Copyright 1999 Federal News Service, Inc.
Federal News Service
APRIL 14, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
6280 words
HEADLINE: PREPARED STATEMENT OF
STEVEN
J. SHIMBERG
VICE PRESIDENT
OFFICE OF FEDERAL AND INTERNATIONAL AFFAIRS
NATIONAL WILDLIFE FEDERATION
BEFORE THE HOUSE RESOURCES
COMMITTEE
SUBJECT - H.R. 1142,
"THE LANDOWNERS EQUAL TREATMENT ACT OF
1999"
BODY:
Mr. Chairman, and Members of the
Resources Committee, thank you for this opportunity to testify before you. My
name is Steven J. Shimberg; I am here on behalf of the National Wildlife
Federation (NWF), the Nation's largest conservation advocacy and education
organization, with over 4 million members and supporters, 46 state affiliates
and 10 field offices.
My testimony outlines some of the threats to private
property, p public resources, and endangered species posed by this Endangered
Species Act (ESA) "takings" bill, H.R. 1142, the "Landowners Equal Treatment Act
of 1999." Unfortunately, instead of proposing meaningful improvements in the
Nation's landmark 25 year old safety net for species, this bill essentially
would result in a back-door, indirect repeal of the ESA's application to private
property. The American people have made it clear, over and over again, that they
support the ESA. The ESA plays a unique, invaluable role in preserving our
biological heritage for our children and grandchildren to enjoy. It also
protects the biological storehouse that provides current and potential cures for
cancer, benefits to crops, scientific, aesthetic, and other values.
As NWF
has repeatedly advocated, the ESA can and should be improved with the targeted,
common sense amendments discussed below to make the Act more effective at
working with private landowners. This bill, however, is a shotgun blast that
would cripple the ESA and the irreplaceable fish, wildlife and plant species
that depend upon it.
NWF strongly supports the Fifth Amendment's balanced
protection of private property. If a court determines that a government limit on
the use and value of private property goes so far as to be a taking of private
property for public use, just compensation must be paid.
In over 25 years,
however, courts have only decided four ESA "takings" cases on the merits, all of
which have found that the ESA did not take private property.
NWF strongly
opposes H.R. 1142 and other "takings" bills because they threaten a wide range
of protections of private property, people, and public resources which do not
take private property rights. As discussed below, this and other takings bills
would delay, block, or be so prohibitively expensive as to force the government
to stop implementing (in effect, repealing) these protections. A comprehensive
discussion of the major points raised in this testimony regarding takings bills
is contained in the article by NWF Senior Counsel Glenn P. Sugameli, Takings
Bills Threaten Private Property, People, and the Environment, 8 FORDHAM ENVTL.
L.J. 521 (199798), a copy of which is submitted as an attachment for the
Committee's record.Since 1990, NWF and our state affiliates have been in the
forefront of the broad coalition to protect the property rights of all people by
opposing state and federal takings bills that elevate the interests of a few
over the rights of all. NWF and others who oppose takings bills and support the
Constitution's balanced approach are the genuine private property protection
movement.
As explained in detail below, this bill should be rejected
because:
- it would create radical, sweeping, new rights to extinguish
species by giving private property owners the right to wipe out every acre of a
species' habitat;
- it would result in the extermination of species by
imposing unworkable notification requirements that would needlessly block and
delay a wide variety of emergency and other actions that are essential to save
species;
- it would require windfall payments from taxpayers to
corporations, developers and individuals whose property has not been taken,
according to every member of the Supreme Court;
- these windfall payments
would create a precedent that would bust the budget and would create perverse
incentives by rewarding proposals to apply for unrealistic development permits
in especially sensitive habitat in order to receive payments;
- it
unjustifiably singles out the ESA-- in over 25 years, courts have only decided
four ESA "takings" cases on the merits, all of which have found that the ESA did
not take private property-- this reflects the ESA's flexibility, which routinely
allows economic activities in and around endangered species habitats to go
forward;
- it would chill enforcement of the ESA by requiring that windfall
payments be made from the annual appropriation of the agency that took mandatory
or discretionary action to save a species. This would unjustifiably pressure
agency employees to protect their jobs and programs by always erring on the side
of not protecting endangered species;
- the only times that the issue has
been presented directly to voters in statewide referenda or initiatives, voters
have overwhelmingly rejected takings bills;
- widespread opposition to
takings bills includes the National Governors Association, National Conference
of State Legislatures, National League of Cities, U.S. Conference of Mayors, and
other state and local government organizations that have approved resolutions
opposing takings payment bills; and a wide range of national religious
denominations, labor, taxpayer, conservation and other organizations; and
-
there is a better way-- common sense amendments to make the ESA work better for
landowners and wildlife and funding to prevent species from becoming endangered.
