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Dangers to Animals in Wild Need Proof, US Court Says

Appellate decision strengthens private-property rights, leaves Endangered Species Act in doubt

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THE future of the Endangered Species Act - a law many experts say is the strongest of its kind in the world - has been thrown in doubt by a federal court decision that has the timber industry smiling and environmentalists worried.

A three-member panel of the United States Circuit Court of Appeals in Washington last Friday ruled that the US Fish and Wildlife Service went too far in ordering private landowners not to impact property designated as habitat for the threatened northern spotted owl.

The ruling is a boost to those in Congress and around the country working to strengthen private-property rights. It could impact efforts to preserve wetlands. And it also raises questions about the Clinton administration's push for ``ecosystem management'' - working to preserve habitat rather than scrambling to restore species once they face extinction.

In essence, the court ruled in a 2-1 decision, the burden of proof is on the federal agency to prove that a landowner has directly harmed specific animals. In other words, it said, it isn't enough just to imply from a declining owl population in the area that, say, farming or logging is the cause and, therefore, prohibited.

``The decision essentially requires dead bodies,'' said Dan Rohlf, who teaches environmental law at the Northwestern School of Law at Lewis & Clark College in Portland, Ore., and has written a book on the Endangered Species Act. ``This places extreme pressure on Congress to do something.''

If the courts and, perhaps more importantly, the Congress, in its efforts to amend the Endangered Species Act as part of reauthorization, follow the line of reasoning expressed in last week's ruling, the impact on species protection could be vast.

``Habitat modification is the primary cause of decline,'' says Phil Detrich, a Fish and Wildlife Service supervisory biologist who oversees Endangered Species Act enforcement in California. Last week's decision, he said, ``leaves us in a kind of limbo.''

In particular, Mr. Detrich said, government agencies could lose a useful tool for negotiating with companies and individual landowners about setting aside lands for species protection. For example, it was announced last week that the Weyerhaeuser Company had agreed to set aside 70,000 acres of its vast private timberland holdings in Washington State for spotted-owl habitat.

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