DEPARTMENT OF AGRICULTURE'S ACTIVITIES
REUTED TO THE YELLOW-CHEEKED WARBLER
Y 4, AG 8/1:103-83
Departnent of Agriculture's Activit...
HEAEING
BEFORE THE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS
AND NUTRITION
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OP REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
SEPTEMBER 16, 1994— CLEBURNE, TEXAS
Serial No. 103-83
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Printed for the use of the Committee on Agriculture
U.S. GOVERNMENT PRINTING OFFICE
87-139 WASHINGTON : 1995
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046708-X
\^ DEPARTMENT OF AGRICULTURE'S ACTIVITIES
RELATED TO THE YELLOW-CHEEKED WARBLER
y 4, AG 8/1:103-83
Departnent of ftgriculture's ftctivit...
HEAEING
BEFORE THE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS
AND NUTRITION
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
SEPTEMBER 16, 1994— CLEBURNE, TEXAS
Serial No. 103-83
"i^S ,
Printed for the use of the Committee on Agriculture
U.S. GOVERNMENT PRINTING OFFICE
87-139 WASHINGTON : 1995
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046708-X
COMMITTEE ON AGRICULTURE
E (KIKA) DE
GEORGE E. BROWN, Jr., California,
Vice Chairman
CHARLIE ROSE, North CaroUna
DAN GLICKMAN, Kansas
CHARLES W. STENHOLM, Texas
HAROLD L. VOLKMER, Missouri
TIMOTHY J. PENNY, Minnesota
TIM JOHNSON, South Dakota
BILL SARPALIUS, Texas
JILL L. LONG, Indiana
GARY A. CONDIT, California
COLLIN C. PETERSON, Minnesota
CALVIN M. DOOLEY, CaUfomia
EVA M. CLAYTON, North Carolina
DAVID MINGE, Minnesota
EARL F. HILLIARD, Alabama
JAY INSLEE, Washington
THOMAS J. BARLOW III, Kentucky
EARL POMEROY, North Dakota
TIM HOLDEN, Pennsylvania
CYNTHIA A. McKINNEY, Georgia
SCOTTY BAESLER, Kentucky
KAREN L. THURMAN, Florida
SANFORD D. BISHOP, Jr., Georgia
BENNIE G. THOMPSON, Mississippi
SAM FARR, California
PAT WILLIAMS, Montana
BLANCHE M. LAMBERT, Arkansas
LA GARZA, Texas, Chairman
PAT ROBERTS, Kansas,
Ranking Minority Member
BILL EMERSON, Missouri
STEVE GUNDERSON, Wisconsin
TOM LEWIS, Florida
ROBERT F. (BOB) SMITH, Oregon
LARRY COMBEST, Texas
WAYNE ALLARD, Colorado
BILL BARRETT, Nebraska
JIM NUSSLE, Iowa
JOHN A. BOEHNER, Ohio
THOMAS W. EWING, IlUnois
JOHN T. DOOLITTLE, CaUfornia
JACK KINGSTON, Georgia
BOB GOODLATTE, Virginia
JAY DICKEY, Arkansas
RICHARD W. POMBO, California
CHARLES T. CANADY, Florida
NICK SMITH, Michigan
TERRY EVERETT, Alabama
FRANK D. LUCAS, Oklahoma
Professional Staff
DiANNE Powell, Staff Director
Vernie Hubert, Chief Counsel and Legislative Director
Gary R. Mitchell, Minority Staff Director
James A. Davis, Press Secretary
Subcommittee on Department Operations and Nutrition
CHARLES W. STENHOLM, Texas, Chairman
GEORGE E. BROWN, Jr., CaUfomia,
Vice Chairman
BILL SARPALIUS, Texas
CALVIN M. DOOLEY, California
JAY INSLEE, Washington
DAN GLICKMAN, Kansas
CYNTHIA A. McKINNEY, Georgia
SANFORD D. BISHOP, Jr., Georgia
HAROLD L. VOLKMER, Missouri
EVA M. CLAYTON, North Carolina
TIM HOLDEN, Pennsylvania
CHARLIE ROSE, North Carolina
SAM FARR, California
TIM JOHNSON, South Dakota
EARL POMEROY, North Dakota
BLANCHE M. LAMBERT, Arkansas
ROBERT F. (BOB) SMITH, Oregon
BILL EMERSON, Missouri
STEVE GUNDERSON, Wisconsin
WAYNE ALLARD, Colorado
BILL BARRETT, Nebraska
JOHN A. BOEHNER, Ohio
THOMAS W. EWING, lUinois
JACK KINGSTON, Georgia
CHARLES T. CANADY, Florida
(II)
CONTENTS
Page
Edwards, Hon. Chet, a Representative in Congress from the State of Texas,
opening statement 8
Geren, Hon. Pete, a Representative in Congress from the State of Texas,
opening statement 3
Prepared statement 5
Raines, Katherine, mayor, Clebums, TX; remarks of 1
Stenholm, Hon. Charles W., a Representative in Congress from the State
of Texas, opening statement 2
Witnesses
Bennett, Harold B., State executive director, Agricultural Stabilization and
Conservation Service, U.S. Department of Agriculture, College Station, TX . 28
Prepared statement 153
Chesnut, Harold D., chief appraiser. Hood County Appraisal District,
Granbury, TX 53
Prepared statement 166
Cook, John R., State representative, district 60, State of Texas 17
Prepared statement 136
Crawford, Allen D. CPA, Mineral Wells, TX 93
Prepared statement 278
Dail, Mike D., president. Federal Land Bank Association of Mason, TX, on
behalf of the Farm Credit Bank of Texas, Mason, TX 50
Prepared statement 159
Dill, Carole R., producer. Glen Rose, TX 101
Erickson, Bernard, State representative, district 58, State of Texas 19
Eubanks, Ted L., director. National Audubon Society 60
Prepared statement 172
Gros, Gean, private citizen. Fort Worth, TX 104
Harms, H. Melton, board member, Texas Pork Producers Association 92
Higginbotham, T.J., IV, member, Take Back Texas 107
Hooks, Shirley H., president, Granbury Board of Realtors 52
Prepared statement 163
Hyer, Russell R., regional executive. National Wildlife Federation 61
Prepared statement 174
Jackson, Robert Joe, rancher, Ranger, TX 76
Prepared statement 209
Jones, Truman Keith, office of Governor Ann Richards 9
Kovich, Morine H., businesswoman, Dallas, TX 64
Prepared statement 178
Leach, Daniel A., chair, Johnson County Historical Commission 102
Marquardt, Kathleen, chairman. Putting People First, presented by Bill
Walker member 95
Prepared statement 283
Meadows, Oliver E., rancher, Johnson County, Texas 70
Prepared statement 201
Merrill, John L. Burnett Ranches, professor, Texas Christian University,
and member, national steering committee, Grazing Lands Conservation
Initiative 84
Prepared statement 214
Moore, Jack, rancher, Alvarado, TX 78
Prepared statement 212
Morales, Dan, attorney general. State of Texas 10
Prepared statement 110
(III)
IV
Page
Oneth, Harry W., State conservationist, Soil Conservation Service, U.S. De-
partment of Agriculture, Temple, TX 26
Prepared statement 146
Perry, Rick, commissioner, department of agriculture. State of Texas, also
on behalf of the National Association of State Departments of Agriculture ... 12
Prepared statement 127
Pierce, Judy, volunteer educator and task force chair, Texas Committee on
National Resources 67
Prepared statement 185
Reily, Jack D., property owner, Weatherford, TX 105
Rogers, John G. Regional Director, Southwest region, U.S. Fish and Wildlife
Service, U.S. Department of Interior, Albuquerque, NM 24
Prepared statement 141
Rueter, Calvin, secretary, board of directors, Bosque County Bureau Associa-
tion 94
Prepared statement 281
Schutts, E. Alan, rancher, Lipan, TX 75
Prepared statement 208
Sibley, David M. State senator. State of Texas 20
Sims, Bill, State senator, district 25, State of Texas, and executive secretary,
Texas Sheep & Goat Raisers Association 21
Prepared statement 138
Smith, Lowell, Jr., board chairman. First State Bank, Rio Vista, TX 49
Prepared statement 156
Stallman, Bob, president, Texas Farm Bureau 88
Prepared statement 222
Teich, Henry W., producer, Cresson, TX 100
Thompson, Chaunce O., first vice president, Texas and Southwestern Cattle
Raisers Association 90
Prepared statement 224
Turner, Bob., State representative, district 73, State of Texas 15
Prepared statement 134
Submitted Material
Association of Texas Soil and Water Conservation Districts, statement 285
Burman, Earl H., chairman, conservation, Audubon Council of Texas, state-
ment 287
Hutchinson, Hon. Kay Bailey, a United States Senator from the State of
Texas 289
Sims, Wesley R., member, executive board of directors, Texas Farmers Union,
statement 291
U.S. DEPARTMENT OF AGRICULTURE'S AC-
TIVITIES RELATED TO THE YELLOW-
CHEEKED WARBLER
FRroAY, SEPTEMBER 16, 1994
House of Representatives,
Subcommittee on Department
Operations and Nutrition,
Committee on Agriculture,
Cleburne, TX.
The subcommittee met, pursuant to call, at 10 a.m., in the civic
center, 1501 West Henderson, Cleburne, TX, Hon. Charles W. Sten-
holm (chairman of the subcommittee) presiding.
Present: Representatives Edwards and Geren.
Staff present: Stan Ray.
Mr. Stenholm. If everybody could take their seats.
Mr. Geren. Before the hearing formally gets started, I would like
to call on the mayor of our city. And before I introduce her, express
our appreciation to her and her staff for all the hard work on the
part of the City of Cleburne in putting together this hearing. They
worked into the wee hours of the morning and we appreciate very
much their hospitality and hard work in bringing this together.
Please join me in thanking Mayor Katherine Raines for her hard
work, and I would like to recognize Katherine for some words of
greeting.
REMARKS OF KATHERINE RAINES, MAYOR,
CLEBURNE CITY, TX
Ms. Raines. Good morning. On behalf of the citizens of Cleburne,
I am delighted to welcome each of you here for this very important
congressional hearing. We are especially happy to have an oppor-
tunity to visit with our Representatives in the Federal Government
who are interested in this issue, and who are validly interested in
working on our behalf concerning this issue.
We are very proud of our own Representative Pete Geren. We are
always happy to have him back in Johnson County. We also have
Congressman Stenholm and Congressman Edwards, and we thank
both of you for coming today.
We have a number of other very special guests. We have Texas
State Attorney General Dan Morales; Mr. Keith Jones, who is here
on behalf of the Governor's office, who is the agricultural policy co-
ordinator for the Governor. We have the Honorable Rick Perry,
who I do not see here yet, who is our State commissioner of agri-
culture; the Honorable Bob Turner of Austin, Texas, a member of
(1)
our house of representatives in the State; and the Honorable John
R. Cook, also a member of the house of representatives who is from
Brekenridge; and our own local State representative, the Honorable
Bernard Erickson, as well as State Senator Sibley. We are happy
to have you here as well.
We appreciate the time that these people are giving as well as
I know they appreciate the time that you are giving to come and
inform them about how the Federal legislation is affecting those
who are at the grassroots level of the American political system. So
on behalf of the citizens of Cleburne, it is a pleasure to have you
here and we hope that while you are here, you will discover
Cleburne.
Thank you.
OPENING STATEMENT OF HON. CHARLES W. STENHOLM, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Stenholm. The Subcommittee on Department Operations
and Nutrition of the House Agriculture Committee, will come to
order.
The purpose of toda/s hearing is to review the issues surround-
ing the protection of the golden-cheeked warbler under the Endan-
gered Species Act, specifically with respect to its impact on produc-
tion agriculture. We are interested in the roles that various Grov-
ernment agencies play and the degree to which Federal, State, and
local policies are coordinated and administered.
The Endangered Species Act was passed into law in 1973, and
is in the process of being reauthorized by Congress. The act has not
been reauthorized to date given the extreme controversy surround-
ing this issue, and others. Some believe it to be this country's most
important and powerful environmental statute, while a growing
number of others contend that the act serves at the expense of the
property owner.
Regardless of the substantive differences, most believe that the
overlap and inconsistency among Federal environmental laws,
when combined with State and local environmental controls, are a
major threat to the economic viability of many agriculture produc-
ers.
I don't have to tell anyone in this room that people have different
opinions about the golden-cheeked warbler, and honest differences
on any issue are expected. But unfortunately, there has been a
great deal of conflicting information and emotion surrounding this
particular issue, making it difficult for people to work together to
ultimately address the problem.
While the Agriculture Committee does not have direct jurisdic-
tion over this legislation, it is my intent that this hearing provide
a forum for addressing this subject, as it relates to agriculture, so
that legitimate concerns and questions can be discussed in a ra-
tional, educational, and productive manner. We will then work
with the appropriate committees of jurisdiction to ensure that the
concerns expressed today are fully considered as the Congress
works to provide balance and common sense to the currently unbal-
anced and unworkable situation.
This is not an easy issue, it is not a simple issue, but we are all
here today because we believe the current system can and should
be greatly improved. And we appreciate all the witnesses for being
here to help us begin doing just that.
Now I would like to recognize my colleague and host for today's
hearing here in Cleburne from the 12th District, Pete Geren, for
opening remarks.
Now, we will hear from Mr. Greren,
OPENDSTG STATEMENT OF HON. PETE GEREN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Geren. Thank you, Mr. Chairman.
I want to welcome you, and my colleague and friend Chet Ed-
wards from Waco, here to Cleburne in the 12th Congressional Dis-
trict, and welcome everyone who is here to participate in the hear-
ing and listen to our testimony and be a part of this important
process.
We are here to discuss the economic and property rights impact
of the proposed critical habitat designation for the golden-cheeked
warbler. This plan could cover up to 20.5 million acres in 33 Texas
counties and could affect the private property rights of the citizens
that live in those counties.
The private property rights issue is currently being debated in
the courts, including the Supreme Court, the Congress, State legis-
latures, and most importantly, by citizens of this Nation in their
homes, in their farms, in their businesses, and at the local coffee-
shops.
This hearing gives us the opportunity to hear from the Federal
agencies involved in implementing these policies and the citizens
who will be affected by this proposed designation. It is my hope
that this hearing will provide further education and information on
this important issue and bring us closer together in finding a bal-
anced approach to resolve this debate.
I look forward to hearing the testimony from all sides of this
issue, but before we begin I would like to say a few words about
the Endangered Species Act and its role in this process.
The need to determine critical habitat is a result of the 1990 list-
ing of the golden-cheeked warbler as endangered under the act.
The act was passed some 20 years ago and it is based on a very
important premise, "To provide a means whereby the ecosystems
upon which an endangered species and threatened species depend
may be conserved, to provide a program for the conservation of
such endangered and threatened species, and to take such steps as
may be appropriate to achieve the purposes * * * " However, the
Department of the Interior has sought to expand the scope of the
act beyond that intended by Congress and in many instances I am
afraid beyond common sense.
I was not a Member of Congress when this bill was passed by
the House, but Senator Mark Hatfield was. As a matter of fact.
Senator Hatfield helped write this law. He too agrees that there
are serious problems in the way the law is interpreted and admin-
istered.
He was recently quoted as saying that the act, "* * * is being
applied in a manner far beyond what any of us envisioned when
we wrote it 20 years ago. The act is being applied across the entire
State and regions, with the result that it now affects millions upon
millions of acres of publicly and privately owned land and many
thousands of human beings. Congress always considered the
human element as central to the success of ESA. But the situation
has gotten out of control."
In looking at the way the critical habitat designation has been
handled, I have to agree with Senator Hatfield — the situation has
gotten out of control. The preliminary critical habitat plan threat-
ens the economic health of the agricultural sector in certain parts
of Texas, including citizens in our area.
But, the ramifications of the ESA and its impact on private prop-
erty owners spreads way beyond Texas borders. And the debate
that we are a part of today is a part of a debate that extends well
beyond Texas and all across our country. It is my opinion that this
plan goes well beyond the scope of the Department's statutory au-
thorization.
I look forward to the testimony on this issue and urge everyone
to participate in this hearing. We need to strike a balance between
the environment and the needs of the people, and it is my hope
that this hearing will help us do that by bringing a little common
sense back into the picture.
Again, I want to thank Chairman Stenholm for hosting this hear-
ing here, in Johnson County so that the citizens of our area have
an opportunity to participate, and I certainly want to thank my
friend Chet for his participation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Greren follows:]
STATEMENT OF CONGRESSMAN PETE GEREN
BEFORE THE SUBCOMMITTEE ON DEPARTMENT OPERATIONS & NUTRITION
SEPTEMBER 16, 1994
Mr. Chairman,
I would first like to thank you for convening this hearing in
Johnson County and welcome the witnesses and the large crowd that
has come here today.
We are here today to discuss the economic and private property
rights impact of the proposed critical habitat designation for
the golden- cheeked warbler. This plan could cover 20.5 million
acres in 33 Texas counties and could affect the private property
rights of the citizens that live in those counties.
The private property rights issue is currently being debated in
the courts, including the Supreme Court, the Congress, state
legislatures, and most importantly by the citizens of this nation
in their homes, farms, businesses and local coffee shops. This
hearing gives us an opportunity to hear from the federal agencies
involved in implementing these policies and the citizens who will
be affected by this proposed designation. It is my hope that
this hearing will provide further education and information on
this important issue and bring us closer together in finding a
balanced approach to resolve this debate. I look forward to
hearing the testimony from all sides of this issue, but before we
begin I would like to say a few words cibout the Endangered
Species Act, and its role in this process.
The need to determine critical habitat is a result of the 1990
listing of the golden- cheeked warbler as endangered under the
Endangered Species Act (ESA) . This act was passed in December
1973, some 20 years ago. It is based on a good premise -- "to
provide a means whereby the eco- systems upon which an endangered
species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered and
threatened species, and to take such steps as may be appropriate
to achieve the purposes..."; however, the Department of Interior
has sought to expand the scope of the ESA beyond that intended by
Congress and in many instances beyond basic common sense.
I was not a member of Congress when this bill passed the House,
but Senator Mark Hatfield was. As a matter of fact. Senator
Hatfield helped write this law. He too agrees that there are
serious problems in the way the law is interpreted and
administered. He was recently quoted as saying that the ESA
"...is being applied in a manner far beyond what any of us
envisioned when we wrote it 20 years ago. . .The act is being
applied across entire states and regions, with the result that it
now affects millions upon millions of acres of publicly and
privately owned land, and many thousands of human
beings. . .Congress always considered the human element as central
to the success of the ESA. . .The situation has gotten out of
control . "
When looking at the way the critical habitat designation has been
handled, I have to agree with Senator Hatfield -- the situation
has gotten out of control. The preliminary critical haJaitat plan
threatens the economic health of the agriculture sector in
several parts of Texas, including our area. But, the
ramification of the ESA and its impact on private property owners
spreads way beyond our Texas borders. It appears that the
Department of the Interior has not taken the time to consider the
potentially devastating economic impact that this plan and others
like it have on private property owners. In my opinion this plan
goes well beyond the scope of the Department's statutory
authorization.
I look forward to hearing the testimony on this issue and urge
everyone here to listen closely. We need to strike a balance
between the environment and the needs of the people, and it is my
hope that this hearing will help us do that by bringing a little
common sense back into the picture.
Again, I want to welcome my colleagues, the witnesses and all of
you who have come to our fair city of Cleburne for this important
hearing .
8
Mr. Stenholm. Mr. Edwards.
OPENING STATEMENT OF HON. CHET EDWARDS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Edwards. Mr. Chairman, thank you very much. I want to
be very brief, because you have put together distinguished panels
and I am here to Usten more than to talk. I just want to say a few
things.
First, thank you, Mr. Chairman, for having this hearing. I think
this is a terribly important issue, because we are talking about
more than just cedar and birds, we are talking about fundamental
property rights and agricultural productivity in Texas and through-
out the country.
Pete, I want to thank you for letting us come to Johnson County
and thanks for the hospitality of all of the people. I have some good
memories. I worked for a fellow named Tiger Teague that many of
you know represented this county for a number of years. It is good
to be back here.
Very briefly, I would just express my concern that the Endan-
gered Species Act seems to be a typical example of governmental
agencies out of control. I am concerned that sometimes there seem
to be more protections for bugs and birds than for people and prop-
erty rights, and it is time to put some common sense into this im-
portant legislation.
Today, Mr. Chairman, I am especially interested in hearing from
the Federal agencies involved as to what farmers and ranchers can
and cannot do. As I traveled throughout my district as late as yes-
terday afternoon, I found that there is paralysis from here to the
unknown. Ranchers don't know whether they can cut on their prop-
erty, not cut on their property. Can they build fences, or can they
not build fences?
If we don't get some very clear answers soon from the U.S. Fish
and Wildlife Service, I think you are going to see quickly an impact
on economic development and agricultural productivity throughout
this part of Texas, and I hope we will get answers to those ques-
tions.
I appreciate your having this hearing; it is an important one, and
I certainly look forward to hearing from the distinguished panel of
elected officials and others that you have put together.
Thank you, Mr. Chairman.
Mr. Stenholm. Thank you.
As all can see, our docket is extremely full today. We have a
large number of witnesses. We have asked and will continue to ask
that each of our witnesses limit their oral statements to 5 minutes.
All of the prepared statements that you present to us will be made
a part of the record.
I regret that we are unable to accommodate everyone interested
in testifying today. However, if time allows at the end of the wit-
ness list, we intend, as we always do in any committee that I chair,
to allow additional views to be presented at the witness table until
as long as time will permit. So anyone that is not an official wit-
ness that may choose to do so at the end, we will try to accommo-
date each and every person.
Also, the hearing record will remain open for 10 days to receive
any written statements or any additional information that any wit-
nesses may need to present to this hearing. We look forward to all
of the testimony, and before I call the first panel, as I mentioned,
respectfully asking everybody to stick to 5 minutes. You have just
witnessed a real miracle here today, because we have had three
Members of Congress and a mayor speak in less than 5 minutes
each. So the pressure is on.
With that, I call the first witness, Mr. Keith Jones, on behalf of
the Honorable Ann Richards, Governor of the State of Texas.
STATEMENT OF ANN RICHARDS, GOVERNOR, STATE OF TEXAS,
PRESENTED BY TRUMAN KEITH JONES, AGRICULTURAL
POLICY COORDINATOR
Mr. Jones. Chairman Stenholm, Congressman Geren, and Con-
gressman Edwards, my name is Keith Jones, staff person respon-
sible for agricultural matters for Governor Richards. I appreciate
the opportunity to be here today to bring a message on her behalf.
This letter is directed to Chairman Stenholm.
"Thank you for inviting me to participate in the September 16
hearing to be held in Cleburne by the Subcommittee on Depart-
ment Operations and Nutrition. I am sorry that my schedule will
not permit me to attend.
"The Endangered Species Act of 1973 signed by President Nixon
and strengthened by 1982 amendments signed by President
Reagan evolve from the public's growing concern about the demise
of certain animal and plant species and fear that our actions would
eventually harm human beings.
"We all remember and take pride in our efforts to save the bald
eagle and the whooping crane from extinction. But now the Federal
Government has become so overreaching in its efforts to implement
the act that it undermines its own ability to achieve the worthy
goals established by the legislation.
"The U.S. Fish and Wildlife Service's efforts over the past few
years to enforce the law and protect the warbler have created enor-
mous problems for landowners, most of whom are proud of their
reputations for being good stewards of the land. In some cases, the
agency's inability to respond in a timely way have been merely in-
convenient for the public. In other cases, it has literally robbed peo-
ple of their financial security. Some property owners have waited
for months, if not years, for the U.S. Fish and Wildlife Service to
give them a permit to proceed with their plans.
"So it was not surprising that the citizens in the 33 central Texas
counties were outraged to read in the newspapers that the U.S.
Fish and Wildlife Service was considering designating even por-
tions of this area, some 32,000 square miles, as critical habitat for
the warbler.
"In July, I wrote Interior Secretary Babbitt to express my serious
concerns about implementation of the Endangered Species Act in
Texas and particularly plans for designation of critical habitat for
the golden-cheeked warbler. I urged the Secretary to consider the
potential economic impacts of the critical habitat designation to the
maximum extent allowed by law, and to ensure that any actions re-
10
lated to this designation respect the property rights and needs of
landowners, farmers, and ranchers.
"This week I have asked Secretary Babbitt to direct the U.S. Fish
and WildHfe Service to drop all plans to designate critical habitat
in central Texas. There is precedent for this. I understand that in
some cases, the agency has declined to define critical habitat when
a species inhabits a large geographic area and both the species and
its habitat are wildly dispersed. This is certainly the case for the
33 county area included in the proposed study, an area covering
some 32,000 square miles.
"In addition, the U.S. Fish and Wildlife Service should allow nor-
mal agricultural practices in central Texas to continue without
Federal interference or restrictions. Biologists from the Texas
Parks and Wildlife Department have previously testified before
Congress that these practices have little effect on the golden-
cheeked warbler. But this action alone isn't enough. The U.S. Fish
and Wildlife Service must change direction and implement the En-
dangered Species Act in a sensible way that the public can support.
"Compliance with the act is especially difficult in Texas, because
more than 75 percent of the State's land is privately owned, yet the
Federal Government offers no assistance or incentives to land-
owners to protect important habitat. A good first step would be to
enlist the cooperation of landowners. State biologists, local officials,
and others in developing clear, written guidance for property own-
ers. I hope the subcommittee will also consider creating financial
incentives for landowners asked to protect habitat.
"This subcommittee has an opportunity to force changes in the
way the ESA is implemented, and I welcome your help. My office
is available to assist the subcommittee in any way.
"Sincerely, Ann Richards, Grovemor of the State of Texas."
That concludes my remarks.
Mr. Stenholm. Thank you.
Our next witness will be the Honorable Dan Morales, attorney
general of the State of Texas.
Mr. Morales, welcome.
STATEMENT OF DAN MORALES, ATTORNEY GENERAL, STATE
OF TEXAS
Mr. Morales. Thank you very much, Mr. Chairman and Mem-
bers. I appreciate the opportunity to address the subcommittee this
morning regarding the possible designation by the U.S. Fish and
Wildlife Service of critical habitat for the golden-cheeked warbler.
In my view, the fundamental issue at stake here requires that
your committee help us strike a difficult balance between the needs
to preserve our precious natural heritage and the duty to protect
individual property rights.
Our most basic concern is that certain preservation proposals of-
fered by the U.S. Fish and Wildlife Service appear to be completely
out of balance. Indeed, these proposals would seem to us to be far
more harmful than the harm they seek to prevent.
Put more bluntly, it is the position of the State of Texas that the
Federal Government has no legitimate need or right to control hun-
dreds of thousands of acres of private land in central Texas to pro-
tect the golden-cheeked warbler. On the 24th of August, I informed
11
Secretary of Interior, Bruce Babbitt, that we were prepared to sue
his agency to prevent the designation of this land as critical habi-
tat. We fear that such action may well be necessary to head off a
Federal agency which we believe has misinterpreted the Endan-
gered Species Act.
It appears that the U.S. Fish and Wildlife Service views the En-
dangered Species Act as a permit to exercise unilateral power to
control natural resources and to impair private property rights on
a massive scale.
If I may, Mr. Chairman, I would like to direct the committee's
attention to exhibit 1 on the dais, which shows the 33 counties in
which the critical habitat for the golden-cheeked warbler may be
designated. Exhibit No. 2 shows the counties affected by current
designations of critical habitat for the eight listed endangered spe-
cies.
Exhibit No. 3 shows the counties potentially affected when Fish
and Wildlife completes the designation of the critical habitats for
the 62 endangered or threatened species in the State of Texas.
As you can see. Members, this would include some 212 of the 254
Texas counties which would be affected to some degree by the des-
ignation of critical habitats by Fish and Wildlife. We find this un-
acceptable.
The U.S. Fish and Wildlife Service makes this designation unac-
ceptable by its conduct. The Service comports itself as though criti-
cal habitat designation gives it dominion over private lands. For ex-
ample, as the committee knows, in Kerr County, an individual was
recently attempting to clear cedar from his land when the U.S.
Fish and Wildlife Service ordered him to cease until an investiga-
tion can be conducted at his expense to determine whether golden-
cheeked warblers were nesting on his land. And where the Service
cannot exercise direct power over Texas landowners, we have grave
concerns that the U.S. Fish and Wildlife Service will seek to control
them indirectly through pressure applied to other Federal agencies
that might have dealings with our landowners.
Indeed, it is our understanding that the U.S. Fish and Wildlife
Service has already invited some 69 Federal agencies to a primer
session on their duties to administer the Endangered Species Act.
The ramifications of this widespread morass of mid-level bureau-
crats is mind-boggling.
I firmly believe that when it passed the Endangered Species Act,
Congress did not intend to empower Federal bureaucrats to over-
ride State and local authorities, or to jeopardize the private prop-
erty rights of Texas landowners. Some courts, Mr. Chairman, as
you know, including the Federal circuit court in DC, in the Sweet
Home Chapter case, have already agreed with our viewpoint.
The final point of concern, Members, is one of attitude. It seems
as though the U.S. Fish and Wildlife Service assumes that it will
be a better steward of our land than the Texans who own that
land, who in many cases have lived there for generations.
Permit me to suggest to the committee that in the overwhelming
majority of cases, the best possible stewards of Texas lands are al-
ready there, ensuring that the land and its abundant biodiversity
will be preserved for succeeding generations.
12
Ninety-seven percent of Texas land is privately held. Our land-
owners welcome advice and assistance from local, State, and Fed-
eral officials, but only those who are far removed from the people
of this State who believe that the interference, the fines, the
threats, indeed the bullying that accompanies this critical habitat
designation is of benefit to our landowners or indeed to anyone in
this country.
Mr. Chairman and Members, in closing, it is my greatest regret
with regard to this controversy as it has been portrayed in the
media that it has been cast as a fight between those who care
about the environment and those who do not.
Nothing could be further from the truth. The issue should not be
cast as an environmental one. Landowners are neither bad guys
nor antienvironment. They would be the first to tell us that the
various species should be protected, as should all of our natural re-
sources. Next to the people themselves, the natural environment of
Texas is its most precious resource.
The issue before us is finding a way for our people and our ani-
mals, endangered or otherwise, to live together without the inter-
ference of the intrusive Federal agencies. We are seeking to achieve
that ecological balance in Texas. The question is whether Fish and
Wildlife is here to help or to hinder.
While I remain hopeful that lengthy and expensive litigation can
be avoided, I have advised Secretary Babbitt of my resolve to de-
vote the full resources of my office to vigorously protecting the
rights and interests of Texas property owners.
Mr. Chairman and Members, I have directed my lawyers to con-
sider all legal options available to the State to resist further ero-
sion of private property rights in Texas. We would anticipate that
in the coming days we will be prepared to begin formal proceedings
if necessary to preserve those interests.
Mr. Chairman and Members, I very much appreciate the oppor-
tunity to appear before the subcommittee this morning.
[The prepared statement of Mr. Morales appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you.
Our next witness will be the Honorable Rick Perry, commissioner
of agriculture. State of Texas.
STATEMENT OF RICK PERRY, COMMISSIONER, DEPARTMENT
OF AGRICULTURE, STATE OF TEXAS, ALSO ON BEHALF OF
THE NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF
AGRICULTURE
Mr. Perry. Good morning Mr. Chairman and Representatives
Geren and Edwards. It is a pleasure to be with you this morning,
and an opportunity to appear before your committee today. I speak
not only on behalf of the Texas Department of Agriculture, but also
the National Association of State Departments of Agriculture,
which earlier this week at my instigation elevated private property
rights to a priority issue in that group's portfolio of issues that are
going to be coming before Congress.
Problems with the Endangered Species Act are not new, and this
is not the first time I have testified at this type of hearing. But it
is heartening that more and more people are beginning to recognize
13
that there are serious problems with the Endangered Species Act
and are Hstening to the concerns of Texas farmers and ranchers
about how to fix this badly broken law.
My written testimony offers a more detailed analysis of these
problems and possible solutions. But in the interest of time, I am
going to address one of the biggest problems and that is the imple-
mentation of Endangered Species Act by the U.S. Fish and Wildlife
Service.
The Endangered Species Act began as a noble idea, but has been
expanded by bureaucrats until it is out of control, doing little to
save species, but endangering the livelihood of Texas farmers and
ranchers.
The U.S. Fish and Wildlife Service, in enforcing the act, has be-
come a hungry animal with an insatiable appetite for more power.
Many landowners have horror stories from dealing with Govern-
ment bureaucracies, but let me just cite you one. In February of
1991, Margaret Rodgers received a letter from the U.S. Fish and
Wildlife Service that warned her that she could be subject to fines
of up to $50,000 or imprisonment for up to 1 year, or both. I don't
know whether that was her choice or not.
Her crime? A bulldozer cut a fence line across this 87-year-old
widow's central Texas ranch, which had been in her husband's fam-
ily for over 60 years, and destroyed some juniper trees. The U.S.
Fish and Wildlife Service considered this destruction of habitat for
the endangered golden-cheeked warbler. Officials later admitted
this letter was sent in error, but they requested that Rodgers con-
tact them before clearing any more land of her 3,100-acre Sunset
Ranch in northwest Travis County.
The question is, would they have admitted their mistake without
serious pressure from various agricultural groups?
Stories like this are not uncommon. Many credible observers be-
lieve the current rural Texas landowner backlash against the sug-
gested golden-cheeked warbler habitat can be traced directly to one
thing, and that is the failure of the U.S. Fish and Wildlife Service
to provide adequate, sensible information, in a timely manner, to
those who make their living on the land and who own the vast ma-
jority of the habitat of this endangered species.
Both Texas rural landowners and seasoned State agency biolo-
gists have expressed frustration in dealing with this agency. This
type of stonewalling leads me to wonder if certain environmental
groups, through threat of litigation, are actually calling the shots
at the U.S. Fish and Wildlife Service.
This arrogant refusal to respond to the needs of the owners of
habitat is hurting legitimate wildlife conservation efforts. The En-
dangered Species Act has become a major negative force for con-
servation. Landowners are told only what they can't do and not
what they could do positively or even which of these actions do not
adversely affect species.
In the case of the warbler, ranchers were told by the U.S. Fish
and Wildlife Service that grazing and other range management
practices were harmful to the warbler, but the U.S. Fish and Wild-
life Service had little or no data to back up that type of a state-
ment.
14
This is the heart of the problem with enforcement of the Endan-
gered Species Act: Decisions are made with Uttle or no scientific
data to back them up.
Two other pending endangered species listings offer further
proof. The U.S. Fish and Wildlife Service is considering listing the
swift fox in the Texas Panhandle and the jaguar in south Texas,
despite the fact that the Texas Parks and Wildlife Department bi-
ologists have told them scientific data does not warrant listing the
swift fox and that historical records show that the jaguar hasn't
even been seen in south Texas since 1948.
How is any rational person supposed to buy into logic like that?
How are Texas landowners supposed to believe or support anj^hing
that the U.S. Fish and Wildlife Service tells them when decisions
which affect their ability to make a living are based on mere suppo-
sitions that are pretty close to what I call biological voodoo?
Species and habitat survive today because of management prac-
tices of Texas farmers and ranchers, not in spite of them. However,
as presently implemented, the Endangered Species Act works
against good stewardship and makes the presence of an endan-
gered species on property a liability rather than an asset.
Ranchers don't want to — and under the fifth amendment to the
United States Constitution, should not have to — clear their daily
management decisions with some distant bureaucrat in Washing-
ton, DC. But today they must, which unfortunately creates a real
economic incentive to destroy habitat, not because of animosity to-
ward species and not because it will make money, but because of
a real fear of Federal control.
Texas rural landowners have made clear their intention to keep
fighting for reasonable solutions to the Endangered Species Act.
The act simply does not work. Adding more restrictions and regula-
tions will not fix it, but will in fact cause further resistance among
rural landowners.
Legislation proposed by Representative Pombo, H.R. 3978, and
Representative Billy Tauzin, H.R. 1490, to amend the current En-
dangered Species Act contains important provisions which will
bring common sense and realism to the implementation of the law.
I urge you to favorably consider these bills when Congress reau-
thorizes the Endangered Species Act.
I also ask you to try incentives. Try listening to people who have
managed land for generations. Try letting biologists and others
work together at local levels to come up with collaborative, creative
and voluntary solutions for species and natural resource protection.
Take the fear out of trying new conservation activities, and repeal
the citizens lawsuit provision. G«t the egos of bureaucrats and en-
vironmental leaders out of this debate and inject a great dose of
common sense.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Perry appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next we will hear from the Honor-
able Bob Turner, House of Representatives, State of Texas.
15
STATEMENT OF BOB R. TURNER, STATE REPRESENTATFVE,
DISTRICT 73, STATE OF TEXAS
Mr. Turner. Mr. Chairman, Members, my name is Bob Turner.
I am a sheep rancher. I also represent the 73d legislative district
in the Texas House of Representatives.
This area is a little less than 20,000 square miles and larger
than the States of Vermont, New Hampshire, and Rhode Island all
combined, to give you some indication of the problems that we face
on endangered species of various kinds. I chair the natural re-
source subcommittee on mitigation of property rights and the prop-
erty rights task force for the Texas Conservative Coalition.
I would like to share with you some of my concerns with the pro-
posal to designate critical habitat for the golden-cheeked warbler as
well as my concern with the Endangered Species Act as currently
enforced.
At a joint hearing of the Texas house and senate natural re-
sources committees earlier this week, Mr. John Rodgers of the U.S.
Fish and Wildlife Service made a statement to the effect that there
was not now, nor has there ever been, a proposal to designate criti-
cal habitat for the golden-cheeked warbler.
If then this is indeed the case, why did the service print informa-
tional pamphlets on critical habitat that included this language:
"Critical habitat will be proposed to include habitat that is needed
for a viable population in each region?"
I believe that the Service intends to proceed with this designa-
tion despite its assurance to the contrary. If it is not, the Service
has wasted a great deal of taxpayers' money on pamphlets explain-
ing something they had no intention to do.
Sam Hamilton of the USFWS Austin office and Mr. Rodgers have
both stated that if critical habitat is designated, only the actions
of Federal agencies will be affected. They also claim that private
property owners will not be affected negatively, and that normal
ranching activities would be allowed to continue. I would like to see
this in writing, what they consider to be normal ranching activity.
Also, Federal money equals a Federal agency as far as the en-
forcement of the Endangered Species Act is concerned. Can you tell
me how many people you know who farm or ranch without involve-
ment with the Government in such areas as ASCS, SCS, ADC and
USDA, for homeowners. Farmers Home and FDIC are Federal
agencies as well with funding coming from Federal sources?
All of our State agencies receive Federal funding from the Texas
Parks and Wildlife Department and the Texas Department of
Transportation. So to say that this will only affect Federal agencies
is an understatement to say the least.
My legislative district contains 7 of the 33 possible counties men-
tioned as habitat in the pamphlet, therefore, my interest in this
issue is extremely keen. I have also found that my district is home
to many other species listed as endangered or threatened.
In many cases, the people who live with these creatures have no
idea of their existing or protected status. For this reason, we
should not allow ourselves to become too preoccupied with the habi-
tat question. To focus excessively would do this issue a disservice.
Even if the U.S. Fish and Wildlife Service does not follow
through with its own plans to designate critical habitat for the
16
golden-cheeked warbler, any area that currently contains the gold-
en-cheeked warbler, or any other federally listed species, habitat is
already subject to the restrictions of the Endangered Species Act.
The only reason why more Texans haven't had firsthand experi-
ence with the Endangered Species Act can be attributed to the lack
of adequate U.S. Fish and Wildlife Service staff in Texas. Their en-
forcement activities are limited to what evidence they can find by
flying over large areas of private property and primarily to infor-
mation provided by citizen complaints. In the areas where there
have been a significant enforcement activity as in Travis County,
instances of conflicts are numerous and well documented.
If the act only affects Federal actions, then why have we seen
letters through our constituents that threaten them with fines and
prison such as Commissioner Perry just discussed, imprisoned un-
less they cease brush clearing on their property.
People with similar experiences testified before the panels which
I have chaired. Their testimony paints a picture of a Federal agen-
cy that considers only the endangered species and its habitat. Lit-
tle, if any, consideration is given to the human and economic costs
involved. The ESA in its current form requires this type of policy.
Unless we change the act and the way it is implemented, I be-
lieve we will have more and more conflicts between the ESA and
the taxpayers who provide for its enforcement with their hard-
earned tax dollars.
From what I have seen, it appears that the ESA will eventually
affect every landowner in Texas in one way or another. As more
species are listed and more enforcement activity is necessitated by
lawsuits from environmental groups, we will all have to pay — if not
directly, via the loss of our property or its devaluation, then
through the increased costs incurred by State and Federal agencies
that are forced to jump through the elaborate set of hoops specified
by the act.
It gets especially complicated when you involve State and Fed-
eral agencies that possess the power of condemnation and are re-
quired to mitigate more and more with each project. Thus, it ap-
pears obvious to me that people will increasingly be run over by
ESA with or without the golden-cheeked warbler critical habitat
designation.
There is an incredible information gap that exists between the
regulators and the regulated. We need accurate and timely infor-
mation as to what these policies are and how they will really affect
us. I don't believe that what we are being told is everything, and
what little information that we have has been hard to come by.