CREATING NEW RIGHTS TO EXTINGUISH SPECIES
Under H.R. 1142, unless we pay
companies to obey the ESA, they would be free to exterminate sea turtles,
salmon, grizzlies, manatees, whooping cranes, and other endangered species.
The bill's alleged purpose is incorrect, it does not "ensur(e) that" private
property owners' "constitutional and legal property rights will be honored ....
"H.R. 1142 would create radical, sweeping, new rights to extinguish species by
giving private property owners the right to wipe out every acre of a species'
habitat. Developers could bulldoze sea turtle and shorebird nesting beaches, and
companies could chop down eagle nesting trees-unless we pay them not to do
something they never had the right to do in the first place. The unprecedented
new rights under this bill would be created at the expense of public property
rights. The laws of each of the 50 states recognize that wildlife within the
state's borders represents property owned by the state for and on behalf of the
people of each state.
This public property right has always been
understood to limit the rights of people and companies to use their property at
the expense of wildlife -- from hunting season and bag limit restrictions on
landowners' ability to hunt for game on their land to rules designed to
safeguard endangered species. This bill appears to be based on the mistaken idea
that public rights in wildlife should be completely disregarded.
STRANGLING
SPECIES WITH RED TAPE
H.R. 1142 would also create a separate, sweeping
immunity from enforcement of ESA safeguards for species unless and until federal
agencies have somehow "given 30 days notice to each owner of the property
directly affected." Specifically, the bill provides that: "An agency may not
take any action that is a Federal use of non-Federal property unless the agency
has given 30 days notice to each owner of the property directly affected." The
term "federal use of nonFederal property" is very broadly defined.
This
limitation on ESA implementation is absolute and without exception. Failure to
identify, locate, and notify each of many partial owners of property could
permanently bar needed actions to save species. Apparently, it would not matter
if the majority of owners requested the agency action, or if the one owner who
did not receive notice would have consented, or if the agency was ready and able
to provide the windfall payments required by the other provisions of this bill.
Even emergency actions would be subjected to this 30 day notice
straightjacket. Agencies would have to stand by helplessly while the last of a
salmon run, for example, is exterminated. This absolute requirement appears to
allow a property owner to take advantage of the 30 day delay to take actions
that would wipe out a species. Conversely, it would seem to apply where an
agency action would enhance the property value while incidentally resulting in,
for example, "any diminution in the quantity of water received or available for
use."
If this bill had been law, it would have blocked the emergency action
to save the desert tortoise when it was suffering a lethal respiratory disease
several years ago. Today, the community of Clark County, Nevada is working to
implement a conservation plan to save this ancient reptile-an opportunity that
arguably would have been denied if emergency action to list had not been taken.
Ironically, to fulfill the notification requirement, the bill could require
the federal government toinventory every acre of private land for potential
habitat. This draconian notification mandate apparently requires an unworkable,
unjustifiable, gigantic bureaucratic burden to compile a comprehensive,
nationwide federal database of all owners of all potentially affected property.
Notifying current owners would require continually updated access to the
ever-changing mix of corporate, partner, and individual owners.
