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Species Act Pits Property Rights Against Nature

THE political battle over the Endangered Species Act reaches far beyond the wisdom or cost of saving this or that plant or animal.It involves deep philosophical questions of mankind's place in nature and the rights of a free society - the responsibilities that come with the power to exploit natural resources and the freedom to use private property for economic gain with as little government interference as possible. It features a power struggle over what is arguably the strongest legislative armament in the environmental movement's arsenal. And it illustrates a growing gap between rural and urban America. The Endangered Species Act (ESA), signed into law in 1973 and amended several times since, is up for reauthorization by Congress in 1992. A growing list of proposed legislation relates to endangered species, ranging from "biodiversity protection" bills to a "community stability" act that would help small towns faced with economic uncertainty due to government-ordered protection for at-risk species. A coalition of environmental groups argues that ESA needs to remain in force, if not be strengthened. Acknowledging that they have let environmentalists take the lead in public opinion, communities dependent on natural-resource industries, private-property-rights advocates, and industry groups, are fighting back with sophisticated and effective public-relations efforts. The Bush administration has yet to make known its position on ESA reauthorization. But in interviews and speeches Interior Secretary Manual Lujan has said "it's just too tough an act" because it does not allow economic and social impact to be considered in deciding whether to list species as endangered or threatened. "My perception of the political climate these days is that the Endangered Species Act has essentially become a lightning rod - both for criticism from economic interests who perceive that environmental regulations have gone too far and for environmentalists who argue that we need to strengthen environmental regulation," says Daniel Rohlf, a law professor at Lewis and Clark College who has written on the law. "One of the first things everybody points to is the Endangered Species Act." One reason for this, some observers say, is that the law is being used more broadly than when it was first passed. "The 1973 act front-loaded all of the biological and regulatory issues at the beginning of the statute and allowed the consideration of social and economic factors to occur - if at all - at the very end," says Mark Rey, executive director of the American Forest Resource Alliance, which represents forestland owners and forest-products businesses. "That was not unreasonable, given that Congress was responding to the last few of something in a limited and particular area which were being threatened by ... d evelopment." "What we're seeing now is radically different," Mr. Rey asserts. "We're dealing in many cases with thousands of remaining individuals [of an endangered species] spread across two or three or four states and that are in conflict, not with some new activity, but with some on-going activity that in some cases has formed the economic mainstay of the region" for generations. Environmentalists acknowledge they use the act to fight for broad natural-resource protection. Developers and landowners, galvanized by such pressure from preservationists, are turning the game around to their favor. "We're blatant about copying their concept," says Chuck Cushman of the newly-formed League of Private Property Voters of the environmental movement's ability to generate thousands of letters, faxes, and phone calls to lawmakers. Together with the groups from which it sprung (the National Inholders Association and the Multiple Use Land Alliance), Mr. Cushman's new organization has a computer file with 1.4 million supporters on it. "We force votes, we don't let them get away with roll-call votes anymore," says Cushman. "We get them on the record and we post it, and believe me it works. This is not a doily-tossing contest. We don't leave anything on the table. We're very aggressive." That aggression also has been directed against the media and corporate sponsors of programs Cushman's groups feel are biased. In one case, a boycott was organized against General Electric, sponsor of Audubon Society television specials critical of the timber and cattle ranching industries for their impact on the environment. While it denies any connection, GE decided not to renew its sponsorship of the programs.

Private-property rights Legislation proposed by Sen. Steve Symms (R) of Idaho would direct federal agencies to write and enforce regulations in a way that "avoids infringing on private-property rights whenever possible." Endorsed by the White House, it also would expand compensation for private lands whose use is limited by environmental laws, including the Endangered Species Act. Critics say the Symms bill would hamper federal environmental efforts. The senator counters: "The fact that people vote, and snails, owls, and bogs d on't is significant." That may be especially true when an individual's pocketbook is at stake. In Travis County, Texas, for example, officials report that property values have dropped $359 million since the listing of golden-cheeked warblers and black-capped vireos as endangered. That could cost Austin, Texas, some $2 million in property taxes next year. "An interesting constitutional question raised by such events is whether a declaration which results in property devaluations constitutes a taking," states a recent newsletter from the National Wilderness Institute, which works for protection of property rights and less government regulation. In some recent cases, Congress does seem to have backed away from a strict interpretation of the Endangered Species Act. Earlier this month, a federal appeals court ruled that Congress had exempted from most environmental reviews the first of three planned telescopes for Mount Graham, Ariz., even though the site is home to an endangered subspecies of squirrel. "The fact that there might no longer be a viable population of red squirrels was part of what Congress considered in balancing the competing interests," said Judge Stephen Reinhardt in his opinion. "We can only hope that Congress's decision will prove to be a wise one."Again, Interior Secretary Lujan seemed to make his position clear when this case was being argued. "Nobody has told me the difference between a red squirrel, a brown, and a black one," he was quoted as saying.

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Activity on the Hill Congress is considering several alternatives relating to the protection of endangered species. Rep. Gerry Studds (D) of Massachusetts, chairman of the subcommittee on fisheries and wildlife conservation, has proposed amendments to the Endangered Species Act that would: reauthorize ESA for five years; more than double annual spending by 1997, to $120 million; require recovery plans within a year of a species' listing; and allow citizens to file suits to protect listed species without waiting 60 days, as is now the case. More broadly, Rep. James Scheuer and Sen. Daniel Moynihan, both New York Democrats, have proposed a "National Biological Diversity Conservation and Environmental Research Act." The proposal would make biological diversity a national goal, require that all federal programs be consistent with that goal, set up a senior interagency group to develop strategies to carry out the goal, and establish at the Smithsonian Institute a national center for biological diversity and conservation research. The Sierra Club, the Wilderness Society, and other environmental groups are all in favor. Since 1992 is an election year, some observers predict that lawmakers will simply fund endangered species protection for another year or two and delay tackling broader amendments. Meanwhile, House Speaker Tom Foley (D) of Washington, Sen. Mark Hatfield (R) of Oregon, and Mr. Studds have asked the National Academy of Sciences to make "a thorough and complete study" of the act.

Last of the series. Other installments ran Dec. 23 and 24.

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