I invite you to look through the testimony records that we re-
ceived this summer in our numerous hearings, make your own de-
cision. I am sure that you will join me in the conclusion that the
Endangered Species Act in its present form is not acceptable and
must be changed to reflect the proper role of the private landowner.
Anything else will not work and will accomplish little toward the
expressed purpose of the conservation of any rare species.
What little progress will be made in that area will be accom-
plished at great expense of our freedoms and property. We have
often heard reference to land owners letters from the U.S. Fish and
Wildlife Service.
17
I would like to read briefly one of those which is a fairly short
letter. I have a copy in my hand from a friend of mine who is a
rancher in Kerr County. I actually have a copy of this and I think
it would be interesting to those of you who believe that we need
only fear designated critical habitat. From the U.S. Department of
Interior, U.S. Fish and Wildlife Service dated April 7, 1994 in Aus-
tin, Texas to Walter D. Carson, Hunt, Texas, which is in Ken-
County.
"Dear Mr. Carson, this letter is in reference to recent clearing ac-
tivities on the property you own on 1340 Farm Market Road in
Kerr County, Texas. This property supports vegetation that is pos-
sibly occupied by the federally listed endangered golden-cheeked
warbler. According to our files, golden-cheeked warblers have been
sighted on adjacent properties in similar habitat and are possibly
present on your property close to the area that has been bulldozed.
If the activities taking place on the subject site disrupt the breed-
ing and/or foraging activities of this federally protected golden-
cheeked warbler, these activities would constitute a take of the list-
ed species. Take of listed species is prohibited under section 9 of
the Endangered Species Act, must be avoided or authorized under
section 7 or section 10 of the act.
The term take means to harass, pursue, hunt, shoot, wound, kill,
trap, capture, or collect or attempt to engage in any such conduct.
Incidental taking authorized under section 7 or section 10 of the
act means any taking otherwise prohibited, if such taking is inci-
dental to and not the purpose of the canying out of is unlawful ac-
tivity.
Based on aerial photographs and other information available in
this area, we recommend that clearing activities of your property
be discontinued and a biological survey be performed using quali-
fied biologists to determine if this habitat is currently being uti-
lized by golden-cheeked warblers or not. This would help you and
our office to determine if further investigation is warranted.
I believe this proves beyond a shadow of a doubt that we all have
problems with the Endangered Species Act as it is written, whether
we are in a critically declared habitat area or not."
Thank you for the opportunity to testify before you today.
[The prepared statement of Mr. Turner appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Bob.
Next we hear from the honorable John R. Cook, House of Rep-
resentatives, Breckenridge, Texas.
STATEMENT OF JOHN R. COOK, STATE REPRESENTATIVE,
DISTRICT 60, STATE OF TEXAS
Mr. Cook. Mr. Chairman and Members, I represent the 60th dis-
trict in the State legislature, which includes all of the area that is
colored in red in Mr. Morales's exhibit 3. I think that while the En-
dangered Species Act and many of the other regulatory require-
ments through State agencies are important and affect the position
both of the State and the citizens of this State, as it relates to the
U.S. Fish and Wildlife Service's enforcement — and certainly the
U.S. Fish and Wildlife Service's proposed designation is one that
affects us not only in agriculture, but in other areas of our econ-
18
omy, such as real estate, and the lending and value on that real
estate.
My remarks today relate primarily to agriculture. The proposal
of the U.S. Fish and Wildlife Service to designate a substantial por-
tion of Texas as a critical habitat for the golden-cheeked warbler
is for most citizens of this State an act comparable to those of the
British leading the Boston Tea Party.
As farmers, ranchers and other rural citizens, we appreciate and
understand the need to protect our environment and the wildlife on
our property. We have left brush along creeks and other areas, we
have plowed less than the boundaries of our fields, we have built
stock tanks and ponds to provide wildlife protection, even to the ex-
tent of losing part of the grass available to livestock, or reducing
the potential return from our crops.
In conservation plans we have developed both independently and
with the Soil Conservation Service, there has been economic rea-
soning included within the planning, because the wildlife either
provide additional hunting income, recreation or opportunities to
appreciate wildlife in their natural habitat.
The proposals of the U.S. Fish and Wildlife Service were not pre-
sented to be alternatives, but as mandatory restrictions of land use,
even when we otherwise participated in good conservation planning
through other agricultural programs. Prior history of regulatory
agencies leads us to believe that the restrictions on use under the
facade of the Endangered Species Act would be nothing less than
a taking of private property.
The constituents of my district are not ready to give up their
property or have burdensome restrictions on the use of their prop-
erty imposed by a Federal agency that has not considered and does
not consider the economic impact of regulatory mandates.
The proposals regarding the golden-cheeked warbler, no matter
how distasteful, are in my opinion, not the entire problem that we
face today, but a manifestation of the rising frustration of the ex-
tended hand of all Federal agencies attempting to regulate without
making a full review of the effect and economic costs to the citizens
and small businesses within our country.
Whether we are dealing with the little bird, the EPA, the Clean
Water Act, the proposed amendments to expand the outstanding
national resources waters program or any other Federal mandated
regulatory program, each of you in Congress must understand that
you are individually held accountable, as those of us in the Texas
Legislature, for the authority that you extend to agencies under
your jurisdiction, to promulgate rules and regulations.
We must have some kind of common sense in Federal programs
which balance property rights and economic costs with the need to
protect the environment, wildlife, and even endangered species. We
are looking to you to see that action is taken on all Federal agen-
cies to be more realistic in their standards and to assure us that
they do take a true look at the costs and balance them with your
intended goals before you authorize their actions.
Thank you for coming to Cleburne today, because I think the
people of Texas appreciate the opportunity to let us tell you how
we feel.
Thank you.
19
[The prepared statement of Mr. Cook appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you, John. Next we will hear from the
Honorable Bernard Erickson, House of Representatives, Cleburne,
Texas.
STATEMENT OF BERNARD ERICKSON, STATE
REPRESENTATIVE, DISTRICT 58, STATE OF TEXAS
Mr. Erickson. I want to take this opportunity to thank you all.
I think this is the proper way to hear from folks like us and the
rest of the citizens.
My district of three counties is included in this critical habitat
area, and there are a couple of points I would like to make. The
golden-cheeked warbler and its impact and so forth, our folks are
concerned about this bird, but we also are very concerned about the
property owner's rights and their abilities.
I would like to state that the agriculture parks and wildlife com-
mittee, and I, talked at length with our chairman, and he, like my-
self, we are against this critical habitat designation.
We would like for you all to consider one thing, that we think
the State should have a little more say in this event, because it is
so important to the area that we represent. I think this whole epi-
sode has left many of our constituents worried about the Federal
Government's ability to take over property rights. I believe that in-
dividuals have the property rights and the Government basically
should not try to infringe upon them.
I truly think that the golden-cheeked warbler question should be
handled through our State and our chairman would be happy to
work with you. If you all are not able to come up with the proper
solutions, we think we can come up with those. We would take tes-
timony this spring and we could take care of the problem in some
way before the nesting season of the warbler.
Let me reflect back for just a second. Back in the fifties and early
sixties, I cut down many a cedar tree with an axe myself. The U.S.
Department of Agriculture, through the ASCS committee, paid our
farmers and ranchers so much per acre if that land was good agri-
cultural land for production, to clear them of the cedars for agricul-
tural production, to feed our citizens and citizens of other coun-
tries.
Now, a very important point that I want to make is our property
owners were paid so much to do this, compensated, and I think
really I would like to make this suggestion. I think the solution is
quite simple, really. Your property owners should be compensated.
Let's put our money where our mouth is.
I think our property owners have the right to participate only if
they want to. It should be their choice. They should be com-
pensated in a manner if they are willing to participate, if they
want to. And I think those two things, if you address those two
problems, that you will solve the problem.
And of course this comes back from the 1900's and early sixties.
Because there are many people participating in that agreement, as
we did. And it solved the problem, and the golden-cheeked warbler
did real well in those days and I think we will continue to do well
if we exercise good wisdom and judgment.
20
I appreciate you giving us the opportunity to address you. Thank
you.
Mr. Stenholm. Thank you, again. Next, the Honorable David
Sibley, State senator from this district, from Waco.
STATEMENT OF DAVID M. SIBLEY, STATE SENATOR, STATE OF
TEXAS
Mr. Sibley, Thank you. I appreciate the opportunity to address
you on this issue.
In recent years there has been a disturbing trend by the U.S.
Fish and Wildlife Service to usurp the rights of landowners under
the Endangered Species Act. The latest effort is the pending pro-
posal to include parts of 33 counties as critical habitat for the gold-
en-cheeked warbler.
Nine of these counties will be in my district which I will rep-
resent in the next session of the legislature. I object to any part
of any of the 33 counties being designated as critical habitat for the
golden-cheeked warbler.
There are many grounds for these objections; however, I will only
go into three. One, the uncompensated taking of private property
by the Government. Two, the designation of a portion of a county
as critical habitat creates a cloud over the title to all land within
the county. Three, the devastating effect to property values.
The taking of private property. The Fifth Amendment to the Con-
stitution prohibits the taking of private property for public use
without just compensation. It does not substantially advance legiti-
mate State interests and it denies property owners economically
viable use of their land.
If a city or county wants to build a road on private property, the
property is condemned, A value is placed on the property and the
owner of the property is compensated for this taking. If the Federal
Government decides that this bird is worth protecting and land
must be taken to protect it, then the Government should pay the
landowners what the value of the property is worth. Now, the
whole burden of protecting the bird falls on the reluctant land-
owner.
Ducks Unlimited buys wetlands which it uses to protect certain
migratory birds. I suggest environmentalists who want to protect
the warbler organize Warblers Unlimited and buy cedar breziks for
the use of these burdens.
In regard to creating a cloud over the title of land, lawyers who
handle land transactions, and banks who loan money for these
transactions, in affected areas are starting to require warranty ti-
tles that the land, is not, and will not be declared critical habitat
for the warbler or any other endangered species. How can a poten-
tial seller possibly comply?
The burden is placed on the seller to prove a negative; that is,
that the property is not critical habitat at that time. Even though
only 10 acres in a county may be critical habitat, every piece of
land in that county is suspect. The prudent buyer will require
these guarantees.
In regard to the reduction of value of land, property values in the
affected area have already been affected. Some land brokers who
were looking for property in some of the affected counties were told
21
not to buy anything until the warbler issue is settled. Who wants
to buy land only to find out later that they can't do anything with
it. School districts are operated by the taxes paid on the value of
property within a district. If property values are lowered, then the
rate will be increased on other property to compensate for this loss
of value.
In conclusion, I think what is most galling about the whole proc-
ess is the delegation of authority like this to unelected officials.
They do their studies on a bird that few have seen, tell us that it
lives here part of the year and that it needs a trash tree to survive.
No person who has to stand for election is in favor of this process.
Please don't allow unelected Government bureaucrats acting
under the color of law to take private property for use of a bird.
Thank you.
Mr. Stenholm. Thank you. Our next witness, testifying in the
dual capacity as State senator from Paint Rock, Texas and also ex-
ecutive secretary of the Texas Sheep and Goat Raisers Association,
Mr. Sims.
STATEMENT OF BILL SIMS, STATE SENATOR DISTRICT 25,
STATE OF TEXAS AND EXECUTIVE SECRETARY, TEXAS
SHEEP & GOAT RAISERS ASSOCIATION
Mr. Sims. There is lot of brushland for sale in Paint Rock, Mr.
Chairman, if you want to move to Paint Rock, if you can find it.
I am Bill Sims, executive secretary of the Texas Sheep and Groat
Raisers Association, and State senator from the 25th District. The
Texas Sheep and Goat Raisers Association is an organization of
sheep producers who raise sheep and goats in central, south central
and the trans Pecos regions of Texas. Most of these ranchers also
graze cattle along with native deer herds and other wildlife and ex-
otic animals. In fact, the wildlife on these ranches is treated as
part of the ranching enterprise when determining the grazing rates
for various pastures. Seven deer are considered as a single grazing
unit, as are seven goats, five sheep and one cow.
When developing a conservation plan for our ranches, all sorts of
wildlife are considered. When brush work is done, normally brush
is left in various configurations to protect the wildlife, game ani-
mals and the birds as well as the songbirds. Songbirds benefit from
management practices: water distribution, feeding of livestock and
game animals, and range improvement. I mention this to let you
know we care about wildlife as we do our domestic animals. We are
not opposed to helping little critters.
What we are very concerned about is the Federal Grovernment
taking control of private property. The proposed establishment of
a 21 million acre, or a 900,000 acre or even 10 acres of critical
habitat on private land is preposterous. I want to tell you some
things I think we can do or I don't like about the whole mess.
One, there is no doubt in my mind that this procedure would be
an act of "taking" of private property without compensation. And
this is not good.
Two, there has been no determination of the population of the
supposedly threatened birds. Without this knowledge, how can
proven critical habitat be set aside? This would be like buying a
22
ranch for an unknown number of goats. If we do not know how
many there are, how do we know how much land is needed?
Three, there is no history of the numbers of golden-cheeked war-
blers in 1890 or in 1900 and on down the line. Without this infor-
mation, there is no way to determine whether or not the population
is going up or down.
Four, the U.S. Fish and Wildlife Service has no information at
all about what happens to these birds during their winter migra-
tion into southern Mexico and Central America. There is specula-
tion that their numbers are being reduced by various means in
their winter nesting area. Now, of course their major nest is in
Texas because that is where they raise the little chicks in the sum-
mertime. If this is true, then what can we do?
There is speculation they are being eaten. And that their habitat
is being demolished by the military and other people.
Five, there is no doubt that the cowbird is reducing the numbers
of golden-cheeked warblers. The director of the Kerr Wildlife Man-
agement Area testified at a public hearing that Representative
Turner was talking about the joint Texas House/Senate Natural
Resources Committee that by trapping cowbirds they were able to
increase the numbers of golden-cheeked warblers and the black
capped vireos by a meaningful amount. They doubled the number
of both of those birds by killing the cowbird.
Mr. Stenholm. I respectfully ask the audience not to participate
by applauding or laughing at any of the witnesses.
Mr. Sims. The female golden chick comes along and gets a piece
of cedar off the little bit at this tree and makes a nest. She lays
her eggs and then the cowbird comes along kicks the warbler eggs
out on the ground, then she lays her eggs in there and then the
female warbler sits on the eggs and hatches them. This was seen
in the wildlife at Kerr that this happens. They started trapping
them, cowbirds, and the population of golden cheeks doubled.
This is what we need to think about.
If the Fish & Wildlife Service should choose to declare a critical
habitat, even though they have no biological support, they should
not use private lands.
All right. There is one other little thing we need to talk about.
Unknowing to a lot of people, there are ample State and Federal
lands available within the range of the golden-cheeked warbler.
There are over 300,000 acres of State lands available, and then I
have estimated there is approximately 500,000 acres of Federal
lands, which are parks. There is a military facility down in Beaux
County that is almost void of any people, and it is an excellent
warbler area.
Also, the upper Colorado River and the lower Colorado River Au-
thority have probably 20,000 to 30,000 acres of land that is off lim-
its to people.
So why would they want to come to private land when Federal
land is available? Wliat I am suggesting is that the Kerr Wildlife
group do a research project and show that, indeed, the black-
capped vireos — and it is also an endangered species — the black-
capped vireos, as well as the golden-cheeked warbler, that they can
be increased by controlling cowbirds and that we do that on public
land.
23
There is also a 1,500 acre reserve in Beaux County owned by
three sisters, which is a well-known facility where wildlife stay and
live. This could also be used. They could go in there and trap the
cow birds. So what I am saying is, sure we want to protect the lit-
tle fellow, but let us do it in a rational way.
And I think that we can do this. As a rancher, I don't care if the
black-capped vireos is there or the little birds are there, it is fine
with me, but thank Grod I don't have any cedar. I had two cedar
trees, and I think they will not be here next week. But the thing
that people are overlooking is, if these trees are not — if the cedar
is not with live oak trees, the golden-cheeked warbler nest in live
oak trees. They do not nest in cedar, they nest in the live oak. So
there has to be a particular area.
In closing, I urge that you leave private property alone or get
ready for the fight of your life.
Thank you very much.
Mr. Stenholm. Thank you. At this point in the record I would
like to insert a statement from the Honorable Kay Bailey Hutchin-
son, Senator from the State of Texas.
[The prepared statement of Mrs. Hutchison appears at the con-
clusion of the hearing.]
Mr. Stenholm. Any questions now of this panel? Mr. Geren?
Mr. Geren. No questions at this time, Mr. Chairman.
Mr. Stenholm. Mr. Edwards.
Mr. Edwards. Mr. Chairman, no questions.
I would just reiterate the point that was made that I think it
says an awful lot that so many elected officials from both parties,
from State offices to Texas Legislature, Members of Congress,
share great problems and concerns about this legislation. I think,
and I hope, the U.S. Fish and Wildlife Service representatives take
notice of that. Thank you all for being here today.
Mr. Stenholm. I too thank each and every one of you for some
very excellent testimony. There were three recurrent themes I
heard from each of the witnesses this morning. One was coopera-
tion. Cooperation between our State and Federal officials in work-
ing on the problem, and that is absolutely necessary, of which I
personally deeply appreciate that cooperation that our committee
has gotten on other issues down the line.
The other is incentive. Recognizing you can lead a horse to water
but you cannot make them drink. It is something we have had a
difficult time doing in the area we are talking about, but it has
been one of the secrets of our soil and water conservation efforts
throughout the history is that it has been voluntary not manda-
tory. Some people have a difficult time beginning to understand
that basic principle.
And then the economic impact of regiilatory authority. A recur-
ring theme and one which was well received by this committee.
We appreciate your attendance today and look forward to work-
ing with you in the days ahead.
Thank you for being here,
I call panel 2. Mr. Rogers, Mr. Oneth, and Mr. Bennett.
Next witness will be Mr. John Rogers, Regional Director, U.S.
Fish & Wildlife Service, U.S. Department of Interior, from Albu-
querque, New Mexico, Mr. Rogers, welcome.
24
STATEMENT OF JOHN G. ROGERS, REGIONAL DIRECTOR,
SOUTHWEST REGION, U.S. FISH AND WILDLIFE SERVICE, U.S.
DEPARTMENT OF INTERIOR, ALBUQUERQUE, NM, ACCOM-
PANIED BY JAMES YOUNG, ASSISTANT REGIONAL DIREC-
TOR, ENDANGERED SPECIES
Mr. Rogers. Thank you Chairman Stenholm, Mr. G«ren, and
Mr. Edwards. Thank you very much for the opportunity and invita-
tion to speak to you, and the pubUc on this critical issue.
My name is John Rogers. I am Regional Director for the U.S.
Fish and Wildlife Service in the Southwestern United States in-
cluding Texas. I am accompanied today by Mr. James Young, the
Assistant Regional Director, Endangered Species, who, with your
indulgence, may help me answer some questions later.
As Regional Director, I have responsibility for overseeing the En-
dangered Species Act throughout the Southwestern United States
and I am glad to be here because I wanted a chance to talk to you
about the golden-cheeked warbler, critical habitat, and impacts on
agriculture. This is an issue, as you know, about which much has
been written and said.
There is a large amount of fear and a large number of people —
and I understand that fear given the level of information that they
have received and I welcome the opportunity to set the record
straight today. In doing so, I want to make a point that I will re-
peat often, both today and later as necessary for people to under-
stand. The U.S. Fish and Wildlife Service has not proposed to des-
ignate critical habitat for the golden-cheeked warbler anywhere in
Texas, anywhere in the world, not 1 single acre. We are investigat-
ing the benefits that such a designation might confer to golden-
cheeked warbler conservation.
The question this hearing seeks to address is the effect that the
Endangered Species Act and golden-cheeked warbler critical habi-
tat has on agricultural lands. The answer to that question is sim-
ple, there is little to no effect. If pastures have been used for years,
they are not golden-cheeked warbler habitat. If hay fields have
been maintained each year, they are not golden-cheeked warbler
habitat. If you have been farming on land for years, it is not habi-
tat. If you have fences that need maintenance, repair, or construc-
tion, those activities may go ahead. If you have regrowth cedar that
is invading traditionally grazed areas, that is not golden-cheeked
warbler habitat. If land has been plowed or grazed routinely, it is
not habitat.
The fact is, prime golden-cheeked warbler habitat is on rocky,
steep slopes. Unless one plans to build or farm on a very steep
slope, and most people do not, they need not worry about golden-
cheeked warbler critical habitat or habitat affecting that property.
The fact is, Mr. Chairman, that warbler critical habitat is not 33
counties, it is not 20 million acres, it is not 800,000 acres. It does
not exist at this point. It has not been proposed.
Agriculture and golden-cheeked warbler are compatible. Agri-
culture and endangered species are generating creative solutions
elsewhere in Texas. As one example and one of which we are most
proud occurred, it is from the lower Rio Grande Valley in Texas.
When it appeared pesticide restrictions might shut down agricul-
tural activities, the U.S. Fish and Wildlife Service, agricultural in-
25
terests and others set down at the table and crafted a solution that
promotes species conservation and sound agricultural practices.
The Cameron County Agriculture Wildlife Coexistence Committee
is a model of cooperation that provides for continued agricultural
production as well as endangered species conservation. So success-
ful has this effort been that the aplomado falcon, a bird that was
once exculpated from the valley, is being reintroduced and system
thriving.
Similar agreements are possible if we sit down together in an at-
mosphere devoid of fear and intimidation and work together to
craft creative solutions. Here in Texas, we have the opportunity to
explore voluntary conservation planning through the rural con-
servation planning process under the leadership of Texas Parks
and Wildlife Department. Private landowners, working with the
State and the U.S. Fish and Wildlife Service, can reach an accord
on voluntary landholder implementation for the preservation of the
golden-cheeked warbler, its rearing habitat and its breeding habi-
tat.
Texas, as we have heard this morning, is a private land State.
Without the cooperation of landholders and others, we will not be
able to recover or conserve the golden-cheeked warbler. We are
looking for cooperation, we are not looking for regulation to solve
this issue.
I would like to close, Mr. Chairman, with a positive vision of the
Endangered Species Act and what we believe can be done with pri-
vate landowners under the Endangered Species Act. First, we rec-
ognize, and we recognize very firmly, the fifth amendment to the
Constitution protects private landowners from regulatory actions
that deprive them of reasonable uses of their land. And it is the
policy of the Department of the Interior and the U.S. Fish and
Wildlife Service to steer well away from such regulatory results.
Second, the U.S. Fish and Wildlife Service, wherever possible,
will work to locate the burden of habitat conservation on public
lands as has been suggested to use mitigation techniques, to work
with local governments to create new values and in appropriate
cases to consider land exchanges or land purchases from willing
sellers.
Finally, the Service is seeking to use the flexibility of the Endan-
gered Species Act to respond to the needs of small landowners for
improvements on their property. We have explored and will con-
tinue to use the flexible provisions of the act that are available to
protect the incomparable diversity and heritage of the State of
Texas and this country and to accommodate the reasonable use and
development expectations of the landowners of those lands.
I believe that the Endangered Species Act enables us to do both
and we will continue to work with landowners as well as State and
local governments to meet the expectations that the endangered
species has placed upon all of us.
The U.S. Fish and Wildlife Service has not made a proposal to
designate critical habitat for the golden-cheeked warbler. We will
not designate critical habitat for the golden-cheeked warbler with-
out an extensive public process. If it is proposed, there will be ex-
tensive public hearings and if there is a proposal, there will be
ample opportunity for continued public input. We are currently
26
going through the process that would indicate whether such a des-
ignation would be prudent; that is whether it would provide addi-
tional protections for the warbler beyond those that already exist
by virtue of its listing.
At this point we have not concluded that evaluation and no pro-
posal to designate critical habitat for the golden-cheeked warbler
anjrwhere has been made.
Thank you, Mr. Chairman, and we would be pleased to answer
any questions you might have.
[The prepared statement of Mr. Rogers appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you, sir. Next we will hear from Mr.
Harry W. Oneth, State Conservationist, Soil Conservation Service,
Temple, Texas.
STATEMENT OF HARRY W. ONETH, STATE CONSERVATIONIST,
SOIL CONSERVATION SERVICE, U.S. DEPARTMENT OF AGRI-
CULTURE, TEMPLE, TX
Mr. Oneth. Chairman Stenholm, Congressman Geren, and Con-
gressman Edwards, I'm Wes Oneth, State Conservationist for the
Soil Conservation Service here in Texas. I am pleased to have this
opportunity to discuss the activities of SCS in Texas regarding the
golden-cheeked warbler. I will limit my remarks generally to Texas
and specifically to the Edwards Plateau Major Land Resource Area
of Texas. The Edwards Plateau is commonly referred to as the
Texas hill country.
Our agency offers technical assistance to ranchers and other
landowners in restoring, maintaining, and enhancing their range-
lands and related grazing lands. As part of our agency's mission,
we help private landowners achieve total resource management of
their soil, water, air, plant, and animal resources in an ecologically
and economically viable manner. Our assistance is available in
every Texas county through local units of government known as
soil and water conservation districts. SCS technical assistance is
requested and provided on a voluntary basis.
For nearly 60 years, we have been assisting landowners in the
Edwards Plateau and elsewhere in Texas to develop resource con-
servation plans for their farms and ranches. An environmental
evaluation is routinely performed as part of the planning process
on every farm or ranch we assist. Since the late forties, we have
established ourselves both nationally and internationally as a rec-
ognized technical leader in range science and range management.
Our agency pioneered the use of quantitative ecology on rangeland.
Land use of the Edwards Plateau is primarily rangeland.
Since 1948, we have been inventorying the vegetation of this and
other range areas of Texas. Among the information in our local
technical guides is a description of the natural potential plant com-
munities which occurred in those counties at the time of European
settlement. Since the Edwards Plateau is located in much of the
area being considered as critical habitat for the golden-cheeked
warbler, it is important that we examine the original plant commu-
nities which characterize that area of Texas.
The vegetation that normally occurred or what we believe oc-
curred in the Edwards Plateau. This area naturally supports plant.
27
communities ranging from desert shrub vegetation in the west to
a mixed oak savanna with tall and midgrasses in the east. As late
as the 19th century, firewood on the plateau was so scarce that
wooden telegraph poles were being replaced with metal poles to
keep the telegraph poles from being burned as firewood by early
settlers. Forbs were in great abundance throughout the Edwards
Plateau.
Historically, the Ashe juniper, commonly referred to as cedar,
was restricted to rocky canyons and escarpments. Throughout the
region, brush species like juniper are generally considered as in-
vaders with the natural potential vegetation largely grassland or
open savanna. Reduced burning of the savanna, prolonged
droughts, dissemination of juniper seeds by birds and animals and
overuse of the climax forage plants by livestock have contributed
to the spread of juniper over an area much larger than that of its
original coverage. The fact that juniper has spread from escarp-
ments and steep slopes to flatter slopes and deeper soils is well
documented in historical accounts dating back to the 17th century,
as well as by modem brush inventories. These areas where juniper
and other wooden species have encroached do not represent the
preferred natural habitat of the golden-cheeked warbler.
Most biologists and ornithologists agree that mature juniper
trees occurring in mixed stands of deciduous hardwards are essen-
tial for optimum habitat. The originzd habitat would have occurred
in those areas naturally occupied by mature juniper or some decid-
uous cover. That is, on the steep slopes and escarpments. An exact
estimate of the original amount of habitat is really not known as
to how many acres we had at that time. But when we examine the
historical reports and inventory and data, it is apparent the
amount of original habitat in relation to the size of the entire
Texas hill country was quite small.
In working with our State's rangeland owners and operators,
SCS employees helped evaluate the ecological status of rangeland
plant communities. We express this status as range condition, and
that being in excellent condition when it is 75 to 100 percent of its
potential, and we go on to fair condition and poor condition and
poor condition being down to less than 25 percent of its potential.
From the latest inventory, which was conducted in 1992, 82 per-
cent of Texas rangeland is in poor and fair condition. Rangeland in
this condition often erodes at excessive rates. Further, the lower
successional stage of the existing plant community has produced a
subclimax vegetation type which uses available rainfall at exces-
sive rates.
The unmanaged spread of juniper and other brush species has
contributed to the lower condition of Texas rangelands.
As part of our continuing process of updating our technical
guides, we have worked 2 years with the U.S. Fish and Wildlife
Service and the Texas Parks and Wildlife Department to develop
interim guidelines for identifying the golden-cheeked warbler habi-
tat and determining acceptable conservation treatment. Our con-
servationists received training in field identification of golden-
cheeked warbler habitat from the U.S. Fish and Wildlife Service
and the Texas Parks and Wildlife Department biologists in 1991
and 1992.
28
And we did this at the Texas Department of Parks and WildUfe
Kerr Wildlife Management Area. Our interim guidelines are a
working tool for trained SCS employees only.
But ultimately the decision for resource management remains
with the landowner. Ranchers in Texas have long recognized that
conservation treatment applied to one part of the range afTects the
range as a whole and may have impacts beyond the borders of the
ranch. Effective range management and profitable range manage-
ment likewise are inseparable. Just as resource use and economic
viability are not independent, neither are the habitat requirements
for individual endangered species. This can be seen as an example
from the Edwards Plateau. Five aquatic species are currently listed
as threatened or end£ingered. These are dependent upon spring
flow from Comal Springs and San Marcos Springs. In contrast, the
golden-cheeked warbler utilizes juniper as part of its habitat. The
juniper as a species is a large user of available water. Its encroach-
ment and increase in density significantly reduces water yields to
the aquifer system.
As a result, the habitat needs of the terrestrial and the aquatic
species appear to be in conflict. The connection between terrestrial
habitat for endangered bird species and the aquatic habitat in the
spring systems must be recognized if a balanced management plan
is to be developed for the ultimate protection of the species in ques-
tion. It must also be recognized that humans are not the only users
of water which is available to recharge the underground system.
The Soil Conservation Service does not provide financial or tech-
nical assistance that knowingly leads to the destruction of habitat
or threatened endangered species. In keeping with the Endangered
Species Act, SCS's technical assistance encourages landowners to
manage their rangelands in a productive yet environmentally sen-
sitive manner.
In summary, the Soil Conservation Service in Texas is doing its
best to present a balanced approach to helping landowners achieve
total resource management in their soil, water, air, plant, and ani-
mal resources. This includes balancing the resource needs of en-
dangered species like the golden-cheeked warbler with the resource
needs of other species: Aquatic, terrestrial, and most importantly
human.
It is the policy of the Soil Conservation Service to comply with
all Federal, State, and local laws.
Mr. Chairman, this concludes my remarks, I will be happy to an-
swer any questions that you may have.
[The prepared statement of Mr. Oneth appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you.
Our next witness is Mr. Harold Bennett, Agricultural Stabiliza-
tion and Conservation Service, U.S. Department of Agriculture,
College Station, Texas.
STATEMENT OF HAROLD B. BENNETT, STATE EXECUTIVE DI-
RECTOR, AGRICULTURAL STABILIZATION AND CONSERVA-
TION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, COL-
LEGE STATION, TX
Mr. Bennett. Thank you, Mr. Chairman.
29
Before I begin my formal remarks, I would like to thank the com-
mitment of each of you three gentlemen to restoring some common
sense to our Government. As a producer, and on behalf of our coun-
ty-elected and farmer-elected county committee system, I can say
that we do appreciate that. I can also say that the producer, and
after having the opportunity to work for State and Federal Govern-
ment the last 3 years, sometimes I have my doubts that those of
us in government, if we were charged with using common sense,
that we could be convicted. So I do appreciate each of you for your
commitment to restoring that.
I am happy to be here in Cleburne, Texas, to discuss the imple-
mentation of the agricultural conservation program and the im-
pacts that the Endangered Species Act of 1973 has on the ACP.
The ESA requires all Federal agencies, in general, to protect ani-
mals, plants, and their habitats which are in danger of becoming
extinct due to the activities of people. Under the ESA, agricultural
programs and initiatives must be carried out in ways that do not
jeopardize the continued existence of endangered or threatened
species. This includes the ACP.
As most of you know, the ACP provides Federal cost-share assist-
ance to agricultural producers to restore and protect the Nation's
land and water resources and to preserve the environment. Cost-
share assistance is provided to farmers and ranchers to install con-
servation and environmental protection practices on agricultural
land that will result in long-term public benefits. This program is
national in scope and is available to all farmers and ranchers who
establish the need for cost-share assistance in solving resource con-
servation and agricultural pollution problems.
To participate, the farmer files a request at the county agricul-
tural stabilization and conservation service for ACP cost-share as-
sistance. An ACP practice must be approved before the practice is
started. In Texas, the Soil Conservation Service has technical re-
sponsibilities to determine the needs and feasibility for most ACP
conservation practice requests. This includes determining the envi-
ronmental impact of the proposed conservation practices.
ASCS has technical responsibility for grazing land protection
practices under ACP, which includes brush control, a practice that
can affect the habitat for these birds, even though it is designed
to restore the range site to the original climax vegetation. ASCS,
in cooperation with the Interior Department's Fish and Wildlife
Service, SCS and the Cooperative Extension Service, provides
training to all-county ASCS service to ensure compliance with the
Endangered Species Act. Extensive field training in habitat identi-
fication and protection of the golden-cheeked warbler and the
black-capped vireos was also provided by ASCS through the Texas
Parks and Wildlife Department.
When an ACP cost-share request is received in the field, it is re-
viewed by trained field office staff to determine the potential envi-
ronmental impacts of the proposed practices. The impacts are" iden-
tified and any practice that may affect a threatened or endangered
species or its designated critical habitat is, at the producer's option,
referred to U.S. Fish and Wildlife Service for their review and de-
termination or, as mandated by law, if a practice request affects
30
these species or habitat then the request for cost share assistance
must be denied.
In fact, roughly 15 percent of the brush control practice applica-
tions in the hill country are rejected because of potential impacts
on the endangered species. ASCS also spot-checks determinations
by field office staff to ensure compliance with the Endangered Spe-
cies Act. We intend for future ACP requests for brush control to be
in accordance with targeting for the highest of priority practices
and to ensure that no approved request will contribute to the de-
struction of habitat for a threatened or endangered species.
This agency will continue to work with agricultural producers,
conservationists. Members of Congress, the U.S. Fish and Wildlife
Service, and other interested groups to identify problems or con-
cerns relative to conservation programs and implimentation of the
ESA and to develop effective solutions that meet both our conserva-
tion and ESA goals.
This completes my statement, Mr. Chairman, I will be happy to
respond to questions.
[The prepared statement of Mr. Bennett appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you very much. Thank each of you.
I want to pose a question for the entire panel. What is the cri-
teria used to designate or determine habitat as being critical?
Mr. Rogers.
Mr. Rogers. Mr. Chairman, the definition of critical habitat is
those areas which are essential for the survival — that contains
those constituents that are essential for the breeding, rearing, for-
aging, and survival of the species that may require special manage-
ment or special protection in order to persist. And the final deter-
minant in the process is would declaring critical habitat add suffi-
cient protection — declaring an area of habitat as critical habitat
provide sufficient protection to the bird, in this case the bird, be-
yond that which is already available by virtue of its listing alone.
Critical habitat applies only to Federal activities and unless
there is a Federal connection between a particular activity that
might affect the habitat, then there is no — then, in that case, we
would say critical habitat might be necessary. But if the vast
amount of activities that are impacting the habitat are not Federal
in nature, then it might be the determination that designation of
that habitat as critical would provide no additional protections and
would not be prudent.
So it is a combination of biology as well as the administrative
protections available.
Mr. Stenholm. That was my next question. What scientific data
is used in making that determination?
Mr. Rogers. We are mandated by law to use the best scientific
and other data available at the time of the designation. And that
is what we use.
Mr. Stenholm. Is this process coordinated among the agencies
represented at this table?
Mr. Rogers. I will let them speak for the success of it, but we
do coordinate.
Mr. Bennett. Mr. Chairman, that is one of our concerns. We feel
like that if an area is determined to be a critical habitat, then you
31
have effectively killed the agricultural conservation program that is
intended for the use to restore and preserve our land and water.
A case in point being that the ACP program is used to restore and
conserve land and water in the Edwards aquifer that is used for
brush control, and this, that and the other, which helps increase
the flow of water which helps the five species that are on the list
in the Edwards aquifer. But, by the same token, if it is declared
a critical area, it will effectively kill the ACP program.
So, to me, it seems sometimes like the left hand does not always
know what the right hand is doing. We have one saying that we
need the habitat for the golden-cheeked warbler, we have another
Government agency saying we need to clear the brush to increase
the flow of water in the Edwards aquifer to protect species down
there. So I think there is communications; I don't know how good
the coordination is, and sometimes I question the responsibility of
it.
Mr. Stenholm. Wes, I want to ask you, in your testimony you
stated as part of our continuing process of updating our technical
guidance we worked 2 years ago with the U.S. Fish and Wildlife
Service and the Texas Park and Wildlife Department to develop in-
terim guidelines for identifying golden-cheeked warbler habitat.
That indicates there was coordination and working 2 years ago.
Mr. Oneth. Yes, sir; Mr. Chairman. We started the process with
the U.S. Fish and Wildlife Service and the Texas Parks and Wild-
life Department to identify so we could have some scientific knowl-
edge so we could train our people on what critical habitat was for
the U.S. Fish and Wildlife Service. That has not been finalized.
Mr. Stenholm. Do you have a comment, Mr. Rogers?
Mr. Rogers. I would just agree with Mr. Oneth. We have worked
together to develop that guidance. We provided through section 6
of the act funding to the Texas Parks and Wildlife Department to
bring it altogether. It is my understanding that it is just about to
be finalized and that guidance should be, though it has been used
informally, that guidance should be formalized relatively soon.
Mr. Stenholm. From the perspective of your agency, where we
have a statement that says scientific authorities have documented
that juniper and other woody species use available water at sub-
stantial rates while providing very little direct benefits to the natu-
ral resource ecosystem. Now, that is a scientifically proven state-
ment.
Now, what I want to get at, from your perspective, if you have
cedar in this case, that on the one hand if you allow it to stay for
purposes of critical habitat, you in fact then increase the chances
that something else bad is going to happen to the environment be-
cause of the very nature of the juniper and the moisture consump-
tion. How does this factor into your decisionmaking process in your
agency regarding the decisionmaking process that you are now un-
dergoing that will or will not end up declaring critical habitat in
X number of acres?
Mr. Rogers. First, we recognize, as has been pointed out, that
we need to deal beyond the species-by-species basis. We need to
look at entire systems and try to protect the economic as well as
the natural viability of those systems.
32
The evidence that has been referred to, I understand, is less than
conclusive. However, in terms of controlling cedar for recharge of
the aquifer, we need to point out that most of the best warbler
habitat is on steep slopes, which would, if the cedar were removed
from it would increase erosion, and pure stands of cedar in flat
areas are not considered to be warbler habitat and we would not
be involved with clearing of pure stands of cedar. They must have
at least 10 percent hardwood component.
Mr. Stenholm. I want to come back a little to that but I will
defer to Mr. (Jeren for some questions and then Mr. Edwards.
Mr. Geren. Thank you, Mr. Chairman.
Mr. Rogers you said that most of these decisions that we are con-
cerned about have not been made yet, and that before they are
made that there will be plenty of time for public comment.
Could you lay out the timetable that you think that we are look-
ing at in regard to this proposal, and also what type of public input
would be available? Talking about a hearing in every county, a
hearing — just exactly what would be involved?
Mr. Rogers. Well, it will take probably 2 or 3 more months be-
fore we are able to come to a conclusion as to whether it will be
reasonable to propose critical habitat. That then initiates an exten-
sive process that could take up to 1 year to finalize, public hear-
ings, collection of more information. We generally have hearings in
as many locations as are requested of us during one of these ac-
tions.
Mr. Geren. Now, what will have taken place within 2 or 3
months and what will have taken place at the end of 1 year.
Mr. Rogers. Right now, the evaluation is on the biology of the
bird and the protections available to it currently and the impact of
additional protections to conserving the bird. After a proposal is
made, as I said, it kicks off a public process where we gather exten-
sive information and it is at that point that economic consider-
ations are taken into account in what is called the balancing proc-
ess.
During that process, the Secretary may exclude part of an area,
an entire area, or the entire critical habitat process, if the econom-
ics are sufficiently weighed against the declaration of critical habi-
tat.
Mr. Geren. Who would have the burden of, on the exclusion
based on economic hardship, who would have the burden of per-
suading the Secretary that in fact this designation would cause an
undo hardship? Are you talking about on the individual landowner
basis or a regional basis?
Mr. Rogers. In my experience, most of the economic analyses
have been made regionally. In other words, they cover the area
within which critical habitat is declared. And it looks at the overall
economics. In terms of burden of proof, we conduct an economic
analysis and also during the public input process we gather further
information, and it is at that point the Secretary makes a decision.
Mr. Geren. Does an individual landowner have an opportunity
to assert his or her own economic hardship into the consideration
of the
Mr. Rogers. Yes.
33
Mr. Geren. Are there provisions made for carving out individual
landowners' properties; or, again, is it a decision made on a re-
gional basis?
Mr. Rogers. Usually what happens is, within a given area, land
identified as having the constituents that make up, in this case
golden-cheeked warbler habitat, would be called a critical habitat.
But there are provisions for excluding areas, and I suppose during
the process individual holdings could be excluded.
Mr. Geren. I would like to ask you to comment on partly Mr.
Oneth's testimony, but we are going to hear more about this later.
One of the issues that I am not clear on and I have had many peo-
ple ask me about is the whole question of what is native habitat
for a species.