H.R. 1142
would result in the extermination of species by needlessly blocking and delaying
a wide variety of actions that are essential to save species. Extreme
bureaucratic burdens and red tape would even apply to actions that do not
diminish property value (or even increase the value), if they result in a
"substantial diminution in" uses of property that are either "normal or
reasonably expected." Agencies would have to "make every possible effort to
avoid, minimize, or mitigate" even extremely minor impacts on property value or
use.
WINDFALL PAYMENTS
Essentially every payment from taxpayers under
H.R. 1142 to corporations, developers and individuals would be a windfall--
because the payments would be required in situations that would not constitute a
taking under the Fifth Amendment as that provision has been read by every member
of the Supreme Court. The Court has repeatedly and unanimously rejected the
purported takings test that is contained in H.R. 1142 as contrary to the
balanced Fifth Amendment approach, holding that a law does not "take" private
property solely because it diminishes the property's value, and that takings
analysis must look at an overall parcel of property, not just the affected
portion.
In contrast, H.R. 1142 would pay companies when there is a 25%
reduction in the value of a "portion" of property. This would require payments
where there is almost no effect on the overall property value. For example,
allowing condominiums or a strip mine on 99.9% of a 1000 acre tract would not be
enough, payments would be required for the one acre wetland buffer zone next to
a salmon stream.
As more than 370 law professors wrote Congress regarding
the similar test in the 1995-96 House and Senate takings bills: "Not only has
the Court never adopted that radical view of the Fifth Amendment; no single past
or present Justice on the Court has." (Copy submitted for the Committee's
recored). In 1993, the Supreme Court's Concrete Pipe ruling (508 U.S. at 642-45)
relied upon landmark zoning and land use cases in unanimously reaffirming the
Court's long-standing rejection of three premises and standards that lie at the
heart of those bills and of H.R. 1142. The Court ruled that because regulatory
takings decisions must consider many factors, including impacts on neighboring
homeowners and the public, "our cases have long established that mere diminution
in the value of property, however serious, is insufficient to demonstrate a
taking." Second, the Court reaffirmed that takings analysis must focus on the
overall property, not just the affected portion. Third, the Court reiterated the
importance of looking at specific facts, including what the property owner
reasonably expected.In contrast, H.R. 1142 requires payments when there is: a
specific diminution in the value of any affected portion of property, regardless
of reasonable expectations or other factors. This radical redefinition of
takings fails to consider impacts on other people and property.
Corporations
would be paid under the bill even if:
- they paid little, or nothing, for
the property;
- the prohibited uses would harm neighboring property and the
public health (as in ESA protections for wetland habitat that prevents
downstream flooding or an aquifer habitat that serves as a drinking water
supply);
- they never had a reasonable expectation that they could violate
the ESA; and
- they can still make a massive profit on permissible uses of
the property.
H.R. 1142's definition of property extends to impacts of a
broad sweep of federal actions on "land, an interest in land, the right to use
or receive water, and any personal property .... "The bill applies to actions
that limit the uses of any of these types of property either to protect habitat
on private or public land or as a condition of a federal permit. So-called
"personal property" is owned by corporations and individuals and essentially
means tangible property that is not real estate. Thus, the bill would cover, for
example, federal permits that limit use of offshore oil drilling equipment to
protect whales. While a federal grazing permit has always been held to be a
privilege, not a right, this bill could be read as granting permittees new
rights to be free from limits on their personal property (livestock) to protect
streamside overgrazing on public lands.
Senator Russ Feingold (D-WI)
detailed how similar water language in the 1995-96 Senate takings bill "could
expand the rights of agricultural water users at considerable cost to the
taxpayer." "Fair market value payments of $100 to $250 per acre foot could be
required if federal reclamation projects reduced the subsidized water for which
users pay from $3.50 to $7.50 per acre foot. (S. Rep. 104-239, at 82 (additional
views of Sen. Feingold)).
Enactment of this bill would cause a flood of
costly litigation. Looking at only the "affected portion" would trigger a flood
of claims. For example, claims could be filed whenever erosion or flooding
threats to endangered species (and downstream homes) require one acre of
streamside or floodplain buffer out of a 10,000 acre development. As Joseph L.
