Congress

Environment: Species Argument

Counting species may become the pretext for another federal land grab.

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Last July, several farmers in the San Joaquin Valley received disturbing letters from the Interior Department's Bureau of Reclamation. The letters informed them that the bureau intended to look for endangered species on their land and asked permission for inspectors to enter the property. Denying permission wasn't really an option, however. If the land owners refused to participate voluntarily, the letter warned, "uncultivated parcels will likely be labeled as habitat if absence of species cannot be confirmed by inspection."

The letter set off a panic, says Carol Richardson, an attorney for the California Farm Bureau. Farmers had reason to fear even the suggestion that their land might be designated endangered-species habitat—with or without an inspection. Declaring land habitat imposes strict use controls. When, for example, the U.S. Fish and Wildlife Service had designated a habitat-study zone in the area, Richardson says, one family lost $60,000 worth of production a year. The "arbitrary, very large" zone is off limits to crops, which means the family can't replant in the area.

Other penalties are more subtle but no less devastating. "We have had banks refuse to make loans to buy properties because of fear they won't be able to plant," Richardson says. If Interior agencies continue the property-owner-as-the-enemy approach, she says, "we'll fight it to the ditches here."

That last-ditch attitude recently won a small victory that may presage more important ones later this year. As environmentalists seek to extend government control of private land in the name of habitat protection, they may have overreached. Landowners are organizing, and they are winning unlikely allies.

The San Joaquin Valley farmers, for instance, won the support of Rep. Richard Lehman (D-Calif.), a regular backer of environmental causes. He joined 174 other members of Congress in voting against funding for the National Biological Survey, a new agency that Interior Secretary Bruce Babbitt has called his "top priority." Lehman worries that the NBS will perpetuate, if not worsen, the confrontational stance Interior has taken toward farmers. Threatening habitat designation to win inspection rights "is no way to foster positive relations between the federal government and private landowners," he observes.

The idea of the NBS is straightforward enough. Rep. Gerry Studds (D-Mass.), one of the agency's chief congressional sponsors, says the NBS has "a simple, yet awesome mission—catalog everything that walks, crawls, swims, or flies around this country." To do this, NBS agents must enter every parcel of land in the country. And, unlike the U.S. census, the NBS won't fan out just every decade; its mission has no downtime. Although supporters note that a complete count could prove that some species are not endangered after all, landowners fear that the net effect will be to transfer de-facto control of thousands of more acres to the federal government.

Although funding for the NBS won House approval, the new agency did not get the carte blanche it expected. Members of Congress, responding to grass-roots fears, appended several amendments restricting NBS activities to the original bill. Rep. Billy Tauzin (D-La.) won approval (217-212) of a rider forbidding the use of "volunteers" from activist groups in conducting the survey. And Reps. Charles Taylor (R-N.C.), Richard Pombo (R-Calif.), and Gary Condit (D.-Calif.) sponsored an amendment requiring written consent from landowners before NBS agents can enter private property. The Taylor Amendment, as it came to be called, passed by an overwhelming 309-115 vote.

Babbitt also shelved an attempt to shield the NBS from the Freedom of Information Act. The secretary's concern was, and still is, that if NBS surveys are released property owners could go out and kill species whose presence would trigger land-use restrictions. In the western United States, this is known as the "shoot-shovel-and-shut-up" response to animals the feds have taken an interest in.

Even with its various amendments, the NBS funding proposal is unlikely to pass muster in the Senate, where it will meet strong resistance from big-state senators with heavy land-use constituencies. Myron Ebell of the National Inholders Association, a property-rights group opposed to the NBS, says that the chances for passage are so slim that Babbitt's supporters might not even present the bill for a vote. The Wall Street Journal raises the possibility of a filibuster.

Babbitt doesn't need congressional permission to create the NBS, only to fund it fully. The new agency is essentially a reorganization of the research and survey duties of the three Interior bureaus (the U.S. Fish and Wildlife Service, the National Park Service, and the Bureau of Land Management) most concerned with tracking species, as well as lesser contributions from five other bureaus.

Without new funding, however, the NBS must scale back its original mission from a complete inventory. A spokeswoman for the NBS Implementation Task Force says the survey's "focus will be on sensitive areas." An NBS press release discusses "expanding research on Everglades National Park to provide an ecosystem perspective on the forces causing severe ecological problems facing the Everglades" as an example of a project to be included under the NBS.

Legally, NBS agents will have to obey state and local laws regarding trespass. But this has little meaning if, like the Bureau of Reclamation, officials plan to count the land as endangered habitats (with attendant land-use restrictions) unless they receive permission to inspect. Similarly, claims that the NBS will be "an independent, non-regulatory source of information about the nation's biological resources" are tough to swallow, since, according to an NBS fact sheet released by the Department of the Interior, "the organization structure and culture of NBS are, from the start, designed to maximize responsiveness to Interior decision-makers."

Many participants in the NBS debate see it as a preliminary bout before the environmental title fight of 1994: reauthorization of the Endangered Species Act, originally passed in 1973. Environmental groups view the act as landmark legislation that has done much to protect species on public lands. Their goal now is to improve that record on private lands, which the National Heritage Data Center estimates provides a home for fully half of the 728 species currently listed as endangered.

To do that, one strategy would be to use the NBS to count everything and then to impose strict land-use limitations to protect newly identified habitat. Babbitt's interest in anticipating and preventing what he calls "environmental train wrecks" and his stressing "ecosystem management" seem consistent with such an approach.

Such extensions look less likely in the wake of the NBS debate. Even Sen. Mark Hatfield (R-Ore.), one of the authors of the original act, has said it "is being applied far beyond the scope of what any of us who helped adopt it intended." Says Jim Streeter of the National Wilderness Institute, "Advocates want no change in ESA, but now their confidence in doing that is [weak] and there's a chance to make ESA more flexible."

Nancie Marzulla, chief counsel for and president of the Defenders of Property Rights, says the NBS amendments indicate that "the message has gotten out that there are legitimate property-rights concerns." Even though the anti-NBS vote came up short, it may count for more in the future.

Jeff A. Taylor is a national political reporter with Evans & Novak.