NH) and
Bernard Sanders (I-VT). The bill was referred to the Committee
on Resources, and within the Committee to the Subcommittee on
Fisheries, Wildlife and Oceans.
On March 27, 1996, the Subcommittee held a hearing on H.R.
2909. Congressman Bass testified in favor of the legislation
and indicated in his statement that the measure had been
endorsed by the Appalachian Mountain Club, the New Hampshire
Farm Bureau, the New Hampshire Timberland Owners Association
and the Society for the Protection of New Hampshire Forests.
The Administration testified in opposition to the bill.
Furthermore, Congressman Sam Gejdenson (D-CT) submitted a
letter in strong opposition to H.R. 2909 and he stated that
``it is unnecessary to prohibit the Service from exercising
eminent domain under any circumstances''.
On April 18, 1996, the Subcommittee met to markup H.R.
2909. The bill was ordered favorably reported by voice vote to
the Full Committee without amendment. On May 8, 1996, the
Committee on Resources met to consider H.R. 2909. There were no
amendments, and the Committee ordered the bill favorably
reported to the House of Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short Title
This Act may be cited as the ``Silvio O. Conte National
Fish and Wildlife Refuge Eminent Domain Prevention Act.''
Section 2. Restriction on Method of Acquisition of Lands for Purposes
of the Silvio O. Conte National Fish and Wildlife Refuge Act
This section states that the Secretary of the Interior may
acquire lands for the Silvio O. Conte National Fish and
Wildlife Refuge only by donation or exchange, or otherwise with
the consent of the owner of the lands.
Committee Oversight Findings and Recommendations
With respect to the requirements of clause 2(l)(3) of Rule
XI of the Rules of the House of Representatives, and clause
2(b)(1) of Rule X of the Rules of the House of Representatives,
the Committee on Resources' oversight findings and
recommendations are reflected in the body of this report.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of Rule XI of the Rules of the
House of Representatives, the Committee estimates that the
enactment of H.R. 2909 will have no significant inflationary
impact on prices and costs in the operation of the national
economy.
Cost of the Legislation
Clause 7(a) of Rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 2909. However, clause 7(d) of that Rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
Compliance With House Rule XI
1. With respect to the requirement of clause 2(l)(3)(B) of
Rule XI of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, H.R.
2909 does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
2. With respect to the requirement of clause 2(l)(3)(D) of
Rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 2909.
3. With respect to the requirement of clause 2(l)(3)(C) of
Rule XI of the Rules of the House of Representatives and
section 403 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R.
2909 from the Director of the Congressional Budget Office.
Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 14, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 2909, the Silvio O. Conte National Fish and
Wildlife Refuge Eminent Domain Prevention Act, as ordered
reported by the House Committee on Resources on May 8, 1996. We
estimate that enactment of this bill would have no impact on
the federal budget. H.R. 2909 would not affect direct spending
or receipts; therefore, pay-as-you-go procedures would not
apply.
H.R. 2909 would amend Public Law 102-212, the Silvio O.
Conte National Fish and Wildlife Refuge Act, to specify that
land for the refuge may only be acquired with the consent of
the landowner. This provision would have no impact on estimated
land acquisition costs for this site.
H.R. 2909 contains no private sector or intergovernmental
mandates as defined in Public Law 104-4 and would have no
effect on the budgets of state, local, or tribal governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
June E. O'Neill, Director.
Compliance With Public Law 104-4
H.R. 2909 contains no unfunded mandates.
Departmental Reports
The Committee received a unfavorable report on H.R. 2909
from the Department of Interior on April 24, 1996. No other
reports have been received on H.R. 2909.
Department of the Interior,
Office of the Secretary,
Washington, DC, April 24, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Young: This responds to your request for the views
of this Department with respect to H.R. 2909, the ``Silvio
Conte National Fish and Wildlife Refuge Eminent Domain Prevent
Act''.
The Administration is strongly opposed to enactment of H.R.
2909.
The bill would amend section 106 of the Silvio Conte
National Fish and Wildlife Refuge Act (Public Law 102-212; 16
U.S.C. 668dd note) to provide that lands may be acquired for
this refuge only by donation or exchange, or otherwise with the
consent of the owner.