Sax, then-Counselor to the Interior Secretary, testified during the Senate
Judiciary Committee hearings on the 1995-96 takings bills: "(A)nybody who thinks
when you pass a law that says you can be compensated by the Federal taxpayers
when.., any affected portion of your property, is reduced by 33 percent, thinks
that isn't going to create a great burgeoning of lawsuits must be smoking
something pretty strong." (S. Hrg. 104-535, at 226).
While H.R. 1142 focuses
on the ESA, the history of the 1995-96 takings bills demonstrates the immediate,
powerful pressure to expand such bills to cover all federal laws. While the
House passed bill was limited to the ESA, wetland protections and certain
irrigation and water laws, Senate proponents immediately extended their bills to
cover all laws (S. 605) or nearly all (S. 1954). The absurd and draconian
payments to pollutersers that would have resultedclearly revealed that the
purported property rights principles they embodied are contrary to the
Constitution's balanced approach and to the views of the American public.
TAKINGS BILLS ARE BUDGET BUSTERS AND CREATE PERVERSE INCENTIVES
Like
prior takings bills, H.R. 1142 would force repeal, or block implementation, of
basic protections for people, property, and natural resources by making them too
expensive to enforce.
Then-Office of Management and Budget (OMB) Director
Alice M. Rivlin testified that the OMB estimated that direct spending costs of
the 1995 House-passed ESA and wetlands takings bill would be $28 billion over
seven years, with the broader Senate bill costing several times that amount: "I
want to emphasize that these are not estimates of Fifth Amendment 'takings' due
to federal activities, but instead reflect the costs of implementing a radical,
harmful, and expensive compensation scheme that would likely encourage unmerited
claims." (S. Hrg. 104-299, at 142).
Director Rivlin's estimate was highly
conservative. She testified, for example, that while OMB recognized that the
bills would encourage people to "game the system, potentially resulting in an
enormous number of claims," OMB's estimate "did not include an estimate of the
number of land owners that, for example, would want to get under the regulation
so that they could make a claim." (Id. at 145). The late, former Senator Paul
Tsongas, a strong advocate of a balanced budget, testified on this precise
issue: "I can tell you as a former real estate developer who lost money, this is
a bonanza because all I would have to do now is figure out where wetlands are
before they are designated, buy it, submit an application for a shopping center,
after it gets denied, I submit a bill to you and it doesn't cost me anything."
(Id. at 147).
Under H.R. 1142, claims would be even easier. For example,
speculators could buy land for $50 an acre, a price that fully and openly
reflects the applicability of the ESA. A week later, they could then demand
payment because the land was "only" worth $75 an acre. Under H.R. 1142, a 50%
real world gain would appear to be a 25% "reduction in fair market value,"
because the artificial "fair market value" of $100 an acre would be calculated
"without regard to the presence of any species protected under" the ESA.
H.R. 1142 would distort the economy and investment. Professor Richard J.
Lazarus' testimony regarding the 1995-96 takings bills logically applies to this
bill as well: "Perverse incentives will abound. Property owners will propose
activities not because of any real interest in their undertaking, but rather
simply so that the holder of the property right can be denied permission and
thus be entitled to compensation. The law would create an economic incentive for
land owners to engage in the most environmentally destructive activities
possible, short of a classic common law nuisance, in order to force the land
owner not to do so." (S. Hrg. 104-299, at 220).
Similarly, then-EPA Deputy
General Counsel Gary S. Guzy repeatedly testified that takings bills would
"create perverse incentives that discourage cooperation between property owners
and regulators to find ways of allowing development while protecting the
environment .... Evenmore perversely, the bill rewards proposals that are not
realistic or feasible." (Id. at 200).
Thus, for example, developers would
apply for permits to fill in especially sensitive habitat in order to collect
payments when the permits are denied. H.R. 1142 would strongly encourage these
applications to be filed even where the alleged development plan would not make
economic sense, as in cases where the overall profit from the tract would be
enhanced by retaining a lake and marketing luxury upland lakefront acreage.