As Mr. Oneth pointed out, and a couple of witnesses later in the
day are going to talk about, cedar really is an invader species of
plant for many of these 33 counties. We have more cedar today
than we had yesterday and we will have more cedar tomorrow than
we have today in spite of our best efforts to the contrary. We have
been fighting it tooth and nail for 40 years and the cedar is win-
ning without any protection from the Federal Government; in fact,
with help from the Federal Government to try to limit its growth.
So it is generally accepted that there really was very little terri-
tory in this part of the State covered by cedar 50 years ago or 100
years ago. In fact, you can go to ASCS office and look at the old
aerial photographs, areas where it was a narrow ribbon 30 years
ago now it is quite a broad band. So this was not a favorable habi-
tat for the golden-cheeked warbler 50 years ago.
How do we now, because of an invader plant that we see as a
pest, one that is very destructive of the agricultural value of lands,
fall into a protected area for a species that really did not even, well
assuming this is critical to it, it must not have inhabited 50 years
ago or 100 years ago.
Mr. Rogers. I know there is considerable discussion and maybe
not the level of controversy, but discussion as to how much cedar
was here historically. A couple of points could be made about that.
First, where cedar is an invader, we do not consider that to be
golden-cheeked warbler habitat. It is only where cedar exists in
stands that have less than 10 percent hardwood component, that
is not golden-cheeked warbler habitat. It is only in areas with ma-
ture cedar with a greater than 10 percent hardwood component,
and these areas are generally on the steeper slopes and escarp-
ments.
Mr. Geren. And who has the burden, if we jump ahead to the
future, you have made your designation, you have made the deter-
mination on what is critical habitat, if a landowner gets a resource
conservation plan from the SCS, is that sufficient Government in-
volvement to subject any land use decision from that point forward
to approval by the U.S. Fish and Wildlife Service?
Mr. Rogers. The interaction of a Federal agency with a land-
owner, if the Federal agency determines that their action might af-
fect the golden-cheeked warbler or any endangered species, it is the
Federal agency's responsibility to come forward and consults with
us. Most Federal agencies with these kinds of programs conduct
what we call a programmatic consultation. They consult on the en-
34
tire program. Usually guidelines are worked out with that Federal
agency. Then their interactions with the individual landowners can
proceed with the whole rest, with the consultation process having
been transparent.
Mr. Geren. All right. Mr. Chairman, I will yield to my col-
leagues.
Mr. Stenholm. I want to follow just a little bit further on that
point. If you have a soil conservation plan on a farm or ranch that
has made a determination that it is important to control the spe-
cies, cedar; it is important for the best utilization of that land that
it have all of the cedar controlled. What point in time do we have
a conflict? Between our agencies, now.
Mr. Rogers. I don't know if we have a conflict. What it would
come down to, an assessment by, in this case, SCS, whether that
would affect golden-cheeked warblers. If there are no warblers in
the cedar existing on the property at issue, then we have no con-
flict and we do not have an issue. If some of it happens to be war-
bler habitat, then it is the responsibility of the Federal agency to
come to us and I will say in most cases, horror stories not with-
standing, in most cases these problems can be worked out.
Mr. Stenholm. Is that determined by law as passed by Congress
in 1973, or is that interpretation of law by your agency, in your
judgment?
Mr. Rogers. In my judgment, it is the law. The law states an
affirmative responsibility on the part of all Federal agencies to con-
serve endangered species, and it lays out a process in section 7 of
the act by which they are to consult with the Secretary of the Inte-
rior on the impact of their actions.
Mr. Stenholm. Now, we are dealing with a hypothetical right
now, but it is a very serious potential hypothetical. If you have a
conflict between the two agencies, the SCS and your agency, what
is the extent of the consultation, cooperation, examination of the
scientific evidence that has pointed someone in the direction that
this is the direction that we need to go, what is the level of con-
sultation between your two agencies?
Mr. Rogers. If we are talking about a specific parcel of land, and
if the agency has already done, let's say a programmatic consulta-
tion on the impacts of their entire program, the guidelines should
be in place for the Federal agency, in this case the SCS, to make
the decisions without involving us.
Mr. Stenholm. Now, we have situations right now — let us jump
just a moment away from endangered species — but we have situa-
tions right now in which the Soil Conservation Service guidelines
and rules and regulations are very controversial to individual land-
owners, and there is a tremendous amount of differences of opinion
that occur.
And one of the areas that we are working on is how we can im-
prove what has been a very successful voluntary soil and water
conservation program over the years, how we can improve that
spirit of cooperation that is necessary in order to have private prop-
erty owners work and cooperates with agencies of our Federal Grov-
ernment.
So we are working on that area and we do not have the perfect
situation, but we have a much better one than we have between
35
private propert;y owners and your agency. And that is where I am
trying to come from with my question. My belief that there has not
been, in the past, very much consultation. It has been more inter-
pretation of the law by your agency, and then designations made
that create the controversy that we all would like to see avoided —
a greater respect for individual private property rights. That is cer-
tainly where I am coming from.
You do not have to answer all of this question today, because
part of this is the building of a record, because both of you have
superiors, and that is where the problems sometimes come from.
And, ultimately, we are supposed to be the superiors, as Represent-
atives of the people that send us to Washington. But it is my belief,
and that is the spirit in which I ask the question, that we have a
breakdown in communication, and one of the direct reasons I want-
ed this hearing held today in Cleburne was to have this kind of
conversation in hopes that we might find some better ways of deal-
ing with some very serious problems.
Mr. Rogers. I cannot do anjrthing but agree with your statement
and your feeling that we have a communication problem. I believe
part of it is due to this agency, part of it is due to the way informa-
tion has been or not been manipulated — I do not want to say ma-
nipulated, but disseminated and a host of other factors.
But we are concerned, we are interested in working with people,
consulting with agencies to deal with problems before they are
problems, and I will add one of my pet statements. I think that be-
yond being a powerful environmental tool, I believe the Endan-
gered Species act is a powerful planning tool and one that we too
often think about too late in development or other kinds of proc-
esses. And where there is much to be improved about the way the
act is implemented and the way we implement the act, we welcome
the opportunity to discuss it and regardless of what changes may
or may not be made in the Act, pledge our support and interest to
communicate and work with people early in the process.
Mr. Stenholm. Mr. Edwards.
Mr. Edwards. Thank you, Mr. Chairman.
Mr. Rogers, I believe in Austin you were quoted as sa3dng that
a lot of the fears about this habitat plan had been expanded be-
cause of elected officials and candidates trying to make this a cam-
paign issue. At least that is what the papers were quoting. And I
don't want to get into that finger pointing match.
I think I can make some pretty specific cases where the U.S.
Fish and Wildlife Service has not been specific enough in letting
people know what they can and cannot do, so let us put the finger
pointing aside. I think that is the beauty of this meeting. It is not
a lynch mob. We are here to rationally discuss the issues. I have
a number of questions and I will be brief in my other questions of
other panelists, Mr. Chairman. I do have a number of questions I
want to pursue with Mr. Rogers and you have come a long way to
be here and I appreciate your being here.
My immediate concern is that everyday farmers and ranchers are
saying to me, Congressman, I don't know what I can and cannot
do.
36
First question. Today, fanner Jones in Lampasas is not sure
whether he or she can cut cedar on their property. Who do they
contact?
Mr. Rogers. They can certainly contact us. They can contact
Mr. Edwards. Be specific as you can be. Who do you mean by
"us."
Mr. Rogers. The U.S. Fish and WildHfe Service's Austin office
would be the official contact.
Mr. Edwards. So I am farmer Jones in Lampasas. I want to cut
cedar. I have a bunch of employees that are ready to cut the cedar
today. I contact your office today in Austin, and ask how quickly
can you guarantee I will get an answer?
Mr. Rogers. I cannot answer that question, but one thing that
I would add is anj^hing a farmer or rancher has been doing tradi-
tionally should continue. If this cedar that this hypothetical or real
farmer wishes to cut is not old-growth mature cedar and does not
contain a significant number of hardwoods, I would say go for it.
If they want to get some technical assistance, they can ask us.
However, if a response does not come soon enough, I would still
proceed with my normal ranching and farming procedures.
Mr. Edwards. I want to follow up on they can continue their tra-
ditional efforts. Apparently the 87-year-old widow was continuing
her traditional efforts on her property and was threatened with
time in jail, but let me put that aside.
Mr. Rogers. The fence was built, however.
Mr. Edwards. I will put that aside for a moment. My question
again is how quickly can someone get an answer? Is it going to
take — I mean you are talking about a huge region.
You are talking about a limited number of employees. Now, be-
cause of this proposed plan, you might be affecting — at least you
have great fears in 33 counties and every one of the 20 million
acres in those counties, because they are not quite sure what they
can or cannot do. How quickly can farmer Jones get an answer
from the U.S. Fish and Wildlife Service in Austin? One week? Two
weeks? Six months?
I have heard horror stories about — I know developers south of
Waco have waited 6 to 9 months for an answer on the development.
How quickly can citizens get an answer?
Mr. Rogers. If they make a phone call, most of them should be
able to get an answer by virtue of that phone call. If they want a
site visit, the nature of the size of our staff and the responsibilities
we have, I am afraid that will take longer than is acceptable.
Mr. Edwards. How long do you think it might take? Will it take
as long as 6 months to 1 year, particularly since you are now add-
ing a huge number of questions you did not have 6 months ago?
Mr. Rogers. I would hope not.
Mr. Edwards. But it could take as long as 1 year to get an an-
swer on can I cut cedar on my property without being liable for jail
sentence then?
Mr. Rogers. It could. I would hope it would not.
Mr. Edwards. I am not blaming you. You are working with lim-
ited resources, but I think we need to focus on the realities. The
focus of this hearing today is to talk about the impact on agricul-
tural productivity, and I would suggest there has already been a
37
negative impact on that productivity because of the uncertainty. In
fact, the law of unintended consequences has occurred. I believe the
discussion of this proposal has caused the cutting of more cedar
than any antienvironmentalist would have tried to accomplish.
Mr, Rogers. If so, that is unfortunate. If I might add, in terms
of an individual landowner getting their question answered about
cutting a particular piece of cedar, through county agents, ASCS or
Soil Conservation Service, to whom guidance has been provided
and worked with us in developing it, they may get an answer there
that is more than just casually acceptable.
Mr. Stenholm. Would the gentleman yield for just a moment?
Mr. Edwards. Be happy to.
Mr. Stenholm. This, I think, is probably adding more confusion
to the general public. This little exchange that we are having right
now, and I think it is very important that we all better understand
and I want to understand one significant point to Mr. Edwards'
question. You stated very emphatically in your opening statement
that there has been no designation of critical habitat as yet and
you made that very clear in order to disperse all of the misinforma-
tion.
But then, why should a property owner anywhere in this region
be concerned about cutting anything or fear anything from their
government?
Now, let me answer the question as I understand it. It is because
under the Endangered Species Act, the fact that the bird was de-
clared "endangered" 4 years ago that suddenly the Endangered
Species Act, either by law, as was passed in 1973, or by Adminis-
trative interpretation, has already set in motion the possibility of
punitive action.
But here is what is making people a little bit concerned and
what prompts Mr. Edwards' question. We got the cart before the
horse. We got the possibility of an actual punitive action occurring
before you have actually made the final determination. Now, am I
right or wrong or somewhere in-between?
Mr. Rogers. You are right in pointing out that much of the furor
over critical habitat is I think misplaced, in that the bird is cur-
rently subject to protections under section 9 of the Endangered
Species Act which prohibits take, and there is that long list of
things that Mr. Turner read. That is really the issue, not critical
habitat.
Mr. Stenholm. Thank you. I apologize.
Mr. Edwards. No, I thank the chairman for interjecting, but I
would like to follow up on your comment and try to emphasize, Mr.
Rogers, an important point.
Your employees have gone around this part of Texas saying,
don't let elected officials overly concern you about the critical habi-
tat plan, it only affects Federal agencies. I think it is important to
be honest with the people and forthright in sa3ring, the reason we
are saying that is you can already be thrown in jail in 1994 for cut-
ting critical habitat on your private property, and that is correct,
right? You could be liable for a jail sentence for cutting cedar
today. Farmer Jones, if he were to cut critical habitat for the gold-
en-cheeked warbler, he could be liable for a fine and jail sentence;
is that correct?
38
Mr. Rogers. That is technically correct.
Mr. Edwards. OK. Now, Fanner Jones wants to get an answer,
he is a good citizen, wants to follow the law. You said it could take
6 months, it could conceivably take 1 year. I won't even ask you
what will happen if you get 10,000 inquiries in the next 2 months.
It could take 2 or 3 or 4 years, and that to me is of grave concern,
because people won't know what to do.
Now, in your answer you said that Farmer Jones could go to the
ASCS office or to Soil Conservation Service. Am I correct in under-
standing, if a farmer cut critical habitat on his property because
the ASCS office said we think that is OK, that is not a solid de-
fense in court, is it?
Mr. Rogers. I am not certain of that. But we are, as I said in
my opening statement, the guidance that we have worked with
ASCS and parks and wildlife is very shortly to come out. Once that
guidance is out, I would think that more than 90 percent of the
questions are going to be answered by the formal publication that
lays out these guidelines.
Mr. Edwards. But forget the habitat plan for a minute. We are
already operating under the impact of the law. Right now, if I am
a farmer and I go to ASCS and say, can I cut this cedar on my
property, I can go ahead, but isn't it kind of like getting advice
from your accountant on an IRS return? You are still liable to be
fined and possibly put in jail if you go ahead in good faith and cut
critical habitat on your property?
Mr. Rogers. Technically, that is probably correct. I would hope
that in our application of the law, we would — if we cited somebody,
the U.S. attorney has still got to take it, and I don't think we
would try to carry a case like that forward. Somebody acting in
good faith makes a mistake and we all do that.
Mr. Edwards. It is pretty frightening for Farmer Jones to think
he might have to spend — if Mrs. — I am sorry, I don't have the
name.
Mr. Rogers. It was Rogers.
Mr. Edwards. Was it Mrs. Rogers? No relation, right?
Mr. Rogers. Fortunately.
Mr. Edwards. If Mrs. Rogers is afraid of spending a year in jail,
I think she would want to get an answer. My very serious concern
is that the kind of acreage you are talking about, you are going to
be overwhelmed with requests. I am really concerned about the
delay of 6 months, 1 year, 2 years, even longer to get answers, and
somebody needs to develop a resource solution to that.
Let me follow on then. I am Farmer Jones and hopefully I would
like to follow your list of guidelines of what I can and can't do. You
said it is OK to continue traditional farming methods, but what if
traditionally all the way up to 1990 I had cut old-growth cedar, and
there was a slope on my property. I want to be sure you don't unin-
tentionally mislead people. You can't just keep continuing tradi-
tional things that you have been doing simply because you have
been doing them, can you?
Mr. Rogers. No, the point is not just because you have done it
in the past, you can do it in the future, but most ongoing farming
and ranching practices are not in conflict. When it comes to cedar
clearing, and that cedar clearing involves cedar that is in fact gold-
39
en-cheeked warbler habitat, then there is an issue that needs to be
brought forward.
Mr. Edwards. Is there anyplace I can go as a farmer today to
get a list of 10 criteria I would need to look at to determine if I
can cut cedar today? You said it could be 2 or 3 months, and it
might be 6 more months before we have a habitat proposal pre-
sented. You know, it is a long time to wait to cut cedar.
Mr. Rogers. The guidelines, I am informed are just about ready
to come out. This is not the critical habitat proposal; these are just
guidelines for rural landowners that would contain the kinds of
things that you just asked for.
Mr. Edwards. What you can and cannot do, and those guidelines
will be helpful — whether we have a habitat plan or not, those
guidelines will tell people under the present takings requirements,
this is what you can and can't do.
Mr. Rogers. Yes.
Mr. Edwards. And I think this is going to be helpful. Where can
I go when this list is put out to get a copy of it? Can I go to the
ASCS office, or would I have to contact your office in Austin?
Mr. Rogers. They are being put out under the auspices of Texas
Parks and Wildlife Department. I am sure once they are out, we
will all have them, and you can probably come to us or ASCS or
Soil Conservation Service, the county agent, whoever, we will as-
sure that they are widely distributed.
Mr. Edwards. I would appreciate that and welcome that and en-
courage that. I think that would be great, if it can be made avail-
able without — again, I am afraid if they have to contact the Austin
office, you could get swamped and it could take months.
Mr. Stenholm. I want to follow up, just interrupt again. Why
would you not automatically say that every farmer can find those
guidelines in their SCS offices or ASCS office immediately after
you have made that declaration? Maybe I misinterpreted some hes-
itancy.
Mr. Rogers. No, I am not hesitant about it. We would want to
get them out to absolutely everybody who either could disseminate
them to the people who needed them or to the people who needed
them up front. There wouldn't be any — it wouldn't be worth the
process if we had the guidelines.
Mr. Edwards. I would like to go back to the question asked pre-
viously. Again, intentionally or not, this constant quote from your
agency officials saying that a habitat plan will only affect Federal
agencies, really I think has mislead people or caused misunder-
standings. Maybe we can clear those up again today.
If a farmer is involved in an ASCS program, SCS or Farmer's
Home Administration program, let's at least be honest with them.
The Federal agency is going to have to get approval to give that
private landowner approval to cut cedar on their property that
might be in doubt; is that correct?
Mr. Rogers. Yes, and I will repeat that the broad programs is
what they would consult on with us to develop the framework
under which the individuals might work, and that the agency itself,
ASCS, SCS, whoever, would make the determination then on a
case-by-case basis under the guidelines available.
40
Mr. Edwards. So let's at least clear up the misperception that
is out there right now probably with the majority of people in this
room. This whole program doesn*t just affect the habitat plan,
would not just affect Federal agencies, it would affect Federal agen-
cies and the many private landowners that have any — working in
any way with the Federal agencies; is that correct?
Mr. Rogers. Substantially, but it is difficult to answer that 100
percent directly. If somebody is receiving — has a 5,000-acre farm
and they are receiving a cotton subsidy on 100 acres, that subsidy
itself then does not mean that the individual then is — there is a
Federal connection to anything that goes on on that 5,000-acre
farm.
Mr. Edwards. Could you give me a specific example of a private
landowner working with the Federal agency who would have to get
approval to cut cedar on their property? You gave me an example
of where you wouldn't; give me an example of where you would.
Mr. Rogers. Well, if somebody was in fact going to clear golden-
cheeked warbler habitat, there would be a potential impact. And at
that point, they might need to come to us to discuss the nature and
extent of the activity. We would first look at ways that it could
be — the activity might need to be altered and then talk about miti-
gation and the like.
But if anybody is going to clear or carry out an action that affects
golden-cheeked warbler habitat, then there is an issue to be dis-
cussed. The real question — not the real question, but one of the
principal questions is, it is not just cedar in general; it is cedar
with the appropriate other constituents such that it is golden-
cheeked warbler habitat.
Mr. Edwards. So even the farmer with the thousands of acres
that gets a Federal subsidy on the 100 acres for cotton production,
if he might be cutting that golden-cheeked warbler habitat, those
perhaps old-growth cedar trees, they do still have to go
Mr. Rogers. It is not a critical issue, it is a takings issue or a
potential takings issue.
Mr. Edwards. Mr. Chairman, thank you for your understanding.
I think these are critical questions that we are trying to clear up
what people can and cannot do now. I just would like to reempha-
size, I think we have a very serious problem in the length of time
it is going to take for people to get answers from the U.S. Fish and
Wildlife Service, and somehow we have to address that problem.
There are other questions I would like to ask, but you have been
very generous in your time, Mr. Chairman, and I will yield back.
Mr. Stenholm. Mr. Geren.
Mr. Geren. A point of clarification, because I don't think it is
generally understood, I think the point was developed quite well.
I think it is important for us to understand as we consider the En-
dangered Species Act, aside from any critical habitat designation,
the teeth that the Endangered Species Act has regardless of what
you do with your critical habitat designation.
As I understand what you have said today, if somebody has a
farm or ranch that has golden-cheeked warbler habitat on it, even
without this designation, and they with their own private funds
were to build a dam and draw backwater up into this habitat and
kill the cedar, they are possibly liable and could be punished under
41
the Endangered Species Act today. They cculd go to jail, they could
get fined on that act alone regardless of what happens on the criti-
cal habitat designation; is that correct?
Mr. Rogers. Yes.
Mr. Geren. We have focused so much on the designation, and
your offices have said well, nothing really changes, and I think that
one of the things that is — where the disconnect has been, I don't
think most of us realize how severe the possible penalties are right
now in saying that things can't get worse, it is because things are
already pretty bad as it is, and I don't think most of us realize that
if we undertook a clearing operation on our farm and backed up
some water for building a dam, even if we don't have any Federal
participation, cost sharing or whatever, we potentially could be vio-
lators of this act, totally unknowingly, but unknowingly take habi-
tat and end up in the clutches of the law; is that correct?
Mr. Rogers. Yes, again, that is technically true. I want to point
out and reemphasize the point that I made earlier, that habitat
conservation planning, in this case rural conservation planning,
can be a powerful tool to both mitigate and then provide some as-
surance as to the nature and extent of the impact of some of these
activities.
For example, your farmer, rancher who is going to back water up
into the draw, habitat conservation plan that entered into by nor-
mally by private individuals that would then ultimately get a per-
mit from us specifies what actions are covered under that plan and
how they will be in advance mitigated, so that the taking of an ac-
tion like that can be covered in the areawide plan if it is developed
between the groups.
So you are right, today somebody knowingly or even otherwise is
technically in violation. But these issues can be avoided by advance
areawide planning of the landowners, the State, and local officials,
and us. We are working on some major urban ones as you are all
probably familiar with, the Balconis plan, but rural lands and rural
activities could just as easily be encompassed should the people in-
volved wish to develop such a plan.
Mr. Geren. I think the point that directly bears on the subject
matter or the jurisdiction of this subcommittee is that agriculture
is a very marginal operation in many parts of the State that fall
into this habitat designation, marginal at best.
It is hanging on by the skin of their teeth, in many cases, and
you have put the burden on that landowner to hire a biologist, hire
a lawyer, hire an environmentalist to come in and justify to your
agency that somebody can build this tank or can clear this cedar.
So a bureaucracy such as yours, where you have all of those re-
sources at your disposal, you have a building full of lawyers, a
building full of environmentalists, a building full of biologists, it is
very easy for- you to say, well, we are going to go in there and all
you need to do is prove that this is a critical habitat, that is the
old proverbial easy for you to say.
But if you own 20 acres in Kerr County, Texas, and you have to
go out and hire that biologist or botanist or environmentalist, you
have given that landowner really an insurmountable economic bur-
den and rendered — given them a very tough choice, a choice be-
tween the dead and the deep blue sea.
42
I either hire all of these people I can't afford to hire or take a
chance that I am going to be taking unknowingly about the habitat
for this endangered species and perhaps subject myself to criminal
liability. That is an awfully tough burden that our Government has
placed on private property owners and something that causes me
great concern, and something that we need to better understand as
we move into the reauthorization of the Endangered Species Act,
leaving aside all of the concerns that we have over the critical habi-
tat designation, because I think most of the problems that most of
us are concerned about are there regardless of what you all do with
this designation.
It is an act that puts a tremendous financial burden and the
threat of potential criminal liability on a lot of folks that are good,
law-abiding citizens that acquired their land and operated their
land with all the best intentions, and yet they could run afoul of
the law and end up in jail.
Thank you, Mr. Chairman.
Mr. Stenholm. Mr. Edwards.
Mr. Edwards. Thank you, Mr. Chairman. There was one other
area of questions that I wanted to ask Mr. Rogers. You were quoted
today and received quite a bit of publicity the other day as saying
the U.S. Fish and Wildlife Service is not opposed to habitat plan
for one single acre.
Let me also make it clear for the record that when several of us
met a month or two ago in Washington with Sam Hamilton and
the Director of the U.S. Fish and Wildlife Service, they told us at
that time that a plan was going to be proposed in the Federal Reg-
ister as early as September.
So I want to be sure we don't mislead people again through an
unintentional play on words to say there has not been a proposal
for one single acre, which could be somewhat like saying, President
Clinton has made no decision on what to do in Haiti. I think the
ships are heading down there, it is becoming pretty obvious that
something is going to happen, and although you could technically
say no proposal has been made there, and I want to be sure that
people don't think that this 33 million acre issue wasn't — to 1 mil-
lion acres in 33 counties wasn't something that we concocted.
This was a proposal that was working through the internal proc-
ess of the U.S. Fish and Wildlife Service and according to your own
people, including your U.S. National Director, at one point, the
plan was to put this proposal in the Federal Register this month.
So would you like to comment on that?
Mr. Rogers. I can't comment on what they told you; I can com-
ment on what I know the intent is. The intent is and what we are
doing is evaluating the need for it. We have not made an official
proposal. And we have not made a decision yet. If we make a pro-
posal, it will be published in the Federal Register and the process
will be initiated then, but we have not yet.
Mr. Edwards. Let's forget what has happened in the past and
focus on what you just said. Do you think there is a reasonable
chance that the agency could conclude that the benefits for having
a habitat plan covering 33 counties are outweighed by the dis-
advantages?
43
Do you think based on the criteria you have listed in your testi-
mony thai, there is a decent chance that we might not even have
a habitat plan put in place?
Mr. Rogers. That is entirely possible. That is why we are going
through the process.
Mr. Edwards. So you think that is a reasonable possibility? It
is not a 1 in 1,000 chance?
Mr. Rogers. No. It is a reasonable possibility.
Mr. Edwards. Very good. Thank you, Mr. Chairman. Thank you,
Mr. Rogers, for your answers.
Mr. Stenholm. I thank all four of you for being here today, and
there will be additional questions that we may be submitting. From
our subcommittee standpoint, we are very concerned about the eco-
nomic implications, the farmers' and ranchers' agricultural inter-
ests.
And what I have heard today confirms some of the fears that I
have had in the past, but hopefully we are not looking backward.
I hope that in the reauthorization of the Endangered Species Act
that we will change some of the language that is in there that
makes it possible for declarations to be made with questionable sci-
entific evidence that can have the effect of superseding a private
property owner's rights to the utilization of their land.
We have, and I am sure you are familiar with the Paco situation
in which a trespass was made. We assume it was done honestly,
but that is the assumption I make on anyone. Cooperation and vol-
unteerism and much better local input into the decisionmaking at
SCS. It is 1,000 percent better than in your Department. But we
still have legitimate concerns about somebody in Washington mak-
ing certain determinations of how I ought to farm.
And let me tell you, folks do not like to be told by somebody that
they think does not know what they are doing. And we all would
agree to that in theory. But in practice, it is not working quite that
way yet. And we got some major problems. And I have a very bad
taste in my mouth from the experience that we had not too long
ago on a little snake out in Coleman County. I will never under-
stand the logic and why we had to, according to the law, spend the
money we had to spend on the preservation of a water snake by
building a lake.
I do not understand it; you will never convince me of it. But it
was the law, and we had to follow it, but that is what made me
determined to change some of the law that makes these things pos-
sible, and the best way to do that and accomplish that which most
want to do.
But as Mr. Sims mentioned this morning and others, all of us are
interested in preservation of wildlife. I have had two wonderful ex-
periences in my district in the last 2 weeks in which through good
stewardship and conservation farmers are doing more for wildlife
than any plan that has been constructed by some of the more ex-
treme views.
But yet we constantly have this bickering which makes your job
much more difficult to accomplish. And serious environmentalists
in which I categorize the overwhelming majority of the so-called en-
vironmental community are very serious, dedicated people. They
44
are just as concerned about the extreme views as any one of the
rest of us.
If we can't get that message through to our Departments, that
trickled-up philosophy from those of you who have to stand and
take the pounding you take from time to time, if we don't get that
understood, it is going to get worse, not better.
But there is no reason for us to not make it better. There is no
reason why we cannot bring the Endangered Species Act before the
Congress and make those changes that will make a situation in
which you don't have to come and answer to Mr. Edwards and to
us here today.
We have already perhaps broken the law. You perhaps already
have broken the law. You perhaps already have done these things,
even though you say in good faith we haven't declared any habitat,
it is just the fact that the bird was declared endangered and here
is my question that I have been asking, if you can answer it, I
would love to hear it. What was the scientific determination in the
first place that put the bird on the endangered species? How much
time and effort went into it? What is the criteria? How many hours
were put in? Who made the determination? How many consulta-
tions were made with the SCS personnel in Texas in these 33 coun-
ties? Was it the kind of work I would like to see done?
No, the answer obviously is no, it was not. But these are the
kinds of things that we really have to look at and some of it starts
with the three of us, and that is why we are so interested in mak-
ing some positive suggestions of changes in the Endangered Species
Act that will make it work better.
That is the purpose of these hearings, and this is not the end of
it. And I guess the one final statement that I would make, espe-
cially with your superiors is we have to do a better job of cooperat-
ing. We have to make it more than just perfunctory statements
that we work together with the Soil Conservation Service and the
ASCS and the other Grovernment agencies that we have actually
consulted and have actually given them the opportunity to express
themselves and we have listened, we have heard and we have
made the determination and everybody concurred with that deter-
mination. Maybe that is highly idealistic, but that sure will make
it work a lot better for all of us, including those of us who are very
concerned about the bird.
Thank you for being here. We appreciate your appearance here.
And I will recognize Mr. Edwards.
Mr. Edwards. I don't want to make any other comments, I just
want to ask if Mr. Rogers could perhaps answer the question you
raised. A lot of people are asking that.
What scientific evidence went into the determination that the
golden-cheeked warbler is an endangered species, 2ind is it more
endangered today than it was 50 years ago?
Mr. Rogers. I will let Mr. Young, if he would take a crack at
that. He was here when it happened, and that may be something
I suggest if you would reiterate that question with the later ques-
tions, we can take a better shot at it in writing later.
Mr. Stenholm. I would appreciate a verbal response; I would
very much appreciate an absolute written response to that. We
45
might look at that in preparation for the regulatory rulemaking
procedure that we anticipate may or may not come.
Mr. Young. Thank you. I will try to clarify a little bit basically
the status of where we went with the golden-cheeked warbler.
Services required to take the best information we do have available
about the species, and obviously there are five critical factors in
which we have to take a look at to see if any one of those factors
applies before we enlist the species.
I won't go into all the factors, but I will go into the process mak-
ing so you can understand where we went. The biological informa-
tion that was sent forth to us and what we collected gave us the
indication on what was the critical factors that we should propose
listing the golden-cheeked warbler.
At that time, when we proposed the listing of the golden-cheeked
warbler in the Federal Register, we laid out a rationale, the biologi-
cal evidence that we had gathered at that time to use for that pro-
posal. And that proposal went through a year's process in which we
also opened up a public comment period in which we received infor-
mation saying is our information correct? Are we in left field,
where do we stand on that?
We received additional input on that and we concluded that our
analysis was correct and that we should move forward for the final-
ization of listing the golden-cheeked warbler. We did that for an ex-
tensive public process in which we received our information.
Now, again, during that process, the law was that you get bio-
logical information in determining whether to list that species.
That is what we have to use. There was a lot of information pro-
vided at that time of our potential economic impacts and what-
have-you of listing that species could be. But under the law, we
had to use the biological information in the proposal for listing.
Now, the second thing that comes through with that is another
process we went through at the same time after that that is re-
quired to develop a recovery plan of what is it going to take and
what kind of actions are we going to have to move forward so
where we can down-list or de-list that species?
Again, that process was put together with scientists. The recov-
ery plan again went out on public record for public input and once
the process was completed of gathering additional information as
far as where we stood on that to go forward and we had
Mr. Stenholm. Let me interrupt you right there. At that point
in time when you were gathering the information, how much in-
volvement did you have with the Soil Conservation Service person-
nel within the areas that are out on the ground every day?
Mr. Young. Let me answer it in this way, sir. The fact is, I can-
not say exactly that interaction. But the fact is, we did receive com-
ments, or our agencies had the opportunity to provide comments
basically and providing that information was that good science, bad
science, any other information for the service to consider during the
administrative record. So there was ample opportunity, not only for
public, but Federal agencies. State agencies, anyone to provide that
type of information.
Mr. Stenholm. Mr. Geren.
Mr. Geren. I would like, before you get into how you came up
with the recovery plan, I would like to ask a question on the first
46
point you made on the study that led to the conclusion that it was
an endangered species.
In order to come up with a recovery plan, you need to be able
to compare it to where the species used to be, I would think; other-
wise you don't have a target which to recover them to. What did
the research show? How many warblers were there in 1900, how
many were there in 1920, how many were there in 1940, in 1960,
and in 1980 and how many are there today?
Mr. Young. That question was asked early during the week, and
I think that State Senator Sims also alluded to that point. We do
not have a population estimate for the golden-cheeked warbler. I
wish we did, but we do not.
We have certain areas where we have done surveys. We have
had breeding bird surveys that indicated a trend and a downward
trend for the golden-cheeked warbler. We do have specific site stud-
ies where we have done some surveys, and we have, on occasion
we have had permission on private lands also to conduct a survey.
We do not have a population estimate on the warbler. We do
have, and the record shows, an estimate perhaps of what the type
of habitat that was available in historic times and a trend in that
habitat going in a downward motion as far as available habitat for
the golden-cheeked warbler.
Mr. Geren. So as far as you know, there may very well be as
many golden-cheeked warblers out there today as there were in
1900?
Mr. Young. If you correlate the habitat associated with warblers
and the trend of a downward movement in available habitat for the
golden-cheeked warblers, then you would have a correspondingly
downward movement as far as population. But there is no correla-
tion of exactly how many birds were available in historic times to
even know. All we do is have trend data.
Mr. Geren. Thank you, Mr. Chairman.
Mr. Edwards. So as far as we know, there could be 1 million
golden-cheeked warblers in the world?
Mr. Young. The fact remains is the 33 counties in Texas is the
total breeding area for the golden-cheeked warbler. That is the only
place it breeds in the world, and that is where it occurs.
The fact is there is a lot of data available as far as habitat is
concerned from whether it has been surveyed or from imagery, or
what have you, but the fact is that that habitat is in a downward
decline, the golden-cheeked warbler has and the evidence we have
also is the bird is on the decline list.
Mr. Edwards. So the answer is, as far as we know, there would
be 1 million golden-cheeked warblers in Texas?
Mr. Young. I wish I could agree with you, sir. I am very skep-
tical.
Mr. Edwards. Could there be 500,000?
Mr. Young. Again, you are asking for a population estimate, and
there has been some estimates of population, but I am not ready
to substantiate those because they are on a very limited number.
Mr. Edwards. So it could be endangered even though, as far as
we know, there could be hundreds of those warblers in Texas. My
final question — that amazes me to conclude something is endan-
gered when, as far as we know, there could be hundreds of thou- .
47
sands, if not millions of these birds in Central America and central
Texas.
But what was the original evidence provided to the U.S. Fish and
Wildlife Service that caused you to look into whether the bird is
endangered? Who provided that information, and how extensive
was that data?
Mr. Young. We will have to provide that information to your of-
fice. I can't give you the specific number.
Mr. Edwards. You do not know the answer to that question?
Mr. Young. You are asking for all the data. No, I don't have all
the data.
Mr. Edwards. No. Do you know who originally, what group or
what person? Was it a single individual, was it a private biologist?
I would be surprised if someone in your key position had no idea
of where the initial evidence came to determine that this was an
endangered species.
Mr. Young. The information came from a variety of sources, sir,
and that was from both the State, private enterprises, conservation
organizations, experts on the bird, and what have you. It was a
compilation of information that was put together.
Mr. Edwards. Thank you, Mr. Chairman.
Mr. Geren. Could I ask one more question? One more question
on the methodology. In looking at the degradation of the habitat,
I would assume that you probably focused initially on whatever the
original habitat was, 60, 70 years ago, whatever the baseline you
used to determine there has been degradation of the habitat.
Do you take into consideration that parts of the country, such as
Johnson County, which you would expect 100 years ago was not
part of the habitat of the golden-cheeked warbler, at least as the
way you described the habitat to be.
Do you add in the additional habitat in Johnson County when
you consider how much habitat is out there and not just point out
that perhaps in Kerr County somebody has cleared 100 acres and
therefore that is not habitat any longer, but we have a place in
Johnson County that hasn't been cleared, and 100 years from now
it is covered with cedar and hardwoods, do you add and subtract,
or just look at destruction and not the addition that has come
through this?
Mr. Rogers. When we are looking at habitat change, which we
look at and make an assessment, that habitat is being lost. We
take into account the entire range. So in the case that you present,
yes, we take a look at the pluses and minuses.
Mr. Geren. Do you have the study on Johnson and Kerr Coun-
ties that show what the net change in habitat has been over the
last 50 years, and would you please provide that to me?
Mr. Rogers. We will provide you whatever information we have
on habitat, yes.
Mr. Geren. Do you have that information?
Mr. Rogers. I am not certain that we have it on a county-specific
basis, but we will provide our evidence of habitat changes, both
pluses and minuses.
Mr. Geren. I don't want to belabor the point, but does that in-
clude— do you look at it on a county-by-county basis or a region-
by-region basis and do the addition and subtraction? If you haven't
48
done it — what kind of information do you have in your records that
would show the evidence of the degradation of the habitat?
Mr. Rogers. We will have to provide that for the record. I don't
know up front right now.
Mr. Geren. All right. Thank you, Mr. Chairman.
Mr. Edwards. Mr. Chairman, if I promise this is my last ques-
tion, could I ask one more? Save them a lot of writing. Mr. Rogers,
looking at my notes from your testimony, you said that the primary
reasons to put in place the habitat plan is so that Federal agencies
have to work with you; is that correct generally?
Mr. Rogers. In general, yes.
Mr. Edwards. Don't Federal agencies already have to work with
the U.S. Fish and Wildlife Service if they feel anything they are
doing on property they oversee impacts the golden-cheeked war-
bler?
Mr. Rogers. Yes.
Mr. Edwards. So if Federal agencies already have to work with
the U.S. Fish and Wildlife Service and your primary interest in
proposing a habitat plan was to have Federal agencies work with
you, why do you need a habitat plan?
It either makes me think — well, the question it raises obviously
is you are trying to broaden the impact into much more private
property areas than you might presently have influence over. Ex-
plain to me, if they already have to work with you, and for exam-
ple, I believe Fort Hood has been very complimentary. I have
talked to the commanders there. They have never asked me to in-
tervene on their behalf. They have worked with you. I think your
people are very reasonable according to their perceptions.
If the Fort Hoods of this world, the Soil Conservation Services,
the ASCS offices of this world already have to work with you, it
seems to me that the only benefit of putting in place a habitat plan
is to expand your influence over private property owners.
Mr. Rogers. I don't know about the suggestion of intent, but
that is exactly what we are looking at, and the law requires us to
with every endangered species, and there are 69 in Texas, only 8
have critical habitat.
With every species at the time of listing, we have to decide
whether critical habitat is warranted for the species. If we didn't
have sufficient information in place at the time that this bird was
listed, we now feel that we know enough about the bird that we
can identify what habitat is critical, and we are going through the
prudency argument now.
That is, and specifically responsive to your question, whether or
not another protection is already existing for the golden-cheeked
warbler and would it be enhanced appreciably by the designation
of critical habitat, and that is where we are now.
Mr. Edwards. So if it can be shown over the next 2 to 3 months
that Federal agencies in this area are already working with you in
a responsible way, and that might be a very good reason to argue
it is unnecessary and unproductive to propose a habitat plan cover-
ing potentially 33 counties; is that correct?
Mr. Rogers. That is right.
Mr. Edwards. Thank you all very much. Thank you all for being
here, Mr. Chairman. Again, thank you.
49
Mr. Stenholm. Do you have any information going on at Fort
Hood right now about the warbler?
Mr. Rogers. I do not.
Mr. Stenholm. Mr. Young.
Mr. Young. I am not aware of it right now, but if there is, we
can furnish it to your office.
Mr. Stenholm. Thank you very much. We appreciate your at-
tendance here today and we would appreciate your continued co-
operation with this subcommittee in achieving some of the goals as
stated here today. We appreciate it. Thank you for being here.
Mr. Stenholm. I call the next panel, panel 3. Mr. Dail, Mr.
Smith, Ms. Hooks, and Mr. Chestnut. I call the next witness, Mr.
Dail, not here yet, Mr. Lowell Smith, Jr., chairman, First State
Bank, Rio Vista.
STATEMENT OF LOWELL SMITH, JR., BOARD CHAIRMAN,
FIRST STATE BANK, RIO VISTA, TX
Mr. Smith, Thank you, Mr. Chairman. I appreciate the oppor-
tunity to be here today. My remarks will be very brief. If land-
owners cannot clear trees over a period of time, depending on how
infested the land was, and the only value left, as I see it, would
be for recreational purposes, as I see it.
Development and other purposes would also be hampered, be-
cause anyone developing would have to also have some clearing. In
other words, for agricultural production purposes, infestation after
a certain period of time would render the land useless for all prac-
tical purposes.
From the viewpoint of a banker who makes loans to ranchers,
farmers, and dairymen in the area, the collateral value of land for
purposes of loans would also be substantially decreased. This would
hamper the landowner's ability to borrow to buy additional land or
to obtain operating loans using his land as collateral.
If the proposal is accepted, as I understand it, our bank would
have to take a much closer look at loan requests and appraisals
that would accompany them. It could develop into an administra-
tive nightmare and would raise costs to the person desiring the
loan. Any time the Government gets involved, the cost to the
consumer always goes up.