Since 1989, the Fish and Wildlife Service has not used
condemnation without the consent of the owner, and does not
intend to use it for this unique refuge. This restriction on
our ability to protect the public's resources is not warranted.
The Conte refuge, in the States of Connecticut,
Massachusetts, New Hampshire and Vermont, was the concept of
the late Congressman Silvio Conte. It was enacted in 1991 by
large bipartisan majorities in both Houses, and represents an
entirely new kind of national wildlife refuge.
Rather than the traditional acquisition of large tracts of
land for a refuge, the intent was to have only small areas come
into Federal ownership. The main emphasis was to be on
maintaining and improving upon the progress that had been made
in restoring the Connecticut River watershed through
partnerships, conservation easements, cooperative agreements,
and environmental education, with the Fish and Wildlife Service
providing technical expertise and serving as the catalyst for
the effort.
The plan for the Conte refuge through the year 2010 is
found in the final Environmental Impact Statement and Record of
Decision, signed December 13, 1995. This plan, developed after
extensive public involvement in all four states, is faithful to
the intent of the legislation. Out of an area of over 7,000,000
acres in the four States, a total of only 6,500 acres is
planned for fee title acquisition by the Fish and Wildlife
Service, to protect threatened, endangered and locally rate
species and habitats.
In southern New Hampshire and Vermont, a total of only 600
acres are likely to be purchased. In northern New Hampshire and
Vermont, an additional 600 acres would likely be acquired.
Conservation easements would be sought for an additional 450
acres in the southern parts of the two states, and an
additional 310 acres in the northern parts.
1,065 acres would likely be purchased in Connecticut, and
4,265 acres in Massachusetts, with an additional 200 acres and
460 acres, respectively, covered by conservation easements.
The Service would also seek voluntary, cooperative
agreements with landowners for an additional 18,300 acres in
the four States to help protect fish and wildlife resources.
Our Existing Partners for Wildlife program and Challenge Cost-
Share grants would contribute to this aspect of the refuge
program.
Any effort to expand upon the scope of these elements, or
to otherwise alter them significantly, would require a new or
supplemental EIS, with extensive opportunities for public
involvement. Funds for the Partners for Wildlife and Challenge
Cost Share grants, and for land acquisition under the Land and
Water Conservation Fund, are available only through the
Department of Interior Appropriations Act. In short, there is
no means whereby any element of the project can significantly
change without public involvement, no proceed without
appropriations, and, realistically, with the support of the
Members representing the affected area.
No condemnation is planned for any aspect of this project.
The Fish and Wildlife Service's policy and history is to rely
on willing sellers for land acquisition, reserving condemnation
for rare instances of an imminent threat to public resources
that cannot be otherwise resolved.
In the last ten years, for example, only 15,773 acres were
condemned, from 4 owners, or less than 1/10th of 1% of the
1,473,214 acres we have purchased from 6,038 owners. Since 1989
we have had no condemnations except with the consent of the
owner, to settle price differences or clear titles. (Those
cases are not included in these figures). We have provided the
Committee staff with a paper explaining our policy which also
contains these numbers in more detail.
In addition, our policy requires that before engaging in a
``declaration of taking'', which is the usual form of
condemnation without the consent of the owner, we consult with
the authorizing and Appropriations Committees, and with the
Member representing the area in question. It is not an action
we undertake lightly.
Despite the rarity of such condemnation, however, the
Administration is not willing to forego this authority at the
Conte Refuge, as a means of last resort to protect the
resources there, nor to agree to the precedent that would be
set if H.R. 2909 were enacted. We would then anticipate
subsequent efforts to void condemnation authority generally for
the National Wildlife Refuge System.
Neither the plans for the Conte Refuge nor the track record
of the Fish and Wildlife Service warrant this restriction. We
urge the Subcommittee not to take further action on H.R. 2909.
The Office of Management and Budget advises that there is
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Robert P. Davison,
Deputy Assistant Secretary for
Fish and Wildlife and Parks.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
SECTION 106 OF THE SILVIO O. CONTE NATIONAL FISH AND WILDLIFE REFUGE
ACT
SEC. 6. ACQUISITION AND ESTABLISHMENT OF REFUGE.
(a) * * *
* * * * * * *
(e) Restriction on Method of Acquisition.--The Secretary
may acquire lands for purposes of this title only by donation
or exchange, or otherwise with the consent of the owner of the
lands.
