Critical Habitat Creates Criticism
When doing the right thing goes wrong

© 2003 Wendy Dager

Taung Ming-Lin has become something of a legend in the annals of habitat preservation. But before he achieved legendary status, the Taiwanese immigrant was a simple farm owner in Kern County, California. When his property was threatened by fire and he used a tractor to create a fire break to save his house, he disturbed the habitat of the Tipton kangaroo rat, an endangered species. Federal agents confiscated his tractor, arrested him and charged him with destroying the rats’ habitat.

After the case was well-publicized in various media outlets, the government dropped its charges against Ming-Lin, who was allowed to farm his land after obtaining additional permits and donating $5,000 toward endangered species protection. Had he been convicted, he would have faced three years in jail and a $300,000 fine.

While Ming-Lin’s tale has become anecdotal, he certainly isn’t the only farmer to get smacked by the hand of government.

The stories go on: 1,600 acres of a farm in Woodland, California was designated a "study area" for the Stephen’s kangaroo rat, without the farmer’s knowledge.

In Bruneau Valley, Idaho, 59 farms and ranches were nearly cut off from their water rights to avoid lowering the water level where the Bruneau hot springs snail is found.

In Maryland, a wealthy landowner was fined $1 million for developing wetlands, even though the director of the project had obtained 38 permits from regulatory agencies.

These cases were all the direct affect of the Endangered Species Act (ESA), which was signed into law in 1973 by then-President Richard M. Nixon.

Endangered species are defined by the ESA as those species that are in danger of extinction throughout all or a significant portion of their range. Threatened species are those that are likely to become endangered within the foreseeable future.

There are many who argue that the ESA is severely outdated, given the fact that 30 years ago, there were 109 plant and animal species listed for protection, and now there are 1263 endangered or threatened, 249 candidates, and 36 proposed..

But, say some, that’s not the only problem with the ESA.

With farms and ranches comprising much of the privately owned open space in the United States, and 76 percent of endangered speciesoccurring on this land, many farmers are reluctant to report the species’ existence. Their fear is that the U.S. Fish and Wildlife Service and other federal agencies will penalize them with fines or arrest. Or worse—that they will be shut down, causing loss of livelihood, simply because their farmland is home to an endangered rat or snail or frog, or even wild grasses.

According to the Web site of the American Farm Bureau Federation, http://www.fb.org, "The Act serves as a disincentive for landowners to protect an endangered or threatened species because major constraints are placed on agricultural practices when a species is found."

Indeed, while horror stories abound when it comes to government vs. agriculture, there are complaints from environmentalists who say farmers are purposely destroying habitats to avoid penalties.

In addition, the U.S. Department of the Interior (governing body of the Fish and Wildlife Service) claimed that it was running out of money because of the ESA.

Under the rules of the ESA, when a species is listed, a "critical habitat" must be created to the "maximum extent prudent and determinable." This verbiage has created a rash of lawsuits because the regulatory measure of critical habitat for found endangered species is nearly impossible for the Fish and Wildlife Service to achieve. Currently, two-thirds of the endangered species budget is consumed by court orders and settlement agreements requiring designation of critical habitat.

Fish and Wildlife is trying to avoid further litigation as well as achieve its goals of preserving species by promoting partnerships with landowners via state grants, Habitat Conservation Plans, Candidate Conservation Agreements, and Safe Harbor Agreements.

Still, such programs have yet to find favor with farmers and ranchers in every state. For instance, there are only a few growers in California that have sought Safe Harbor protection, including the Robert Mondavi Winery, which applied for a Safe Harbor Agreement to aid in the conservation of the threatened California red-legged frog, the endangered least Bell’s vireo, and the endangered Southwestern willow flycatcher.

S&S Seeds Paul Albright says that while these programs are a good start, they would be even more effective through cooperation and streamlining of permits by all agencies through local resource conservation districts.

"The U.S. Fish and Wildlife Service hasn’t yet realized its stated objective ‘assurances that voluntary actions will not result in future land use restrictions’ could be achieved with their suggested use of ‘umbrella’ permits that cover a suite of actions," said Paul. "For example, it would be ideal if a farmer desiring to vegetate his tail water channel could apply for one permit and not only be in compliance with all regulations such as The Clean Water Act, but also enable him to provide a potential haven for endangered species while protecting his investment and future options."

Until umbrella permits are seriously considered, habitat will continue to be avoided by many farmers, causing the size of the—far more expensive—endangered list to grow.

"If you read the federal, state, and local agencies’ mission statements and policies on this issue, it would seem they all agree that they can and should work together for the benefit of all species, including farmers," said Paul. "Agreements and cooperation among agencies would make a giant step toward saving species without infringing on a farmer’s right to make a living."

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