Finally I would say this, Mr. Chairman. I can take you on a —
and I live on a ranch 8 miles out of Cleburne, 2 miles west of Rio
Vista. I live and operate Smith Ranch. It is a family operation that
has been in our family since 1887.
And I might make this comment, that from my people that I
have talked to through the years, my family, there weren't any
trees back in the old days. It was all prairie. The trees have come
with man when he inhabited the area. I can take you on a 15-
minute drive from my house and show you enough cedar to take
care of all the birds you can imagine. Why isn't this enough, for
this special bird?
In my opinion there will always be enough voluntary cedar left
my landowners to properly provide habitat for the warbler. If this
is not enough, it appears the Government could negotiate and buy
land in cedar-infested areas or they would, I am sure a lot of land-
owners would be happy to lease land for that purpose. But it cer-
50
tainly is a better thought than taking land, and I call it a taking,
land from those of us that would not want to lease or sell to the
Government. Those are my comments, and I have submitted other
comments for the record.
Thank you, sir.
[The prepared statement of Mr. Smith, appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Mr. Mike Dail, president. Fed-
eral Land Bank Association of Mason, Texas.
STATEMENT OF MIKE D. DAIL, PRESIDENT, FEDERAL LAND
BANK ASSOCIATION OF MASON, ON BEHALF OF THE FARM
CREDIT BANK OF TEXAS, MASON, TX
Mr. Dail. Mr. Chairman and Members, thank you for the oppor-
tunity to present testimony before you today. My name is Mike
Dail, president of the Federal Land Bank Association of Mason,
Texas. I am a third generation member of the Farm Credit System
and a second generation employee. My family has been farming
and ranching in Texas for well over 100 years.
The Federal Land Bank Association of Mason serves a three-
county area in the Texas hill country that falls squarely in the mid-
dle of the proposed 33 county critical habitat designation for the
golden-cheeked warbler.
Like other Federal land bank associations and production credit
associations in the 10th farm credit district, we are the lending
arms of Farm Credit Bank of Texas headquartered in Austin,
Texas. We are all a part of the cooperative Farm Credit System
that serves the financial needs of American agriculture.
The Farm Credit System, nationally, has more than $54 billion
in loans outstanding to 600,000 member/borrowers. We are the
largest single provider of financial services to the agricultural busi-
ness in the United States. The 10th farm credit district presently
serves over 52,000 member/borrowers in Alabama, Louisiana, Mis-
sissippi, New Mexico, and Texas with outstanding loans of approxi-
mately $3,600 million. Our borrower/stockholders have pledged
nearly 20 million acres of private property as collateral.
Property rights and the protection of those rights are paramount
to the members/stockholders boards of directors and management.
Not only is the Farm Credit System in Texas concerned with pro-
tecting property rights, we are also concerned with protecting our
stockholders, the natural resources and our environment. The rea-
son is very simple: We finance agriculture and the individuals and
businesses that derive their livelihood from the land.
"So goes agriculture, so goes the Farm Credit System." This
axiom has been proven many times throughout the Farm Credit
System's 77-year history.
All short and long-term financial assets derive their value from
private property. These assets are the vital underpinning for finan-
cial stability and economic health of our Nation.
As Government regulations over private property increase, two
things normally happen. Productive capacity of the property de-
creases and the value of the property itself is reduced. When the
value of the property is reduced, financial assets collateralized by
that property diminish in value accordingly.
51
The terms "property rights" and "property control" are synony-
mous. Property rights refer to the abiUty of the individual to exer-
cise control over his or her property. It is only through the rights
to control the use of property that the individual can make the
property produce value or wealth. I might add that the ability to
produce value or wealth is the tax base on which government oper-
ates.
When control over someone's property is transferred by regula-
tion or law to the Grovernment, then the ability of the property to
produce value and wealth is also transferred to the Government. In
1990 alone, over 53,000 pages of Federal regulations were promul-
gated restricting an individual's use of private property.
Mr. Chairman, we fear that a whole new level of Government is
emerging in America called government by regulation. It is very
easily the fourth branch of Grovernment. It functions as a law-
maker. Grovemment by regulation, though unelected, has the force
of law. It functions as both judge and jury in cases involving its
own rules and is the accumulation of legislative, executive, and ju-
dicial power in the same hands. Some call this the real definition
of tjTanny.
The fastest growing regulatory costs are in the area of environ-
mental protection. If more private property rights fall under gov-
ernment control through regulation, how much is enough and how
much more can the taxpayer pay? This country can't afford it.
This isn't necessarily because of the laws themselves, but be-
cause of misapplied implementation and enforcement. The possible
designation of the golden-cheeked warbler's critical habitat under-
scores the need to change the Endangered Species Act.
Serious questions should be asked of the U.S. Fish and Wildlife
Service about its plan to designate critical habitat for the golden-
cheeked warbler. Landowners, through other Federal and State
agencies, have for years implemented best management practices
that included managing cedar and our vast natural resources.
A Federal prohibition for managing cedar could harm beneficial
grasslands, wildlife habitat, and subsurface water. All of these
qualifications devalue the land, restrict productive capacity and, in
turn, reduce the collateral value of all lending institutions.
Mr. Chairman, we must not allow environmental regulations and
their enforcement to destroy property rights, land values, and pro-
duction techniques. Regulations designed to protect the environ-
ment leave many owners stripped of all but fee simple title to their
property with only the privilege to pay taxes.
The potential critical habitat designation of the golden-cheeked
warbler has placed a cloud on the title of all land in the 33 counties
in central Texas.
If private property values were to shift so as to become liabilities
rather than assets, there would be neither incentive to own private
property, nor to provide the tremendous quantity and quality of
goods and services that made this Nation great.
As lenders, we must make and maintain viable loans in a se-
cured property. That is our primary basis of concern over environ-
mental laws and regulations, including the Endangered Species Act
and the possible designation of critical habitat for the golden-
cheeked warbler. If we are to exist and prosper as a great Nation,
52
we must maintain what the framers of the Constitution clearly rec-
ognized as a need to vigorously protect private property rights.
Congressman Edwards, I understand that you have proposed leg-
islation placing a moratorium on all actions by the Department of
Interior as it relates to the listing of endangered and threatened
species and critical habitat.
Just this week I received a letter from Congressman Lamar
Smith and Senator Hutchison asking us to review and support
similar legislation. With the situation created by the proposed des-
ignation of critical habitat for the 33 counties, the Federal land
bank associations, the production credit associations and the Farm
Credit Bank of Texas enthusiastically endorse this legislation and
appreciate all of your efforts and hope others will join with you and
Congressman Smith and Senator Hutchinson to protect and pre-
serve the private property of Texas and the United States.
Thank you.
[The prepared statement of Mr. Dail appears at the conclusion of
the hearing.]
Mr. Stenholm. Thank you. Next, Ms. Shirley Hooks, president,
Granbury Board of Realtors. Ms. Hooks.
STATEMENT OF SHIRLEY H. HOOKS, PRESIDENT, GRANBURY
BOARD OF REALTORS
Ms. Hooks. Thank you, Mr. Chairman. As president of the
Granbury Board of Realtors, I want to thank you for the time and
opportunity to share the opinions of my fellow realtors concerning
the proposed critical habitat for the golden-cheeked warbler.
We as realtors are concerned for the environment and for the
need to protect it in every way possible. We as realtors are also
concerned with the erosion of private property rights of our citi-
zens.
In the first paragraph of the policy statement of the National As-
sociation of Realtors, and I quote in part, "The National Association
of Realtors is dedicated to the protection and the preservation of
the free enterprise system and the rights of the individual to own
real property as guaranteed by the Constitution of the United
States of America."
In the third paragraph, "We believe that the political stability
and economic prosperity of the United States of America is depend-
ent, in large measure, upon the right of the individual to own real
property and to exercise and enjoy the benefits of ownership. We
oppose undue actions by governments, groups, or individuals which
diminish or deny the full and free exercise of that right."
The proposed action by the U.S. Fish and Wildlife Service to des-
ignate parts of 33 Texas counties as a critical habitat for the gold-
en-cheeked warbler would cause many negative results and few, if
any, positive results.
If what has happened in and around the Austin area is any indi-
cation of what could happen to these Texas counties, including my
home county of Hood, it would have a devastating effect on prop-
erty values. This in turn would have an adverse effect on revenues
from property taxes for local government. With a reduction in prop-
erty values, our local tax base would be stressed even more than
it is now.
53
The taking of private property rights by a small bird is even
more destructive than the taking of a possible habitat for a small
bird. If the use of privately owned land is further restricted, not
only would the owner be adversely affected, but also other indus-
tries associated with building, real estate sales, of course farming
and ranching would also be affected.
As in all discussions of opposing views, some compromises and
solutions should be proposed by both sides. We suggest that the
U.S. Fish and Wildlife Service investigate more fully the possibility
of incentives for voluntary cooperation from people for donation of
land for parks, bird sanctuaries, our public/private projects to
achieve the same results as the proposed critical habitat designa-
tion and as an alternative method of preserving the vegetation so
loved by the golden-cheeked warbler, and without the loss of per-
sonal control and use of a person's property.
If the U.S. Fish and Wildlife Service is allowed to control the use
of private property, we would suggest that there are already in ex-
istence in most counties throughout the State numerous founda-
tions that have as their missions various ways to preserve the envi-
ronment, protect endangered species, and provide ongoing assist-
ance and management in their efforts.
If these organizations could make application to the U.S. Fish
and Wildlife Service for grant dollars that would be used for land
acquisition and development of bird sanctuaries, not only could
there be strategic control of the locations to best serve the preser-
vation of the types of terrain, vegetation, et cetera in which the
golden-cheeked warbler likes to bear its young, but these founda-
tions would continue to manage the sanctuaries, land would be
paid for, and thereby preserve our private property rights.
As a requirement for approval of any grant application, founda-
tions would need to be specific in their plans to preserve and pro-
tect the environment in regard to ingress and egress, public access,
and how the sanctuaries could become self-sustaining financially,
perhaps through admission fees, gift shop sales, and private dona-
tions.
Our belief as realtors, is that this encroachment of private prop-
erty rights is an unjust hardship on the property owners of Hood
County and Texas. With the cooperation of all of us on both sides,
we can find a better way.
Thank you again for your time and your interest in our views
here today.
[The prepared statement of Ms. Hooks appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Mr. Harold Chesnut, chief ap-
praiser. Hood County Appraisal District.
STATEMENT OF HAROLD D. CHESNUT, CHIEF APPRAISER,
HOOD COUNTY APPRAISAL DISTRICT, GRANBURY, TX
Mr. Chesnut. We would like to first thank you all for the oppor-
tunity to present our opinions and beliefs here today about this
very urgent topic. It is so ironic that a very small bird has brought
us here together in a somewhat emotional and controversial fash-
ion, with such a great bird as the American eagle has supported
54
us for so long in our many rallies for beliefs, positions, and causes
with which we as a nation have sought to establish.
Today, we discuss the little warbler; tomorrow, who knows?
What is it going to be? What are the issues? What are the impacts
going to be? As the testimony earlier this morning — and I don't
think it cleared up anything but made confusion of what we can
do and what we cannot do. No one really knows. The impact on
this present matter and environmental preservation, both in terms
of real and potential factors, is extreme to each and every one of
us. This matter is very serious to us.
My Texas heritage goes back to the late 1800's when my grand-
father broke horses, cut posts, and created a farming and ranching
operation. Times were hard and conditions unbearable, and the re-
wards were few, but the love of the land is what kept us together.
He would roll over in his grave today if he knew a bird was going
to determine what we could do with his land, how many cattle we
could run, the coyotes put us out of business on being able to run
goats in our country. Now, is a bird going to tell us how many cows
or if we can cut a cedar or build a fence or whatever? Where does
it stop?
Many families share this same personal feeling of strength we
derive from the basic concept of operating the land independently
from all others. Yet, we obviously cannot rely upon private his-
tories or such personal testimonies to make our points clear about
this strong opposition we express toward such an approach of des-
ignating thousands and thousands of private lands into a specific
protected habitat.
In terms of money, let's understand this designation real clear.
In the 33-county area in 1992, the market value of these 33 coun-
ties was over $110 billion. Out of this, the farm and ranch areas
dollar represented some 14.3 percent, or more than $15 billion. In
some of these target counties, rural properties represent 75 percent
of the total market value within that county. We have already seen
some of the property values fall by a whopping 96.25 percent of
those areas that has been determined as habitat designation. On
a collective level, Texas and these communities cannot afford this
designation.
On the individual level, the landowner knows only too well the
largest asset that he has is tied to the land. Almost every aspect
of banking will be subject to widespread disruption stemming di-
rectly from reduced property values. Foreclosures, bankruptcy, fi-
nancial institution failures, and a tremendous ripple effect dimin-
ishing all local businesses. None of this speaks to the removal of
productive property from contributing to the world's food and fiber
formula.
In a discussion this past weak, we were talking about the popu-
lation explosion. At a time when global pressures are very real for
identifying a stable means of survival for a continually growing
population, can we really afford to tamper with the huge areas of
productive land?
I would summarize my comments relative to the many forms of
impacts of this major issue.
First, we can all appreciate the severe change this designation of
habitat would bring to some prime properties in Texas. From an
55
appraisers perspective, it is easy to see how the land designation
along these lines of those quite possibly here in this situation could
calculate into billions of dollars referenced earlier in the reduction
of appraisals. It does not take an appraiser to extend this level of
figures into catastrophically reduced tax revenues for Texas and
these targeted communities.
Second, we find a great social toll is extracted for the uncon-
trolled designation of suitable habitat. To divert any moneys away
from other social need areas at a time in Texas where many mat-
ters threaten our very survival is unconscionable. It requires com-
plete focus of all resources to imagine even minimal effects upon
such social areas as health care, crime control, educational en-
hancement, infrastructure upgrades and a host of other critical top-
ics. Funds at both the State and Federal level simply have more
urgent social need areas to deal with than we are considering here
today.
Third, in terms of the political impact, the issue at hand of des-
ignating critical habitat for one specie is going to have significant
effect upon almost all the present societal systems which are at
least working today. Already we have overextended local govern-
ments that will bear much of the impact of reduced revenue. To di-
vert money, time, and energy toward this issue of the golden-
cheeked warbler in the fashion that we see in this process is simply
unacceptable. There are other approaches to dealing with this mat-
ter.
Blanket preservation and widespread land designation can be
substituted first by voluntary designation as bird sanctuaries that
has worked elsewhere. Smaller budget outlays for direct purchase
of designated park habitat may also be alternatives.
I would implore all these involved to modify the current nega-
tively perceived approach and substitute instead the concepts of al-
lowing adequate time and application of proper techniques for the
development of socially acceptable environmental measures. I know
we can solve this matter to everyone's benefit without an attack on
private property rights or the destruction of undermining of the
free enterprise system. We just cannot let issues simply reduce our
effectiveness or tear into our way of life.
Federal intervention and more costly Government programs to
administer are simply not the solutions we seek. We do not need
more restraints on how we operate our farms and ranches. In the
very basic of terms, we simply need to incorporate some of these
new priorities into our continued proven management principles
and good stewardship techniques of the land that we have been
blessed with in our great State.
Thank you for your interest and this opportunity to present our
opinions today. I hope some of these comments will permit us all
to yield in favor of more time to accomplish the objectives through
the same methods of cooperation that has always allowed Texas to
be the very best place to live and work.
[The prepared statement of Mr. Chesnut appears at the conclu-
sion of the hearing.]
Mr. Geren. I thank the panel. Chairman Scenholm stepped out-
side for just a moment. He will be back shortly. In his absence, I
would like to ask a couple of questions, and I expect he will be back
56
before we finish. He gave me a request to ask in the event he does
not make it back before we do finish.
Mr. Smith, you have been around in that part of the world all
your life and have watched the development of this county. We
heard a little earlier and are going to hear more later about the
invasion of the cedar brush into this country.
Can you talk about what you have seen, just in your lifetime,
and the expansion of the land in this area or expansion of the
cedar in this area just over your lifetime?
Mr. Smith. Thank you, Congressman.
First of all, as I said earlier, my people — my father told me that
his father told him that there were not any cedar in the old days;
that when they were settling this country, it was all prairie. So I
thought that was an interesting comment and I have heard com-
ments in this session about that previously.
During my lifetime, I have seen cedar progress or trees progress
everywhere, but, again, I feel that there is a lot of people that
would leave their cedar. And, as a matter of fact, I can drive you
15 minutes from my house and all the cedar in the world is volun-
tarily left and it would appear that that were to be adequate for
the warbler. And, again, as an alternate to that, hopefully the Gov-
ernment would pay to do this, if it is that important.
But, yes, I have seen a lot of changes. And of course one of the
big changes is the Government involvement in our lives. And I
would like to comment on that. As a banker, for instance, the
changes are just so voluminous that no one would have time to
hear them. The environmental laws are a good corollary here, pos-
sibly, and I am an environmentalist. We practice it on our place.
But there is a point to where it is just out of hand, and the regu-
lations and the costs are just stifling us. And the cost to the
consumer, the cost to everybody goes up when this happens, in my
opinion.
But, yes, sir, as far as making a living off of agriculture and the
land, it is tighter and tighter. I can cite an example. When I was
a small child, a neighbor of mine had a quarter section, and not
any more than that, 160 acres and raised a family of six, very fine
family. You could not do that today if your life depended on it. But
they worked and they were able to manage their land and they did
it and, of course, that is just not possible today. And more Govern-
ment intervention is not going to help that.
We have to manage our land and manage it the very best way
we can in order to make a living off of it for agricultural purposes,
as I see it.
Mr. Geren. Mr. Dail, you talked a little about the value of the
collateral that land represents for financial institutions in our
State. If we do have a critical habitat designation that does restrict
the clearing on large sections of land from a lender's perspective,
Mr. Smith or Mr. Dail, if you were looking at a piece of property
and knew that the person, because of this designation, was unable
to clear the cedar off of it, would that change your assessment of
the value of that property as far as collateral?
Mr. Dail. I will try to answer that. Certainly it could. I think one
of the things you would have to do in terms of land value is simply
to look to western Travis County. According to the chief appraiser
57
down there, after the golden-cheeked warbler was listed, values
dropped the next year by $358 million, and that is a pretty good
chunk of the tax base of that county.
Mr. Geren. From what percent to what?
Mr. Dail. About 4 percent, so it is substantial. As I stated in my
testimony, right now, just with the designation hanging over us,
there is a cloud now over the title to all of this land because people
out here do not know what to do. There is already beginning to be
real estate transactions that are going by the wayside, being
turned back. They simply do not know what is going to happen.
Mr. Smith. Uncertainty is the biggest problem, yes, sir.
Mr. Geren. Thank you.
Mr. Stenholm. Mr. Edwards.
Mr. Geren. Excuse me, Mr. Chesnut, would you like to com-
ment?
Mr. Chesnut. In my testimony, when I quoted the 96.25 percent
reduction, that was from Travis County. One example was the 30-
acre tract that was on 183 that the lady had purchased in 1960
and it was appraised at over $800,000. Today, that is appraised at
a $1,000 an acre. So this 96.25 percent is real.
Mr. Edwards. Sounds like some investments I have made.
Mr. Chairman, I just want to thank all of the panelists for com-
ing. And a personal note, it is great to see Stretch Smith. We
should ask him how to survive. I remember him back in the days
when rural independent bankers were considered endangered spe-
cies. You and your family have worked hard and survived, and it
is great to see you.
Mr. Smith. Thank you. Congressman. I am afraid the community
banker, if we cannot get things turned around, may be threatened.
Mr. Edwards. Nice to see you.
Mr. Dail, thank you for mentioning the legislation. Our office has
been working with the Texas Farm Bureau organization as well as
Mr. Geren's office and Chairman Stenholm's office to prepare and
introduce this legislation immediately to limit the additional listing
of species and additional listings of habitat areas until we get the
reauthorization bill passed in Congress.
The goal of that bill, and we are grateful for your organization's
help in pushing it, will be to simply force the environmentalists to
have something at stake to finally get the Endangered Species Act
before Congress. That is the problem now, we cannot get it up. If
we had a vote tomorrow, I am convinced we would have private
property rights built into it and many of the changes Chairman
Stenholm mentioned.
But thank you for your help and support for that legislation, and
all three of us look forward to working with you.
Mr. Dail. We appreciate the opportunity to help you and we to-
tally support what you are doing. I think that does not only go for
farm credit but every bank in this country, particularly rural
banks.
Mr. Edwards. Thank you very much.
Mr. Stenholm. My question for you is this: You have sat here
and you listened, you listened to the previous panel in particular,
where we had the agencies involved, is there any question that you
58
would like for us to have asked the four gentlemen in the previous
panel?
Mr. Dail, Excuse me, Mr. Chairman. One of the things that was
alluded to, in the course of Congressman Edwards' questioning of
Mr. Rogers, was the time delay. And one of the things that gets
lost in all of this time is money. What does that mean to the land-
owner or the operator out there? To some environmentalists, time
means nothing. But it means a great deal.
And I will give you an example of a lady in Austin, Texas, by
the name of Mary Davidson, who is trying to build a dwelling on
1.5 acres of land. And in the course of the past several months still
has not gotten the house built, but just the time she measured in
lost opportunity on a $200,000 investment, over a settlement period
of time, was $70,000 because the interest rates went up 300 basis
points during that timeframe.
That is one of the things that I think needs to be weighed in this
whole consideration. These environmental laws — nobody can meas-
ure what they are costing this country today. It is said that they
cost twice what our national defense does. They could very well be
costing even four times what our national defense in this country
is.
Mr. Stenholm. Ms. Hooks.
Ms. Hooks. I was just wanting to say something along the same
lines as Mr. Dail, I suppose; that time being of the essence, and
the problems for developers, for owners of large parcels, as well as
small parcels of land that are basically in limbo, whether they have
had contracts to purchase or not, some of them are going by the
wayside. Every one is just in a holding pattern. And until some di-
rection is given, the amount of money that it is costing these people
is untold. So we appreciate what you are doing.
Mr. Chesnut. One comment. I think we just need some defini-
tions. He did not, to me, answer any question direct. We just need
examples in those brochures that are given out exactly what can
be done and what cannot be done. I mean, everything was so vague
that I do not think any of you, of course that was probably typical,
but I do not think anyone got a direct answer. We need good, clear
information to everyone, so we are all on the same page.
Mr. Dail. Mr. Chairman, may I add another point.
Mr. Stenholm. Yes, sir.
Mr. Dail. We were talking about terms of cost. Mitigation is ter-
rifically costly in this country today. Let me give you one particular
example of an individual who is a developer and owns an interest
in developing in Austin, Texas, some 1,100 acres of land. He went
to the U.S. Fish and Wildlife Service after he had all his other per-
mits to try to work with them on a bird-let. And they finally came
back to him and said, yes, we will do basically this:
First of all, put about 853 acres of land in preservation for the
bird and some cave spiders. We will allow you to develop the bal-
ance if you go out and mitigate or purchase another 853 acres of
comparable habitat.
It took a potential investment with a return of about $30 million
overall, and reduced it to a losing proposition. And one point there:
because the recovery plan implies that the cost of protecting the
golden-cheeked warbler is somewhere in the neighborhood of $11
59
million, that one investor is going to lose perhaps that much or
more on one investment.
Mr. Smith. Mr. Chairman, perception is reality, and as one per-
son who really appreciates the questions you did ask today, it
opened up a lot of thoughts in my mind and I know everyone else's
about how confusing this can be, and I think that is the biggest
problem.
People do not know what to do. They do not know what the law
is. And I appreciate what you are doing and, hopefully, it will go
further and maybe we can have some of this stopped, this tsiking,
as I call it. I just think it is really going to hurt agriculture.
Mr. Stenholm. You know, that is one of the benefits of hearings.
A lot of people say it is a waste of time, it is a waste of money,
a waste of effort, but I learn something almost every time. And you
pick up something, and the perception, as you say, is a big part of
the problem as well as the solution. Too often people who operate
in a vacuum tend to overlook that there are consequences.
There is a new — I hate to use the word slogan, I am not sure
that we maybe better come up with a better definition — it is cost-
risk-benefit. Anything that Grovemment does to us or for us that
has a cost, you should identify how much it is going to cost, then
identify the risk that you are trying to solve, and then identify the
benefit. Of the cost and the risk and the benefit, does it add up to
being a good investment?
Now, to some people, the preservation of the golden-cheeked war-
bler cost is of no consequence whatsoever. They honestly believe
that. And I quarrel not with anyone's honest opinion. But when
that is a very small minority opinion that becomes the majority
opinion through action or lack thereof, then we have a problem
that, under our system of government, demands a solution.
That is what this hearing is all about.
Mr. Smith. If I may comment. In our community bank, the regu-
latory burden is approaching 20 percent of our bottom line and it
has to stop somewhere.
Mr. Stenholm. So whether it is banking, agriculture, health
care, education, you name it, and that is why this issue is just the
tip of the iceberg.
Mr. Smith. Yes, sir.
Mr. Stenholm. As far as the general frustration that the Amer-
ican people are feeling across the board — and that is why it is time
for folks to say, wait a minute, let us go back and reexamine some
of these rules and regulations — in this case, it is the endangered
species.
And Chet makes a valid point. If we could get that bill to the
floor today or in the next 20 days, we could make some very good
constructive changes to the act. But those who are benefiting, that
small minority who are benefiting from their viewpoint, will not let
it come up. But, boy, it is coming soon.
Mr. Dail. Mr. Chairman, the extreme environmentalists call the
risk-cost-benefit part of the unholy trinity.
Mr. Stenholm. Yes, sir, I know. We have a real dispute. Thank
you all very much for being here. We appreciate your time here
today.
60
We will call the next panel. The next witness will be Mr. Ted
Eubanks, the Audubon Society, Houston, Texas.
Mr. Eubanks, welcome.
STATEMENT OF TED L. EUBANKS, DIRECTOR, NATIONAL
AUDUBON SOCIETY
Mr. Eubanks. Thank you. Mr. Congressman, my name is Ted
Lee Eubanks and I am speaking today on behalf of the National
Audubon Society. I begin by thanking each of you for the oppor-
tunity to address the subcommittee today on the extremely impor-
tant topic before you.
If asked to limit my comments to the two questions posed in the
letter, rather than my allocated 5 minutes, I would be completed
within seconds and well on my way back home to Austin. Critical
habitat designation for the golden-cheeked warbler, in my opinion,
would not impact farmers and ranchers in Texas to any measur-
able extent, beneficially or detrimentally.
Would this designation impact the USDA? I would expect agency
personnel to be aided in carrying out their obligations as described
under section 7 of the Endangered Species Act. Critical habitat des-
ignation provides guidelines for where species may or may not be
found, little more.
Contrary to what has been feared, critical habitat designation is
not a means by which the U.S. Fish and Wildlife Service expands
protection for a species already listed under the act. The designa-
tion would, if proposed and accepted, offer those already obligated
under the act a description of the species preferred habitat and
where that habitat may be found, nothing more.
Yet we here today know that this issue before us is far more ex-
pansive, volatile, and emotional than implied in my answers.
Therefore, I would like to use my remaining time than in focusing
on the perceptions that have so inflamed many landowners in the
Texas hill country, and what you, as our public servants, might do
to calm these rather stormy Texas waters.
I will begin by asking you to serve all of the citizens ot our splen-
did State in attempting to redirect this debate back to within the
parameters of rationality and logic. Please, let us try to reattach
this discourse to reality.
Marshall Kuykendahl wants to take Texas back. We, the Audu-
bon Society, want to take Texas forward. They ask for environ-
mental exemption. We ask for environmental equity. We believe
that all citizens have a right and obligation to share environmental
cost and compliance, risk and responsibility, yet opportunity to
benefit and blame.
We defend private landowner rights, yet we also recognize that
no rights in a governed society, even those to life, liberty, and the
pursuit of happiness, are absolute. And we understand that certain
natural resources, such as air, surface water, and certain wildlife,
are held in common. In this, we, the Audubon Society, derive our
standing in this debate as a common rather than a special interest
group.
The brown pelican, an endangered species once abundant along
the Texas coast, nested in Galveston Bay for the first time in four
decades. The bald eagle, our Nation's symbol no doubt soon to be
61
delisted due to its recovery, is now commonly seen on the east
Texas reservoirs in the winter.
A few months ago, a fisherman landed a tarpon 4 miles inside
San Luis Pass in west Galveston Bay. The Texas tarpon fishery,
once world renowned, is rebounding, and the economic benefit that
is derived fi-om nature-based tourism is now beginning to accrue to
these coastal communities so desperate for an economic boost. Let
us not sacrifice the environmental gains of the past three decades
in one hysterical hiccup.
In this sense and context, I will perhaps stand alone among my
fellow environmentalists in supporting Governor Richard's
depoliticization of this issue. Although emotionally trying for me
personally, I applaud her efforts in recent days to remove this issue
from the political arena and allow those engaged in the heats of the
battle to step back and reassess their positions. We, as Texans,
possess two defining qualities: Civility and honesty. To our State's
detriment, this debate has been neither.
The Audubon Society has advocated private landowner incentives
for wildlife and endangered species management for years. We
have worked with private interests in Texas to develop programs
and protocols that marry economic, associate and environmental
concerns. The most effective conservation tool today is a profit.
Therefore, I will end by reaching out to all of my fellow Texans in
asking that we continue to work together for the Texas that we all
know we can be rather than the one that once was and never will
be again.
Thank you.
[The prepared statement of Mr. Eubanks appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you. Next is Mr. Russell Hyer, regional
executive. National Wildlife Federation.
STATEMENT OF RUSSELL R. HYER, REGIONAL EXECUTIVE,
NATIONAL WILDLIFE FEDERATION
Mr. Hyer. Thank you very much, and thank you for the invita-
tion to speak today.
As it has been stated several times, in 1973, the Endangered
Species Act was signed into law by President Nixon. It has on some
three different occasions been reauthorized. It was then in 1973
and is today a landmark piece of legislation. It is an acknowledg-
ment by Americans that we need to conserve the great natural re-
sources of our country and our world. The Endangered Species Act
is a problem-solving statute. That problem is the accelerating ex-
tinction of species caused by the destruction of their habitat.
Since the colonization of the Americas began, some 500 plant and
animal species have become extinct in the United States, among
them the California grizzly; the Roosevelt elk; and the passenger
pigeon. Human activity has caused at least a tenfold increase in
the historical rate of extinction and each year dozens of species
come closer to extinction while awaiting Federal protection. No re-
sponsible citizen can fail to be alarmed by this trend; no one wants
to send an animal or plant species to its doom — or even stand idly
by while this occurs.
62
On the contrary, we are becoming increasingly aware that each
extinction means knowledge forfeited and opportunities lost — ^food
sources never to be tapped, medicines never to be extracted. At the
same time, however, endangered species serve as environmental in-
dicators. As we discover the cause of a species' decline and move
to reverse the trend, we usually are identifying and removing
threats to that most important thing, the human quality of life.
Just as a farmer can tell the vigor of his crop by almost imper-
ceptible changes in the plants, the fertility of his soil by weeds that
move into his pasture, or the hesdth of his cattle by their sounds
and movements, the increasing decline of species are telling us all
that there are problems with our environment. The Endangered
Species Act is not solely a wildlife or a plant law, it is a human
protection law. With the passage and reenactment of this law, we
have put into place an early warning system for our own well-
being.
I like to think of it as perhaps an adjustable smoke detector.
With such a device, we can adjust the sensitivities to signal us
when the first ions of danger to our health and safety are present.
But since it is adjustable, we can set it to ignore all warnings until
the flames of extinction consume the safeguard. The choice is ours.
Do we try to protect ourselves by heeding a danger signal from a
butterfly, a shiner, a toad, a small bird like a warbler, a large bird
like a crane, or a mammal? Or do we wait until the dangers are
upon us?
The Endangered Species Act is designed with such flexibility that
it lets us do all of this. It recognizes the basic ecological principle
that all living things, including humans, are interdependent and
the health of one species is dependent on the health of all the oth-
ers sharing the environment. It also recognizes that humans are,
for the most part, either accidentally or purposely, responsible for
loss of habitat. And it is this loss of habitat that is the most com-
mon reason for the endangerment of the species, and that people,
through their good stewardship of the land, are the only ones that
can reverse this trend.
Such is the case with the golden-cheeked warbler, the only bird
that nests exclusively in Texas. This native Texan requires a very
specific habitat. It has been asked several times here for some spe-
cifics on those habitats, and the following is information from the
U.S. Fish and Wildlife Service.
The requirements and the habitat of the golden-cheeked warbler
is Ashe juniper with sloughing bark; the presence of broad-leafed
species, including, but not limited to Texas oak; plateau live oak;
cedar elm and lacey oak; a moderate to high degree of canopy
cover, 50 to 100 percent; and the trees must be relatively tall, basi-
cally be over 13 feet in height. The bird uses the cedar bark to
build its nests in the nearby oaks. Once, it nested over a much
wider area, all the way from Mexico to Oklahoma. Today, however,
it is limited to relatively few sites in central Texas.
True, the bird leaves Texas for an extended vacation from house-
hold chores to visit the highlands of Mexico, Guatemala, Honduras,
and Nicaragua, but more than a few other Texans do the same.
Some claims have been made that it is there on foreign soil that
the true problems for this species exist. However, a recent article
63
in the Cooper Ornithological Society on the wintering golden-
cheeked warblers in the highlands of Mexico clearly concluded,
"* * * its current population decline is more likely a result of habi-
tat losses on the breeding grounds than of changes in its wintering
areas."
Because of the trends indicating a population decline, this war-
bler was listed as endangered on May 4, 1990. At this time, as has
been said before, the protections of the Endangered Species Act
were provided this bird, including the protection against destruc-
tion of its habitats for breeding, feeding, and shelter. The next ac-
tion was taken in September of 1992 when the recovery plan was
finalized. This outlined the tasks needed to recover the populations
of the warbler to the point where it can be removed from the list
or at least changed in status.
Included in the provisions of the Endangered Species Act and the
recovery plan are the necessities to consider the establishment of
critical habitat for the golden-cheeked warbler. This is simply the
delineation of that habitat that is absolutely needed for the species
to survive and recover. For a species in such critical condition as
this one, it is the ICU, the intensive care units.
Once a decision is made to go ahead with this designation, what
happens? First of all, the Service must look at the economic and
other impacts of designating such an area. Next, it delineates the
area or areas on a map with descriptions and publishes it with the
economic review and the other facts in the Federal Register. A gen-
eral notice is then sent to all appropriate Federal, State, and local
governments and agencies as well as interested persons of record.
Notices are published in major newspapers, public meetings are
held, comments are encouraged, and only after this is a decision
made to modify, discard, or proceed with the original plan.
So what does the plan accomplish? Well, as I stated earlier, back
on May 4, 1990, the golden-cheeked warbler was listed as endan-
gered and its habitats were protected. This is true and will not
change whether critical habitat is designated or not. What the des-
ignation of critical habitat does do is require that the agencies of
the Federal Grovemment are, from that time onward, held to a
much higher standard than the private landowner in Texas. Fed-
eral agencies must, after delineation, consult with the U.S. Fish
and Wildlife Service on any activities authorized, funded, or carried
out which may affect that critical habitat.
What are the potential effects of critical habitat on production
agriculture? Well, for all existing normal agricultural practices, I
can see no impact. The normal routine clearing of cedar or juniper
scrub can be done presently under the law. Some Federal programs
of assistance to landowners for this practice are available through
the Soil Conservation Service and, as we heard in testimony earlier
today, the SCS has stated they do site-by-site inspections and will
not proceed with projects that will damage warbler habitat.
In short, I can see no future effects on agriculture as it is nor-
mally practiced.
This hearings and others like it will bring the truth out in the
open. The Endangered Species Act is not perfect. Changes are
needed. And the National Wildlife Federation and other groups are
continuing to work with you and other Members of Congress to en-
64
sure that not only protection for endangered species but to ensure
a healthy sustainable environment and economy for us all.
Let us continue to work together and not be so shortsighted as
to blame the smoke alarm for the fire. A healthy environment is
as much or more a necessity to sustainable agriculture as it is to
the warbler. Throwing the Endangered Species Act away will bene-
fit no one.
Thank you.
[The prepared statement of Mr. Hyer appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Ms. Morine Kovich.
STATEMENT OF MORINE H. KOVICH, BUSINESSWOMAN,
DALLAS, TX
Ms. Kovich. My name is Morine Kovich. I am getting to be an
old lady, however, I do have some experience in my lifetime that
I felt could be helpful in reaching some solution to where we are.
I live in Dallas, Texas. I am a businesswoman for 30 years as
an entrepreneur who develops projects, educational programs, and
motivates people to use the possibilities that we humans have to
solve solutions. My field of expertise has been journalism, and in
the early thirties, midthirties, and late thirties on, I served as a re-
porter and editor and investigative reporter for many daily and
weekly newspapers.
I learned to be objective, in a sense, and I learned to observe
what happens when we press panic buttons because of misinforma-
tion, and I have seen that today. So I want to tell you what I have
observed so far in this hearing, and I am very pleased to be here
and I appreciate the invitation to be here.
First of all, I hear the same case studies told by many people
which leads me to believe that the amount of information on this
subject of protecting an endangered species is not much. The same
stories about the same widow, the same lady whose property value
has been decreased. I have read it before, I have read it in many
news releases, newsletters, from a lot of different sources, govern-
ment, farm and ranch magazines and organizations, and environ-
mental organizations, and so I am here to ask that before anything
is done to weaken the Endangered Species Act or — well, any act
that will take us backward instead of forward, I urge you to con-
sider that we are operating in a pretty short view area.
I work with many corporations and 5 years ago, that was not
possible. But now, major corporations in the urban areas, in the
cities, are working with — not against, with children, with their em-
ployees. I have been out to many corporations to take information
to them to let them make the choice of how they want to deal with
having to clean up our environment, so that it will be more
healthy.
We are paying tremendous amounts of money because of the mis-
takes that my generation made. We operated in ignorance; we oper-
ated as wasteful users of our natural resources; we operated as if
there was nobody else to come after us. And I want to say that that
has left me with a lot of guilt, because now I am working with chil-
dren of this generation and they are suffering from dirty air, many
65
more cases of asthma, many more cases of skin cancer in very
young teenagers, which is a new phenomena in this country.
I feel we need to take into account what we do now will definitely
affect the coming generation that I am talking with now and future
generations. These children of today in urban cities, in country
towns, every place that I visit, are finding they have little hope for
much of anything in this country.
Now, that is so strange to me. But I hear that from my own 22-
year-old granddaughter. "What is the use? Everything is dirty,
nothing is cleaned up, we will probably blow each other up with
nuclear power." There is a lack of hope, and the result, I think, in
the communities, is from that lack of hope, and it leads to acts of
behavior by these young people, by these children where they have
only a very narrow vision of what there is.
I feel guilty today also because I am probably contributing to
some of these farmers' and ranchers' problems of economics. I do
not eat as much red meat anymore. My arteries won't stand it and
probably most people in here have the same problem. And that has
to be affecting the economics of the farmers and ranchers.
I grew up on a farm. I learned to drive in a model-T Ford and
a model-T Ford age is where we are as far as the environment is
concerned today. We do not know why the golden-cheeked warbler
tries to find this special couple of trees or a little group of trees,
but we have learned one thing now, that we do not have the code
of conduct of mother nature.
None of our scientists can figure out why it is that when they
took the yew tree out of the forest in the Northwest, for example,
because they were not much good, they were the least trees, I
guess, because they did not want those for their commercial use,
but when there was a discovery of taxol, which is a cancer cure
from the yew tree, the Forest Service and everybody else in this
country and other countries began to get a little panicked.
I was invited to a big conference, which cost the Government and
taxpayers a lot of money, because all of a sudden the policies that
were going on by an agency of the Grovernment had left us without,
"How do you grow a yew tree?" The yew is pretty cagey itself.
I heard about some other little cowbirds and other little critters,
as they are put, but every little critter has a place. In the eco-
system of the yew tree, there may be thousands of subspecies — or
we call them subspecies. Every one has its place, and children
today are learning that in their schools. They tell me about it. They
know about endangered species. That never was. Even 10 years
ago, we did not have that educational advantage.
So as these children grow up, they will look to us, they will look
to you gentlemen, also, because of where you sit and what you rep-
resent to them. They have to look to all of us adults for hope that
we will preserve their world and that the laws, the Constitution
that we have, provides us with protection of our private property
rights. If I did not believe that, I would be up in Washington with
a placard, I can tell you that, and knocking on Mr. Greren's door
and you two gentlemen also.
I will do that. I will not give up until those inequities are
stopped. I know of hundreds of other people who believe that, who
believe that we have to depend on the Constitution of the United
66
States to protect our rights, and if it does not, we have another av-
enue under our system.
I am a flag-waving American, I am a political independent, and
I am getting older and older. But I will tell you this, when I cov-
ered the opening of the first chemical plant in the State of Texas
as a young reporter, it was glorious. We got jobs. The economy
went just buzz, up, everything went up. And we breathed a sigh
of relief.
But there was a little problem, because the air we were breath-
ing, at that time, was laced with some stuff that was like a Molotov
cocktail to our respiratory health, and we are still paying the price
for the unobservance of the fallout of the chemical industry.