The Congressional Budget Office (CBO) estimated only the costs of
administering the 1995-96 House and Senate takings bills, stating that: "CBO has
no basis for estimating the additional amount of compensation that the
government might have to pay for cases where property owners choose to pursue
larger claims in court .... CBO expects that the majority of the new suits would
involve relatively large claims against agencies that regulate the use of land
or water, particularly the U.S. Army Corps of Engineers and the Department of
the Interior (DOI)." (S. Rep. No. 104-239, at 40, 43).
Taxpayers for Common
Sense, a budget watchdog group, issued a May, 1996 report stating that the cost
of S. 605 could be $100 billion over seven years, or, more likely, a virtual
blank check. A study by the University of Washington Institute for Public Policy
Management revealed that Washington State's defeated takings legislation
(Referendum 48) could have cost local governments up to $1 billion annually for
takings studies alone and exposed them to payments of as much as $11 billion.
If H.R. 1142 were to pass, the vast majority of payments would be to large
corporations and developers who are the subject of most of the regulations and
who have the lawyers, appraisers and experts necessary to demonstrate a "right"
to payment under the bill's vague standards. The ingenuity and greed of some
giant corporations that oppose limits on their ability to profit at the expense
of others was dramatically illustrated by a May 1996 Exxon subsidiary's lawsuit
claiming that the $125 million Exxon Valdez tanker had been taken.1 The claim
challenged a provision of the Oil Pollution Act of 1990, which was passed after
the Exxon Valdez had spilled 10.6 million gallons of crude oil, that allowed the
ship to operate anywhere in the world except Prince William Sound, where the
spill had occurred. A separate March 11, 1999 Court of Federal Claims decision
deferred ruling on the merits of a Madtrans, Inc. takings claim for more than
$200 million to cover the loss of 37 single-hull tank barges that would be
phased out of service in 2003 by the double-hull requirements of the same Act.
(Docket No. 96-483 C).
Professor C. Ford Runge's testimony about the 1995-96
takings bills demonstrated how payments regarding land would reflect the highly
concentrated nature of land ownership: "(I)f one combines the land holdings of
the large farm operators and timber operators, 2.1 million land owners own 1,035
million acres of land. That means that 2.65 percent of all private land owners
own 78 percent of all private land. Their size also implies a likely
sophistication in dealing with government programs." In contrast, the roughly
sixty million owners of residential property own three percent of all private
land. (S. Hrg. 104-299, at 205). Takings bills would benefit the former, large
landowner group to the general detriment of homeowners who depend upon clean
air, safe drinking water, zoning and other laws.
As a practical matter, H.R.
1142 would create an unlimited budget- busting entitlement; the bill's "subject
to the availability of appropriations" language would be overwhelmed by pressure
to pay all those who meet the bill's radical new payment standard. Surely, those
who support this bill would favor paying everyone who they encouraged to file
claims. The alternative would be a cruel hoax. After encouraging those who have
not lost any property rights to spend the time and expense to hire a lawyer and
an appraiser to file and prove a claim under H.R. 1142, not paying would place
them in a worse position than they are now. Paying only the first claims would
ensure that the biggest companies with the fastest and most expensive lawyers
would drain all available funds.
As a result, H.R. 1142 would compel
avoidance of these costs through repeal or non-enforcement of ESA protections
that benefit people, neighboring property, and public resources. The cost of
takings analysis and notifications mandated by H.R. 1142 would have a similar
effect.