DISSENTING VIEWS OF HON. GEORGE MILLER, HON. GERRY E. STUDDS, HON.
MAURICE HINCHEY, HON. PATRICK KENNEDY, HON. SAM GEJDENSON, HON. NEIL
ABERCROMBIE, HON. EDWARD MARKEY, AND HON. FRANK PALLONE
The Silvio O. Conte Refuge was the concept of our late
friend and colleague Silvio Conte and represents an entirely
new kind of national wildlife refuge. It will eventually
protect a total of 78,395 acres using a combination of
conservation easements, cooperative agreements, and cost-
sharing partnerships. of this total acreage, a maximum of 6,500
acres would be owned by the Federal Government, all of it
acquired from willing sellers. This cooperative, innovate, and
cost-effective approach to protecting valuable wildlife habitat
is in sharp contrast with the punitive nature of H.R. 2909. We
believe that if Silvio Conte were alive today, he would join us
in opposing this legislation.
H.R. 2909 is unnecessary because, as stated in the Final
Environmental Impact Statement and Action Plan for the Conte
Refuge, the Fish and Wildlife Service does not plan to acquire
refuge lands from non-willing sellers using eminent domain. In
addition, the Service has in the past used its eminent domain
authority sparingly and responsibly. From 1965 through 1995,
the FWS purchased nearly 4 million acres of land for wildlife
habitat. During this period, the power of eminent domain was
only used to acquire 34,975 acres--less than one percent of
land acquisitions. Moreover, the Service has not used
involuntary condemnation at all since 1989.
Extensive checks and balances exist to ensure that the
Service does not use this authority carelessly on the rare
occasions when it is used. Land acquisition funds are
appropriated annually from the Land and Water Conservation Fund
with full Congressional oversight. Fish and Wildlife Service
regulations require consultation with the Appropriations
Committee prior to using funds for eminent domain
condemnations. Lastly, the Service always consults Members
whose districts are affected by land acquisitions. If property
is ultimately acquired through eminent domain, the property
owner is paid fair market value based on an independent
appraisal.
Beyond the parochial concerns driving this legislation,
H.R. 2909 has wide reaching implications for future refuges and
the entire National Wildlife Refuge System. While it is true
that the FWS has occasionally been barred in the past from
using eminent domain, these cases involved either refuges
within restricted geographic areas or much more massive
acquisitions. In the case of the Conte Refuge, the Service
plans to acquire only 6,500 acres spread over the States of New
Hampshire, Vermont, Massachusetts, and Connecticut.
H.R. 2909 also raises the general issue of effective
protection of the public's interest. The Fish and Wildlife
Service is entrusted with the power of eminent domain to
acquire lands for the greater public good. Although eminent
domain authority is a tool of last resort for the Service,
without it there is ultimately no way to protect land already
purchased with taxpayer dollars from adjacent harmful
development or to prevent the destruction of critically
important wildlife habitat. If we deny the Service this tool,
we make it much more difficult for the Service to effectively
protect the public interest in habitat conservation.
Furthermore, this bill exclusively ties the hands of the
Federal Government in protecting the public interest in fish,
game, and wildlife, habitat. We are not aware of any attempts
to restrict eminent domain authority when it is applied to
highways, dams, or other public works projects in New England.
In establishing a differential standard for application of the
power of eminent domain, H.R. 2909 relegates wildlife habitat
protection to second-class status. That is wrong.
Given the land acquisition plans for the Conte Refuge, the
land acquisition history of the Service, and the provision for
public input and Congressional oversight in the rare event of a
condemnation, a legislative solution is not warranted. This
bill would undoubtedly set contemporary precedent for
prohibiting condemnation by the Fish and Wildlife Service or
other bureaus of the Department of the Interior. We oppose this
bill as does the Department of the Interior.
George Miller,
Senior Democratic Member,
Committee on Resources.
Gerry E. Studds,
Senior Democratic Member,
Subcommittee on
Fisheries, Wildlife and
Oceans.
Maurice D. Hinchey.
Sam Gejdenson.
Edward J. Markey.
Patrick J. Kennedy.
Neil Abercrombie.
Frank Pallone, Jr.