Voice your Opposition to H.R. 1142, the Anti-ESA “Takings” Bill

Date: June 7, 1999
Contact: Dan Evans
Phone: (352) 373-6441

How You Can Help

Please urge your Representative to oppose the extreme anti- Endangered Species Act “Takings” bill described below House Resources Committee Chairman Don Young (R-AK) introduced the bill on March 17, 1999 with 25 cosponsors and went before his Committee on April 14, it is still in Committee. Meanwhile, Representative George Miller’s Endangered Species Recovery Act of 1999 (H.R. 960) now has 81 cosponsors. The goal is to get at least 150 cosponsors early in the session to show ESA opponents that Americans are committed to strong ESA protections.

Rep. Young’s bill H.R. 1142, requires private landowners be compensated to follow the law under the Endangered Species Act. Any landowner who claimed the ESA was restricting their land would be eligible for compensation, effectively derailing implementation of the Act. As expected, private property rights and industry groups hailed the bill’s introduction while environmentalist were severely critical.

Chairman Don Young (R-AK) has heald an April 14 House Resources Committee hearing on his Endangered Species Act (ESA) takings bill, H.R. 1142, the “Landowners Equal Treatment Act of 1999.” Under the bill, UNLESS TAXPAYERS PAY COMPANIES TO OBEY THE ESA, they would be free to exterminate sea turtles, salmon, whooping cranes, and other endangered species. The bill has not been voted on, so there is still time to stop it!

H.R. 1142 would create new property rights to extinguish species by wiping out every acre of their habitat. Developers could bulldoze nesting beaches, factories could poison fish in lakes and rivers, and companies could chop down eagle nesting trees– unless we pay them not to.

The introduction of Young’s bill underscores the need to get more cosponsors for Miller’s ESA reauthorization bill.

HOW YOU CAN HELP

** No matter where you live in the U.S., everybody is encouraged to ask their Representatives to sign on as a cosponsor for Rep. Miller’s Endangered Species Recovery Act bill and to oppose Rep. Young’s bill H.R. 1142.

Additionally, calls to the Senate are needed. Encourage your Senator to contact Senator Lautenberg’s office in support of his introduction of an Endangered Species Act reauthorization bill. Please contact your Senator, by mail, phone, fax, or e-mail.

Background on HR 1142

H.R. 1142 would pay corporations and developers even when, according to the Supreme Court, no property has been taken. The Court’s unanimous 1993 Concrete Pipe ruling (508 U.S. at 644-45) reaffirmed that a law does not “take” private property just because it diminishes the property”s value, and that takings analysis must look at an overall parcel of property, not just the affected portion. In contrast, H.R. 1142 would pay companies when there is a 25% reduction in the value of a “portion” of property.

This would require payments where there is almost no effect on the overall property value. For example, allowing condominiums or a strip mine on 99.9% of a 1000 acre tract would not be enough, payments would be required for the one acre wetland buffer zone next to a salmon stream.

The radical nature of the similar, failed 1995-96 Contract with America ESA and wetlands takings bill generated bi-partisan opposition, a Presidential veto threat and strong opposition from a wide range of national religious, labor, taxpayer, conservation and other groups. The National Governors Association, National League of Cities, U.S. Conference of Mayors, and National Conference of State Legislatures approved resolutions opposing takings payment bills.

H.R. 1142 IS EVEN MORE RADICAL THAN THE CONTRACT PROPOSAL; IT WOULD BLOCK AND DELAY ESSENTIAL ACTIONS TO SAVE SPECIES BY DEMANDING EXTREME BUREAUCRATIC PROCEDURES AND RED TAPE. Agencies would have to “make every possible effort to avoid, minimize, or mitigate” even extremely minor impacts on property. The bill would also prohibit a wide variety of emergency actions that are essential to save species, unless and until federal agencies have “given 30 days notice to each owner of the property directly affected . . . .” This could require the federal government to inventory every acre of land for potential habitat and to compile a “Big Brother” database identifying every owner of property.

H.R. 1142 IS REALLY A TROJAN HORSE ATTACK ON THE ESA. In over 25 years, courts have only decided four ESA “takings” cases on the merits, all of which have found that the ESA did not take private property. The bill does not affect existing remedies under the Constitution’s Fifth Amendment clause “nor shall private property be taken for public use, without just compensation.”

H.R. 1142 would harm the property and other rights of average Americans because it would impose standards that are contrary to the Fifth Amendment’s balanced protection of private property. The result would be massive costs to taxpayers, a litigation explosion, more bureaucracy and inability to enforce the ESA’s protections that benefit people, private property and public resources. As a practical matter, the bill would create an unlimited budget-busting entitlement; the bill’s “subject to the availability of appropriations” language would be overwhelmed by pressure to pay all those who meet the bill’s radical new payment standard.

Corporations would be paid under the bill even if:
1. they paid little, or nothing, for the property; the prohibited uses would harm neighboring property and the public health (as in protections for an aquifer habitat that serves as a drinking water supply);
2. they never had a reasonable expectation that they could violate the ESA; and
3. they can still make a massive profit on permissible uses of the property.