"TROJAN HORSE" ATTACK ON THE ESA
This bill unjustifiably singles
out the ESA. In over 25 years, courts have only decided four ESA "takings" cases
on the merits, all of which have found that the ESA did not take private
property. (A copy of NWF Senior Counsel Glenn Sugameli's legal analysis of the
ESA and takings claims is submitted for the Committee record). This paucity of
cases reflects the fact that the ESA's safeguards that affect land use are in
fact very flexible (indeed, only one of these four cases involved limitations on
the use of land). Congressional Budget Office and Congressional Research Service
reviews of takings claims against the federal government have consistently found
that the vast majority of pending and recently decided cases have nothing to do
with environmental protection laws. The potential value of property is affected
by the enactment, amendment and enforcement of every kind of federal, state and
local law: from Antitrust, Bankruptcy, Copyright, Drug, Energy, Food safety,
through the alphabet all the way to Zoning. As Justice Holmes' opinion for the
Court in the first "regulatory taking" decision warned, "(g)overnment hardly
could go on if to some extent values incident to property could not be
diminished without paying for every such change in the general law."
(Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)). In deciding what is
a taking, the Supreme Court has consistently used a balanced approach that
reflects this warning.
Harvard Law Professor Frank I. Michelman
explained that there is no "remotely principled basis" for the approach of
limiting the scope of the 1995 House bill (or the current H.R. 1142) to"land
value losses stemming from agency actions under two or three selected laws." (6
Fordham Envtl. L.J. at 416-17). Prominent ideological supporters of federal
takings bills agreed with this analysis. For example, Jonathan H. Adler of the
Competitive Enterprise Institute testified that: "Any bill that seeks to protect
the property rights of Americans must cover all Federal laws that deprive land
owners of the reasonable use of their land. There is no principled basis upon
which to pick and choose which laws, environmental or otherwise, should be
covered." (S. Hrg. 104299, at 222). He repeated this passage in subsequent
testimony, but italicized "all" to emphasize the point. (S. Hrg. 104-535, at
205). See also id. at 82 ("There are a huge number of Federal regulations which
have the effect of taking private property .... ") (statement of Nancie G.
Marzulla, President of Defenders of Property Rights).
Narrowing takings
bills like H.R. 1142, without any principled basis, to certain laws reveals that
the issue is not property rights, but a Trojan Horse attack on laws that
supporters of the bill do not like and that are too popular to repeal directly.
Under the guise of protecting property rights, H.R. 1142 would make the ESA too
expensive to enforce.
H.R. 1142 is not necessary. The ESA has numerous
provisions to ensure that the federal wildlife agencies have the necessary
flexibility to give due respect to private property interests. Agencies
routinely allow economic activities in and around endangered species habitats to
go forward, using tools such as separate "4(d) rules" for threatened species,
reasonable and prudent measures, reasonable and prudent alternatives, and
incidental take permits and Habitat Conservation Plans. In the unlikely event
that private property rights are infringed despite the availability of these
flexible tools, the courts provide adequate remedies for property owners to
enforce the Constitution's Fifth Amendment clause "nor shall private property be
taken for public use, without just compensation."
CHILLING ENFORCEMENT OF
THE LAW
H.R. 1142 would chill enforcement of the ESA and harm a wide range
of agency programs by requiring that payments "shall, notwithstanding any other
provision of law, be made from the annual appropriation of the agency that took
the agency action giving rise to the payment .... " This would apply to
mandatory agency actions where the agency has no legal choice except to follow
the Congressional mandate. Especially where there is any question whether a
necessary action to save a species could lawfully be delayed, H.R. 1142 would
impose a Hobson's choice upon agency officials. Implementing the ESA in one case
could result in windfall payments that would divert scarce agency resources,
forcing massive layoffs and cutting off funds needed to enforce the ESA and
other laws. Protection of National Wildlife Refuges, Army Corps of Engineers
flood control activities and Environmental Protection Agency enforcement of air
and water pollution laws could all suffer.
H.R. 1142 would unjustifiably
pressure agency employees to protect their jobs and programs by always erring on
the side of not protecting endangered species. These species often have no room
for delay or error. Extinction is forever. It neither waits for delays nor
forgives errors.
VOTER REJECTION OF TAKINGS BILLS
In statewide
referenda, voters have overwhelmingly rejected legislatively approved takings
bills. By the same 60-40% margin, voters repealed a Washington State takings
payment bill in November, 1995, and an Arizona takings impact assessment bill in
November, 1994. (In each state, takings bill supporters outspent opponents by
2-to-1).
