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There is no “Safe Harbor”
in the ESA

By U.S. Rep. Helen Chenoweth-Hage

The wolf is at the door, but it’s wearing sheep’s clothing.

Today, federal agencies are knocking on property owners’ doors across the West and asking them to join with the federal government in habitat management agreements for endangered and non-listed species on their private property. With silky words, they say that by signing a Habitat Conservation Plan (HCP) with the federal agencies, property owners can gain “Safe Harbor” against the ravages of the Endangered Species Act, and be free to develop and use the rest of their property.

The concept is alluring–protection against the ESA, the ability to use your property in peace and a little bit of security in a very precarious time. But there are no protections for property owners in the Endangered Species Act (ESA).

The section on Safe Harbor and Habitat Conservation Plans in the ESA–Section 10(a)(1)(B)–is as bad for private property owners as the rest of this ill-conceived law. It provides no protections for private property owners, just a means for federal agencies to get their foot in the door on management of your private land. When giving HCPs a careful look, here are some points to consider:

Federal Agencies–HCPs invite and allow the U.S. Fish & Wildlife Service, the National Marine Fisheries Service and other federal agencies to be a party to management of your private land.

Adaptive Management–A clause in new HCPs allows the plan to be changed as new data is gathered. In reality, this provision means management can change at any time, for any reason. Only the property owner is bound by an HCP, not the government.

Privacy–As a federal program, any member of the public and extreme environmental organizations can be a party to a landowners’ HCP. They can bring their “science” to the table, sue for greater restrictions, and access any information held by federal agencies concerning your private property.

Extortion–Beyond management restrictions, federal agencies often use the ESA and the Clean Water Act as justification to demand cash payments from landowners for alleged damage to the habitat of an endangered species on private land.

The Constitution–HCPs stand the 5th Amendment of the United States Constitution on its head, forcing property owners to “pay” to use and develop their property, rather than making the government pay the property owner for taking his property for a public purpose. In short, HCPs violate the concept of private property and just compensation that is the foundation of our system of government.

Voluntary–Although property owners can turn down the offer to sign an HCP with the federal government, the government can also use the full force of the ESA to ensure cooperation. Especially when a property owner is one of the few in his area who refuse to become involved in an HCP, it can be used as a tool of coercion.

Critical Habitat–Critical habitat for endangered species cannot be designated on private lands if federal dollars are not used on any projects, but can be designated on private lands covered in an HCP.

Statewide and Regional HCPs–Not content with signing up individuals, federal agencies are pursuing larger and larger HCPs, including statewide HCPs on state and private land, and regional HCPs that can impact state and private property in several jurisdictions. Statewide HCPs force the state to become the enforcement arm for the ESA. Additionally, placing state lands into federal management could violate state constitional mandates and force severe restrictions on land use.

Local Control–Bigger HCPs mean less local control, and more national control of state and private property and water rights. This is federal land use planning.

Tax Base–HCPs restrict land owners from using and developing their land, thus reducing the value of the property. This could result in reduced property taxes, further crippling western counties already harmed with drastic reduction in their tax base from lost timber receipts and lost revenue from other resource industries. The remaining property owners could face even greater burdens.

As a person who loves the culture and the heritage of the West, you can see why I’m so concerned with this latest ploy by federal agencies. HCPs are simply another attack on private property.

When a Habitat Conservation Plan or a Safe Harbor agreement is presented to you, remember that there is a wolf harbored in this sheep’s clothing.

Congresswoman Helen Chenoweth-Hage is Chairman of the House Resources & Forest Health Subcommittee. The Idaho Republican believes “Safe Harbor” will become a most critical issue for ranchers in coming years.


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