Now, they know that — ^they realize now, a lot of the companies
are agreeing now. You can see them in Texas 2000 or whatever
that is. I know they are wanting to comply and they are finding
that when they follow environmental — the rules of the game, espe-
cially in large areas of population where you see what they do,
where you breathe what they put out, where you know that they
can do better and they are now asking for help to become better
corporations and green. You know why? Because it is saving money
for these corporations. They have learned that to be wise users is
profitable.
And I urge the farm and ranch industry to look now for alter-
natives as we enter into the model-A age of the environment. I
don't know whether I will have time to read in my written state-
ment some points made — it was Professor Edward O. Wilson, pro-
fessor of science at Harvard, who wrote in a special article in the
May 30, 1993 issue of the New York Times Magazine: "Natural
ecosystems, the wellsprings of a healthful environment, are being
irreversibly degraded * * *. When we debase the global environ-
ment and extinguish the variety of life, we are dismantling a sup-
port system that is too complex to understand, let alone replace in
the foreseeable future.
"* * * Despite this seemingly bottomless nature of creation, hu-
mankind has been chipping away at its diversity, and Earth is des-
tined to become an impoverished planet within a century if present
trends continue.
"Mass extinctions are being reported with increasing frequency
in every part of the world. In the United States as a whole, about
200 plant species, with another 680 species and races now classi-
fied as in danger of extinction."
The main cause, says Professor Wilson, is the destruction of nat-
ural habitats. Close behind is the introduction of exotic organisms
that outbreed and extirpate native species.
Children that I deal with — and I deal with thousands of people
and have over the last 8 years — ^believe that it is of the utmost im-
portance for us to support the endangered species and to support
the Constitution because, within that system, is our ability, our ac-
cess to justice.
Thank you very much.
[The prepared statement of Ms. Kovich appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Mrs. Judy Pierce, Texas Com-
mittee on Natural Resources.
67
STATEMENT OF JUDY PIERCE, VOLUNTEER EDUCATOR AND
TASK FORCE CHAIR, TEXAS COMMITTEE ON NATURAL RE-
SOURCES
Mrs. Pierce. Good afternoon, Chairman Stenholm, Congressman
Geren, and Congressman Edwards. My name is Judy Pierce. I am
a veteran of the U.S. Navy with over 20 years service, having
reached the rank of commander, and I am currently a member of
the U.S. Navy Reserves. I am a former high school teacher, finan-
cial consultant, and an active volunteer educator and task force
chair for the Texas Committee of Natural Resources. We are an all-
volunteer, nonprofit organization that works to conserve our Na-
tion's natural resources and we are a strong supporter of private
property rights.
My family's ranch is in Bandera County in the hill country and
has been identified by Texas Parks and Wildlife Department biolo-
gists as containing black-capped vireos and golden-cheeked warbler
habitats. Our ranch has supported a large family and cattle, as
well as chickens and sheep, at various times since the turn of the
century, approximately. Stories about our land indicate that for
well over 70 years, our beautiful, sweet springs have never run dry,
even through the severe drought of the 1950's.
Come on my land and find the critical habitat for the golden-
cheeked warbler or any other endangered animal. I love it. I wel-
come it. My children, my husband, and I are all excited to have
wildlife on our land and I have happily discovered that we are not
alone. I have contacted the Texas Parks and Wildlife Department
and found out there are more than 400 other ranches along with
ours that we have voluntarily entered into the private lands en-
hancement program. In this important program, a wildlife biologist
helps ranchers and other landowners manage, preserve, and im-
prove their lands for wildlife.
Since we have done this, we have more frequent wildlife
sightings, especially of hogs and bucks. And in the hill country, the
doe far outnumber the bucks to such a point that the herds are
tipped the wrong way. They are supposed to be, I understand, one
buck to one doe. We never used to see any bucks. Well, now we see
bucks. We see jackrabbits, cottontails, painted buntings, the most
beautiful bird I have ever seen in my entire life, and hawks. Our
ranch has grown more picturesque over time because now we have
more wildflowers and numbers of trees on the hillsides, which I be-
lieve they were not there before because they had no chance to
grow before being eaten.
I see the value of my land growing right along with the grasses
and forbs. Recently — and I hope this helps other ranchers, because
this has been our experience, a hope for the future — recently I have
had two requests to rent out our hunters cabin off season to fami-
lies from the city who wanted to vacation with their children. I be-
lieve they wanted to escape from the city.
I love the possibilities for additional income from this as well as
from hunting leases and fishing fees which have provided income
in the past. Today, as I speak, my husband is guiding a bow and
arrow feral hog hunt on our ranch. I have been offered a couple of
hundred dollars a day to host birdwatchers who want to see the
golden -cheeked warbler. Some of them apparently keep lists of all
68
the different birds they have seen in their entire hfetime and they
want to add this golden-cheeked warbler to their list. And this is
the only area — I mean, the hill country and those counties I sup-
pose are the only areas you can see it in the United States.
Talk about birdwatchers, my ranch and two other ranches, we
share the same road. Well, this past spring, we all split the cost
of a solar gate because we have found, from time to time, we have
birdwatchers, hikers, and tourists just wandering around our
lands. This opens up a lot of possibilities here for income.
However, I believe that our way of life in Bandera County is in
danger. I have seen the land destroyed all around the hill country
by gravel mining. Marble Falls, I think, is a very good example.
Every direction you look when you drive through Marble Falls you
see the mountains disappearing with gravel pits. That is what I
call them, the mining.
I have seen clearing of the land causing severe erosion, which in
turn creates arid conditions, lowering of the spring flows and the
water table and ugly urban sprawl around Kerrville and Austin
and its attendant noise and pollution. This makes me very sad, all
of which, increasingly, costs landowners money, directly or indi-
rectly, and hurts our quality of life.
And I have provided some evidence of the costs of what we, as
ranchers and landowners, face with these things I have mentioned,
because we end up paying for a lot of it. Thank goodness for the
Endangered Species Act and thank goodness there are golden-
cheeked warblers and black-capped vireos on my land. I believe
that is a significant reason that my land and the surrounding hill
country in our area still has springs, clean creeks, clean flowing
rivers, stock ponds and lakes with lots of fish.
Under the law, there is not much direct protection except the in-
direct effects of enforcing the Endangered Species Act to protect the
recharge of my watershed, which we share with our neighborhood
ranches in Bandera County,
Last February of this year, enforcement of Endangered Species
Act by a district judge may have limited the city of San Antonio
from pumping the Edwards aquifer to severely low levels, which
possibly could have dried up my springs as well as those in San
Marcos and my neighbors, and we have all been very concerned
about losing our ground water.
It also may have helped prevent other ranchers with wells from
tapping into contaminated water. If the springs do dry up, I stand
to lose everything and so do my neighbors, but, in fact, I believe
all of us would lose because, I don't know if you all have ever been
through the hill country, but the hill country has wild animals like
deer, hogs, turkeys, quail, beaver — the beaver is returning — porcu-
pine, eagles, heron, ducks and tropical migrating prairie birds.
Anyway, they could all die out, though right now they are not con-
sidered endangered.
Is there another place left in this country like the hill country?
I don't know of any, and I want you to know that my family and
I took a long search all over the West up to the Northwest. And
we have found no place like the hill country where the water still
is about the cleanest we could find, the air about the cleanest we
could find in the entire country, where we saw, there is little popu-
69
lation and there is great weather and wonderful beauty, it may in
fact have some of the cleanest water left in the whole State of
Texas, according to the State of Texas water quality inventory by
the Texas Water Commission.
I believe, there may be great risk if the Endangered Species Act
is weakened to the point that a bird like the golden-cheeked war-
bler becomes extinct before we find out if it is an indicator species.
We learned this some from Rachel Carson, in her book "Silent
Spring," about how the birds have been wonderful indicator species
of problems that may affect our health because of their sensitivity.
And, also, we all know about the canaries used by the miners. That
is the reason I brought this fish. This fish that I brought here is
an American fish that used to be found in a whole lot of American
rivers, including Texas rivers. The fathead minnow. I brought this
fish so you could see this, because I volunteer to go out to schools
to teach children. I also go to companies and I go to groups and
churches on my own, try to get people to be aware of our water.
The thing is that this fish, for instance in one of the rivers in
Texas, the Trinity River, in a 5-year study of the river, this fish
is now only found around the Elm Fork Preserve in Fort Worth,
whereas it used to be found a whole lot of places in a lot of rivers
in Texas. And since it is an indicator species, I feel alarmed by the
fact that this is disappearing in places and becoming hard to find.
I got this fish from a laboratory because the laboratories are rais-
ing these fish. They use it to test for poisons in the water all over
American rivers. So my point is, with the golden-cheeked warbler,
what if the golden-cheeked warbler is an indicator species? I am
concerned about that on our land. For instance, if the golden-
cheeked warbler disappeared, what would that mean to us?
I think it would mean possibly that there might be some problem
with our springs or maybe it could mean that other things have
disappeared also, but we did not know because there is not a lot
of attention to things unless they are an endangered species or an
animal that people like to hunt.
I think that what happened to the Trinity River may be a warn-
ing of what might happen to the Medina River in the hill country
and the Guadalupe River.
No one in my family has ever been pressured by any Grovernment
biologist or by agents of the Soil Conservation Service or the U.S.
Forest Service to stop cattle from grazing along our steep canyons
where the cedar trees are old, forming canopies and making a habi-
tat for the warbler. I have been asked not to cut the old cedars.
But I never would cut there anyway.
The slopes of the canyons have loose soil £ind are rocky. I am so
glad to have those trees and anything that will grow along those
steep canyons to keep the topsoil in place, because I don't want it
to fall down and bury our springs.
I believe that as ranchers, farmers, and landowners we need to
encourage each other to take actions that demonstrate that the ma-
jority of us are good stewards of our land and our country's natural
resources including animal and plant species like the golden-
cheeked warbler. I believe that a large number of us really do love
the land and do appreciate its value as open wild land in today's
world.
70 I
I believe more of us than you think are voluntarily managing our
lands in a way which sustains our Nation's economy. However,
without strong public laws like the Endangered Species Act, the
Clean Water Act and some sort of watershed protection, I believe
that unique ranch life in Vindera County is really at risk.
Thank you very much.
[The prepared statement of Mrs. Pierce appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Mr. Oliver Meadows, a rancher
from Godley, Texas.
STATEMENT OF OLIVER E. MEADOWS, RANCHER, GODLEY, TX
Mr. Meadows. Mr. Chairman, Congressman G«ren, and Con-
gressman Edwards, I very much appreciate your inviting us to ap-
pear. I am here with my wife and, as Mr. Lowell Smith said, we
view ourselves as being environmentalists and exerting a bit of
time, energy, and money trying to provide a place for all sorts of
wildlife.
Our ranch is on the edge of Grand Prairie right where the Brazos
Breaks start, and it is a prime area that involves juniper. It is not
as simple as saying that you like the birds or you like the animals
in this particular case because we have a very peculiar situation
here where this particular bird is tied to a particular tree for all
practical purposes and that is the Ashe juniper. But that is not the
main complication. The main complication is that it is old Ashe ju-
niper that the bird is tied to. And he exists in only groves of those
trees mixed with a number of other trees.
Mr. Hyer gave a very good description of the precise type of habi-
tat that the golden-cheeked warbler must have. Trees 13 to 14 feet
high, trees 50 years old mixed with perhaps a half a dozen other
hardwoods and shrubs of the various kinds. There is data that indi-
cates that one nesting pair must have 10 acres at minimum and
up to 50 acres of area to do their nesting successfully and to have
an adequate feed source.
But the problem moves on from here. The bird breeds and pros-
pers only in old Ashe juniper. Ashe juniper is one of the most ag-
gressive encroaching plants that we know.
Now let me revert your thoughts to the Grand Prairie. I said I
lived on the edge of the Grand Prairie. I know you have all seen
the concerns that are being exhibited more and more about recov-
ery of the prairie.
The Grand Prairie runs between Cleburne, Texas, it runs north
and south, almost from the Red River, and in Johnson County it
runs between Cleburne, Texas and the breaks of the Brazos on the
west. It is a long, narrow piece of prairie that reaches on down
about to Waco, and runs all the way to the Red River. It is consid-
ered to be one of the greatest pieces of grasses known to man. It
was at one time. There is a little bit of a description here earlier
about it. It is the tall grassland, and it was a marvelous place. It
was a place that harbored a great number of all sorts of species,
wildlife and birds, and still does, if there is a decent grass cov-
erage.
But, as was indicated, and this is verified easily by reading lots ,
of the older journals, the Ashe juniper was not on the prairie; the
71
Ashe juniper was in the breaks and the rapidly breaking drainage
of the Brazos River and was a native there. It was not a native on
the prairie.
And now, Mr. Chairman, this gets me to your specific point about
where the production of agriculture comes in. It gets locked into
the question of the habitat of the bird. If we had an effective oper-
ation between the various Grovernment agencies involved and they
would get on with the designation of the real habitat, there prob-
ably wouldn't be much problem at all. There wouldn't be much
need for this hearing. But up to now, we have not been told where
these lines are going to be drawn, what they are going to effect,
so we have a great amount of apprehension on the part of the
farmers and ranchers of Johnson County.
All of us on the Grand Prairie don't know what to make of it for
the very reason that this Ashe juniper is a very rapid encroacher
and has to be fought constantly to keep it from taking over the en-
tire prairie.
Now, it is ironic, but the Ashe juniper is spread by another bird,
the robin. Every year in the spring from the last of February
through March, thousands upon thousands of robins nest in the
breaks of the Brazos River. They feed there for 6 weeks and take
cover at night, feed on the blueberries of the Ashe juniper. They
go out in the daytime and swarm across the prairie. I have literally
seen them in the thousands lots of times, and they drop the blue-
berries across the prairie and we get a new fresh crop of little seed-
lings every year.
We are required, if we don't want to live literally in an Ashe ju-
niper thicket, we are required to have our men walk over the place,
every bit of it every year and cut the seedlings.
Now, we have trees that are 20 feet high, that are 20 and 25
years old, and we have a few 50 years old. But we don't have any
habitat for the bird, I don't think. I would be glad if we did, but
I don't think we do.
And certainly, as you ride from western Johnson County and you
see those rows and rows of Ashe juniper on the fence rows where
the robins have dropped the seed and you see those little clumps
as the stuff begins to sprout in pastures where people haven't been
able to take care of them, and most of all, when you see the corners
where the road turns and you see the occasional neglected pasture,
you will see a solid patch of blueberry cedar.
And it is a fact that if you let the blueberry cedar encroach and
don't fight with it all the time, the Grand Prairie will become a
cedar thicket. And you can forget about commercial agriculture and
commercial ranching because it has a very effective habit of taking
over any land it occupies up to the levels of 60 to 80 percent in
about 5 years if it is left alone. And when that happens, we then
see the picture of the welfare of a series of wildlife and animals
and birds being sacrificed to consider this other peculiar problem.
I was interested in this lady's recitation of the animals and birds
and trees and wildlife that she has. We have a lot of it out there
too. The prairie is really a great place for wildlife, much more than
most people think. And there is one thing certain, that if we did
have the U.S. Fish and Wildlife Service draw some kind of rather
inexact lines around the area of western Johnson County where
72
there now is a lot of young, Ashe juniper and say, Well, this is
Ashe juniper country, there can be nothing done here, then you can
forget it as a productive farming and ranching area, because in 5
years, 10 years, most of the whole area would be simply covered
with low Ashe juniper.
I was very interested in some of the things that the chairman
was asking here today about. Well, where did your information
really come from? He was asking the wildlife people, Where did
your information come from? What biological information did you
have? And made the request that it be furnished.
I undertook that same inquiry, Mr. Chairman, and talked to the
biologists down at Texas Parks and Wildlife Department, who are
really doing all the work, not U.S. Fish and Wildlife Service, the
resident biologists, and they confirmed everything that has been
said here. There has been no designation. They are down there
working on the plans now. They don't know just exactly how the
lines are going to be drawn outlining habitat.
There is a lady and a man down at Texas Parks and Wildlife De-
partment that are really the persons that are working on the set
of guidelines that we have talked about here so much this morning.
About what a rancher can and can't do or a farmer can and can't
do about his land. They are working on all sorts of things like, well,
what about cedar posts, and when you have to repair a fence, how
much right-of-way or how much could you allow to be cut back
from the fence, and all of those kinds of things.
But there is no reason for this confusion and this apprehension
that is being created about Ashe juniper. Because I have this little
clump of stuff out here, is it going to bother my farm and ranch
and all that?
The only piece of real evidence of the type you were asking for,
Mr. Chairman, is this little book right here. This book is written
by Mr. Warren Poulich entitled the "Golden-Cheeked Warbler." It
is really one of the few scientific efforts to learn something about
the bird. The investigations were done in 1974; the book was pub-
lished in 1976, and for all practical purposes, this is it.
It says all of the things this gentleman said here and a lot more
too — how they nest, how their habits go, what kinds of sites. And,
Congressman Greren, it has a county-by-county history in here of
the area. Thirty-one counties, now we are talking 33 not 31 coun-
ties. And this man makes it clear that the only place that the bird
prospers is in old, over 50-year old, tall Ashe junipers. And these,
like this lady describes on the edges of the big canyons and there
are not many of them left.
Some of the things that I have been reading say there is not
more than 60,000 acres of actual suitable habitat left in the 33
counties. So we come to the question that these agencies are in-
volved, cannot just get on with it, and if they are going to do it,
do it; get the right kinds of surveys made so people know whether
they have habitat for this bird or whether they do not, and let the
people know that are fighting this scrub Ashe juniper out on the
prairies, that it is not a habitat, it has never been considered a
habitat and never will be a habitat, and that it has nothing to do
with them.
73
Probably this man here indicates in Johnson County, for in-
stance, there is only a little bit of habitat perhaps in the south-
western comer. Now, the Texas Parks and Wildlife Department
does a survey annually; that is the only survey that apparently is
being done, of the parks. And in my conversations with them, they
told me that the bird is still being seen, the bird in the Meridian
State Park, in the Dinosaur State Park and also as far north as
Possum Kingdom.
It has been a long time since one has been seen in Johnson
County. At one time they were seen in the Cleburne State Park,
but they say they destroyed most of the habitat when they built the
lake there and they haven't been seen in recent times there. It is
very doubtful that there are birds in Johnson County. They say in
this book that Hood County is very unlikely to have much, except
that the last sightings were along the Paluxi on the western side.
The question of the whole 33 counties and 20 million acres being
declared habitat is ridiculous. It is not going to be that way. The
Texas Parks and Wildlife Department Imows it is not going to be
that way, and there is no reason why we can't get on with some
simple, factual data about this situation.
Now, of course, there is going to be some ranches, like this lady's
ranch here, a few, and perhaps it is a sad thing that there are not
more. But that is not the way it is. And in the recent write-up that
you might have seen that appeared a few days ago in the Wall
Street Journal, they pretty well got to the nub of the whole thing.
They described this controversy going on and said the Feds don't
provide any consistent guidelines to what regulations will and
won't allow. Investigations are typically launched after a land-
owner does something that might be a violation.
Well, you covered that in some detail here today, this taking
business as opposed to the habitat declarations. There is no jus-
tification for this controversy to continue. I think there is a lot that
has been said here today about people being willing, that own the
land, being willing to cooperate. We certainly would. We certainly
do.
We have a conservation plan on our ranch, and we signed an
agreement with the Soil Conservation Service, Mr. Chairman, that
after the cedar was cleared the first time on parts of it, that we
would keep it cleared. So we have a basic conflict between the two
if the wildlife people come in, the parks — or the U.S. Fish and
Wildlife Service — come in and declare this younger cedar that is
coming from the regrowth as part of the habitat. It is not part of
the habitat, but in talking to the people in Austin, they couldn't tell
me how they are going about it.
They talk about infrared photos and aerial photos. Well, I don't
know whether ultimately they are going to end up with some fellow
at a desk with a magnifying glass and a pencil and says: '^Well,
this is it here, and that is it." But it is not the right way to do it,
and it will cause unending controversy if it is done that way and
there is no need for it to be done that way.
With regards to some of the other information that we worried
about being factual, here is the thing, Mr. Chairman, the thing
that has been referred to many times today, a fact aheet by the
U.S. Fish and Wildlife Service. And the two questions are here:
74
Does the critical habitat prohibit specific private actions, changed
landownership or altered private property rights? And the answer:
No.
Critical habitat only applies to private citizens if an activity
planned for their land requires Federal authorization of funding or
is carried out by the Federal Government. That would be fine if
that is the way it was, but careful questioning here indicates that
that is not the way it is. We have the taking business. So we end
up in total confusion about that.
The least they could have done is put an asterisk there and told
us a little something about that. It is really not an informative fact
sheet.
If you want to read in-depth about the golden-cheeked warbler,
here is the book you want to get. There is a lot of definitive infor-
mation in here about the parasitic habits of the cowbird and very
probably, he is about as big an enemy as man is in the decline of
the bird.
Finally, Mr. Chairman, you know there is a reason, or at least
I know the two of you know that I have had some experience with
Federal agencies. And there is a reason why people are so sus-
picious of having rules laid down to them from up above.
If you would reflect a moment on the recent controversy on the
spotted owl, well, what was the basics of it? The habitat was on
public lands, mostly, controlled by the Interior Department. That
Department let private contracts with private timber companies to
cut the habitat, and paid for the roads to get in there and cut the
habitat, and the whole exercise resulted in a loss of the taxpayers'
money.
In the process of all of this, cutting the trees, they had total con-
trol of everything, the Interior Department or the Agriculture De-
partment in some instances, they had total control of those forests;
it wasn't somebody else making them do it. They were contracting
to cut those forests and then we have a big to do about destroying
the habitat of the spotted owl.
So to meet ourselves coming back with that agency, didn't have
to talk to anybody else, they control those public lands and then
we see this other spectacle that is going on today, that we are told
that Marianna is the biggest cash crop in America and we see story
after story where half or more is growing on public lands.
We, the agencies that are stewards of the public land, we are car-
rying on a big drug war, we are fighting tooth and nail we say to
do something about drugs, but we can't manage our own public
lands, our own public lands owned by the taxpayers, administered
by Federal agencies and keep people from illicitly growing mari-
juana on our public lands.
Well, that kind of thing is what makes people have doubt that
there is much hope that people from the U.S. Fish and Wildlife
Service are going to come out to their place and tell them anything
useful. And there is where the problems are. And if we can get on
with two things, servey the habitat, get up front about what the
habitat is and where it is and quit talking about 33 counties and
20 million acres, there probably is not — it would be stretching it to
say that there is 1,000 acres of good habitat in Johnson County.
75
This man here that wrote this book pointed out that even in
1974 it was going fast. It takes old Ashe juniper to make a habitat.
We might have 1,000 acres here.
Now, I know it is different down in the hill country. But these
counties on the upper end, there is not much habitat here and
there is no reason for the people here to be all stirred up and wor-
ried about it if the Departments involved can level with them and
will level with them and get on with their business.
I have to quit before I get wound up.
One more sentence. You talked about cost effectiveness relation-
ship. This little book costs $1.24.
Mr. Stenholm. I am going to get the book and read it.
Mr. Meadows. It costs $1.54 for the Texas Department of Wild-
life to send it to me.
[The prepared statement of Mr, Meadows appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you. Mr. Alan Schutts, rancher from
Lipan.
STATEMENT OF E. ALAN SCHUTTS, RANCHER, LIPAN, TX
Mr. Schutts. Thank you very much.
I am a full-time rancher and landowner in Parker County resid-
ing in the community of Brock along the Branch River and I really
do appreciate the opportunity to have this kind of an audience.
I agree with most of the things that Mr. Meadows said. In my
opinion, the whole environmental issue of Federal responsibility to
preserve biological diversity and manage land use has become so
polarized that both sides have lost their perspective.
The Endangered Species Act is a different animal now than it
was when it first became law in 1973. The species have become
pawns in a much bigger game, and now the private property own-
ers are becoming pawns in that same game.
It is frustrating and frightening to see the popular and financial
support given to large organizations who openly oppose develop-
ment and certain types of agricultural practices, including cattle
ranching. Just as the endangered species has very little choice in
his habitat, many of the ranchers in this 33-county area have very
little choice in their management techniques if they hope to sur-
vive. I hope it doesn't get to a point where we have to be put on
that endangered species list to ensure our survival.
I, for one, would oppose any type of financial compensation for
any landowner or operator who is negatively affected by this pro-
gram for two reasons. One, farmers and ranchers in my community
have been paid off, signed up, and regulated enough by the Federal
Government. If this is just the tip of the iceberg, as so many fear,
then the people making laws and enforcing laws have to show some
sensitivity to a dwindling way of life in rural America that is still
necessary to keep food on the tables in town.
Two, I oppose financial compensation as a possible solution be-
cause I realize that it is not they paying us, we are they, and I do
not want my tax dollars spent dictating management practices in
a huge scope of varied circumstances under the pretense of preserv-
ing a species that can't adapt.
76
After the real devastation of the Dust Bowl, President Roosevelt
attempted to regulate farming practices to prevent another envi-
ronmental disaster like the country had just experienced. It didn't
take him very long to realize that it would be impossible to set
rules and enforce those rules from one central location when each
farming circumstance was so varied. His attempts failed, and he
formed the soil and water conservation districts made up of grass-
roots people involved in agriculture in their respective areas and
elected by their peers.
The Federal Soil Conservation Service was to act in an advisory
role to give technical assistance to these districts. That kind of ap-
proach worked then and it has proven that it can work.
Extension services or even new grassroots organizations that
work with the Government to educate and aid in helping producers
make changes that benefit all of us can work. A centrally located
EPA approach with threats of frighteningly large fines or prison
terms for noncompliance will only serve to unite rural agriculture
and private landowners in a revolution they cannot win and noth-
ing positive can come of it.
I feel like there is a misconception on both sides. I would hate
to go to a county agent field day for using sheep and goats to con-
trol brush as a biological form to control brush and be identified
as an environmentalist, just as I would hate to be identified as a
cattle rancher at an Earth First meeting. I think that just like it
has been demonstrated today, it has gotten so far out of whack that
as Mr. Meadows said, both sides are absolutely missing the target
and both sides want the same thing; we just have so much mis-
conception from the media and all the hoopla around it. That is all
I have.
[The prepared statement of Mr. Schutts appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you. I believe Mr. Langford is not here.
Next is Mr. Robert Joe Jackson, a producer from Ranger, Texas.
STATEMENT OF ROBERT JOE JACKSON, RANCHER,
RANGER, TX
Mr. Jackson. Mr. Chairman and Members, my name is Robert
Joe Jackson. I am a fourth-generation rancher from Stephens
County, Texas, county president of the Stephens County Farm Bu-
reau, president of the Caddo Wildlife Management Association, and
district director for the Texas Sheep and Goat Raiser Association.
My family settled in Stephens County in 1891. Stephens County
is in the northernmost part of the 33-county area included in this
proposal. Most of agricultural land in our county is made up of
rangeland which is used primarily for grazing cattle, sheep, goats,
and horses. Many ranchers also lease hunting rights to hunt the
whitetail deer, quail, wild turkey, and dove.
My family operation is involved in both running livestock and
leasing recreational rights. Ranchers in my area are concerned that
a Federal agency would attempt to impose more regulations and re-
strictions on our daily operations, supposedly to protect the bird
which I know of no verified sightings in our county.
This designation of a critical habitat for the golden-cheeked war-
bler could restrict our control of noxious brush, namely ashe juni-
77
per, or to do other habitat improvements which I always try to bal-
ance between livestock and our native wildlife. There are many
more acres of mature ashe juniper in our area than in recent his-
tory, so many people have a hard time believing that the loss of
habitat in our county is a golden-cheeked warbler's problem.
Since ranchers started using modem range management meth-
ods in recent years, our current capacity for both wildlife and live-
stock has increased. In fact, wildlife numbers in diversity, as well
as plant variety and quality, has improved markedly in recent
years. Techniques of range management, including control bums,
chemical herbicide applications, and mechanical brush control has
put the land in much better condition than a generation ago.
Before our area was settled, periodic wildfires were used as con-
trols of the invading plant species that we now have a problem
with. We just recently learned again how to improve range condi-
tion. When burning is used in conjunction with other tools avail-
able to the modern rancher, livestock, wildlife, and people all bene-
fit.
Farmers and ranchers in Stephens County have, in general, en-
joyed a close working relationship with the Soil Conservation Serv-
ice and Agricultural Stabilization and Conservation Service. Serv-
ices provided by these agencies are appreciated.
We realize that benefits are received, such as assistance in con-
structing erosion control structures and seeding old fields to native
vegetation come with certain obligations to the landowner. We are
willing to fulfill these requirements and understand the necessity
of doing so.
However, in the case of many Federal mandates, we are unable
to see what benefit we receive from complying. In fact, it becomes
evident in most cases that we are paying the cost for a benefit re-
ceived by someone else. Our ability to pay these costs are dimin-
ished with every regulatory burden.
In addition to our direct costs, we wonder how much it will cost
in terms of loss of other services. Will other agencies be allowed to
make recommendations to us relative to management practices?
Will SCS be able to recommend how to increase carrying capacity?
Will the Texas Parks and Wildlife Department be able to give ad-
vice on land management practices to enhance wildlife habitat?
What will it cost to run their recommendations past another layer
of bureaucracy before they can offer us help? Who, ultimately, will
pay these costs?
Those are just a few of the questions which were raised by this
proposal which concern me and my neighbors. Many producers in
our area must rely on outside income to survive the really tough
years, with the cost of market forces or severe weather conditions.
Some of this area has oil and gas production which has helped
many landowners by royalty payments and by carrying much of the
local tax burden.
With current oil prices and the toughening of environmental reg-
ulations, this designation could effect the oil industry in ashe juni-
per country. Our local taxes, school and county, are already being
shifted to the landowner as oil company values decline. If property
values decline as they have west of Austin, due to this designation,
78
our local school will have an even harder time raising funds to
maintain quality education.
Mr. Chairman, I have no problem with the simple protection of
an endangered species. However, I don't believe Congress' intent
when it passed the Endangered Species Act was to enact central
government planning by some midlevel bureaucrat to control the
daily lives of private property owners all over the United States.
Many people believe as I do that many of these designations
have been made not to protect a species, but to gain control of pri-
vate property by the Federal Government.
I thank you for your interest in this issue, and I hope Congress
will take a closer look at how many agencies are interpreting and
implementing the bills you have written such as the Endangered
Species Act.
I thank you.
[The prepared statement of Mr. Jackson appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you.
Next, Mr. Jack Moore, a rancher from Alvarado.
STATEMENT OF JACK MOORE, RANCHER, ALVARADO, TX
Mr. Moore. Honorable Chairman Stenholm, Congressmen Geren
and Edwards, thank you for inviting me to address this important
issue at this public hearing. My name is Jack Moore. I am a busi-
nessman and cattle rancher in eastern Johnson County. I serve as
the vice chairman of Johnson County Soil and Water Conservation
District. I am a member of the Texas and Southwestern Cattle
Raisers Association and National Cattle Raisers Association and
serve on the private property rights committees. Also, I am the im-
mediate past president of the Charolais Association of Texas and
the current vice chairman of the American International Charolais
Association. I have been involved in agriculture most of my life.
On behalf of the landowners in the Johnson County Soil and
Water Conservation District, T believe that the U.S. Fish and Wild-
life Service's proposed critical habitat designation for the golden-
cheeked warbler will have a negative impact on private property
rights, land value, and production agriculture.
Furthermore, if the application of the Endangered Species Act is
carried out with the golden-cheeked warbler, it will prove disas-
trous for private landowners and citizens of Johnson County and
central Texas.
For example, federally supported land sales and products of our
land and improvements will be inhibited. It will further reduce po-
tential buyers of land and/or devalue the price to an unacceptable
level. It will restrict owner decisions on improving rangelands such
as brush control, construction of fences, new pens and corrals, stock
ponds and all other improvements. It will result in lower taxes to
our Government due to lower productivity and land values. Con-
tribution of production agriculture to the GNP, Gross National
Product, will be significantly reduced.
Agriculture is already depressed and has a shaky future due to
high production cost and low prices received. We do not need any
additional pressure from the Federal Government. Landowners will.
79
be vulnerable to the whims and changes of the Federal Govern-
ment. This will increase fear and distrust.
We do not need additional Grovemment regulations. Landowners
believe that this is just an excuse for the Government to start tak-
ing over their private lands and usage.
The local USDA Soil Conservation Service Office assists land-
o\yners in the Johnson County Soil and Water Conservation Dis-
trict on needed conservation practices, including brush control, and
I might add in an environmentally safe manner. Conservation ac-
tivities of SCS and the district have a very positive impact on our
environment and production agriculture.
Brush control of cedar is mainly on regrowth cedar that is
reinvading productive rangelands. Mature cedar, occurring pri-
marily on steep slopes with shallow soils, is generally maintained
for wildlife and aesthetics.
We believe that the conservation activities of SCS and the soil
and water conservation districts are beneficial for landowners and
production agriculture, as well as the golden -cheeked warbler and
its habitat.
We can coexist, as we live today with the golden-cheeked warbler
in its habitat without the U.S. Fish and Wildlife Service burdening
us with critical habitat designations. We don't need additional reg-
ulations; we can't afford them; the government can't afford them,
and if we continue designating valuable land as designations for
some bird or snake or whatever, it will destroy the agricultural
economy and stifle the American dream. It isn't morally right, and
we plead with this committee to help stop it before it gets out of
control.
Thank you.
[The prepared statement of Mr. Moore appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you.
Mr. Geren.
Mr. Geren. No questions at this time.
Mr. Stenholm. Mr. Edwards.
Mr. Edwards. Maybe just a comment or a question, Mr. Chair-
man.
First, thank you all for being here.
Mr. Eubanks, you talked about returning this debate to reality
and civility, and I think this kind of presentation from various dif-
ferent perspectives is an example that we will see more of that.
Ms. Pierce, to you I would say I appreciate your comments. You
talked about the Trinity River. When I was in the Texas senate,
I was active, if not more so than any other member of that body,
to help clean up the Trinity and I helped rewrite the Texas laws
to stop corporate polluters and make it more efficient to go after
them through administrative ways rather than complicated expen-
sive legal processes.
If I were to make any point to those of you involved in environ-
mental efforts, I would say, I am glad you are here. You are our
watchdogs, you are our whistleblowers. We are a better country
today because of groups such as yours.
But I can't emphasize enough, I think sometimes excesses in
good programs destroy those very programs and the public support
80
for those programs. Excesses in welfare can destroy the welfare
program which many people need. Excesses in defense contracting
can destroy public support for a national defense budget that I
think is critical. And I think excesses in the Endangered Species
Act implementation can destroy the very public base that you
would want for your interests that you have expressed so well here
today.
So I would say I hope we can find a forum to get together and
debate with civility and reality this law and its good sides and its
bad sides and bring it about.
But, Mr. Hyer and Mr. Eubanks, our problem is, we can't get
that debate in Congress because many environmental groups don't
want the Endangered Species Act to come up for committee hear-
ing and a vote. And my question to you would be, what is your or-
ganization's position on bringing up the Endangered Species Act
which was supposed to be reauthorized in 1992? Do you oppose the
bringing up and debate and the democratic process working its will
on this, or do you support and would you let the chairman of the
appropriate committee know that you support bringing up a civil
debate steeped in reality on this issue?
Mr. Hyer. Do you want to go first, Mr. Eubanks?
Mr. Eubanks. Yes.
Congressman, several months ago, I guess it has been several
months ago now, I testified before Congressman Fields and Con-
gressman Laughlin's hearings on the reauthorization of the Endan-
gered Species Act, just this subject. At that time I urged many of
the changes that you have recommended, and the expanded role for
the private sector in the Endangered Species Act.
I believe for us to consider a reauthorization, let's get all of the
options on the table and let's go forward with the process.
So, no, we would not oppose it, and at this point in time I just
want to make sure that we have all of our choices out there to
choose from.
Mr. Edwards. Thank you.
Mr. Hyer. For the National Wildlife Federation, it is much the
same situation. We have worked quite hard trying to push on this
thing, and as you well know, on any particular issue, you get tired
after a while, and we are ready with this one.
We have worked very long and hard on this. We proposed what
we feel are improvements. We feel very basically in the 21 years
that the act has been authorized, the best it has ever had is about
60 percent funding, and that is to our thoughts, a tragedy.
I think the best funding they have ever had is $73 million na-
tionwide to fund this sort of program, and that is just not enough
money and it shows up in the kind of problems that it creates.
We feel that — and we are very sympathetic that the landowners
in their delays — we feel that there should be time lines put into the
bill, into the law that apply to the U.S. Fish and Wildlife Service
to hold their feet to the fire. If you do make an application for a
permit or a request for information, there should be an explosion
point somewhere down the line that says, OK, you didn't answer
my letter; I can go ahead. We are perfectly willing to live that with
sort of thing, if the funding is there to let them live with that.
81
We feel there should be an ombudsman in every office to work
with the public to lead them through the bureaucracy. We realize,
I worked with this law since 1973, believe it or not, since it was
first passed, and I still don't know it all; it is a very complex law.
And to expect the public to understand it is ridiculous. There
should be someone in every office to work with them. There should
be more money for public information.
Everybody here has said that, that the U.S. Fish and Wildlife
Service has not done a good job and as we all know, it takes some
money to get the personnel and get that kind of thing out. We be-
lieve in all of this. And we think there should be incentives for
landowners to go beyond this, so that there is an acknowledgment
of the good work and the good stewardship of these lands. We be-
lieve in all of this stuff.
Mr. Edwards. I appreciate both of your answers. Are there major
environmental organizations actively opposing the holding of hear-
ings and committee votes on the reauthorization, and if not, who
is holding up the debate on the reauthorization?
I would be shocked to have you, Mr. Chairman, debating the ag-
ricultural reauthorization in 1998 or 1999 when you are supposed
to bring it up in 1995. This is 2 years behind, we are 3 years late
as we begin next year. Who is holding it up at this point?
Mr. Hyer. I really don't know and I would love to get this put
away, because we would love to work with Mr. Stenholm on the
farm bill.
Mr. EUBANKS. Congressman, I have no idea.
Mr. Edwards. Thank you very much.
Mr. Stenholm. I would shed a little bit of light on that, because
if the farm bill had some of the same things going for it that the
Endangered Species Act does, the farmers wouldn't be interested in
reauthorizing it. If you could in fact continue the funding, regard-
less of whether you reauthorized, and you didn't take any cuts, I
mean you say that we are not getting adequate funding, but I be-
lieve you will find that funding for the Endangered Species Act has
increased every year for the last 4 years, according to the informa-
tion I have from the Congressional Research Service.
In 1992, the appropriations of the U.S. Fish and Wildlife Service
for Endangered Species Act, and it was 42 million; in 1993, 46 mil-
lion; in 1994, 67 million; and requested for 1995, $91 million. Any
farm program I know got that kind of increases, they wouldn't care
whether you reauthorized the bill or not.
So some of the problems that we have right now are the fact that
many of the things that some individuals would like to see accom-
plished are being accomplished without reauthorization, but bills
that require reauthorization in order to get funding, you have a
much different scenario. That is part of the problem.
I like what I have heard you say today, because you definitely
articulate the kind of point of view that I am very comfortable
with. But others within your same organizations that you represent
here today have an entirely different philosophy and outlook on life
and they happen to be in positions of creating the kind of problems
that you have to come, Mr. Hyer, and give a different viewpoint to.
And within your organization, it is very critical that — and I take
it you are doing that, otherwise you wouldn't be here — that you ar-
82
ticulate your position to your national organizations so that they
clearly understand in much the same way I tried to say to the Fish
and Wildlife Service, because that is what is causing the problem.
The funding is going up, and in agriculture, the funding is going
down. The only one other than defense.
The only other entity of the Federal Gk)vemment that has had
the annual cuts in spending for purposes of achieving the desired
goal has been agriculture. Eight percent per year for the last 8
years. Cuts, not increases. And therefore, that is something that we
have to understand.
Ms. Kovich, I loved your dissertation, and I hope that in your —
well, what I think to be a little bit somewhat pessimistic attitude
that you have about what we are doing to our environment and to
our food supply, I hope that as you obviously do such a great job
articulating to the children, I hope that you yourself understand
that we are still blessed to live in a country that has the most
abundant food supply, the best quality of food, the safest food sup-
ply at the lowest cost of any other country in the world. With ev-
erything we are doing wrong, according to some, we still feed the
American people the most abundant, safest food supply at the low-
est cost of any other country in the world.
Ms. Kovich. I really don't believe that I am pessimistic. In the
long haul, maybe that is the way it came across.
Mr. Stenholm. Well, you sounded very pessimistic, because I al-
most wanted to cringe when you were talking about
Ms. Kovich. Well, maybe that got your attention. I must say
that I am more than optimistic, really, about the environmental is-
sues that we face, and on endangered species, but also I think in
the written statement that I turned in I also had some figures on
the interest of the general population and how they feel.
When you ask who is holding things up, you might take a look
at that to know that the number of people now who are watching
out for their environment because, especially in urban areas, we
have really paid a big price for degradation of the environment.
So there are more and more people who are interested in the en-
vironment and there are more and more people becoming aware;
there are more students in universities who are studying environ-
mental issues. So it is easier now to get it out in the open and I
think that is really optimistic. And listen, I was raised on a farm.
We ate a lot of chicken during the Depression. And our chickens
didn't eat anything but good com which we had to shuck by hand,
so they were healthy chickens.