Supporters of takings recognize that the American people oppose
these bills: the Seattle Times reported that "R.J. Smith of the conservative
Competitive Enterprise Institute, a Washington, D.C. think tank, said the
defeats in Washington and Arizona may have taught another lesson- that property
rights leaders shouldn't take the issue directly to voters through initiative or
referendum."2 Indeed, there have been no more statewide "takings" initiatives or
referenda.
Grassroots opposition to takings bills reflects the fact that
these bills would force taxpayers either to give up needed protections or to pay
billions of dollars to maintain health, safety and other measures that do not
take any property.
WIDESPREAD OPPOSITION TO TAKINGS BILLS
The radical
nature of the similar, failed 1995-96 Contract with America ESA and wetlands
takings bill generated bi-partisan opposition, a Presidential veto threat and
strong opposition from a wide range of national religious, labor, taxpayer,
conservation and other groups.
The National Governors Association, National
Conference of State Legislatures, National League of Cities, U.S. Conference of
Mayors, National Institute of Municipal Law Officers (now the International
Municipal Lawyers Association), National Black Caucus of State Legislators,
International Association of Fish and Wildlife Agencies, and Western State Land
Commissioners Association all have approved resolutions opposing takings payment
bills.3
A distinguished Member of this Committee, Rep. Tom Udall (D-NM), was
Attorney General of New Mexico when he submitted testimony to the House
Committee on the Judiciary opposing takings bills. He attached a letter to
Congress from Republican and Democratic Attorneys General representing
thirty-three states and territories describing how takings bills: "purport to
implement constitutional property rights protections, but in fact they promote a
radical new takings theory that would severely constrain the government's
ability to protect the environment and public health and safety." (Reproduced in
House Rep. 104-46, at 64-68).
Takings bills have ignited broad opposition on
all levels of government, across political parties, and among a broad range of
groups. Opponents of takings bills include citizens and groups representing
civic associations, labor, taxpayer, planning, historic preservation, public
health, hunting, conservation, and fishing industry organizations; state and
local government officials; and child welfare, civil rights, religious and
senior citizen groups. (S. Rep. No. 104-239, at 68). These opponents, who are
working to protect people, property and natural resources, range from the League
of Women Voters to the United Steelworkers of America, to the American Public
Health Association. (S. Rep. No. 104-239, at 68).
A broad range of religious
denominations have opposed takings bills from a moral and theological
perspective. These include detailed written testimony submitted by the United
States Catholic Conference; (S. Hrg. 104-535, at 154-158) statements submitted
by the National Council of Churches of Christ in the USA, and by numerous
Christian denominations, including the Evangelical Lutheran Church in America,
United Methodist Church, Presbyterian Church USA, Mennonite Central Committee
U.S., and United Church of Christ; (Protecting Private Property Rights, H. Jud.
Comm. Hrg. 104th Cong. at 41-42, 128-33).
President Clinton promised to veto
the 1995-96 House, Senate or any similar takings compensation bills. The
description in the President's December 13, 1995 letter to the Senate Judiciary
Committee applies equally to this takings compensation bill: "S. 605 does not
protect legitimate private property rights. The bill instead creates a system of
rewards for the least responsible and potentially most dangerous uses of
property. It would effectively block implementation and enforcement of existing
laws protecting public health, safety, and the environment." (See S. Rep.
104-239, at 55). Strong bipartisan opposition repeatedly blocked Senate
consideration of takings legislation in 1996.
A BETTER WAY- COMMON-SENSE ESA
REFORMS AND ENACTMENT OF NEW WILDLIFE FUNDING LEGISLATION
NWF fully supports
reauthorizing the Endangered Species Act to incorporate what we have learned
since the last reauthorization in 1988. Four changes should be made to make the
ESA work better for both landowners and wildlife. These changes are included in
H.R. 960, the Endangered Species Recovery Act, which was introduced by the
distinguished ranking Member of this Committee, Rep. George Miller (D- CA), with
67 original cosponsors on March 3, 1999.
