Published in Cornerstone, January 2005

ESA Reality Check: Efforts Made to “Hush” Private Property Positions

By Fred Kelly Grant

“There will be no comprehensive reformation of the Endangered Species Act” in the next Congress. That was the warning issued by Rep. Richard Pombo (R-Cal.) to the National Endangered Species Act Reform Coalition Forum, just days after the November election. Speaking to a national meeting of the Coalition in Washington, D.C., the Chairman of the powerful House Resources Committee said that a reform bill of any magnitude is not “doable.”

For decades, private property advocates have sought Congressional action that would repeal or fail to reauthorize the ESA. The ESA has become the single most effective weapon of those who favor the “common good” over private property rights. Its provisions have been used to stifle the free exercise of property rights, under the guise of preserving and restoring species. Militant environmentalists have relied upon the Act’s murky language as a basis for restricting and eliminating property rights.

Many have believed that relief would be possible, if and when, both houses of Congress had a Republican majority. In the recent past, two national groups have emerged to lead the attempts at major change to the Act. The National Endangered Species Act Reform Coalition includes representatives from national organizations on water resource, electric, power, energy, agriculture, as well as government representatives. This group has exerted efforts to “achieving improvements to the Endangered Species Act.” The other group, the National Grassroots ESA Coalition, is made up of individuals and organizations specifically focused on the protection of private property rights. Their primary goal is to repeal the ESA or stop efforts to reauthorize the Act.

Beltway Thinking
Pombo, who’s Committee will have to review any and all attempts to repeal or reform the Act, advised the Reform Coalition to get behind his efforts to pass two “fixes:” revision of critical habitat provisions and assurance of sound science.

Those who seek repeal or lack of reauthorization were clearly disappointed with the message. They wanted to hear that major changes could result from the November elections---sweeping reform, specific private property protection through compensation, perhaps even refusal to reauthorize the Act. Rep. Pombo pointed out that he has been in the House for twelve years and has tried repeatedly and unsuccessfully to bring about major reforms in the Act. Stating that he had grown tired of the unsuccessful efforts, he was focusing on fixing what he believed could be fixed. He believes that in the next Congress, with the increased votes in the Senate, it will be possible to gain passage of the critical habitat “fix” and the sound science “fix.”

He offered no encouragement to private property supporters who want to see an adequate compensation provision passed, specifically for private property “taken” under the ESA. In fact, he warned that unless they get on the “same page” with those who seek limited reform, the “one shot” at reform will be lost. To those supporters, he said “if you don’t want to be a member of the team,” then “take your shot and move on,” but warned that if the reform efforts are split, the “one shot” will be lost.

The “one shot” to which he referred is a Congress in which Republicans have control of the House and enough votes in the Senate to move moderate bills. With passage of the two proposed bills, followed by an “aggressive” administration, Pombo predicted much headway could be gained for protection of private property.

As to “adequate compensation” provisions, however, he said the only way to achieve success was to link property rights protection to those who enter into voluntary incentive species “recovery” programs. He also encourages pursuit of provisions strengthening the role of local and state governments in the ESA recovery programs, believing that private property rights can better be protected at the local and state levels than at the federal.

“I know in my heart,” Pombo acknowledged, that specific private property protection agendas are right, but they are not “doable” in a Congress where one Senator can put a hold on any reform bill. Stating his optimism that with Senator Crapo’s leadership, the critical habitat and sound science reforms can be passed, he said that “grassroots will drive” the bills, and “if the grassroots aren’t there, we’re dead.”

It was clearly not the message that many in the group wanted to hear. They warned that reform efforts would never fully achieve what is sought. The critical habitat and sound science “fixes” will end up compromised in their terms and will achieve less than what the sponsors want. They contend that if there is to be compromise, let it be compromise of a strong beginning: failure to reauthorize, or repeal for example.

But, the Pombo message was unmistakably clear: the ESA will continue in existence, and private property supporters who don’t agree with the “fix” approach better get out of the Representative’s way. With this approach, except for some limited changes, the ESA will continue to be an effective tool for those opposed to the natural resource industry: grazing, logging, mining, energy exploration, and all agricultural pursuits.

Senator Mike Crapo (R-Idaho) followed Pombo to the podium and sounded the same notes of warning. He stated firmly that a comprehensive reform bill would not pass the Senate, but that individual bills related to firm and documented problems regarding critical habitat and sound science would have a chance. Pointing out that in the Senate where there is no effective way to limit amendments, where one Senator can hold a bill, where Senators can filibuster until 60 votes of cloture are available, it is not enough to simply achieve a majority of votes one time as in the House. To move a bill through the Senate, the leadership has to be able to muster 60 votes as many times as it takes to avoid the procedural delays.

The Senator agreed with Pombo that the language of the debate had to change in order to get affirmative relief in this Congress. Property supporters must begin to talk in terms of “conservation” and “recovery” of the species and their habitats, instead of emphasizing the economic tragedy suffered by property owners from application of the ESA. Both members of Congress emphasized that the old terms of debate have not been successful, and now the “grassroots pressure” must turn to “conservation,” “recovery” and the types of reform necessary to achieve those objectives. By linking critical habitat and sound science reforms to those objectives, and to voluntary incentives related to those objectives, they believe some relief is possible. But, both warn that the necessary votes will be achieved only if the “grassroots pressure” is ever present, and that if the grassroots support is split, reform will not occur.

Craig Manson, Assistant Secretary in U.S. Fish and Wildlife, outlined for the Forum those efforts currently underway by the Administration to re-focus the agency from listing of species to recovery of species. The object is to remove the emphasis from contentious listing processes and encourage voluntary incentive programs, which allow landowners to provide for recovery of habitat and species. The goal of the agency, he said, is to “accomplish conservation without regulatory restrictions.” But, as most private property advocates understand, the goal of those at the top in this administration is not shared by multitudes of agency personnel put in place during the prior administration.

Representative Pombo acknowledged that even with passage of the two “fixes,” success for private property owners would be accomplished only if the administration is “aggressive” in moving toward protection. The message made it clear that the Grassroots Coalition, which meets in D.C. in January, will have its hands full in the next Congress. If relief is to be gained, it may have to come at the local and state government levels, not through Congress. In the meantime, any bill that addresses reform must be carefully reviewed and followed. The Grassroots organizations must be sure that the reform efforts don’t hide further compromises of private property interests.

Call for “Hush” Noted
Stewards will be keeping a close eye on the “fixes,” and if they move us a step closer to improved protection for property rights and regulatory relief for landowners, even at a snails pace, we will let our members know. However, we respectfully disagree with Representative Pombo and Senator Crapo, that the grassroots must tone down the rhetoric and advocacy for property rights in order to achieve these small fixes.

We understand compromise is often the road taken by our elected representatives in order to move the ball ever so slightly in their direction. Infusing the halls of Congress with reminders of principle and what is right, is therefore left to us. Never have we successfully won a battle by backing down from what we believe. Neither have our opponents.
If hearing the words “property rights” instead of “conservation and recovery” offends some of Pombo and Crapo’s colleagues, then so be it. Frankly, the stealing of American’s land, which is all the ESA has accomplished, offends us at Stewards.
The advice given, to “hush” mention of property rights as efforts to reauthorize the Endangered Species Act are put into motion, have been noted.

Permission to reprint is granted in whole or in part with attribution
to Stewards of the Range. Copyright 2005

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