AFF Sentinel Vol.2, #49

Recently, we have examined the U.S. Supreme Court's treatment of the Fifth Amendment, the one that supposedly protects landowners from the government taking private property, except for "public use" and with compensation.

But while the nation has focused its attention on the Supreme Court, some progress has been made on a law that has made the taking of private property for public use for no compensation legal for over 30 years. That is the Endangered Species Act (ESA).

When the primary vehicle for ESA reform, HR 3824, passed the House recently, passage was not what surprised House Resources Committee Chairman Richard Pombo (R-CA).

"...what surprised me most today was the strong ideological differences about whether or not homeowners should be compensated when their property is taken, as the Fifth Amendment of the Constitution requires," Pombo said.

That ideological rift bodes difficulties ahead in the Senate, that legislative body most divorced from reality and taxpayers. Will the Senate really fail to see the injustice of landowners' property being taken without compensation for the sake of an insect or a slug or an owl? For 30 years, Congress has seen no reason to change the ESA. Property rights, jobs, destroyed communities and industries and millions of lost dollars have not moved them to action.

Finally the House has gotten off the dime, but the relevant Senate committee chairman appears to be in no hurry.

If asked, most cattlemen would reflexively answer that the ESA needs to be abolished - but reform would be the next best thing. Pombo is realistic enough to know reform is the only viable option. So what does Pombo's bill do?

• It would require independent, peer reviewed science to reach decisions, instead of the pseudo- science often accepted by the agency now
• Requires that a complete recovery plan for a species, with specific measure goals be agreed upon before a species can be put on the endangered list. Vast preemptive habitat designations to freeze property use with no real plans for species recovery would end.
• Would provide for incentives to landowners to help protect and recover species. It would provide not only compensation for loss of use or value of the property, but also cooperative agreements between owner and government to implement recovery plans, with grants to cover costs to the owner.
• Would involve state and local governments more in listing and recovery procedures rather than the federal, top-down decision making and cost and manpower shortages foisted on state and local governments now.
• Streamline regulatory processes, reduce the flood of litigation and replace listing as a goal with recovery.

A Wall Street Journal editorial (July 1, 2005) noted that of the 10 "successes" the ESA claims, six were subject to erroneous original data to get on the list to begin with. For example, Johnston's frankenia was listed because only 1,500 specimens remained. Except for the nine million others since found.

Then there is the Preble's meadow jumping mouse. We know personally a family that could not develop a commercial portion of land they owned nor repair a 50-foot-wide swath of creek bank damaged by a 100-year flood because their land had been declared possible mouse habitat. For the first couple years after the declaration, property owners could not get permission to do anything because no one would admit to being in charge. The feds started it, turned on the state, who were trying to pass it on to the county, who didn't want the mess. In the meantime, people couldn't sell their land, including elderly people needing it for retirement funds. Incredibly, homeowners were even told not to let their cats out of the house... because... of the mouse... and you know what cats...do to mice.

Major highway projects, subdivision development, home sales - everything was frozen or devalued because of the mouse. After several years and millions of dollars in government spending and delays for projects, it was proven the mouse should never have been listed. There are scads of them and their closely related brethren.

This is an example of the outrages that have brought urban property owners into the fold of ESA reformers and provided allies for farmers and ranchers. As our friend said, when the ESA was passed, people thought they were saving pandas and giraffes and tigers. They never expected hundreds of insects or meadow mice to wreck their homes and investment plans or cost millions for ordinary citizens.

"The ESA hasn't failed because it isn't strong enough. It has failed because it has the incentives all wrong, " David Ridenour said. He is vice president of the National Center for Public Policy Research. He notes that private landowners have learned to fear the ESA. If they harbor endangered species on their land or own land that someone deems suitable habitat for endangered species, severe land-use restrictions can be forced upon them. The liberal interpretation of the law has evolved to include not only possible habitat but historical range. Whether the species in question has ever or recently been there is deemed irrelevant.

The quiet advice from veterans of ESA blood baths to landowners has been to save themselves lots of trouble if they spot endangered species on their land. The advice requires the application of a .30-.30 or a 12-gauge.

Ridenour uses cleaned-up bureaucratic terminology and points out the idiocy of the law as written.

"To avoid such restrictions and the losses in property values that accompany them, many have been forced to preemptively sterilize their land to keep rare species away. Such preemptive sterilization benefits no one - least of all the species the ESA was meant to protect."

Next time: How Does the Battle Shape Up?

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