First, Congress should build in
real financial incentives for private landowners to go beyond the Act's bare
minimum requirements and to take affirmative actions for the benefit of
imperiled species.
This can be done through relatively inexpensive tax
law changes and funding initiatives targeted toward habitat restoration and
active management of habitats.Second, Congress should update the Act's habitat
conservation planning (HCP) provisions, so that HCPs work for private landowners
and species. The Clinton Administration has launched a revolutionary change in
the ESA through its use of HCPs -- locking in long-term land use plans for over
7 million acres in just 5 short years. According to several recent scientific
studies, these plans may be undermining the ESA's recovery goal. Congress will
need to clarify that HCPs may not undermine recovery, and that they must be
sufficiently adaptive so that we can take effective action when they fail to
achieve their promised conservation objectives.
Third, Congress should
enhance federal agencies' accountability for achieving recovery. Too many
species are not making sufficient progress toward recovery, and agencies have
become focused on avoiding jeopardy rather than fulfilling their statutory
obligations to promote recovery. Agencies with activities affecting imperiled
species must make specific and enforceable commitments to help implement
recovery plans.
Finally, Congress should increase citizen participation in
key decisionmaking processes. NWF recently sponsored a study of HCPs by the
University of Michigan, which demonstrated conclusively that plans with major
implications for our biological heritage are being designed behind closed doors,
without input from conservationists, neighboring landowners, expert scientists
and other concerned citizens. Congress should identify ways for these
stakeholders to provide their ideas and input early in the process, rather than
merely inviting comment after the deal has been struck and after it is too late
for any significant changes to be made.
In addition, NWF strongly supports
establishing a permanent, dedicated funding source for "nongame" species (the
roughly 90% of species that are neither hunted nor classified as threatened or
endangered). Several bills pending before Congress, including H.R. 701, the
"Conservation and Reinvestment Act of 1999," and H.R. 798, the
"Permanent Protection for America's Resources 2000 Act," have the potential for
establishing such a permanent funding source. Although NWF has concerns about
certain features of these bills, both could provide funding for early
intervention measures that prevent nongame species' decline and avoid more
costly recovery measures that are frequently incurred once a species has been
listed. We look forward to working with the sponsors of those bills to ensure
the two proposals are merged in a way that brings out the best in both of them
and allows the broad support necessary for passage..
CONCLUSION
H.R.
1142 would harm the property and other rights of average Americans because it
would impose standards that are contrary to the Fifth Amendment's balanced
protection of private property. The result would be massive costs to taxpayers,
a litigation explosion, more bureaucracy and inability to enforce the ESA's
protections that benefit people, private property and public resources. We
strongly urge that H.R. 1142 be set aside in favor of common sense ESA
amendments and separate legislation to provide a permanent, dedicated funding
source to prevent species from becoming endangered, both of which can make the
Act work even better for both landowners and wildlife.
FOOTNOTES:
1 See
David Whitney, Exxon Wants Notorious Tanker Back on Duty in Alaska Waters,
Anchorage Daily News, Apr. 5, 1996, at A- 1.
2 Eric Pryne & David
Postman, Ref. 48 Defeat Has Louder Echoes: A Property Rights Stall in Congress,
Too?, Seattle Times, Nov. 9, 1995, at Al.
3 NGA 1995 Annual Meeting
Resolution 18; NCSL policy resolution passed July 28, 1994; NLC Resolution #1
adopted Dec. 4, 1994; USCM Resolution Adopted Jun. 1995; NIMLO Resolution
adopted Apr. 8, 1995; NBC SL Resolution adopted Dec. 1995; IAFWA Resolution
adopted Mar. 1996; WSLCA Resolution adopted Jan. 12, 1995. The NLC, NCSL and
WSLCA Resolutions are reproduced in House Rep. 104-46, at 69-72.
END
LOAD-DATE: April 15, 1999
