The triumph of the blind Texas salamander and other tales from the Endangered Species Act - using the property rights cause to avoid financial responsibility for remedying pollution conditions that harm wildlife - excerpt from Secretary of the Interior Bruce Babbitt's October 1993 speech to the Society of Environmental Journalists at Duke University

E: The Environmental Magazine, April, 1994 by Bruce Babbitt

The Endangered Species Act is the most innovative, wide-reaching and successful environmental law that has been passed in the past quarter century. I can cite case after case: the resurgence of the American alligator, the fact that the skies are once again graced by many bald eagles, and that the Peregrin falcon is moving from near extinction to the threshhold of de-listing, The opponents of the Endangered Species Act know these facts. So they have come at us in a different direction, advocating a new and radical concept - that any government action lowering the value of someone's property creates a right to be compensated by the U.S. Treasury. For example, H.R. 1388, styled as the "Just Compensation Act of 1993," would require federal agencies to compensate property owners "for any diminution in value" caused by any regulatory action taken under environmental laws, including, right at the top, the Endangered Species Act.

Let's examine the implications of this proposed raid on the public treasury. The Kesterson National Wildlife Refuge in California is one of the great migratory bird stops on the Pacific flyway. But a few years ago, the waterfoul were dying, and they were deformed at birth. It turned out to be selenium poisoning running off into the refuge from nearby farm irrigation wastewater. Under the Endangered Species Act, I tell the farmers: Clean up the pollution, or we'll sue you. But under this new proposal, I am undeniably causing "a diminution in value" of a property right - it will cost those farmers money to clean up. They'll comply, but then they'll send me the bill! The old legal maxim, "make the polluters pay," would be replaced by a new legal rule: "It pays to pollute; the government will reimburse your costs."

If H.R. 1388 were to pass, who knows what would be next. When the Environmental Protection Agency bans pesticides that have been found to cause cancer, the chemical companies that have incurred loses will send the bill to our government. When the Food and Drug Administration takes a breast implant off the market, the companies will send the bill to the FDA. Where do you stop? There will never enough money to pay everyone for eve government regulation.

In fact, the American courts have ways recognized that the reasonable regulation of land use is both constitution and in the public interest. Every day, in every part of the country, city councils and county zoning commissions routinely make land use decisions that affect land value, adding to some land while subtracting from others. Consider my hometown, Flagstaff, Arizona, located high in the pondersa forests of northern Arizona. About 10 years ago, the City Council used its zoning powers to pass a law making it a crime to cut down a pine tree on private land inside city limits unless it is to make space for improvements authorized by the planning and building codes. The residents of Flagstaff supported the law. People like to live there because you can smell the perfume of the pine forest in the air, and you can see an extraordinary horizon in every direction. Admittedly, they have subtracted from the freedom of a landowner who wants to saw down every pine tree on his lot, but they are protecting the overall image of their town. Palmdale, California has an ordinance prohibiting the removal of Joshua trees from private land. And there are myriad other examples.

It is undeniable that the Endangered Species Act limits the ability of some landowners in some places to do anything they want - to raze the forest, to bulldoze the habitat, to dry up a stream which contains an endangered species. And after listening to our opponents, I figured there must be some cases. of egregious abuse. We went to the Court of Claims, where there are hundreds of "takings" cases of all kinds being filed in waves of protest, and you know what we found? In the 20 years of this Act, when we've listed some 800 species, there has not been a single case alleging a taking under the Endangered Species Act. The fact that the Fish and Wildlife Service has never come close to a constitutional taking does not end the matter. The government has a higher obligation to the citizens who elected us than simply staying out of court.

The first step is to ask: Are there public lands that can be the core of the protection scheme? Have you read about the California spotted owl? No. You know why? By good fortune 99 percent of their habitat is on public land up in the Sierra Nevada and northern California. Whenever we can rely on public land, we do.

Another approach is flat-out mitigation. Take the example of the desert tortoise in the Great Basin of Nevada, California and Arizona. Several years ago, the city fathers of Las Vegas, a boom town if there ever was one, discovered that all subdivision land had already been taken by the desert tortoise. It got there first. So, we worked out a plan that said to the developers, "as you bulldoze tortoise habitat for subdivisions, we will levy a surcharge on each lot, like a surcharge for water, sewage and roads, that we will use further out to buy up private lands that are inholdings in the public domain to set up tortoise reserves." We can re-arrange the protection landscape.