I do want to leave the feeling that I am optimistic about a lot
of things, and I am really interested in how you approach the En-
dangered Species Act and not tag on to it a lot of other issues
which may not be there. I am a property owner. I have oil land.
I have land down in the valley. I have land in the city. Sounds like
I've got a lot. But it is just that it is scattered all over. And I was
present when the first gusher in the Hasting oil field blew in, and
so they said that that field was to last 100 years. That was our nat-
ural resources. And it lasted about 40 years. So now the output
from Hastings, from that field is a trickle. I can attest to that, be-
cause of the checks that I get.
83
So when we talk about preserving the species, we are also talk-
ing about preserving the resources in which those species live, and
I am all for that.
Mr. Stenholm. Thank you very much.
One final question from Mr. Geren.
Mr. Geren. I do want to thank the panel. I think the kind of de-
bate that this panel represents is so healthy, getting divergent
viewpoints all on the table and have a civil discussion, Mr.
Eubanks, I think that is such an important point.
I just want to comment a little bit on Mrs. Pierce's testimony,
briefly. Your testimony was absolutely delightful. You are such a
great salesman for your part of the world, if you keep talking like
that you are going to be overrun with people. But the point I want
to make is, you talk about all the many things you have done there
that you have voluntarily chosen to do. And the attitude that so
many of us find frustrating is an attitude on the part of bureau-
crats who don't respect the choices that many private landowners
or private individuals make with their own resources and with
their own lives.
I do think that these landowners, the ranchers and farmers are
the most committed environmentalists we have in this country.
They live off the land; they want it to be productive and they want
to be able to leave it to their children, just as do you.
There are two approaches to that. One, you can have this iron-
fisted bureaucrat come down from Washington and impose his view
on somebody, or you can try to develop educational programs that
help us all be better stewards of the resources that we have, help
us all share information so that we make good choices and really
know what we are doing. And I want to see an approach in this
area that helps us make better choices such as you and your family
apparently have made with your land and some of these gentlemen
have made with theirs.
I am very familiar with the stewardship that Mr. Meadows un-
dertakes on his properties. He has a beautiful place and works
hard to maintain its value and its productivity. But as we move
forward in this debate, and this is an area where I sometimes find
fault with some of the most rabid environmental groups, they don't
seek to promote positive choices, they want to have bureaucrats
somewhere make the choices for us.
There is not sufficient respect for differences of opinion, different
choices on how we are going to use our resources, that is where the
tyranny of government comes in, and that is what we all bristle at.
Even if we agree with it, we don't like some bureaucrat telling us
what to do, and that goes right to the heart of the freedom in this
country, and the respecting of the rights of us, not only to exercise
our liberty, but as private property owners.
So I really enjoyed your testimony. I think that you would be an
inspiration. I am glad you are going around talking to a lot of stu-
dents, because I think it is infectious, contagious. But I want to see
a country that promotes that kind of debate, that kind of edu-
cational process and not one that comes down and throws people
in jail because they don't agree and throws people in jail because
they may have chosen to do something a little different with your
Igind than you have chosen to do with your land.
84
Anyway, I just want to commend you for it and I think that you
represent so much of what ought to be our approach in this area
and I am afraid that much of our bureauocracy doesn't bring that
attitude to the fray. And it is a fray, unfortunately.
Mrs. Pierce. Well, thank you very much, Congressman Greren. I
am so glad you brought up education, because just from my own
personal experience I got interested in the water when I realized
it was at risk, especially in the hill country, but I think all over
the country.
It is very difficult to put together information to educate yourself
through all the various Grovernment agencies. I found out that — for
instance, I tried to put together accessible citizen — accessible 800
numbers to find out about all the things you could in Texas about
the water, and it took me — I have been doing this since 1989, col-
lecting information. It took me about 6 months to find out four 800
numbers that citizens could call to find out various things about
drinking water, storm water, wastewater, all of those things that
are offered by the government through free or 800 toll numbers.
That is just one example.
It takes years to put together the information. I felt so urgent to
get this out to the public myself; that is why I am doing this. I
think the more we know and understand, like you are saying, I
think it is a wonderful point. I wish there was more of it going on.
Even my neighbors and I had talked about this. It is hard to get
the information, and I wish too that there was — maybe you all
could do something about that to help it be disseminated.
Mr. Geren. Thank you.
Mr. Stenholm. Thank you very much. I appreciate each of your
attendance here today and your testimony very much. Thank you.
I would like to call the next panel. In fact, I want to combine
panels 5 and 6. I believe we have room at the table for all of the
remaining witnesses to take your place at the table. So 5 and 6,
all of the remaining witnesses, please assume a place at the table.
I will call our next witness who will be Mr. John L. Merrill,
member of the national steering committee, the Grazing Lands
Conservation Initiatives.
STATEMENT OF JOHN L. MERRILL, BURNETT RANCHES, PRO-
FESSOR, TEXAS CHRISTIAN UNIVERSITY, AND MEMBER, NA-
TIONAL STEERING COMMITTEE, GRAZING LANDS CON-
SERVATION INITIATIVES
Mr. Merrill. Mr. Chairman, Congressman Greren, and Congress-
man Edwards, I am John Merrill, Burnett Ranches, professor at
TCU, where I have directed the ranch management program for
the past 33 years. Also, I am a past president of the international
Society for Range Management, a long-time member of the Wildlife
Society, professional member of the Society of American Foresters,
and a director of the Texas and Southwestern Cattle Raisers Asso-
ciation.
I want to assure you that among the cattlemen, there is a great
deal of pride and a little competitive spirit to see who can be the
best wildlife manager. And if you won't come poaching, I will tell
you that because of our range and livestock management on our
85
ranch, we have white tail deer and wild turkey coming across the
Fort Worth prairie inside the Forth Worth city limits.
I just wish, very much, that the working environmentalists, and
I guarantee you there is no more dedicated environmentalist than
the farmer or rancher who lives on that land, makes his living from
it, works with it all year long, year after year, and wants to leave
it better than he found it, were more recognized by the nominal en-
vironmentalists who would rather talk about it than do it.
I want to thank you for holding this hearing about this critical
issue that adversely affects thousands of Texas citizens, thousands
of Texas acres, and multimillions of dollars in productive income
and tax base.
My great-grandfather came from Georgia to ranch in Texas in
Kendall County in 1856. I am the fourth generation, and my son
John is the fifth to ranch in Texas. My granddad moved the family
across the hill from here in 1872, and we have operated under the
same brand for the past 122 years. You will note that both Kendall
and Somervell are two of the counties under consideration.
I grew up working in the cedar breaks. We gathered cattle until
we got to a big enough clearing to take what we could get to the
house. But even in my father's memory, that same area was grass-
land, plains with no juniper.
As one who has spent most of his life living on, producing from,
studying and teaching others about caring for rangeland, I deeply
appreciate your interest in this marvelous resource, the people, ani-
mals and communities it supports.
I especially appreciate the good questions that you have asked
these panels all during the day.
In 1948, the Soil Conservation Service did the first-ever inven-
tory of brush invasion on the rangelands of Texas and Oklahoma.
Some have blamed the greed of early ranchers for the degradation
of rangelands, when almost invariably it was lack of knowledge
that led to decline. The science and art of rangeland management
has been developing over the past 50 years. With this kind of
knowledge provided to soil and water conservation districts and
using information developed by Federal and State experiment sta-
tions and the ranchers and technicians themselves, dedicated
ranchers voluntarily made tremendous strides in brush suppres-
sion, grazing management, and restoration of rangelands, espe-
cially during the 1940's, 1950's, and 1960's. The progress has been
slowed in the past 20 years by reduced technical assistance avail-
able for grazing lands and by the increase of production costs oyer
prices received that has reduced capital available for needed im-
provements that has been addressed previously.
During recent years, brush encroachment, especially by juniper,
has taken over fields and continues to invade rangelands. And if
you drive the highways of Texas, Oklahoma, and Kansas, I think
the greatest difference in the aspect that you see is invasion of var-
ious kinds of cedar.
I will talk a bit more and come back to these points in a minute.
In my written testimony I cited the history of some of the recorded
observations from early days, all of which point out that a lot of
what we see now and what the newborn environmentalist just dis-
covered was brushland was supposed to be open rangelands. But
86
from all these accounts it is absolutely clear that the original ex-
tent of juniper suitable for warbler habitat was extremely limited
to steep canyons and escarpments, a tiny fraction of the area in-
vaded since and now considered for designation as warbler habitat.
There certainly is no ecologic basis and certainly a disproportion-
ate cost to designating more than the small original acreage of ju-
niper as critical habitat. Whatever number of warblers that area
would support would indicate the original number of warblers that
ecologically could be sustained and should be saved. In terms of
mitigation, that acreage and number of birds may be no more than
parks and other public land already set aside.
A second reason to limit the area designated to let grow up in
juniper is that cedar is a vicious invader and competitor with other
plant and animal life. This is one time I really wish I could have
showed some slides to show what it looks like under a cedar bush,
because it is an ecological desert. If allowed, the canopy of juniper
will close into almost complete ground coverage unlike other invad-
ing shrubs. The severe competition for light and moisture, plus the
heavy leaf fall and slow decay virtually prohibits growth of other
vegetation, provides poor habitat for other kinds of wildlife, almost
no forage and crops for domestic livestock, nor recreational experi-
ence for people. I don't know many who like to wander through a
cedar break.
I point this out because even the scientists who have studied the
golden-cheeked warblers, and there are many more than were pre-
viously named, disagree on what is habitat. And in the recovery
plan, they cite a number of researcher opinions in published works
prior to 1990 who said they depended on strips and edge effect, and
then a number of others, unpublished, who said a large area is bet-
ter habitat for the warbler. Well, from reading the recovery plan
discussion, you can only conclude that the U.S. Fish and Wildlife
Service does not know and/or has not determined what constitutes
critical golden-cheeked warbler habitat.
There are some other concerns within that recovery plan. One,
"Studies of Golden-Cheeked Warbler * * *" — ^from the recovery
plan — "Studies of Golden-Cheeked Warbler population status and
biology, ecology, habitat requirements, and threats on the breeding
ground and in the winter range and along their mitigation cor-
ridor." If we do not already know the answers to most of these
items it is highly questionable this species merits endangered spe-
cies status. At any rate, it is obvious the cart is way out in front
of the horse, and I think that has been reinforced time after time
during this day.
Mr. Rogers contradicted himself several times during his testi-
mony and in response to questions. At one point he said if I went
to the Soil Conservation Service and they said that this land eco-
logically had not been in juniper that I could go ahead and clear
it, free and clear. But on several other occasions he said that if
cedar were there, if it were now warbler habitat, then I could not
do anything about it.
I submit that no person can or should be held responsible for a
law or regulation which has not yet been clearly written. It would
be awfully hard to play football if the rules had not been written
before the game is started and we are already in the game.
87
I hope very much, that Members of Congress will reassert their
constitutional responsibility, and once having written the laws you
may designate staff or whatever is necessary to follow up with the
rules and regulations that are written by the agencies and made
into law by unelected officials, and I would hope very much that
you would discuss that possibility with your colleagues. You have
already indicated that this thing has far exceeded and there are
many others laws as well, that have not only exceeded but violated
the intent of the Congressmen who passed them.
I dislike even constructive criticism without concrete suggestions
for improvement. Not only the warbler issue, but a host of others
occur because the present Endangered Species Act is fundamen-
tally flawed in concept and implementation. It should be replaced
with legislation that is carefully constructed, science-based, eco-
logically and economically sound, and with strict respect for con-
stitutional private property rights.
Provisions should include: First, careful determination of which
species are in natural decline that cannot reasonably be halted,
and which declines are caused by human activity with reasonable
hope for survival in nature by appropriate action; second, thorough
investigation, scientific documentation, and cost-benefit analysis
before endangered species listing and habitat decisions — and we
have listened to recommendations all day long on cost — including
review of previous listings and decisions on that basis with a care-
ful determination of how many of that species and how much habi-
tat is enough. The U.S. Fish and Wildlife Service never ever has
said in regard to any species how much is enough, how much habi-
tat is enough. It is hard to hit a target if you do not have one;
third, meaningful balance of species needs with socioeconomic re-
ality; fourth, positive incentives and workable procedures to en-
courage participation of private landowners in recovery efforts; and
fifth, respect for private property rights.
The second major need for real environmental management and
improvements has arisen because implementation of the Food Se-
curity Act of 1985 has required 98 percent of Soil Conservation
Service effort funding and personnel for crop lands, leaving only 2
percent of effort and personnel for technical assistance on the graz-
ing lands that comprise 50 percent of the U.S. land surface, and
private lands that are the breeding ground for livestock that con-
stitute the largest economic segment of American agriculture.
And I can extend that. Agriculture is the largest segment of the
U.S. economy, at about 16 percent. Major watersheds, wildlife habi-
tat, and open space aesthetics that so many enjoy the and upon
which we all depend. If you do not think people enjoy prairie, I
drive from the ranch to school every day and can hardly get down
the county road for the joggers, the bikers, the bird watchers, the
photographers and people sitting and coming out there just at the
edge of town that is so very near and free to watch a sunset.
Recognizing this major need, the American Farm Bureau, the
National Cattlemen's Association, the American Sheep Industry,
dairy producers, the Society for Range Management, American For-
age and Grassland Council, the National Association of Soil and
Water Conservation Districts have worked together to develop the
88
grazing lands conservation initiative, and, amazingly, each of these
organizations has agreed on and voted policy to support it.
Several times when we visited with the House Ag Committee, we
have been told if the cowboys want one thing, the dairymen an-
other and the cotton farmers another, we cannot help you. If you
come together, we can help. Mr. Chairman, I hope that we can
count on that. It is the first time in my lifetime all these groups
came together for such an initiative.
We hope both the House and Senate will include the GLCI in the
1995 Food Security Act with specific language that will provide line
item funding restricted only for increased voluntary technical as-
sistance by grazing lands-trained personnel of the USDA Soil Con-
servation Service that will provide technical assistance for the half
of the Nation that unintentionally has been abandoned.
These two pieces of much needed legislation will accomplish more
environmental improvement with maximum private voluntary par-
ticipation as it should be and with less cost to the taxpayer than
almost any other actions that Congress could take. We beg your
most careful consideration of these two initiatives that mean so
much to so many, that address the root causes of our concerns
today and so many others as well in a most positive, constitutional,
and cost effective way.
We salute your presence, your interest, your support, and look
forward to working with you toward these important means and
goals, and I thank you for this opportunity.
[The prepared statement of Mr. Merrill appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you, John. Next, Mr. Bob Stallman, presi-
dent of the Texas Farm Bureau.
STATEMENT OF BOB STALLMAN, PRESmENT, TEXAS FARM
BUREAU
Mr. Stallman. Mr. Chairman, Congressman Edwards, and Con-
gressman Geren, I do appreciate the opportunity to testify before
you today on how critical habitat designations for endangered spe-
cies potentially impact farmers and ranchers. As president of the
Texas Farm Bureau, I represent the largest farm and ranch organi-
zation in the State. I also operate a rice farm in southeast Texas
near Columbus.
It is difficult to specifically assess the impact of critical habitat
designations, because the ambiguity of the regulations and the
statute leave producers in a quandary as to what they can or can-
not do to their property. Initially, we were advised that as much
as 20 million acres could be included as habitat area for the golden-
cheeked warbler. Obviously, we do not think that much land mass
should be included in the final analysis. Discussions now have ap-
parently reduced the impacted area to what the U.S. Fish and
Wildlife refers to as only 800,000 acres. Even this much acreage is
unacceptable to property owners.
The problem occurs when producers are advised that they can be
retroactively liable for any cedar they have cut on their properties
since 1990, when the golden-cheeked warbler was added to the list.
Even now, the only way producers can be sure they are not in vio-
lation of the law is to obtain permission from the U.S. Fish and
89
Wildlife Service. However, it is our understanding the U.S. Fish
and Wildlife Service has yet to issue an individual a permit for a
possible take of a species.
Section 11 of the Endangered Species Act prescribes specific pen-
alties for a take of a species and includes such violations as dis-
turbing or harassing an endangered species. Penalties include as
much as a $25,000, to $50,000 fine per violation.
In many instances, the U.S. Fish and Wildlife Service has indi-
cated that farmers and ranchers have no problems at this time.
However, we as an organization, cannot in good conscious advise
our members of the consequences of mistakenly destroying a nest
or a habitat of a species when removing cedar for any purpose.
Although not directly related to the warbler issue here in central
Texas, the Endangered Species Act has been used as a tool by envi-
ronmental groups to reduce the pumping of irrigation water from
the Edwards aquifer. A constitutional property right has been
taken away from producers there in name of protection of the foun-
tain darter. Certainly no compensation has been provided in that
loss of property rights.
In the lawsuit involving the Edwards aquifer, the judge was re-
quested to use the full extent of the law, and it was also requested
that the expenditure of all Federal funds in that area be reviewed
by the U.S. Fish and Wildlife Service prior to expenditure. In that
particular area, expenditures included ASCS farm program pay-
ments as well as Defense Department funding for military bases.
Are these extreme? We do not know. But when we hear such sto-
ries as the U.S. Government filing a lawsuit against a tractor for
the destruction of a kangaroo rat's habitat in California, we do not
think so.
Mr. Chairman, the Texas Farm Bureau supports legislation to
reauthorize the Endangered Species Act in the form of H.R. 1490
by Congressmen Tauzin and Fields, and cosponsored by all the
Members of Congress at this hearing. We hope Congress will fur-
ther consider language to provide for the creation of a critical habi-
tat reserve program, as suggested by our organization.
This language would provide the mechanism whereby society
could pay for the environmental purity it seeks rather than force
individual property owners to assume the burden of those concerns.
The latter would work similarly to the current conservation reserve
program, where producers are compensated for the taking of sen-
sitive lands out of production on a voluntary basis. And I want to
emphasize "voluntary".
In addition, we support legislation developed by Congressman
Edwards to delay any further listing of species and designation of
critical habitat until Congress moves to address this law. We would
urge other members of the committee to join Congressman Ed-
wards in this effort.
In conclusion, we look forward to working with you and the other
Members of Congress in seeking a common sense approach to the
continuance of the Endangered Species Act.
Thank you.
[The prepared statement of Mr. Stallman appears at the conclu-
sion of the hearing.]
90
Mr. Stenholm. Thank you. Next, Mr. Chaunce O. Thompson, Jr.,
First Vice President, Texas and Southwestern Cattle Raisers. Mr.
Johnson.
STATEMENT OF CHAUNCE O. THOMPSON, FIRST VICE PRESI-
DENT, TEXAS AND SOUTHWESTERN CATTLE RAISERS ASSO-
CIATION
Mr. Thompson. Mr. Chairman, Congressmen Edwards and
Geren. I am a cow/calf rancher living in Stephens County, one of
the 33 counties considered possibly to have golden-cheeked warbler
habitat. Currently I also serve as first vice president of the Texas
and Southwestern Cattle Raisers Association.
Our association is a 117-year-old livestock trade organization
representing about 15,000 cattle producers in Texas and Okla-
homa. Our members raise approximately 2 million head of cattle on
millions of acres of agricultural land. Our land and our livelihoods
are impacted by the Federal Endangered Species Act of 1973. We
appreciate very much this opportunity to share with you our ideas
and concerns regarding critical habitat, the Endangered Species
Act, and our private property rights.
In my business, time is money and I do not waste it unneces-
sarily. I think I am typical of most ranchers tr3nng to make a liv-
ing. Even today, many of the ranchers who reside in your congres-
sional districts may be in trouble. They do not know that it is a
Federal offense to kill, injure, trap, harass or otherwise take a
golden-cheeked warbler. Some agency officials have chosen to take
the broadest view of what "harass" means. In fact, some Service
employees have told the news media that "harass" simply means
scaring a warbler off the front porch of a ranch house.
Mr. Rogers stated that his agency sought public input. I think
most farmers and ranchers are much too busy trying to make a liv-
ing and pay their taxes to read the mountain of Federal regulations
we are faced with. A brochure produced and distributed by the U.S.
Fish and Wildlife Service in Texas encourages pet owners to bell
their cats so that the birds will know that they are being stalked.
It should go without saying that we cannot bell bobcats. Nor is the
Service forthcoming on what our responsibilities are regarding an-
other warbler predator, the fire ant. Ranchers will experience fi-
nancial hardship from compliance if more protection is provided the
warbler by designating critical habitat.
I am reminded of the words of Kevin J. Sweeney, Director of the
Office of Public Affairs for Interior Secretary, Bruce Babbitt. In a
scathing opinion piece on September 7, 1994, in the Austin Amer-
ican Statesman, he flatly denied that landowners and their rights
to properties will suffer under the act. It reads "The debate over
critical habitat designation has nothing to do with private property.
Nothing at all * * *. People can still farm and build their homes
and businesses."
Now, I do not think that is what I heard Mr. Rogers vacillate
over this morning. We have heard stories over and over today
about Mary Davidson's attempt to build a home and the widow try-
ing to build a fence. I could go on and list some more of these, and
some more of them are in our written testimony.
91
We have also heard that endangered species in Travis County
have sent the value of undeveloped land plummeting by almost 40
percent. Figures presented in 1991 to the Austin City officials indi-
cated the value of property on that city's certified tax roll plunged
$358.7 million. No harm, Mr. Sweeney? Well, we must remember
these private property tolls occurred before critical habitat was
even discussed publicly.
Ranchers are good stewards of the land. They know firsthand the
importance of proper grazing and brush management to their bot-
tom line and to the ecosystem. Wherever you turn in Texas there
seems to be a proposal to lock up large blocks of lands for the pro-
tection of some endangered animal or plant. The mere designation
of a species as endangered does this.
The maps of proposed listings that are in our written testimony
tell the story, I think, of an agency in a hurry, an agency des-
perately trying to ram through species before the door possibly
slams shut. I would like to mention a few: The jaguar, golden-
cheeked warbler, the swift fox, and the Arkansas River shiner have
all been proposed just in recent weeks and are open now for com-
ment.
If you take those maps and look at the areas covered, you can
cut Texas half in two, from the Gulf Coast to the top of the Pan-
handle. Out in the country, the rumor in the coffee shops is there
is a land grab in Texas. Are we hearing the agency leaders saying
one thing while actions in the field are something else? Ask your-
self, would you want to buy land with environmental restrictions?
We heard earlier from a banker or farm lender. Would you be
willing to take that land as collateral for a loan? What then is the
dollar value now encumbered with environmental liabilities?
Mr. Chairman, things are going to get worse for ranchers, not
better, unless something is done by Congress to bring this law back
to reality. We think this is a case where a law is being misused
by a Federal agency that is running wild. We need your help.
Ranchers need someone they can trust to shoot straight with them
about the endangered species law.
We think USDA's Soil Conservation Service can and should pro-
vide this kind of voluntary technical assistance to ranchers upon
their request. This SCS-generated information, however, should not
be used against ranchers by other regulatory agencies such as the
U.S. Fish and Wildlife Service. Protection of endangered species is
a legitimate and worthwhile function of society. It can be achieved
without driving our members out of business. Somehow, that mes-
sage needs to find its way into the endangered species law.
Regarding the act itself, let me paraphrase Shakespeare. We
came to amend it, not to kill it. Our association encourages your
support and that of your colleagues for the amendments to the en-
dangered species law that we set out in our written testimony, and
I am not going to bore you with those now. They are very similar
to the ones others have proposed.
Our association commends you, Mr. Chairman, on your efforts to
restore common sense to this Endangered Species Act and other
environmental laws. We appreciate your support also on private
property legislation. We also applaud the efforts of both Congress-
92
men Edwards and Geren for their efforts on private property rights
and common sense environmental laws.
That, I think, is all I will say at this time. Thank you, sir,
[The prepared statement of Mr. Thompson appears at the conclu-
sion of the hearing.]
Mr. Stenholm. Thank you. Next Mr. Mel Harms, Texas Pork
Producers Association.
STATEMENT OF H. MELTON HARMS, BOARD MEMBER, TEXAS
PORK PRODUCERS ASSOCIATION
Mr. Harms. Thank you, gentlemen. My name is Melton Harms,
and I live in Springtown, Parker County. I am the fourth genera-
tion of Harms to make their living from agriculture dating back
some 115-plus years. My education comes from the sweat of my
brow, dirt on my hands, and manure on my shoes.
The Harms family has been involved in row crop farming, milk-
ing diary cattle, and beef and pork production. And we are losing
our property rights.
Let me give you an example involving a California farmer who
may have killed a rat while plowing his field, but no one actually
found a carcass. His property was confiscated by the Federal Grov-
emment because the rat has more rights than the farmer has
rights. Don't tie our hands and don't take our land.
Farmers and ranchers are willing stewards of the Nation's wild-
life population, in spite of the fact that it costs an average of $423
and 42 hours of labor annually in wildlife damage.
In 1993, a study funded by the American Farm Bureau Research
Foundation of some 7,300 agricultural producers shows estimates
that livestock and crop losses of $4 billion and 86 million hours of
labor nationwide.
Don't tie our lands and don't take our lands. But yet farmers and
ranchers like sharing their land with wildlife. In addition to actual
habitat support, we spend an average of 12 hours of labor and $150
to encourage wildlife to flourish. On a national level, that trans-
lates to an investment of 25 million hours of labor and $300 million
by agricultural producers to benefit wildlife. When left alone, farm-
ers and ranchers manage their property well to enhance wildlife
population. What other group can say they spend that kind of time
and money?
The infringement on the rights of property owners has now
reached a state of unbridled passion by government leaders, judges,
and antipoverty groups. They are armed with countless numbers of
laws, regulations, and judicial decisions to literally take the land
or restrict the use of it, and all using tax dollars. Don't tie our
hands and don't take our lands.
The U.S. Fish and Wildlife Service is trying to take control of 33
central Texas counties to protect the habitat of the golden-cheeked
warbler and Barton Creek salamander. Do we need this taking of
the land? I think not. Farmers and ranchers already have to deal
with enough negatives. The warm Sun to nurture or the hot burn-
ing Sun to destroy, the gentle breeze to cool and dry, or the raging
winds to rip and tear, or the cow you have cared for and fed for
2 years waiting to have her first calf only to discover one morning
93
the long wait was only a still bom calf, and no paycheck for an-
other 2 years.
Don't take our lands. All Americans should be concerned about
the potential impact that high levels of wildlife management will
have on food costs.
We hope you can forge a plan that will allow us all to enjoy wild-
life, without unduly penalizing farmers, ranchers and landowners.
Remember, if you eat, you are involved in agriculture.
Thank you.
Mr. Stenholm. Thank you. I believe Mr. Wes Sims, Texas Farm-
ers Union is not here.
[The prepared statement of Mr. Sims appears at the conclusion
of the hearing.]
Mr. Stenholm. Next Mr. Don Crawford, director, Palo Pinto
County Livestock Association.
STATEMENT OF ALLEN DONALD CRAWFORD II, CERTIFIED
PUBLIC ACCOUNTANT, AND DIRECTOR, PALO PINTO COUN-
TY LIVESTOCK ASSOCIATION
Mr. Crawford. Chairman Stenholm, Congressman (Jeren, and
Congressman Edwards, my hat is off to you for sitting through this
marathon. You must be iron men or something.
My brother and I are fifth generation ranchers in Palo Pinto
County. We also have ranches in Stephens County and Eastland
County. By the grace of God, Eastland County was not designated
in this 33 county area and I am not going to complain about that.
I represent the Palo Pinto County Livestock Association. That is
an organization of most of the farmers and ranchers in that county
and we collectively, and I personally, have several reservations
about the critical habitat designation and the Endangered Species
Act generally.
The first is why is the U. S. Fish and Wildlife Service designat-
ing Palo Pinto County as critical habitat? I have never seen a gold-
en-cheeked warbler. I don't know anybody in Palo Pinto County
that has seen one. I am counting birdwatchers, ranchers, anybody
that I can find, nobody has seen one.
If Palo Pinto County is designated as critical habitat, what effect
does this have on my rights as a property owner and rancher? Ob-
viously, brush control is necessary there and any adverse or any
prohibition against that is going to be very detrimental to this in-
dustry.
If the golden-cheeked warbler is endangered, why is it important
to save it? It has to be important if it is going to cost us money.
Where did the golden-cheeked warbler nest in the old days when
there were no cedar trees in this area? And it has been passed
down from families, my family, other families have told me in our
area that we did not have much cedar in the old days. So I have
serious questions about that issue.
If the Federal Government can dictate how we operate our
ranches and businesses over this bird, where does it stop? I guess
collectively I do not trust bureaucrats.
I have one question, one of our members asked me, is how old
is old? If only the old trees are affected on this, I have a daughter
that thinks I'm old. I'm 46 years old. I have a somewhat different
94
view of that. So are we going to have to deal with one bureaucrat
saying that is an old tree and you cannot cut it down and another
one saying, well, that is not such an old tree, you can cut it down?
I have personal knowledge already of one land sale in Palo Pinto
County that has been stopped because of this issue. So people that
say there is too much hype and everybody is blowing this out of
proportion, I am not sure that that is true because it is being af-
fected right now.
Where does the U.S. Department of Agriculture stand in this
issue? It seems like their policies are contradictory to the U. S.
Fish and Wildlife Service's policies.
Finally, who is in charge of common sense? My reservations and
the reservations that I have heard expressed at this hearing are so
basic I just wonder where do we go from here? Who is in charge
of common sense? Who decides it is not worth it or it is worth it?
Finally, I think this common sense issue and the cooperation
issue that Congressman Stenholm brought up are the keys to solv-
ing this problem, and I hope we can.
Thank you.
[The prepared statement of Mr. Crawford appears at the conclu-
sion of the hearing,]
Mr. Stenholm. Thank you. Next, Mr. Calvin Rueter, secretary,
board of directors, Bosque County Farm Bureau Association, Clif-
ton.
STATEMENT OF CALVIN RUETER, SECRETARY, BOARD OF
DIRECTORS, BOSQUE COUNTY FARM BUREAU ASSOCIATION
Mr. Rueter. Good afternoon, gentlemen. I am Calvin Rueter and
I live in Bosque County, east of Clifton in the Womack-Cayote
area. I am a lifelong farmer and rancher in this area, and for the
past 12 years I have served as county commissioner for precinct 3,
so I will address the issue from two standpoints.
First, I want to thank you all for coming down and seeing how
long you can sit before a group of folks and share some thoughts
and views with you concerning USDA, the Endangered Species Act,
the Fish and Wildlife Coordination Act of 1958, which is a new one
I learned about the other day, the U.S. Fish and Wildlife Service,
and their interpretation of these various acts and their affect on
agriculture and rural areas, and in particular the golden-cheeked
warbler in Bosque County.
I want to share with you a resolution adopted by the Bosque
County Farm Bureau, and subsequently, with your permission,
that will simply be an attachment to my prepared statement rather
than my taking up your time reading it.
There is, as cited in this resolution, a real danger to private
property rights and the ability of us involved in agriculture to put
our land to its best possible use to produce food and fiber for our
fellow man and to feed and clothe our own families. If land is de-
valued by being designated as critical habitat and property values
go down, then taxes on other property have to be increased. And
in this manner we affect everyone in the county or in a school dis-
trict or in a city.
If my income is reduced because of critical habitat designation,
then I cannot spend that income with merchants in Clifton, Waco,
95
or Dallas-Fort Worth or take that vacation maybe and this affects
all of those businesses. To be sure, what I spend is a relatively
small amount, but multiply that by 33 counties or even by 800,000
acres, and it does become much more significant.
Such an invasion of private property rights without compensa-
tion has to be stopped. Under present rules I could face the loss
of various USDA programs and payments for cutting the wrong
tree, and here is a new player in the game, or for making too much
noise during the warblers' mating season. Farfetched? No, sir.
I am building a couple of bridges in my precinct, hopefully this
year and next year, in cooperation with the Texas Department of
Transportation in the 80-20 bridge replacement program. Con-
tracts are to be let next month, October 1994, and, guess what?
There are trees in the area, no one knows for sure, that might be
habitat for the warbler. Not on the construction site but just in the
area. And this is according to the U.S. Fish and Wildlife Service
in Arlington, Texas. And here are the papers if you want to read
them.
There are to be no loud noises from March 15 to July because
the birds, that we do not know for sure are there, might be dis-
turbed. The construction site is less than two-tenths of 1 acre. The
U.S. Fish and Wildlife Service rounds this up to 1 acre and then
they want a 3-to-l mitigation somewhere to restore the potential
habitat for a bird that they do not even know is there and they cite
that act of 1958 as their authority.
A couple of last thoughts. This bridge has a 5,000 pound weight
limit. It is on a schoolbus route. I hope and pray that that bridge
does not collapse under a schoolbus and kill or injure some school-
children while the U.S. Fish and Wildlife Service studies about pos-
sible warblers in the area. I think that is getting a little bit silly.
But the problem is real, the problem is right now.
Even as I am talking to you about the situation, it is ongoing.
What is the cost of a delay like this? I do not know but we are talk-
ing about county tax dollars and Federal tax dollars and we are
talking about private dollars and State dollars. Any delay, as you
well know, is going to cost more of them, so we are hitting our-
selves in the foot, I guess, when we do these things.
But we need and solicit your help and influence in restoring
some sanity and common sense to these agencies.
Thank you very much.
[The prepared statement of Mr. Rueter appears at the conclusion
of the hearing.]
Mr. Stenholm. Thank you. Next, Mr. Bill Walker, Putting Peo-
ple First, Walnut Springs.
STATEMENT OF KATHLEEN MARQUARDT, CHAIRMAN PUT-
TING PEOPLE FIRST, PRESENTED BY BILL WALKER, MEM-
BER
Mr. Walker. Mr. Chairman, Congressmen Edwards and Geren,
my name is Bill Walker. I am a ranch manager in Bosque County,
a director of the Texas Wildlife Association, and a member of Put-
ting People First.
Putting People First, a national grassroots organization made up
of ordinary citizens who are fed up with being pushed around by
96
environmental extremists who have decided they are better stew-
ards of the natural resources in this country than the private prop-
erty owners who have cared for the land — in some instances for
generations — to coax forth a sustainable living using a renewable
resource.
On behalf of our over 40,000 members and supporters, I urge you
to oppose the U.S. Fish £ind Wildlife Service designation of parts
of 33 counties in Texas as critical habitat for the endangered gold-
en-cheeked warbler.
The Endangered Species Act is scheduled for reauthorization this
year in Congress, and has come under increasing criticism for the
heavy handed and unscientific way it has been implemented to de-
prive property owners of the use and value of their land. From its
lofty beginnings as a tool to prevent the extinction of large groups
of wildlife, the Endangered Species Act has mutated into a night-
marish Federal weapon used to destroy citizens' livelihoods and
private property rights in a zealous attempt at hoarding all man-
ner of creatures from insects to microscopic snails.
Since 1973, the Endangered Species Act has been reauthorized
five times. Hopefully, this year, the Endangered Species Act will be
changed to include protection for human beings and their property
rights. We can strike a balance between human costs and ecological
benefits if we have the courage and common sense to do so.
In the case of the golden-cheeked warbler, which spends only
part of its lifetime in Texas, landowners in 33 counties are being
asked to trust on faith the word of Government officials that this
enormous designation will help the tiny endangered specie. Please
consider the following:
The Grovernment has no scientific documented evidence that the
habitat is threatened. In fact, evidence to the contrary exists, as
historically the area in question was grassland; The Government
has no proof that this designation will help the golden-cheeked
warbler as the bird winters in Central America where no such pro-
tection exists; the only truly endangered element of the Texas
country ecosystem is the farmers, ranchers, and landowners who
strive to earn a living, bearing the burden of increasingly hostile
and frivolous Grovemmen: regulations; the designation of 33 coun-
ties as critical habitat may in fact constitute a takings of private
property as protected under the fifth amendment of the United
States Constitution; a taking of historic proportions that neither
the Government nor the landowners can afford.
I ask you to please consider the human and economic impact of
this ruling before proceeding with this unscientific and potentially
catastrophic designation.
Thank you, gentlemen.
[The prepared statement of Ms. Marquardt appears at the con-
clusion of the hearing.]
Mr. Stenholm. Thank you. Thank each of you for your state-
ments today.
Mr. Geren.
Mr. Geren. I just want to thank all of you for your testimony.
It has been very helpful and very instructive. And you all com-
plimented us on our patience. I want to compliment all of you for
your patience for waiting during the long day to stay with us and
97
share your very valuable testimony. I appreciate your input very
much.
Mr. Stenholm. Mr. Edwards.
Mr. Edwards. Thank you, Mr. Chairman. I want to thank all of
you again for being here as well.
Mr. Stallman, I especially want to thank you and the Texas
Farm Bureau, for your help in putting together legislation that
might put a little pressure on others to let us get the Endangered
Species Act up on the floor for reauthorization, and look forward
to working with many of your organizations along with Chairman
Stenholm and Mr. Geren to pass that this year or next.
Calvin, could I ask you for a little more detailed information on
the bridge? How long have you been working with the U.S. Fish
and Wildlife Service? Who were you working with? And tell me, are
they going to come out and study whether there are some warblers
out there or whether that is critical habitat; or did they say that
is an expense you have to go through? Fill us in a little bit on the
details on that.
Mr. RUETER. Well, we have been working on this project for the
last 18 months, and Bosque County put up a portion of its money,
which we are required to do. I don't know what all you want me
to tell you.
Mr. Edwards. You mentioned the Arlington office official.
Mr. RuETER. Yes, Texas Department of Transportation is cooper-
ating with the Arlington office of the U.S. Fish and Wildlife Service
in surveying the area to see if there are any warblers, or whatever,
that might be disturbed by it.
There are not any particular sites or warbler habitat where the
bridge is going to be built. They are simply expanding out to the
surrounding area. And there are trees there. There are some cedar
and other trees. So now they are sajdng that that is a potential
site. And if we start doing everything on what is potential, then
probably. Bob, all 33 of those counties, the entire county, will be
a part of the designation.
Mr. Edwards. Are they telling you that you have to stop your
construction plans until somebody gives you an absolute answer or
what are they telling you?
Mr. RuETER. I am not for sure what they are telling us, but they
are telling us.
Mr. Edwards. That sums up the problem.
Mr. RuETER. They are telling us this coming spring — construc-
tion was slated to begin January 1. I am not sure it will be able
to start then or not. We hope so. They will make several surveys
of that site during the spring of 1995 to determine whether or not
there are warblers in the area and one of the things that they
cite — and this is one that disturbs me — is no loud machinery dur-
ing the mating season of the warbler, which is from mid-March to
the 1st of July.
I can probably carry that a step further. If I am combining my
wheat crop, or if I am plowing a field and I go near a cedar tree,
where they might be getting their bark, or an oak tree where they
might be making their nest, am I in violation of some rule? They
say I am if I build a bridge and make too much noise? Can that
be applied to a combine?
98
Mr. Edwards. Who is telling you that you have to be careful
about the amount of noise? Are you hearing that from the Arling-
ton office?
Mr. RUETER. Yes.
Mr. Edwards. Department of Transportation or directly from the
Arlington office?
Mr. Rueter. That is correct.
Mr. Edwards. I would like to, if you could submit all the written
materials that you have from anybody on this particular case, I
would sure like to have you submit that to the record, with your
approval, Mr. Chairman.
I think that is the kind of specific example that might tell us a
lot a more accurate story than some testimony you get here and
there and I would love to learn more about. I will follow up with
you as well.
Thank you, Mr. Chairman, thank you Calvin.
Mr. Stenholm. I am glad to see that some of the previous wit-
nesses are still here and listening now, because this subcommittee
is a fascinating subcommittee. Our responsibility in the Depart-
ment Operations and Nutrition Subcommittee gives us the over-
sight responsibility over the USDA reorganization question and the
controversy that has surrounded it. We have jurisdiction over tech-
nology, the utilization of pesticides, herbicides, fertilizers, all of the
technology that has made the abundant food supply and created
some of the problems that we have to deal with.
We have jurisdiction over nutrition programs. The food stamp
program, our school lunchroom program. We just had a hearing
last week concerning our school lunchroom program in which we
once again are experiencing pajdng too much attention to one
school of thought, fat. As was mentioned earlier, some of us need
to be a little more careful about what we eat and do not eat, and
there was a time, Chaunce, where cattlemen thought the best steak
was the one that had the most fat, but now we know better and
we have started breeding that off a long time ago because consum-
ers learned better.
It was tough for some of us in the cattle business to accept that,
but we have now more than accepted it. But, by the same token,
we heard a witness from Canada who testified about a lengthy
study they had done in Canada, which came to the conclusion that
you had better be careful reducing the fat content in your chil-
dren's diets, because if in the first formative years from 3 to 11 you
do not receive adequate fat, you are potentially going to contract
terrible problems for your health later on in life.
And I bring this up because so often each of us in our own indi-
vidual organizations or groups tend to take one study that proves
what we want to hear. And we have heard this so many times
today, various individuals quoting a study by somebody, some-
where, in some university, or in some nonuniversity, or some self-
appointed scientist or somebody working for some group that is or-
ganized for purposes of finding something that proves that which
they have set out to prove. And when we follow those kind of direc-
tions, we get in trouble.
If there is one thing that I hope we can accomplish through our
efforts today, of this subcommittee sticking our nose in where some
99
people say it does not belong, which I will argue from now on that
we do belong here, that we will learn that there needs to be a toler-
ance, there needs to be an understanding, there needs to be a will-
ingness to listen to the other view, and where you have conflicting
views, perhaps sometimes a consensus of the best scientific minds,
the best scientific minds, not the best individual opinions of what
may or may not be going to happen but the best scientific evidence,
and that is the direction that our policies should follow.
