[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.

                                
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