SPEAKERS CONTENTS INSERTS
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56–932 l
1999
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
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or
Committee address: http://www.house.gov/resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
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RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
GREG WALDEN, Oregon
DON SHERWOOD, Pennsylvania
ROBIN HAYES, North Carolina
MIKE SIMPSON, Idaho
THOMAS G. TANCREDO, Colorado
GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
ROBERT A. UNDERWOOD, Guam
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
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WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
GRACE F. NAPOLITANO, California
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York
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
Hearing held April 14, 1999
Statement of Members:
Thomas, Hon. William M., a Representative in Congress from the State of California
Prepared statement of
Miller, Hon. George, a Representative in Congress from the State of California, prepared statement of
Young, Hon. Don, a Representative in Congress from the State of Alaska
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Prepared statement of
Statement of Witnesses:
Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife Service, U.S. Department of the Interior, Washington, DC
Prepared statement of
DeGennaro, Ralph, Executive Director, Taxpayers for Common Sense, Washington, DC
Prepared statement of
Gordon, Robert E., Jr., National Wilderness Institute and Grassroots ESA Coalition, Washington, DC
Prepared statement of
Heissenbuttel, John, Vice President, Forestry and Wood Products, American Forest and Paper Association, Washington, DC
Prepared statement of
Loop, Carl B., Jr., Vice President, American Farm Bureau Federation, Washington, DC
Prepared statement of
Marzulla, Nancie G., Defenders of Property Rights, Washington, DC
Prepared statement of
Shimberg, Steven J., Vice President for Public and International Affairs, National Wildlife Federation, Washington, DC
Prepared statement of
Smith, Bruce, Vice President, National Association of Home Builders, Washington, DC
Prepared statement of
Whitman, Richard M., Attorney-in-Charge, Natural Resources Section, Oregon Department of Justice, Salem, Oregon
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Prepared statement of
Additional material supplied:
Text of H.R. 1142
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.
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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.
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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
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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.
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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.
INSERT OFFSET FOLIOS 1 TO 11 HERE
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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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——
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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.
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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.
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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.
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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.
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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——
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.''
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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.
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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.''
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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:
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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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. Providing 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.
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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).
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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.
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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.
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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 discr