Dangers to Animals in Wild Need Proof, US Court Says

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

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.

``The problem is, if we don't have a `harm' provision [regarding habitat], there is no leverage to bring these parties to the table on nonfederal lands,'' Detrich told a conference on environmental law at the University of Oregon over the weekend.

The case on which the appeals court ruled was brought by a coalition of firms and timber-dependent communities. It's caused some confusion because it is exactly the reverse of findings made by two federal appellate courts in the Northwest and South. The case, thus, could eventually be heard by the Supreme Court.

MEANWHILE, the Endangered Species Act (passed in 1973) is up for reauthorization, and several congressmen have laid out proposals alternatively strengthening and weakening this legislation.

Rep. Gerry Studds (D) of Massachusetts, who chairs a House committee with authority over reauthorization, wants to tighten up some provisions in line with what environmentalists seek.

But another proposal - sponsored by Reps. Billy Tauzin (D) of Louisiana, Jack Fields (R) of Texas, Sens. Slade Gorton (R) of Washington, and Richard Shelby (D) of Alabama - would enact essentially what the D.C. Court of Appeals ruled. It also would require federal compensation of private landowners and forbid citizen lawsuits under the Endangered Species Act except against the federal government.

It is unclear whether reauthorization will occur this year. Both House and Senate are just beginning work on the bills. And Will Stelle - deputy director of the White House environmental-policy office - said in a speech to the Pacific Waterways Association last Thursday that the administration is unlikely to be making its wishes known on Endangered Species Act reauthorization anytime soon. Instead, he said, the administration, for now, prefers to find ways of protecting species within the existing legislation.

It is also unclear whether last week's ruling will have much impact on the administration's proposed plan to protect the spotted owl on federal lands in California, Oregon, and Washington, since the case addressed private and state lands. But it is expected to strengthen opposition among many environmentalists to the Clinton plan, which is seen as releasing too much federal land to logging.

``In a perverse way, this may help us,'' said Larry Tuttle, executive director of the Oregon Natural Resources Council, a group advocating a ban on all logging on federal land. ``We could now ask for more [owl habitat] reserves on federal land.''

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