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Private Property vs. Protection of Species: Two Tales of `Taking'

By / March 7, 1995



TWO recent stories involving major timber companies illustrate how conflicts over protecting endangered species and economic interests should - and should not - be resolved. One features the Plum Creek Timber Company and grizzly bears in Montana. The other is about the Pacific Lumber Company and a shore bird called the marbled murrelet in northern California. But first some background and political context.

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The battle over property rights and environmental protection comes down to two versions - visions, really - of taking.

The United States Constitution says government may not take private property without just compensation. The Endangered Species Act says no one may ``take'' a species threatened with extinction, which includes harming or harassing as well as killing such plants and animals.

The Republican-led US House of Representatives last Friday passed a bill that requires paying landowners any time the value of their property is diminished by at least 20 percent because of government regulation. This goes far beyond what courts in the past have said is constitutionally required.

Property-rights advocates say this is only fair. Opponents say it's a ruse to gut protection of wetlands and endangered species. But it's not just another political fight between conservatives and ``green'' activists.

If it's right to compensate property owners for the economic harm caused by actions taken in the name of the public interest, for example, why shouldn't property owners reimburse some portion of the cost of public projects that benefit them? New highways, water projects, and military bases boost property values by providing business opportunities. This, of course, would be difficult to do since it strikes at the time-honored tradition of ``pork'' in the federal budget.

Proponents of the bill hold up the small landowner as the poster child of their cause. While no doubt there are cases of bureaucratic overzealousness in applying environmental regulation to individual landowners, most of the push to ease environmental regulation is coming from powerful economic interests.

Which gets us back to the two big timber companies and the endangered species that inhabit their land.

Pacific Lumber owns and logs thousands of acres of ancient redwoods. The company has fought efforts to leave standing what many biologists say is prime habitat for the marbled murrelet, whose population in California has dropped from 60,000 to about 2,000 birds because of habitat destruction.

In response to a lawsuit brought by a local environmental group, US District Judge Louis Bechtle last week granted a permanent injunction against Pacific Lumber's plan to log 137 acres in the Owl Creek area. To allow the logging, Judge Bechtle wrote, ``will result in a high probability that the remaining population of marbled murrelets in this region will become extinct.''

The judge also noted ``a variety of efforts'' by the company to minimize the reported presence of birds. Pacific Lumber intends to fight the injunction.

In Montana, the Plum Creek Timber Company took a different tack in dealing with an endangered species on its property. Together with the state lands department, the US Forest Service, and the US Fish and Wildlife Service, it worked out an agreement to provide critical corridors for grizzly bears to move between wilderness areas by limiting commercial harvest of timber, protecting stream banks, and better managing backwoods roads.

The bears get some space, the federal agencies get some help in their effort to move grizzlies out from under the Endangered Species Act, and the company gets some certainty about where it can log its property - and, not incidentally, some good PR.

More of this kind of cooperation, rather than confrontation on the ground or in the Congress, would go a long way toward solving the apparent conflict over ``taking'' of both kinds.