Now, it is clear, and as we have heard today, even from the envi-
ronmental community, it is clear to those who have testified today
that we need to make some changes in the Endangered Species
Act, because as it is being interpreted, it is being counterproductive
to the very endangered species we are worried about.
I think it was kind of a good culmination of the witnesses that
we have in the last panel today but also you have heard all day
long different views come to the same conclusion, only stated a lit-
tle bit definitely. And that is what makes this, as I said, this sub-
committee that I have the privilege of temporarily chairing so fas-
cinating, because it puts us right on the firing line of so many of
the issues that affect so many people and not just farmers and
ranchers. One hundred percent of the American people are consum-
ers of food and that is the basic concerns that you and your organi-
zations recognize and the importance of us working together with
all views to see that the legislation we have put together do not
create.
Chet, you are talking to Mr. Rueter. It is hard for me to believe
there is anybody working for the taxpayers of America that would
do something like this. But it was hard for me to believe that we
had to spend $3.5 million on Owen Ivy Reservoir for providing a
swimming pool and ripples for a water snake in order to satisfy
what somebody somewhere in the U.S. Fish and Wildlife Service
decided was important to conserve a water snake.
Any other questions, comments?
If not, we thank you very much not only for your attendance
today but for your willingness to work with this committee and
with my colleagues not on this committee, those of us who will be
striving to find 218 votes to implement the common sense legisla-
tive direction for the preservation of all species where that is hu-
manly possible but doing so in a way in which we can coexist on
this planet.
Thank you very much for being here.
Now, is there anyone else that would like to have your minute
or two before this committee? If you will take your place at the
chair, we would like to hear from you at this time.
Do I see anyone wishing to talk? If you will raise your hand. We
have one, two, three. If we can have the cooperation of the audi-
ence to please hold your conversations down now, we would like to
hear from the additional testimony and opinions.
Mr. Edwards is going to have to catch an airplane so I will recog-
nize him for a brief summation.
Mr. Edwards. Mr. Chairman, thank you, and I do want to just
make a few summary comments thinking through the testimony
today.
100
First, I think this has been a very productive hearing and the en-
vironment has been the kind of open, honest civil debate that I
think we need to continue. So I hope there will be other hearings
around the State and country similar to this.
Just a few of my own personal conclusions based on what I have
heard.
First, I would like to believe what U.S. Fish and Wildlife Service
says is true, that the Endangered Species Act will not have real
economic impacts and will not be an infringement upon private
property rights. But when I hear stories such as Calvin Rueter's,
when I read the pamphlets that say the solution is to put bells on
cats, ranch cats in rural areas, when I hear about the 10-foot high
fence study that cost $3 million in San Diego to see if a bird could
fly over that fence, I am really concerned about what the impact
of this plan in central Texas is going to be.
I think we need to point out there has already been, Mr. Chair-
man, a huge economic impact in the rural areas from just the dis-
cussion of this potential habitat plan. I would especially ask the
Chair's help and ideas in terms of how we are going to address this
critical problem of timeliness in answers. Calvin Rueter may be
talking about a 6 month or 12-month delay in a project. It sounded
to me from Mr. Rogers that we could have 2- and 3-year delays if
you start talking about 334 acres being put under this proposal.
That in and of itself could be a huge economic problem for agricul-
tural production and property values in our areas of the State.
I think it was questionable as to what the original evidence was
to have the warbler put on the endangered species list in the first
place, and I look forward to getting the response from the U.S. Fish
and Wildlife Service as to exactly why the bird is on the list when
we do not even know what the population of the bird is in Texas.
Finally, I heard two environmental organizations say they would
like to see a debate and then a vote to let democracy prevail on the
reauthorization of the Endangered Species Act. I am a little bit
confused as to why this bill has not come up. Somebody is holding
it up, folks. It is not just sitting there for 2 or 3 years because
somebody forgot to take a look at it. Somebody has an agenda to
keep us from having this type of civil debate in the Congress where
it ought to be held and then let America's Representatives vote on
changing this bill.
So I think this has been a productive hearing and I want to
thank you for holding it and, Mr. G«ren, for hosting this, in his dis-
trict, and I apologize for leaving but I need to catch a plane. Thank
you, Mr. Chairman, for letting me be a part of this excellent hear-
ing.
Thank you.
Mr. Stenholm. Thank you, and I appreciate your interest.
We will start here. Identify yourself for the record and make
your statement, please.
STATEMENT OF HENRY W. TEICH, JR., PRODUCER,
CRESSON, TX
Mr. Teich. Yes, sir, my name is Henry Teich, Jr., and I represent
myself. I have been doing quite a bit of investigation along these
lines of the environmental impact of these provisions on our coun-
101
try, and especially on our constitutional rights and also other envi-
ronmental problems, such as the use of Federal land.
There are proposals to stop all hunting on Federal lands, specifi-
cally national forests, and other provisions. Every State has its own
problem, whether it is wetlands or any other problem that we
might be facing in the designation and sometimes the blatant mis-
use of Federal power.
Gentlemen, I think and I appreciate you all coming down here
today. I am amiss that I did not recognize that in the beginning.
I appreciate so much that you are here today to talk to us about
this problem and what Mr. Edwards just said, that we need debate
about this. Because we are discussing the sovereign rights of U.S.
citizens, the sovereign rights of States.
The Constitution of the United States make provisions that all
rights not specifically designated by the United States Constitution
to be given to the Federal Government or the State government are
reserved to the people, and those rights that are given to the State
governments are, therefore, preserved to the State governments.
We have walked all over those rights in the last few years.
And, gentlemen, I admit to a great dezd of study and a lot of
thinking, and I have found that — I believe there are individuals
within the administration right now that have a long-term plan to
subvert those rights, to use our Government to strip the sov-
ereignty out of our Government. And I went to Fort Worth's public
library, I found documents that told me — and I would like to give
those documents to you and let you read them. I wish Mr. Edwards
could have this particular document I have.
I don't have a lot of time because I am a farmer and rancher and
I am busy trying to make a living, but each one of us out here
wants to preserve our wildlife.
I am a hunter. I love to fish. I love to be out there in the country.
It is what I have enjoyed all of my life. But, gentlemen, the way
to get this problem solved is specifically to work with the individual
as a property owner and preserve his rights, make it financially
feasible for him to prosper while he preserves those animals or
whatever we need out there.
Thank you.
Mr. Stenholm. The next lady, Ms. Carole Dill.
STATEMENT OF CAROLE R. DILL, PRODUCER, GLEN ROSE, TX
Ms. Dill. My name is Carole Dill. We have lived in Glen Rose
about 17 years, and we own some property. We do have the golden-
cheeked warbler and the black-capped vireos and also the Brazos
River water snake on our land.
We found out about these endangered species when we first
moved to Glen Rose and took steps to ensure that we provided the
very best habitat that we could. What has not been mentioned
today, I don't think, is the fact that there are at least four species
of cedar, or Juniper in Texas. The predominant species are the red
cedar (Juniperus Virginiana) and the ashe juniper (Juniperus
Asheii).
On our property, I know that we have about an 8 to 1 ratio of
the red cedar which is not the ash juniper tree; the red cedar does
not have the shedding bark that the warbler requires. It is the
102
Ashe Juniper that looks sort of Hke a Christmas tree that usually
has a single trunk that the warbler uses to build its nest.
I think that this needs to be addressed, because why should we,
protect a trash tree that may need to be gotten rid of. The red
cedar is the one that seems to be the most invasive and it probably
encroaches on the warblers habitat. The red cedar possibly could
crowd out some of the hardwoods and ashe juniper. I think this
really needs to be addressed. I haven't heard anyone mention it
today but this could be a major thing.
Every farmer that cuts down a cedar tree may not be breaking
the law at all, he may be doing, something that is good if he re-
moves the red cedar. So I think that some literature needs to be
gotten out to let those of us that are concerned that want to protect
the habitat of what we have. It is possible that the cedar trees that
are being cut down that the gentleman from the Texas Highway
Dept. mentioned in Bosque County for the bridge repair could just
be red cedars and not the Ashe Juniper.
So I think this is the major thing that needs to be addressed.
Let's get some educational material out to let us know exactly how
to identify the trees.
Other than winter cover for livestock and wildlife what good
would it be to save the red cedar if it encroaches on the warblers'
habitat by crowding out more desirable hardwoods this warbler
species needs in addition to the ashe juniper.
I know how to tell the difference between red cedar and ashe ju-
niper but many people do not.
I work for a company that tests for allergic IgE in peoples' blood.
I have to know or be able to look up all of the plants, weeds, trees,
etc., that cause allergy. In my literature I have descriptions of
these plants and how to tell them apart. Also what parts of the
U.S. they are located in.
Thank you for your time.
STATEMENT OF DANIEL A. LEACH, CHAIR, JOHNSON COUNTY
HISTORICAL COMMISSION
Mr. Leach. Thank you. My name is Dan Leach, I am the chair-
person of the Johnson County Historical Commission, and I have
been doing historic research for a pictorial history book we are
doing over the past couple of years.
I came across quite a few instances where the early settlers in
their firsthand experiences described where the native grasses
were — ^what were predominantly here and up to the bellies of the
horses and the cattails, and the cedars were something just in the
gullies and these rocky areas, and how — from these firsthand types
of descriptions, I thought there was some sort of mistake possibly
for us to be preserving habitat later that was created actually by
man's settling of the area.
I found in a book called Bosque Territory by an historian, Walter
Prescott Webb, who had also taken courses from a well-known pro-
fessor at the University of Texas named Keys by a very well-put —
he describes, plus I have some individual instances.
Because sometimes these things are denied when you get up to
certain levels it is hearsay, but sometimes you need individual in-
stances where you have the testimony of the original settlers. But
103
this one paragraph on page 8 in concluding the brief discussion of
plant resources, it is significant to note that the character of native
vegetation common to the Bosque territory, and that is along the
Brazos River, and it is also this Johnson County area has under-
gone a noticeable change since the 1890's as the Bosque lands were
occupied by settlers, native grasses were plowed under and large
sections of land were in cultivation, trees felled in many instances,
grass was eliminated entirely by erosion and over grazing.
These factors, combined with the construction of roads and other
barriers to the prairie fires that had aided materially in the clean-
ing of the prairie have lead to the spread of brush, especially mes-
quite over what once was level grasslands. As this process contin-
ued, scrub timber overran large areas and the soil began to wash
away with each rain of the season.
Now, taking that into what I am saying here, I am a birdwatcher
and I have been since, which I hope that doesn't get me shot, but
I have been since I was 5 or 6 years old. But yet I am also very
concerned about property rights.
I have experienced firsthand the condemnation of private prop-
erty that I owned through the years. And I am concerned about
this taking aspect. It is very easy to take these birds under the var-
ious aspects of the law, and it is very easy for the Grovemment to
take your land and take your private property, and because of that,
I am concerned about this arbitrsiry enforcement that sometimes
comes out of government against individuals.
In this case, it would be by the Department of Interior through
the U.S. Fish and Wildlife Service. Their actions greatly affect
landowners. These can have the power of life and death over the
business operations of the farmer, rancher, and dairyman. If they
do take, let's be sure that they fund this or pay for the taking.
The habitat that was under discussion, as I have just cited, has
been growing and not shrinking since the arrival of the European
settlement. This habitat has had an adverse effect upon the soil
and water resources of our area. No one knows how much habitat
is necessary for the essential preservation of this species or how
much habitat there was that actually supported the species over
historic time periods or history, or what even produced this as a
species.
It may be that insecticides or the destruction of wintering habi-
tats are having greater effect upon this warbler. It may be that the
managed introduced brown-headed cow bird is having more of an
effect upon this bird and greater cause for its decline, rather than
other factors.
But we do want to be careful about going after this brown head-
ed cow bird or we might cause it to be endangered, and I don't
know what we would do then, how do we choose between these two
birds at that point? I don't know. I would like for our Representa-
tives and the Texas Attorney General, Ben Morales, to look into
the possibility that Texans' property rights are superior possibly to
those of other States.
There is a document in the archives of the State of Texas that
enabled Texas to keep its offshore oil revenues against the wishes
of the Federal Government. This battle took place back I believe in
the 1950's, and Texas now has land about 9 miles out into the
104
ocean which it uses for — or primarily I believe its educational sys-
tem.
Our land was granted to us not from the Federal Government,
but from Texas. When you look at our deeds and abstracts, it starts
out with Texas. So I am wondering, because we are unique in that
way, might it be that only Texas can take our land back from us
rather than the Federal Grovemment.
We also have special rights in regards to our homesteads that
our constitution has protected us with that are unique and special.
We Texans already know that we are somewhat special and we
would like to inform some of those out of this area that we are spe-
cial people. We feel we are very proud of our land, our country, and
we love it, even those of us who have come here who were actually
bom in other parts of the United States.
I have heard Dan Morales this morning say that he would fight
over this matter, and I hope that he does. I believe that he will,
and I hope that other Texans would defend their property rights
against all comers. Remember the Alamo. We will win.
Mr. Stenholm. Thank you. Next.
STATEMENT OF GEAN GROS, PRIVATE CITIZEN,
FORT WORTH, TX
Ms. Gros. My name is Gean Gros and I live in Fort Worth. I
have been fighting for private property rights for over 3V2 years,
the very small thing that takes away from private property rights,
so does the historical preservation as well, because I have been try-
ing to get the rights to my home back for over 3y2 years with no
luck.
I am a widow, my husband served his country for over 20 years
defending the country and the rights of the people and the Con-
stitution and Old Glory, and now they have taken our rights away.
Now, the bird has just brought private property rights out before
the people, which I am glad that little fellow come up, believe me,
because it was the way to get the word out.
And also I have been passing bumper stickers out. If there is
anyone here that wants one, I will be glad to get one to them. But
what do we do to get help with our private property rights when
we have no one that will talk to us and listen to us?
Like I said, I have been at it for SV2 years. I have not received
any help, all of the private property rights that is guaranteed to
me under the Constitution and the Bill of Rights, as well as the
Texas constitution. And like the guy said, I have been fighting here
with, I mean, the military people back in here that know me, they
know — Pete, you know I have been at this for a long time.
Mr. Geren. I have been at your home. We have discussed it.
Ms. Gros. Pete even came out to my house to visit with me, to
talk with me. Still I have not had any results in this matter at all,
absolutely none. That is the reason I started a private property
rights group in Fort Worth to get the word out to the people on
their property rights.
But what do you do when your rights to your home have been
taken away and they say you have to ask permission? I am sorry,
I didn't intend to ask for permission to do something to my home.
What do you do then? Do you all have any answers?
105
Congress has already passed this; Congress is shelling out the
money for this, and Congress is sitting up for your home, property
can be declared historical without your permission, without your
knowledge.
I have been doing a lot of digging into this, and also I have dug
into it, and in 1953, I think it was Allen Shriver signed a bill to
set up a historical preservation in every location of Texas. I mean
it is all in my opinion to control the land. What are the people sup-
posed to do then?
Mr. Geren. Well, as always, I appreciate your input on this
issue. We have discussed it.
Ms. Gros. I wasn't prepared to speak today, Pete, as you know,
because I just come down to listen and to talk with some of the
other people on private property rights. But I would like some help.
Mr. Geren. The program that you have worked so hard against,
as you know, is a program that was implemented by the city of
Fort Worth. It is a designation of your neighborhood as an histori-
cal neighborhood, and the city has placed restrictions on your
neighborhood as a result of that.
Ms. Gros. But Pete, it was declared historical — one person went
down and signed a sheet of paper to have a zoning sign put up to
change the zoning between 1,400 — 1,600 houses. One person went
down, according to the way I understand it, with the chairman of
the Landmark Commission that didn't even own property to have
the zoning changed. But that was only after it had been declared
historical in the State of Texas on the National Register, and then
the city of Fort Worth, we still didn't know anything about it until
it was done.
Mr. Stenholm. Let me just say, this subcommittee does not have
any jurisdiction over what the city of Fort Worth may or may not
be doing. But your Congressman is well aware of it, we appreciate
the information you have given to us, and if there is anything we
can do to be of help, we will try to do so.
Ms. Gros. What I was wondering. Congressman, since Congress
has set it up and the taxpayers is pa3dng for it, what do we do
then?
Mr. Stenholm. I can't answer your question personally right
now, but we will be happy to look into it and work with Mr. Geren.
If there is something that can be done for your personal benefit,
we will certainly look at it.
Ms. Gros. I hope so, because the people that has the bird prob-
lem, they are going to be having that problem as well.
Mr. Stenholm. Yes, ma'am. Thank you very much for being
here. Thank you. Next.
STATEMENT OF JACK D. REILY, PROPERTY OWNER,
WEATHERFORD, TX
Mr. Reily. My name is Jack Reily. I am a resident of
Weatherford, Texas. I am a retired engineer by profession. Both of
you gentlemen have represented me in Congress and have done
well, and I appreciate it. I would like to say publicly, thank you.
For background, I would give this: I own property in Medina
County, which has been in the family since about 1845, 1850,
somewhere in that point in time. This being in Medina County, this
106
is part of the southern end of this warbler range problem that we
have. I was born in Anson and lived in Bosque County for a short
time, and most of my life I spent in Medina County, and my moth-
er passed away there a couple of years ago in about 1992. She was
very much interested in flowers and plants and helping people to
improve their lifestyle. My father also did farming and ranching
most of his life as well as carrying the mail.
There are a couple of things about the property rights that dis-
turb me. We have a man here who is trying to build a bridge who
can't do it because of hearsay, and our criminal system for some-
body who commits a crime, we have to give positive evidence
against him, concrete, not hearsay evidence, before we can stop
him or convict him of it. And yet, for the landowner at this point
in time, if it is just hearsay or supposition, then we can begin to
restrict a man. Restricting a man's rights and activities is normally
called probation, which is something we do to a man after he has
been convicted as guilty by due process of law in this country. This
methodology by some of the bureaus that we have is a disturbing
trend which I think has been well addressed today.
There are a couple of things about the bird that bother me. When
I was a young man growing up as a child in the 1930's, we cut the
cedar in this part of the country and across the State of Texas, as
was pointed out, and yet we still have the warbler in existence.
Also, back in those days the only place that you could go to hunt
turkey and deer was in south Texas. There weren't any deer and
turkey up in north Texas. And you did not see many deer or tur-
key, wild turkey at that time.
Through the conservation of people's efforts, there are deer in
this part of the country, and people have done a lot to preserve the
species, and there are many wild turkey. Back in 1954, the State
experienced a severe drought. I covered a lot of the State, but down
in south Texas, the good, lush grassland was as bare as this table
or floor is. There was no grass. The dove hunting went to nothing.
All of the bird life in south Texas went to nothing.
And yet today, we have plenty of birds. I don't know how the
warbler managed to exist during those periods of time. I have been
over much of the hill country and I have yet to see one of these
warblers. Our yard was a stopping place for a lot of the birds as
they traveled back and forth, and my mother or other members of
the family who watched the birds never described this. So I am not
sure how good the count is on the habitat of the warbler.
When I was a young man or a child, we did not see a whitewing
dove in south Texas, and when I was studying birds as a Boy
Scout, and going through the merit badge process, the whitewing
dove was a dove that only showed up in the Rio Grande Valley.
Looking at the latest version of this, the whitewing dove now comes
up into — well, across the highway from San Antonio to Del Rio as
common habitat.
So within the last 50 years, we have seen the area of coverage
of a bird grow. Now, in our yard at home there were lots of the
morning doves as I grew up, but as my mother went through her
last years and watched the birds out her window at the bird feeder,
most of the doves that came there were the whitewing dove be-
107
cause they are a more aggressive type of bird than is the morning
dove.
So what are we looking at? Another endangered species coming
down the line? All I am saying is that nature, in its divine provi-
dence, changes the species and moves them from place to place in
the different habitats. So I am concerned about the property that
we are fixing to put under stamp and restriction because it exists,
but we don't know what it is. And I heard that too often from the
gentleman down here.
One of the costs that concerns me and one of the examples of
Mr. Stenholm. Excuse me, sir. Can you kind of wind up?
Mr. Reily. Yes. I have about two sentences and I am going to
leave.
Mr. Stenholm. Thank you.
Mr. Reily. One of the things that concerns me about the Endan-
gered Species Act is the lack of practical attention applied to it.
Out in California, I spent 10 years there and watched the brush
fires. I saw one go from a lightning strike to 15 miles across and
45 miles around in the afternoon, and I watched it out my back
window. So visiting that area, the ground was as smooth as our
table after the fire went through. That is a very oily brush, and one
day it blazes like a blowtorch.
The kangaroo rat caused people out there within the last few
years not to be able to control the underbrush around their houses.
We had a rather major fire in California this year that we paid out,
you all paid out of the budget or out of funds paid approximately
$1 million per house, 500 houses, to help compensate for the losses
out there. I will guarantee you that all the rats that were pre-
served are dead as they got burned up because those thousands of
acres, that hot fire cooks everything, it leaves it clean.
Mr. Stenholm. That is a documented fact.
Mr. Reily. Yes.
Mr. Stenholm. That is what I am saying. I was well aware of
that. That is a documented fact of what happened out in California
with the kangaroo rat that a poor farmer got fined and thrown in
jail over.
Mr. Reily. Well, we also are paying out of our tax dollars money
that we do not have to support the loss there, and I hope as we —
as you redo — and I am glad to hear what I hear, that we correct
some of these inequities and loopholes in the next revision of the
bill.
Thank you.
Mr. Stenholm. Thank you for your input. Next.
STATEMENT OF T.J. fflGGINBOTHAM IV, MEMBER, TAKE BACK
TEXAS
Mr. HiGGlNBOTHAM. My name is T.J. Higginbotham. I am from
Buda, Texas, which is in Hays County. I have family property
which has been in the family since the 1930s in that county of 158
acres, and we have property in Pecos County which is in west
Texas, in excess of 37,000 acres. The map that you saw Texas At-
torney General Morales put up before you today scared me, because
both of those pieces of property have multiple environmental prob-
108
lems on them. The main one are the two birds that we have heard
about today.
Also I am affiUated with Take Back Texas which is the private
property rights organization that has been formed within the last
2 months. We have been under considerable criticism from some of
the environmental groups because they say we have been funded
by large corporations or multinational companies. One of the an-
swers that one of our troops has answered that with is, yes, we are
funded by the timber industry, and it is the $20 donation we are
getting from the cedar choppers.
I do have a letter that our president wrote in response to Mr.
Rogers' visit in Austin on Monday when he made some comments
that were very derogatory to the citizens of Texas. He avoided the
answers, as he did here today, and this letter was addressed to him
by Marshal Kuykendall, who is president and the founder of Take
Back Texas.
It says: "Dear Mr. Rogers: I read with interest your testimony be-
fore the Texas senate committee yesterday where you discussed an
option for Texas landowners to establish a mitigation bank where
the Texas landowners put up their money to help you establish
your habitat plan. I am here to tell you that there will be no such
plan. If you want land in Texas for your habitat plans, I suggest
the next time you attempt to grace our State with your presence,
that you ask our permission first and that you bring your very big
checkbook. We will sell you most any land you want for your habi-
tat, but we are not going to give you any, nor are we going to buy
any for you. Get that notion out of your head. Trans-Pecos and
Trans-Texas Heritage Association out of Alpine, Texas, and I orga-
nized a private property rights march on the Texas capital a few
weeks ago and some 3,000 to 4,000 property owners came to our
rally. If you attempt this asinine plan on Texas, we will get
100,000 to march. I would also like to highly suggest that in the
future when you folks out in Albuquerque dream up any other
plans for the management of private property in Texas, that you
contact us first and we will decide how our lands are going to be
managed. Let me give you my counterpart's names in Texas should
you like to set up a meeting with us in the future." And he gives
the names and addresses of the two people involved.
"We are looking forward to visiting with you in the future, but
always remember, Mr. Rogers, Texas is a private property State
and no one manages land in Texas but Texans. Respectfully, Mar-
shal E. Kuykendall."
Mr. Kuykendall is a fifth generation Texan and one of the origi-
nal 300 founders of the city of Austin, Texas. His family has been
there since Steven F. Austin. I am a fourth generation Texan, and
I can sit here and tell you that our numbers are gathering rapidly
of trjdng to protect our property rights.
None of us are against the environmental protection, the Endan-
gered Species Act; we don't want to harm anything. The farmers
and ranchers that are involved in this group are actively tsiking
care of their own land, and U.S. Fish and Wildlife Service's atti-
tude has not been very well received with open arms, especially in
the Austin area. They don't answer questions, they ask you why
109
you want the information, and to be quite honest with you, they
evade the answers like Mr. Rogers did before you people today.
Thank you.
Mr. Stenholm. Thank you.
I thank all of you for being here today. I want to thank Pete,
your staff, Chet Edwards' staff for all of the work that went into
this hearing, the local officials, the hospitality, this fine facility
that we have had here today, the Texas Farm Bureau for making
lunch available to us.
I want to thank our court reporters, our hearing reporters for
your diligence in transcribing these words for future use here
today, and I will give you, Pete, the last word.
Mr. Geren. Thank you, Mr. Chairman. I particularly want to
thank you for having this hearing in Cleburne and thank you for
personally coming here and spending the day with us and showing
your interest in this issue.
We have folks here from all over the State of Texas and we ap-
preciate very much their participation. I hope that everyone who
was able to attend felt like it was a constructive hearing; I know
that I felt that it was, and we have — this is one of those issues
where we all have a great deal to learn, and I feel that today al-
lowed us to take a big step forward. A lot of people worked hard
to make it happen. These witnesses worked hard getting ready for
the hearing; we appreciate their participation, and their efforts to
share their experience and their knowledge with us. Again, Mr.
Chairman, thank you for your time and thank you for being in
Cleburne, Texas today.
Let me just say in closing, Mayor Raines was here earlier, and
I know she had to leave to get on to other engagements, but she
and city staff and police and the sheriffs department, the whole
city worked so hard to make this event come together, and they
were here working very late last night, and we know what a strain
it was to meet all of the demands that were placed on them, and
we certainly want them to know how much we appreciate their
help. Also the Zonta Club and Tuesday Forum for their contribu-
tion. We appreciate that very much.
This wouldn't have happened if there hadn't been the hard work
of all of the local folks who came together and worked so hard to
pull it together. Mr. Chairman, thank you.
Mr. Stenholm. Thank you. This hearing is adjourned.
[Whereupon, at 4:30 p.m., the subcommittee was adjourned, to
reconvene subject to the call of the Chair.]
110
STATEMENT OF DAN MORALES
ATTORNEY GENERAL, STATE OF TEXAS
I. INTRODUCTION
Mr. Chairman and members of the Subcommittee on Department
Operations, thank you for the opportunity to address your subcommittee today
regarding the impact on farmers, ranchers, and other property owners in Texas of
the potential designation by the United States Fish and Wildlife Service ("FWS") of
the critical habitat for the golden cheeked warbler pursuant to the Endangered
Species Act of 1973 ("ESA")- This potential designation raises profoundly important
issues regarding private property rights protected by the Fifth Amendment, as well
as the appropriate balance between the federal government and state and local
government with respect to governing and protecting those rights. Furthermore, it
raises issues of how to most prudently and wisely use our natural resources as we
strive to balance the need for continued economic well-being with the need to
protect our environment.
We cannot consider or deliberate in isolation, unfortunately, the impact the
designation of the golden cheeked warbler critical habitat will have on Texas
farmers, ranchers, and our rural communities, although the impact of that
designation of approximately 800,000 acres will be harsh enough. Rather, we must
look at the entire ESA situation in Texas, as bleak as that appears to be for all of us
who desire a common sense, reasonable approach to protecting our ecological legacy
as we strive to ensure a vigorous economy for ourselves and the coming
generations of Texans.
Exhibit 1 shows the 33 counties in which the critical habitat for the golden
cheeked warbler may be designated. Exhibit 2 shows the counties affected by current
designatior\s of critical habitat for 8 listed endangered species. Thus far, the citizens
of only 14 Texas counties have felt the impact of the critical habitat designation.
Exhibit 3 shows the counties potentially affected when the FWS finishes the
designation of the critical habitats for 62 listed (as of August 1992) endangered or
threatened species in the State of Texas. We estimate, at this time, that only about 42
counties out of 254 in the State of Texas will not be affected to some degree by the
designation of critical habitats by the FWS. That number will drop precipitously
should the swift fox and other species be listed as threatened or endangered (as is
anticipated).
Dan Morales Testimony
Subcommittee on Department Operations & Nutrition
September 16, 1994
Ill
The significance of the crirical habitat designation is that the FWS has taken
the position that it gives FWS the power to control or prevent the "adverse
modification" of critical habitat by the landowmer. Indeed, the J^S has even taken
the position that a critical habitat designation need not be made in order to trigger its
authority and jurisdiction over private property owners. For example, MoUie
Beattie, Director for the FWS, has publicly stated: "The critical-habitat designation
doesn't add anything to the constraints on the average landowner."' Her deputy,
Nancy Kaufman, stated furthermore: "If a farmer is currently going out and
destroying this habitat, it is already a problem."^
The FWS is serious about exercising its powers, as it interprets them. For
example, in Kerr County, Travis Lee, a Kerr County resident, was recently
attempting to clear cedar from his land when the P^'S ordered him to stop until an
investigation (at Lee's cost) could be made to find out whether golden cheeked
warblers were nesting on his land. And if the FWS cannot use its powers (as it
interprets them) directly against the landowners such as Travis Lee, apparently it
plans to use them indirectly by badgering other federal agencies, such as the United
States Department of Agriculture or the United States Department of
Transportation, to consult with the FWS which deliver services or programs to
landowners such as Travis Lee.
The FW^S's purported power to indirectly protect critical habitat by badgering
other federal agencies is not a power that should be taken lightly. Rather, it has the
potential to become an iron fist inside a velvet glove. Recently, FWS convened a
meeting to discuss the Edwards Aquifer issue and the duty of federal agencies to
abide with its interpretation of the ESA. As described in a news report:
"[R]representatives of dozens of federal agencies came to Austin for a primer on
their duties under the Endangered Species Act. The Fish and Wildlife Service,
which organized the meeting, didn't pull any punches: 'It's time to ensure that the
' "Agency defends plan for songbird habitat," San Antonio Express News, July 27, 1994. (Attached )
2 Id.
Dan Morales Testimony
Subcommittee on Department Operations & Nutrition
September 16, 1994
112
federal house is in order regarding this matter,' said Sam Hamilton, the wildlife
service's state admirustrator."'
The "federal house" in this case is a mansion--69 agencies were invited and
dozens of agencies attended the meeting. Forty of these same agencies have recently
been threatened by a public interest group seeking to force their compliance with the
ESA. Included in the group of 40 were the Department of Defense and its armed
services. Department of Agriculture, Defense Base Closure and Realignment
Commission, Department of Transportation, Department of Education, Department
of Housing and Urban Development, Farm Credit Administration, Farmers Home
Administration, Federal Home Loan Mortgage Corporation, Small Business
Administration, and the Department of Commerce. Since many of these agencies
use very little water from the Edwards Aquifer directly, the real target of the threat is
the citizens who benefit from the various federal programs and services delivered
by the agencies.
n. THE MAIN ISSUE
The crux of the problem presented by the FWS's expar\sive interpretation of
the ESA is whether Congress intended to delegate as much power to the FWS as the
FWS is now trying to directly or indirectly asserf over landowners.
It is clear to me that the answer is no. I firmly believe that Congress did not
intend to empower federal bureaucrats to override state and local authorities or to
jeopardize the bundle of private property rights held by landowners. I am confident
that the courts will make this clear in the next few years. Indeed, I believe the
District of Columbia federal circuit court decision in the Sweet Home Ciiapter* case
marks an important, if not critical, turning point in the development of ESA law.
The court rejected FWS's expansive interpretation of the ESA and discarded a FWS
regulation that equated modification of habitat for an endangered or threatened
sf>edes with a killing or "taking" of the species. (FWS, however, it should be noted
is tenaciously dinging on to its expansive interpretation.)
^ "Agencies briefed on duties concerning aquifer, species," Austin-American Statesnrum, July 15, 1994.
(Attached.)
* Sweet Home Chapter v. Babbitt, 17 F3d 1463 (DC Cir 1994).
Dan Morales Testimony
Subcommittee on Department Operations & Nutrition
September 16, 1994
113
It is clear to me that Congress did not ir\tend to empower federal bureaucrats
to override state and local authorities or to jeopardize the bundle of private property
rights held by landowners to the extent currently envisioned by FWS. If we assume
merely for the sake of argument, however, that Congress did intend to empower the
I^S with the great powers it is now trying to assert over landowners, then we
would be confronted with a severe, fundamental problem with two issues that need
to be addressed.
A. From the perspective of a state official, the first issue is: In order to best
protect the rights of our citizens, especially their right to own property and to
determine how they want to use it, how do we establish the appropriate balance
between the federal government, on one hand, and the state and local governments,
on the other. This is a Constitutional issue that cuts to the core of how we govern
ourselves and how we most effectively protect our cihzens' property rights as well as
ensure ecological protection.
In the context of the ESA, the FWS has simply gone too far in expanding
federal power to the detriment of state and local governments, as well as, more
importantly, the detriment of landowners. I firmly plan to make every effort to
reestablish the appropriate balance between the federal government and the state
and local governments with respect to how to best achieve the goals and objectives
of the ESA without unduly sacrificing profound private property rights. This effort
is critically important—not because of theoretical notions of state sovereignty, but
because in this modern era I believe that popularly-elected state and local
governments are better suited than federal bureaucrats (charged with fulfilling
narrow program objectives and protected by civil service) to protect the rights and
privileges of our citizens, especially with regard to ownership and usage of private
property.
B. The second issue arising from an expansive interpretation of the ESA is of
extraordinary practical importance: It is logical to predict that the presence of FWS
with its purported extensive power to directly or indirectly impact private property
will be felt by a substantial portion of the landowners throughout the state by the
time the FWS finishes designating all of the critical habitats for the currently listed
endangered or threatened species.
Dan Morales Testimony
Subconimittee on Department Operations & Nutrition
September 16, 1994
114
As indicated by the exhibits, the logical ramifications of designating critical
habitats for all of the listed endangered and threatened species found in Texas are
startling, if not disconcerting. As of August 1992, there were 62 endangered or
threatened species in the State of Texas. Only 8 have had their critical habitats
designated so far, and only 14 counties have been impacted. (Exhibit 2.) Thus, as of
August 1992, critical habitats still need to be designated for approximately 54 species
here in Texas. When critical habitats for those 54 species are designated by the FWS,
I estimate that only 42 counties will not be impacted to some extent by such
designation. (Exhibit 3.) The listing of more species, such as the swift fox, as
endangered or threatened will, of course, decrease this number of unaffected
counties substantially.
As harsh as the designation of the critical habitat designation for the golden
cheeked warbler may be, our citizens have begun to recognize the full implications
of the ESA--as expansively interpreted by the RVS. It is this recognition that is
fueling reaction from our landowners and communities across the state.
C. Unfortunately, as I alluded to earlier, I believe the ESA implementation
and enforcement process will become even more problematic for the citizens of
Texas and will be the source of even greater discontent with the ESA and the FWS.
Under the developing expansive interpretation of the ESA, citizens or entities--
whether private or governmental--which indirectly affect a critical habitat or an
endangered species may become subject to the authority of the FWS. This is
essentially the overly broad theory underlying the Edwards Aquifer case.^
The Edwards Aquifer case presents a situation in which the connection
between the activity (i.e.. the pumping and use of the water from the Edwards
Aquifer) and the alleged taking of an endangered species is extremely remote. Not
only would it be impossible to trace an alleged taking back to any one irrigator or
user of the Edwards Aquifer water, but the activity for which the entity accused of a
"take" of an endangered species would not be an activity associated with the direct
destruction of the endangered species' habitat. Rather, it would be activity resulting
5 Siena Club v. Babbitt, MO-91-CA-069 (W.D. Tex.).
Dan Morales Testimony
Subcommittee on Department Operations & Nutrition
September 16, 1994
115
from ensuring the economic and social well-being of a regional population (i.e.. the
supply of water to residences and businesses).
In order to show the gravity of the situation, I have attached to my testimony
a recent letter from a public interest group threatening to sue the various parties
who pump water from the Edwards Aquifer, including the farmers and ranchers in
Uvalde and Medina, all federal agencies such as the defer^e bases in San Antonio,
and the city of San Antonio. As stated in the attached letter;
The threat to the Edwards Aquifer from pumping] requires a
vigorous coordinated federal-state-local response, beginning
immediately. Michael Spear, Assistant Director of the U.S. Fish and
Wildlife ("USFWS"), lead agency in charge of the Edwards species,
testified in November 1992 that the Texas legislative session ending
May 1993 represented the "last chance" for a state solution, before the
"blunt axes" of ESA §§ 7 and 9 have to be dropped.
Fortunately, the Texas legislature took action in 1993-Mr Spear was not forced to
drop the ESA's "blunt axes" on Texas. Unfortimately, because of purported Voting
Rights Act issues, the state legislative solution has not yet been implemented. That
is apparently what necessitated the need for the attached letter.
m. CONCLUSION
The expansive interpretation of the ESA espoused m the Edwards Aquifer
case and by the FWS is extraordinarily troublesome. Coupled with the number of
endangered species found in Texas and the extensive range in which their critical
habitats will be designated, the expansive interpretation of the ESA could serve as a
staging ground for what may be the most threatening assault on private property
rights we have experienced in Texas. This is especially true in Texas where, unlike
other western states, approximately 97% of the land is privately owned.
Furthermore, if the Edwards Aquifer case analysis continues to thrive, there are
literally no bounds to the ESA.^
6
'If the ESA was intended to cover natural resource management issues such as those raised in the
Sierra Club lawsuit, one has to question what situations the ESA cculd not cover. For example, if it
could be shown that acid rain in northeastern forests resulting from midwest power plant production
is resulting in the depletion of endangered species habitat, could FWS regulate power plant
practices? Or, if automotive air pollution in the Los Angeles area could be shown to have caused a
Dan Morales Testimony
Subcommittee on Department Operations & Nutrition
September 16, 1994
116
I can assure you that my office will take every step and expend every effort to
ensure that private property rights in Texas will be protected from an overreaching
federal agency. I fully understand the need to protect our ecology and I support the
broad purposes of the ESA, but the FWS has, without legitimate legal basis,
increased the stakes too much for our farmers, ranchers, cities (such as San
Antonio), and rural communities, to do otherwise.
reduction in an endangered species popukdon in northern California, could FWS impose fuel
' efficiency restrictions on Los Angele* area automobiles'' Another scenario might involve an
interstate water dispute in which one state argues ^t an upstream state is diverting so much
water that an endangered species habitat is threatened. One's mind does not have to wamder far to
come up with similar examples of how FVVS could use the ESA as a resource management tool on a
regional or even national scale."
J B. Ruhl, "Phase Three of the ESA: Using Endangered Species Protection as Natural Resource
Management Tool," Natural Resources k En\-ironment, vol. 6, number 3, Winter, 1992.
Dan Morales Testimony
Subcommittee on Departntent Operations & Nutrition
September 16, 1994
117
^i t.Kiv/\|^^||'^-T| LONE STAR CHAPTER
CLUB _
April 15, 1994
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
TO: The HonoraUsle Bruce Babbitt, Secretary
United States Department of the Interior
Office of the Secretary
18th and C Streets, N.W.
Mail Slot #MS6217
Washington, D.C. 20240
All Federal agencies listed on Exhibit "A" attached to this
notice
The City of San Antonio and other individuals and entities that
withdraw water from the Edwards Aquifer, some of whom are
listed on Exhibit "B"
The Texas Natural Resource Conservation Commission ("TNRCC")
All other "Violators" (Defined Below)
Re: Notice of Endangered Species Act Violations
Dear Secretary Babbitt, all Federal agencies listed on Exhibit "A"
attached to this notice, the City of San Antonio and other
individuals and entities that withdraw water from the Edwards Aquifer
including, without limitation, those listed on Exhibit "B," the
TNRCC, and all other violators:
We am writing on behalf of the Sierra Club and Clark Hubbs to
notify each of you, pursuant to Section 11(g) (2) (A) (i) of the
Endangered Species Act of 1973 ("ESA") , 16 U.S.C. $ 1540(g) (2) (A) (i) ,
of violations of the ESA, 16 U.S.C. §5 1531 et seq. , by each of you,
and of the Sierra Club's and Clark Hubb's intent. to sue concerning
these violations.
Unlawful actions and failures or refusals to act by all of you
cause severe overdrafting of the Edwards Underground River, also
)cnown as the Edwards (Balcones Fault Zone) Ac[uifer, San Antonio
Region, hereinafter, "the Edwards." Overdrafting of the Edwards
poses a substantial and imminent threat of jeopardy to the continued
existence of endangered and threatened species and to the public
health and safety of 1.5 aillion people. Both the species and the
people are dependent on clear, clean natural Edwards water.
Overdrafting of the Edwards moves hydrogen sulfide, a hazardous
When wc try to pick out jnything by itself, we find it hitched to everything else m the universe " 'o/in Aluir
118
TO: Bruce Babbitt, et al.
April 15, 1994
Page 2
substance, into the fresh water in the Edwards. Overdraftina of the
Edwards threatens to poison the Edwards for everyone.
