'Careful Balance' May Save Endangered Species Act

Lawmakers and environmentalists find common ground in battle to balance nature with private property.

Spotted owls vs. woodlot owners.... sucker fish vs. farmers.... home builders vs. a tiny bird called the gnatcatcher.

For years, such confrontations have highlighted two competing values: saving species from extinction and protecting private property rights. One could not be asserted without undercutting the other, it seemed, and skirmishes around the country were reflected in rhetorical battles in Washington.

Now, the political gridlock clearly is easing.

Republican lawmakers and Clinton administration officials are poised on the edge of common ground regarding one of the most powerful and controversial environmental laws ever enacted: the Endangered Species Act (ESA).

A bipartisan group of senators - with Interior Secretary Bruce Babbitt there as well - this week launched fast-track legislation to reauthorize the 1973 species-protection law, which has been in a kind of political limbo for the past four years.

Among other things, the bill provides financial incentives for landowners working to protect the habitat of troubled species, gives state officials more say in developing recovery plans for such species, calls for independent scientific review before such plans are put in place, and doubles federal spending for species recovery. The bottom line for many landowners, the proposal makes clear, is that once a conservation plan has been worked out, there will be "no surprises" from Uncle Sam.

John Chafee of Rhode Island, the moderate Republican who chairs the Senate Environment and Public Works Committee, noted the "careful balance" lawmakers are seeking. And Secretary Babbitt, who has often been at odds with Republicans on Capitol Hill, called it "a tremendous accomplishment."

In essence, both sides have moved toward the center on the issue.

The Clinton administration has become less adamant on many key environmental issues. Especially on endangered species, it has sought to bring competing interests together in order to avoid prolonged court fights.

When they took control of Congress in 1994, many Republicans targeted the Endangered Species Act for an early demise. Senate Republicans put it at the top of their list of "Top 10 Worst-Case Regulations." But key Republicans publicly opposed what they saw as efforts to undermine environmental laws. And one lesson of the 1996 congressional elections, GOP leaders acknowledged, was that most Americans favor strong environmental protections.

Supreme Court's role

Meanwhile, the United States Supreme Court in recent years has more clearly defined the parameters of the ESA. The high court ruled that one did not have to actually kill a threatened plant or animal to violate the law - that damaging habitat can amount to harming endangered species as well. Environmentalists were cheered by this.

But in another ruling earlier this year (involving farmers and endangered fish in the Klamath Basin of Oregon) the court also ruled that landowners and other economic interests - and not just environmentalists - could bring suit under the law. This was a big boost to property-rights advocates.

But not everyone is thrilled with the fast-track legislation announced this week, dubbed the Endangered Species Recovery Act of 1997.

Leaders of the Sierra Club, Defenders of Wildlife, and the Wilderness Society were quick to denounce it. They are particularly wary of relying on state agencies or private landowners to carry out conservation plans.

Wilderness Society president William Meadows called the bill "an obituary for endangered species."

Meanwhile, congressional efforts to boost private property protections have been moderated as well.

Getting it right

During the last Congress, Republicans (and some Democrats) pushed hard for new laws that would have compensated landowners if the value of their property fell because of government regulation. This could have amounted to billions of dollars - a point of concern for fiscal conservatives as well as pro-environment lawmakers who saw this as a ploy to weaken environmental protections.

But such efforts failed, and until recently it seemed the steam had gone out of the property-rights effort in Congress.

"Nothing was moving," said Nancie Marzulla, president and chief legal counsel of Defenders of Property Rights, a nonprofit group based in Washington.

"But after Labor Day - and much to my surprise - the issue has sprung to life," she says. "Three hearings are scheduled in the House, and people are scrambling to take the lead in the Senate."

While paying property owners affected by government actions may seem logical and just (and in fact is called for under the Fifth Amendment to the US Constitution), Ms. Marzulla acknowledges that "it is a very, very difficult concept to sell."

Instead, advocates are pushing to make it easier for property owners to seek redress in federal courts. Under current law, critics say, property owners often are shuffled back and forth between federal district courts and the US Court of Federal Claims.

"In our judicial system, an individual who seeks to contest a 'government taking' or an infringement on his or her property faces unreasonable confusion and costs in negotiating their way through the legal process," says Rep. Lamar Smith (R) of Texas.

Mr. Smith is sponsoring a bill that would allow property owners to seek an injunction against a regulatory "taking" while suing for compensation in either court.

"This legislation is the solution to the unfair judicial maze that often prevents private property owners from having their day in court," says the Texas lawmaker. And that will include those cases where endangered species continue to bump up against property rights.

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