This threat is urgent. Overdrafting has already resulted in
takings of endangered species in 1989 and 1990, and according to the
largest pumper, San Antonio, threatens to do so again this summer and
in 1995 and 1996. Overdrafting has already resulted in jeopardy to
endangered species at Comal Springs in 1989 and 1990, and according
to San Antonio threatens to do so again in mid-1995 and mid-1996.
Overdrafting has already resulted in some movement of bad water,
contaminated by hydrogen sulfide, a hazardous substance, in 1956.
It threatens to do so again in a repeat of the drought of record, or
in a drought less serious than the drought of record but slightly
more serious than the droughts of 1984, 1989 and 1990.
This threat requires a vigorous coordinated federal-state-local
response, beginning immediately. Michael Spear, Assistant Director
of the U.S. Fish & Wildlife Service ("USFWS") , lead agency in charge
of the Edwards species, testified in November 1992 that the Texas
legislative session ending May 1993 represented the "last chance" for
a state solution, before the "blunt axes" of ESA SS 7 and 9 have to
be dropped. That legislative session produced a statute, S.B. 1477
which, according to the State of Texas, is "frozen." No federal,
state or local entity has a plan adequate to protect endangered
species and human water supplies against overdrafting of the Edwards.
The State's last plan "does not come close" to protecting these
waters, according to an independent mid-1993 review by the University
of Texas.
The background facts are set forth in the Findings of Fact and
Conclusions of Law entered on February 1, 1993, by the Honorable
Lucius Bunton, Senior United States District Judge, in Sierra Club
V. Luian. 1993 WL 151353 (W.D. Tex.), as amended May 26, 1993, appeal
dismissed sub nom. Sierra Club v. Babbitt. 995 F.2d 571 (5th Cir.
1993). A copy is attached as Exhibit "C" and incorporated by
reference in this notice of violation.
The Sierra Cliib and Clark Hubbs hereby give notice of the
following violations:
(1) The Secretary of the Interior and the U.S. Fish & Wildlife
Service have violated and are violating ESA § 4, 16 U.S.C. § 1533,
by (a) failure to act on the listing petitions for certain Comal
Springs species; (b) failure to designate critical habitat for those
species and for the Texas blind salamander; (c) failure to develop
recovery plans for the Comal Springs species and/or population and
for the Texas blind salamander; (d) failur* to implement key
provisions of the San Marcos Recovery Plan, and (e) failure to
119
TO: Bruce Babbitt, et al.
April 15, 1994
Page 3
promulgate regulations to protect threatened species against
reduction in springflows due to excessive pumping of the Edwards.
(2) The Secretary of the Interior and all Federal Agencies
listed on Exhibit "A" (together, the "Federal Violators") , including
but not limited to the U.S. Fish and Wildlife Service, the U.S.
Departments of the Interior, Transportation, Agriculture, Defense,
Army and Air Force, the U.S. Defense Base Closure and Realignment
Commission, and the Agency for Toxic Substances and Disease Registry,
have violated and are violating ESA f 7, 16 U.S.C. $ 1536, by failing
to review and utilize their authorities to plan and carry out
programs for the conservation of the Edwards, Comal and San Marcos
species against reduced springflows due to excessive pumping and by
failing to engage in coordinated multi-agency consultation to insure
that no actions or activities authorized, funded or carried out by
them or by other federal agencies are likely to jeopardize the
continued existence of any of the Edwards, Comal and San Marcos
species.
(3) The Federal Violators, the TNRCC, and the City of San
Antonio and other individuals and entities who withdraw water from
the Edwards Aquifer, some of whom are listed on Exhibit "B," have
violated and are violating ESA § 9 by authorizing, funding or
carrying out pumping, or by authorizing, funding or carrying out
activities that allow, maintain, encourage or increase pumping, from
the Edwards to an extent that reduces Edwards levels and Comal and
San Marcos springflow rates to below the points at which endangered
wildlife are actually killed or injured.
The Sierra Club and Clark Hubbs intend to amend and supplement
the Sierra Club's complaint in Sierra Club v. Babbitt, seeking leave
from Judge Bunton for this purpose. The Sierra Club and Clark Hubbs
intend to allege violations of ESA Sections 4, 7 and 9 and of other
federal statutes, against specific defendants, as set forth in the
proposed amended and supplemental complaint, a copy of which is
attached as Exhibit "D," and incorporated by reference in this notice
of violation. The Sierra Club and Clark Hubbs reserve the right to
sue others to whom this notice of violation is sent for the
violations covered by this notice, in the proposed amended and
supplemental complaint or in a future amended and supplemental
complaint. In particular, the Sierra Club and Clark Hubbs give
notice that they intend, as necessary, to sue pumpers for violations
of ESA Section 9 and seek injunctive relief restricting Dumping to
prevent violations of Section 9. Such relief may be requested aa
early as this snmTner.
Excessive pumping jeopardizes both endangered SPCCles and ?an
Antonio's and others' water sudpIv. In summary, federal, state and
local authorities have the power and duty to protect the Edward*
120
TO: Bruce Babbitt, et al.
April 15, 1994
Page 4
against excessive pumping. They have failed and are failing or
refusing to carry out their responsibilities. As a result, excessive
pumping by San Antonio, the San Antonio military bases,
agribusinesses and others imperils the Edwards ecosystem.
The Sierra Club and Clark Hubbs plan to take prompt legal
action to obtain judicial remedies for this emergency.
Sincerely,
Jy^
Ken Kramer, Director
Lone Star Chapter of the
Sierra Club
S^^
Stuart Henry
SBN 09484000
202 West 17th Street
Austin, Texas 78701
(512) 479-8125
(512) 479-8269 (fax)
/^?P?
=M^
P.M. Schenkkan
SBN 17741500
727 E. 26th Street
Austin, Texas 78705
(512) 471-3280
(512) 471-6988 (fax)
Attachments
cc: Governor Ann Richards
121
Individuals and Entities
that Withdraw Water From
the Edwards Aquifer
t . City of San Anlooio
By scfvuig Nelson Wolff. Mayor
100 MUiuiy Plaza
San Antonio. TX 78205
2. Fksu Texas Showpark. lac.
By servug KcnocUi W. Smith
8000 Robert F. McDcnnott Freeway
Suite 600
San Antonio. TX 78230
3. Danny McFadin
Roaie 1, Box 16
Knippa, TX 78870
4. Cari Muecke.Jr.
Route 1 Box 89
Knippa, TX 78870
5. Tommy Walker
HCR 32 Box 29
Uvalde. TX 78801
6. Redland Stone Products Company
By serving David L. Wenzel
17910 lH-10 West
San Antomo, TX 782J7
7. Southwest Research Institute
Bv serving Martin Golaod
ebo Culebra
San Antomo. TX 78238
8. United ServKes Automobile Association
By ser>-mg Michael D Wagner
USAA BuUding
9800 Fredericksburg Road
San Antonx), TX 78288
9. USAA Real Esute Company
By serving CT Corp. System
811 Dallas Avenue
Houston. TX 77002
10. U.S. Department of the Air Force
By ser.mg Sheila E. Widnall. Secreui> of the
Air Force
The Pentagon
Waihi(«toa. DC. 20330
11. U.S. Department of the Army
By servug Togo D. Wesu Jr.. Secreury of
the Army
The Pentagon
Washington, DC. 20310
12. U.S. Department of Defease
By serving Wdham J. Perry, Secreury
The Pentagon
Washington, DC. 20301
EXHIBIT "V
?tt l«f 1
122
U.S. Agency for Toxic
Subsuoces and Disease j
Regisuy j
By scrvug David Salcber,
Administralor
1600 Cliftoo Road. N.E. ,
Atlanu. GA 30333
U.S. Defense Base Closure aod
Realignme ai Cominissioa
By servug James A. CoujrVci,
Cbainnao
Rosslyn Metro Center Bldg.
1700 North Moore Street
Arlingion. VA 22209
U.S. Department of
Agriculture
By ser>-mg Mike Espey.
Secretary
I4ib and lodependeace
Avenue. S W.
Washmgioa DC. 20250
U^. Department of Commerce
By servuig Ronald H. Brown.
Sr, Secretary
14ib Sl and Constitution
Avenue. N W.
Washington, DC. 20230
U.S. Department of Defense
By servuig William J. Perry,
Secretary
The Penugoo
Washington, DC 20301
U.S. Departmeotof the Air
Force
By scivuig SheOa E. WidoalL
Secreury of the Air Force
The Pentagon
Washington, D.C. 20330
FEDERAL AGENCY yiOLATORSf
7. U.S. Department of the Anny
By servuig Togo D. West, Jr,
Secretary of the Anny
The Penugoo
Washington. D.C. 20310
8. U.S. Department of the Navy
By servuig John H. Dalton,
Secreury of the Navy
The Penugon
Washington. D.C. 20350
). VS. Department of Education
By servuig RKhard W. Riley,
Secrelaiy
400 MaryUnd Avenue. S.W.
Washington. D.C. 20202
10. US DepartmentofEoerjy
By servuig Hazel R. O'Leary,
Secreury
Forresul Building
1000 Independence Avenue,
S.W,
Washington. DC. 20S8S
11. U.S. Department of Health
aod Human Scrvtces
By serving Donna E. Shalala,
Secreury
200 Independence Avenue,
S W.
Washington. DC. 20201
12. U5. Departmeotof Housmg
and Urt>an Development
By servuig Henry G. Cisoeros,
Secreury
451 Seventh Street. S.W.
Waihiogton. DC. 20410
13. U.S Department of the
Intcnor
By serving Bruce BabbitL
Secreury
18th and C Street. NW
Mai) Slot #MS62|7
Washington, DC. 20240
14 U.S. DepanmcQt of Justice
By serMug Janet Reno.
Attorney General
Tenth Street aod ConstitVi;.on
Avenue. NW
Washington, DC. 205.K'
15. U.S. Department of Labor
By setvmg Robert B. Reicb.
Secreury
200 Constitution Avenue
N.W.
Washington. DC. 20210
16. US Department of Suie
By serving Warren
Christopher. Secreury
2201 C Street, N.W.
Washington, DC. 20520
17. US Departmeotof
Transporution
By serving Fedenco F. Peia.
Secreury
400 Seventh Streeu S.W
Washington. D.C. 20590
18. U.S. Department of the
Treasury
By serving Lloyd M Beniicn.
Secreury
1500 PennsyKaoia Aveoue.
N.W.
Washington, DC. 20220
Each Federal Agency VkiUUir Ilitcd abovt U alto MrvMi by scrvlog tbt followlog:
Janet RcDO,
Attoraey G«D<raI
DcpartmcDl of Justica and
TcBtk StTMt and
CoasUtutloa Avcaut, N,W.
WajbiBgUw. DC 20530
Jane* H, DaAUcy,
U,S, Adorvaj
DcpartMcat of Jaalka
601 N.W. Loop 410, SoiU 600
Su Aatoato, Taua 7S216
EXHIBIT *A*
laTI
123
19. U.S. DcpanmcDl of Vcteraos
A/fairs
By Mfvuig Jesse Btxjwn.
Secreiary
810 VermoDl Avenue. N.W.
Wishmgtoo, DC. 20420
20. EnviroameaUl Protectioo
A^eocy
By serving Carol M. Browner,
Adimaistrator
401 M Street, S.W.
Washington. D.C. 20460
21. Farm Credit AdministratioQ
By servuig Billy R. Brown.
Chairman
1501 Farm Credit Dnve
McUan.VA 22102
27. Federal Housiof Finance 34.
Board
By lervuil tbe Cbauman
1777 F Street. N.W.
Wastun(toa. DC 20006
28. Feder&l Ubor Relations
Auibonty 35.
By serving Jean McKee.
Chairman
60" FouruenthStreeu N.W.
Washingion. DC 20424-0001
29. Fedenl Trade Commission 36.
By scivint Juxt D. Steiger.
Cluirmaa
Sath Stteel and Pennsylvanu
Avenue. N.W.
WashinftoQ. DC 20580
National Labor Rclaiiuns
Board
By serving James M.
Stephens. Chairman
1099 14th StreeL N W
Washington. DC 20570
OfTice of TTinft Supervision
By serving Jonatbco L.
Fiechier. Acting Director
rOO G Streeu N W.
Washington. DC 20552
U.S. Posul Service
By serving Marvm Ruoyon.
Postmaster General
475 LEnfani Plaza Wesu
S.W.
Washington. DC 20260
22. Farmers Home Administration
By serving Michael V. Dunn,
Administrator
14tli Street and Independence
Avenue. S.W
Washington. DC. 20250
23. Federal CommunKatx>ns
Commission
By servuig Reed E. Hundt,
Chainnan
1919 M Street, N.W.
Washington, D.C. 20554
24. Federal Deposit Insurance
Corporation
By serving Andrew Hove.
Ouinoan
550 Seventeenth Street, N.W.
Washington. DC 20429
25. Federal Emergency
Management Agency
By servuig James Lee Witt.
Director
Federal Ceoler Plaza
500 C Street, S W.
Washmgton. DC 20472
26. Federal Home Loan Mortgage
Corporation
By serving Leiand C. Brendiel,
Chairman
S200 Jones Branch Drive
McLean. VA 22102
30. General Serk-»ce$
Admimstrauon
By ser%iLg Roger W Johnson.
Acting Administrator
18th and F Streets, N.W.
Washington. DC 20405
31. Intenutional Development
Coopentx>n AgeiKy of tbe
Uiuted States
By serving J. Bnan Atwood,
Director
Department of State Building
320 Twenry-Qrst Street, N.W.
Washington, DC 20523
32. Intenuuonal Trade
CommissKiD
By serving Don E. Newquist,
Chairman
500 E Street. S W.
Washington. DC 20436
33. Intersute Commerce
Commissioa
By serving Gail C. MacDonald,
Chairman
Twelfth Stiect and
Constitution Avenue. N.W.
Washington, DC 20423
38.
Resolution Trust Corporation
Oversight Board
By serving Jack Ryan.
Chief Executive Officer
801 17th Streeu N.W.
Washington. DC 20434
Secunties and Exchange
Commission
By serving Arthur Levitt, Jr..
Chairman
450 Fifth Streeu N W
Washington, DC 20549
39. Selective Service System
By serving Roben W.
Gambino. Director
1515 Wilson Boulevard
Arlington, V A 2:;09-:4:5
40. Small Business Admimsiraiion
By serving Erskine Bawles.
Administrator
409 Third Streeu S.W.
Washington, DC 20416
EXHiBrr "A*
PMi2«f2
124
Agencies briefed on duties
concerning aquifer, species
By Ralph KM. H«urwitz
Am«nc«rwSuiMm«n Son
Wbca the U^. Dvpftruncnt of
Hou«ui| and Urfou) Dcv«lopm«nt
fundi coDatruction &nd operation
of low-iocom* ApATUDcsu in San
Antonio, it it luppoMd to considir
whether fitch actions will hive ia-
meduu or long-term efr*ct> on en-
dtngcrvd ep^cies thai depend on
the aouthcm EdwArds Aquifer.
The cotvnecuoo bctvecn bous-
ing in San Antonio and rare planu
and aniznali in spnngi at San Mar-
cot and New BraunfaU u not as re-
mote as it might ae«m. For
exan:pie. new toilets^ and faucets
trantisie into addiuonaJ with-
drawais from the Edwards, a vast
underground water system that
supplies the city as well as the nat-
ural spniio]_
Ytt HUD has never formally
consulted with the VS. Fiah and
Wildlife Service on the quettion of
wbathar its actions are affacting
the aquifaT -dependent speciaa, de-
^>ita a requirement m the F.ndan-
fared Spedas Act to do »o.
Nor has any other federal agen-
cy. Vet acoree of agenciee are in-
volved in aruviDes that merit lucb
review, according to .the wildlife
aervice. Some eismpka:
B The DefenM Deparunent.
which pumpe water from the EUi-
warda to slake thirsu and irno^
^If couraea at nearby mibtary
baaea.
■ The Agriculture Department,
which funds a mynad of financial
aid prograxns for farmers and
ranchers who use Eowarda waur.
■ The Transportation Depar«-
mem. wmch spends millions of
collars on highway construction
tha: puiiuies ihe aquifer and at-
tracts waur-consuming develop-
ment such , as homes and
businesses'
The situation might be about to
change. On Thursday, repreaent*
atives of dozens of federal agenciea
came to Austin for a pnmer on
their duties under the Endangered
Species Act. The Fish and Wildlife
Service, which organued the meet-
ing, dioj^'t pvill any punches.
"It's time to ensure that the fed-
eral house u in order regarding
this matur." said Sam Hamilton,
tne wildlife serMce s state aominu-
:ra:or.
One reason for the incre;.a»ed
concern is thai no rules govern
pjmping from the southern Ed-
waros Aquifer, a lT5-mile-long
conduit covering about 3.600
square miies The aquifer extends
soutn anc west from Hays County
t.^.rough San Antonio and into
LvaJae and Medina counties. The
Barton Spnnp segment of the Ed-
wards Aquifer which u hydrologi-
cai:> separate, covers p>oruons of
Havs and Travis counties and
teeos Barton Springs Pool in Aus-
tin s ZiLker Park.
Last year, the sute Legislature
passed a bill establishing an au-
thonty to regulate pumping, but
the measure was set aside by the
U.S. Justice Department because
It weakened the role of minonty
citixens by replacing an elected au-
thonty with an appointed one.
Legislative leaders plan a new ef-
fort when they convene next year.
125
Feder&l ofricuii at Thurtdiy't
me«iutg r««cied much ti tome ph-
vttc Imndownen &nd deveiop«n
have to Ihe wildlife Mrvice'a cfforu
to enforce tr.e tpeoes icu
Some ezpreft*ed confusiOD. Oth-
er* expressed a wiUmgncM to co-
operiK. Still other* »«emed cool to
the loteresu of the TexAS blmd
MlAmAiider. TexA* wild net. the
Sao Marco* vi-s.xajider. the Saxi
Marco* (ambuss and the founLais
darter.
"We try to be food atewarxii of
our aatural r«*ourcea. and we look
forward to b«xg better atewarda of
our natura. rtiource*.' aaid Wil-
Umm Bowen. chief of the enviroD-
meDUal law and Utifatioo divuioo
for the Air Forct.
Humberic Garcia Jr., chief of
HUD a vaiui'^on br&nch in Sah
AntoDio. aa>2 ^ hoped that any
new restncuoQi would not impede
economic development and growth
in the rutjona mnth-larjeai city.
"Based oc u-.e teaumony I heard
today. mavDe me ciuiens of S*n
Antonio anou^c oe declared endan-
gered apeciea " Garcu aajd.
It waa not without aome prod-
ding that the wiidlile aervice invit-
ed 69 federal a«enciea to the
meeting. Last year. US. Dutrict
Judge Lunus Bunton III of Mid-
land ruled in a ewe brought by the
Sierra Club that the aervict and iu
parent afcncy . the Department of
the Intenor. had fail*d to protect
the plant and animal apecMt ade-
quately. And last month. Bunton
took the firai a'.*p toward court -or-
dered rationing by requiring prep-
atatios of an cmerfcocy plan for
dry apcUa.
The Sierra Club haa filed notice
of ita intention to aue an addjtional
40 feoera) agenciet for failing to
conault witr: the wildlife aervK*.
Under the ap«o«a act. any federal
agency whoee acuooa might affect
an endangered apecie* muat con-
ault with the aervice.
If the wildlife aervicc flnda that a
propoeed action would .^pardixe
a apecies' exiatence. the action ia
prohibited However, the agancy
propoaing the acuon may appeal
for an exemption from a speaal
federal panel commonly called the
••God aquad."
Wildlife aervice officiala ex-
plained that It la the respooaibihty
of the other agenoea to initiate the
conaultatioc proccaa. They ai^g-
gested that the moat effVncnt way
to deal with the Edwarda Aquifer
nugbi be for aeveral key afci^cMa.
including the Defense and Agricul-
ture oeparunenu.' to form a com-
mittee that would prepare a broad
aaseaament of the biologvial impli-
cations of federal activitiea in the
refion.
Siuan Henry, a lawyer for the
Sierra Club, said he wasn't im-
pressed by the meeting but
stopped abort of declanng that the
dub would follow through on its
earlier notice and aue "I waa a lit-
tle aurpnsed at federal agencies' ig-
norance about how their own
programs might affect the Ed-
wards." Henry said.
"I tK.nk the Fuh and Wildlife
Servic* was doing tham i lavor.
The problem with the federal fo-
vemmeot ia you don't get 'am to
make decisions until they have to."
A lawsuit could be a potent tool
to compel compliance. Henry said
A federal judge would have the au-
thonty to withhold agenoea^ tuxkd-
ing for programs affecting the
species.
The wildlife sarvics Unutivaly
scheduled another meeting for
Oct. 20.
126
Agency defends plan
for songbird habitat
:^ 7.Z7«<f*/
S4i
ty Gory Martin "^
WASHINGTON - U.S. Fish tod Wildlife
Service officiais on Tuesday defended the
agency's proposal to list ail or part of 33 Tex-
as counties as cntical habitat for an endan-
gered soogbirl saying the move would have
HUe impart on pnvaie landowners.
MoUie Beaiue. Fish and WUdUie Service
oirector. said the designauon of cntjcal habi-
lai (or the endangered golden-cheelied war-
bler would force federal agencies and feder-
ally funded projects lo receive aulhonzauon
before proceeding but would have little ef-
fect on private propeny nghis.
"The cntjcal-habitai designation doesn't
add anN-thing to the constraints already on
the average landowner." Beatue said donng
an hourlong bnefing with Texas reporters.
Pnvate landov^r.ers have been prohibited
from killing or desiroymg the songbird since
It was listed as endangered in 1990. said Nan-
cy Kaufman, deputy assistant director (or
endangered species.
Despite -the assurances. Rep Lamar
Smiin. R-San'Antonio. and other members of
the Texas congressional delegation raised
concerns that private properly owners
would be indirectly impacted through feder-
ally insured mortgages and fmids.
•'They come awiuily close to misleading
the public." Smith said of the service "I'm a
rancher, and I don't know of any fanner or
rancher thai doesn't have some connection
with the government through mongages and
loans "
Smith said rancncrs wnose propeny hoids
a cnucal-habiut destgnation could be re-
quired to receive federal authorization be-
fore improvements are made oo the land.
Kaufmac though, said pnvate property
owners would not need apjroval to improve
lands cleared (or agncuitural purposes, be-
cause cruical habitat already has been re-
moved.
"If a (armer is currently going out and de-
stroying this habiUL it is already a problem"
under the Endangered Speaes Act Kauf-
man said.
Indicauons that the Fish and Wildlife Ser-
vice was preparing a proposal to designate
cntical-habitat areas contained in less than
800.000 acres of ash jumper stands spanning
33 Central Texas counties created an uproar
earber this month.
The congressional delegation called on
Beatue and the Fish and Wildlife Service to
hold pubbc hearings v^nen a formal proposal
IS made.
Kaufman said the agency hoped to com-
plete the proposal by the (u^ of the year.
Meanwhile, the Senate has approved a
non-binding resolution urging the Interior
Depanment to help avert a water cnsis in
San Antonio and other Texas uues served by
the Eklwards aquifer
The amendment offered Tuesday by Tex-
as GOP Sen. Kay Bailey Hutchison calls on
Interior Secretary Bruce Babbitt to allow
the issue to be resolved at the sute and local
level
The Assoaaied Press contnbuied to Uus re-
port.
127
TEXAS DEPARTMENT OF AGRICULTURE
RICK PERRY
Commissioner
Testimony
of Texas Agriculture Commissioner Rick Perry
to the U.S. House of Representatives Committee on Agriculture
Subcommittee on Department Operations and Nutrition
September 16, 1994
Qebume, Texas
Thank you Chairman Stenholm for the opportunity to appear before your
committee today.
Problems with the Endangered Species Act are not new, and this is not the
first time I have testified at this type of hearing. But it is heartening that more
and more people are beginning to recognize there are serious problems with the
Endangered Spedes Act and are listening to the concerns of Texas farmers and
ranchers about how to fix this badly broken law.
I want to begin by focusing on one of the biggest problen\s - the
implementation of the Endangered Species Act by the U.S. Fish and Wildlife
Service.
The Endangered Spedes Act began as a noble idea but it has been expanded
by bureaucrats until it is out of control - doing Uttle to save spedes but
endangering the livelihood of Texas farmers and ranchers.
The U.S. Fish and Wildlife Service, in enforcing the act, has become a
hungr)' animal with an insatiable appetite for more power.
128
Many landowners have horror stories from dealing with this agency, but
let me dte just one example. In February 1991, Margaret Rodgers received a letter
from the U.S. Fish and Wildlife Service that warned her she could be subject to
fines of up to $50,000 or imprisonment for up to one year, or both. Her crime? A
bulldozer cut a fence line across the 87-year-old widow's Central Texas ranch,
which has been in her husband's family for 60 years, and destroyed some juniper
trees. The Fish and Wildlife Service considered this destruction of habitat for the
endangered golden-cheeked warbler. Officials later admitted their letter had
been sent in error, but they requested that Rodgers contact them before clearing
any more land on her 3,100-acre Sunset Ranch in northwest Travis County.
Stories like this are not uncommon. Many credible observers believe the
current rural Texas landowner backlash against the suggested golden-cheeked
warbler critical habitat designation can be traced directly to one thing - the failure
by the U.S. Fish and Wildlife Service to provide adequate, sensible information,
in a timely manner, to those who make their living on the land and who own
the vast majority of the habitat of this endangered species.
Both Texas rural landowners and seasoned state agency biologists have
expressed frustration in dealing with Fish and Wildlife. This type of
stonewalling leads me to wonder if certain environmental groups, through
threat of litigation, are actually calling the shots at the U.S. Fish and Wildlife
Service.
This arrogant refusal to respond to the needs of the owners of habitat is
hurting legitimate wildlife conservation efforts. The Endangered Species Act has
become a major negative force for cor^ervation. Landowners are told only what
they can't do and not what they could do positively or even which of their
actions do not adversely affect species.
129
In the case of the warbler, ranchers were told by Fish and Wildlife that
grazing and other "range management practices" were harmful to the warbler,
but Rsh and Wildlife had little or no data to back up such statements.
That is the heart of the problem with enforcement of the Endangered
Species Act - decisions are made with httle or no scientific data to support them.
Two other pending endangered spedes hstings offer further proof. The
U.S. Fish and Wildlife Service is studying listing the swift fox in the Texas
Panhandle and the jaguar in South Texas, despite the fact that Texas Parks and
Wildlife Department biologists have told them scientific data do not warrant
listing the swift fox and that historical records show a jaguar hasn't been seen in
South Texas since 1948.
How is any rational person supposed to buy into logic like this? How are
Texas landowners supposed to believe or support anything the U.S. Fish and
Wildlife Service tells them when decisions which affect their ability to make a
living are based on mere suppositions that are close to biological voodoo?
Species and habitat survive today because of management practices of
Texas farmers and ranchers, not in spite of them. However, as presently
implemented, the Endangered Species Act works against good stewardship and
makes the presence of an endangered species on property a liability rather than
an asset.
Ranchers don't want to, and under the fifth amendment to the U.S.
Constitution shouldn't have to, clear their daily management decisions with
some distant federal bureaucrat. But today they must, which unfortvmately
creates a real economic incentive to destroy habitat — not because of animosity
toward spedes and not because it will mcike money — but because of a real fear of
federal control.
130
With common sense and a philosophy that acknowledges carrots are more
effective than clubs, and that cooperative efforts can better protect resources than
courtroom fights, we can safeguard private property rights and ensure that
economic development coexists with natural resource and species management.
This balanced approach is something we take very seriously at the Texas
Department of Agriculture and something we practice constantly. In fact, our
major objective at TDA is to "expand the number of opportunities for Texas
farmers, ranchers and agribusinesses to market their agricultural products, while
protecting public health and our natural resources." It may sound like an
impossible balancing act to some, but they are just the ones who do not want it to
work.
How do we carry out this mission? We do it in a variety of ways, from
strictly enforcing pesticide laws that mandate proper use of chemicals, to working
at the grassroots level with landowners and environmentalists in our
Endangered Species Pesticide Program to balance continued pesticide use with
protection of rare wildlife.
This balance also occurs in other sectors of government and in other
programs throughout the nation. For instance, the U.S. Department of
Agriculture's Conservation Reserve Program, which pays farmers to set aside
highly erodible cropland, has created a tremendous supplemental benefit of
increased wildlife numbers and provided substantial recreational and related
economic benefits to rural communities.
In Texas, we know that the populations of the endangered black-capped
vireo are on the rise at the state-run Kerr Wildlife Management Area, where
cattle grazing and brush control are practiced. How is this possible? The black-
capped vireo likes to nest in low, shrubby regrowth brush over much of the
Edwards Plateau. Regrowth, of course, is created by disturbances. Disturbances in
4^
131
the past were wildfires. Today disturbances are controlled burns and mechanical
brush control. If left alone, these stands of brush literally outgrow their
usefulness to the vireo.
Partial control of these brush tracts, properly done, can help not oi\ly this
endangered songbird, but also deer and other gan\e species as well as Uvestock.
However, as presently implemented, the Endangered Species Act works against
this good stewardship.
In the case of another famous Central Texas part-time dweller, the golden-
cheeked warbler, landowners might be able to selectively cut dense tracts of cedar
to enhance warbler habitat and their populations. However, they have been
discouraged from any such creative woodland management by the U.S. Fish and
Wildlife Service because of the inflexibility of the Endangered Species Act.
Designating parts of 33 counties in Central Texas as critical habitat will only add
more rope with which to further tie landowners' hands or hang us.
Texas is overflowing with examples of farmers and ranchers who manage
for wildlife as part of their operations. Texas is also full of competent biologists
who understand these relationships. Unfortunately, almost none of them work
for the U.S. Fish and Wildlife Service, which has rejected the counsel of
seasoned Texas wildlife scientists and managers and has instead embraced the
protectionist philosophies and flawed science of the environmentalists whose
real agenda is not wildlife protection but land use control.
To make matters worse, radical environmentalists, aided and abetted by
the more protectionist of U.S. Fish and Wildlife Service employees and indeed
the language of the ESA itself, have sought to expand the definitions of warbler
habitat to include very marginal areas, seeking to control use on as much land as
possible. They have totally blocked serious efforts by concerned state agency
personnel to provide realistic land management guideUnes to property owners
132
for over three years. Using Fish and Wildlife's "always err on the side of the
spedes" theory, nearly every acre of Texas from Cleburne to Rio Grande City
could be under consideration for golden-cheeked warbler habitat. In short,
environmentalists with thinly veiled land control agendas have manipulated
the ESA into a land-use bill, something it was never intended by Congress to be.
Instead of operating on a fear-based system, we should operate on an
incentive-based sjrstem. Like the Conservation Reserve Program, incentives can
include paying owners to set aside land for wildlife, which still generates
revenues for government. In contrast, when huge tracts of land are bought by
conservation groups, this land's tax value is greatly diminished, placing a
heavier burden on you and me.
Also, as the Endangered Species Act is written now, creative, local
solutions are suppressed by the threat of citizen lawsuits. Any fanatic who has a
"don't touch anything" mentality can file a lawsuit against a landowner, a
biologist or any state or federal agency if he or she does not agree with certain
management activities. This clause for citizen lawsuits should be removed from
the act.
We cannot stay with our current approach that makes the federal
govenunent a big, bad cop and hands it a larger club with which to threaten
everyone. We do not have enough resources to police all the private land in
Texas or elsewhere in this nation. In fact, the federal government does not have
the money to adequately manage the lands it currently owns.
And more important, this approach has already proven to be a dismal
failure, with oiJy a handful of species removed from the endangered list since
the Endangered Species Act went into effect in 1973, even though hvmdreds of
millions of dollars have been spent by the federal govenunent. It is believed by
many that some of these animals may have never been endangered or that they
133
would have recovered anywray due to other environmental requirements besides
the Endangered Spedes Act. For instance, discontinuing the use of DDT and
cleaning up industrial pollutants such as PCBs and mercury has had a lot more
to do with the recovery of bald eagles, falcons, ospreys and brown pelicans than
the Endangered Species Act.
Texas rural landowners have made clear their intention to keep fighting
for reasonable solutions to the Endangered Species Act. The Act simply does not
work. Adding more restrictions and regulations will not fix it, but will in fact
cause further resistance among rural landowners.
Legislation proposed by Representative Richard Pombo, H.R. 3978, and
Representative Billy Tauzin, H.R. 1490, to amend the current Endangered Species
Act contains important provisions which bring common sense and realism to
the implementation of the law. I urge you to favorably coi\sider these bills when
Congress reauthorizes the Endangered Species Act.
I also ask you to try incentives. Try Ustening to people who have
managed the land for generations. Try letting biologists and others work
together at local levels to come up with collaborative, creative and voluntary
solutioris for species and natural resource protection. Take the fear out of trying
new conservation activities and repeal the citizens lawsuit provision. Get the
egos of bureaucrats and enviroiunental leaders out of this debate and inject a big
dose of common sense.
Thank you.
134
STATEMENT OF STATE REP. BOB TURNER
My name is Bob Turner and I am a sheep rancher. I also represent the 73rd Legislative District
in the Texas House of Representatives. The 73rd District encompasses seventeen counties in an
area that is slightly less than twenty-thousand square miles. I serve as Chair of the House
Natural Resources Subcommittee on Mitigation of Property Rights and the Propaty Rights Task
Force of the Texas Conservative Coalition. I would like to share with you some of my concerns
with the proposal to designate critical habitat for the Golden-Cheeked Warbler (GCW), as well
as my concerns with the Endangered Species Act as cunently enforced.
At a joint hearing of the Texas House and Senate Natural Resources Conunittees earlier this
week, Mr. John Rogers of die U.S. Ensh and Wildlife Savice (USFWS) made a statement to the
effect that there was not now, nor has there ever been a proposal to designate critical habitat for
the GCW. If this is indeed the case, why did the Service print informational pamphlets on
critical habitat that include the language "Critical Habitat will be proposed to include habitat that
is needed for a viable population in each region."? I believe that the Service intends to proceed
with this designation despite its assurances to the contrary. If it is not, the Service sta^ wasted
a great deal of the taxpayer's money on pamphlets to explain something that they had no
intention of doing.
Mr. Sam Hamilton of the USFWS Austin office and Mr. Rogers have both stated that if critical
habitat is designated, only the actions of Federal Agencies will be affected. They also claim that
private property owners will not be negatively affected, and that "normal ranching activities" will
be allowed to continue. I want to see in writing what they consider to be normal ranching
activities. Also, federal money equals a federal agency as far as the enforcement of the
Endangered Species Act (ESA) is concerned. Can you tell me how many people that you know
of that are involved in agriculture that have never had any contact with ASCS, SCS, ADC, or
the USDA? And for homeowners, FmHa and the FDIC are federal agencies as well. AU of our
state agencies receive federal funding, from Texas Parks and Wildlife Department to the Texas
Department of Transportation. So to say that this will only affect federal agencies is an
understatement to say the least
My legislative district contains seven of the thirty-three counties mentioned in the critical habitat
pamphlet, therefore my interest in this issue is keen. 1 have also found out that my district is
home to other species listed as endangered or threatened. In many cases the people who live
with these creatures have no idea of their existence or their protected status. For this reason we
should not allow ourselves to become too preoccupied with the critical habitat question. To focus
excessively on the designation of critical habitat would do this issue a disservice. Even if the
USFWS does not follow through with its own plans to designate critical habitat for the GCW,
any area that currently contains GCW(or any other federally-listed species) habitat is already
subject to the restrictions of the ESA.
The only reason why more Texans haven't had firsthand experience with the ESA can be
attributed to the lack of adequate USFWS staff in Texas. Their enforcement activities are limited
to what evidence they can find by flying over large areas of private property and to information
provided by citizen complaints. In the areas where there has been significant enforcement
activity such as in Travis County, instances of conflicts are numerous and well-documented. If
the act only affects federal actions, then why have I seen letters fi-om USFWS to our constituants
135
that threaten them with fines and prison unless they cease brush clearing on their land
immediately?
People with similar experiences testified before the panels which I chaired. Their testimony
paints a picture of a Federal Agency that considers only the endangered species and its habitat
None if very little consideration is given to the human and economic costs involved. The ESA
in its cunent form requires this type of policy. Until we change the Act and the way it is
implemented, I believe we will have more and more conflicts between the ESA and the taxpayers
who provide for its enforcement with their hard-eamed tax dollars.
From what I have seen it appears that the ESA will eventually affect every landowner in Texas
in one way or another. As more species are listed and more enforcement activity is necessitated
by lawsuits from environmental groups, we will all have to pay. If not directly, via the loss of
the use of our property or its devaluation, then through flie increased costs incurred by state and
federal agencies that are forced to jump through the elaborate set of hoops specified by the
Endangered Species Act as it is currently written and enforced. It gets especially complicated
when you involve state and federal agencies that possess the power of condemnation and are
required to mitigate more and more with each project Thus it appears obvious to me that people
will increasingly be run over by the ESA with or without the GCW critical habitat designation.
This is a very complicated issue that does not lend itself very well to a succinct format There
are so many other areas that need to be discussed, debated, and evaluated. There is an incredible
information gap that exists between the regulators and the regulated. We need accurate and
timely information as to what these policies are and how they really affect us. I don't believe
that we are being told everything, and what little information that we have was hard to come by.
I invite you to look through the testimony we received this summer and make your own
decisions. I am sure that you will join in me in the conclusion that this Endangered Species
policy is not acceptable and must be changed to reflect the proper role of the private landowner.
Anything less cannot and will not work, and will accomplish little towards the expressed purpose
of the conservation of rare species. What little progress will be made in that area will only be
accomplished at great expense to our freedoms and our property.
136
Testimony of Representative John R. Cook
Texas House of Representatives
60th Legislative District
September 16, 1994, Cleburne, Texas
The proposal of the U.S. Fish arui Wildlife Service to designate a substantial
portion of the State of Texas as critical habitat for the golden-cheeked warbler is for
most Texas citizens an act comparable with those of the British leading to the "Boston
Tea Party".
As farmers, ranchers and other rural citizens we appreciate and understand
the need to protect ovir environment and the wildlife on our property. We have left
brush along creeks and other areas, plowed less than to the boundaries of our fields,
and built stock tanks and ponds to provide wildlife protection even to the extent of
loosing some grass for livestock or reduced the potential return from our crops. In
the conservation plans we have developed both iiidependently and with the Soil
Conservation Service there have been economic reasoning included within ttie
planning, because the wildlife either provided additional himting income, recreation
or opportunities to appreciation of wildlife in their r\atural habitat.
The proposals of the Fish and Wildlife Service were not presented or proposed
to be alternatives, but as marxdatory restrictions of land \ise when we otherwise
participated in good conservation planning through other agricultural programs.
Prior history of regulatory agency actions lead us to believe that restrictions on use
xmder the facade of the Endangered Species Act would be nothing less than a taking
of private property. The constituents of my district are not ready to give up their
ItjtraiUajrte 1
137
property or have burdei^some restrictions on the use of their property imposed by a
federal agency that has not considered and does not consider the economic Impact of
regulatory mandates.
The proposals regarding the golden-cheeked warbler no matter how
distasteful/ are not in my opinion, the entire problem that we face today, but a
manifestation of the rising frustration with the extended hand of federal agencies
attempting to regulate without makii\g a full review of the effect and economic costs
to the citizens and small businesses within our country. Whether we are dealing with
the "little bird", the EPA, the Clean Water Act, the proposed amendments to expand
ttie Outstanding National Resource Waters program or any other federal mandated
regulatory program, each of you in Congress must understarui that you are
Individually held accountable, as those of us in the Texas Legislatvire, for the
authority you extend to agencies under your jurisdiction to promulgate rules and
regulations. We must have some common sense in federal progranxs which balance
property rights and economic costs with the need to protect the environment, wildlife
and even endangered species. We are looking to you to see that action is taken hold
2dl federal agencies to more realistic standards and to assure us that they do take a
true look at the costs and balance them with your intended goals before you
authorize their actions.
138
TESTIMONY OF
TEXAS STATE SENATOR BILL SIMS
I am Bill Sims, Executive Secretary of the Texas Sheep & Goat Raisers'
Association. The Texas Sheep & Goat Raisers' is an organization of sheep
and goat producers who raise sheep and goats in Central, South Central and
the Trans Pecos regions of Texas. Most of these ranchers also graze
cattle along with native deer herds and other wildlife and exotic animals.
In fact, the wildlife on these ranches is treated as part of the ranching
enterprise when determining the grazing rates for various pastures.
Seven deer are considered as a single grazing unit, as are seven goats, five
sheep or one cow.
When developing a conservation plan for our ranches, all sorts of wildlife
are considered. When brush work is done, normally brush is left in various
configurations to protect the wildlife, game animals and birds as well as
the songbirds. Songbirds benefit from management practices - water
distribution, feeding of livestock and game animals, and range
improvement. I mention this to let you know we care about wildlife as we
do our domestic animals. We are not opposed to helping little critters.
What we are very concerned about is the Federal government's taking
control of private property. The proposed establishment of a 21 million
acre, a 900,000 acre or even a ten acre critical habitat on private land is
preposterous. Please consider the following points.
1. There is no doubt in my mind that this procedure would be an act of
"taking" of private property without compensation.
139
2. There has been no determination of the population of the supposedly
threatened birds. Without this knowledge, how can proven critical habitat
be set aside? This would be like buying a ranch for an unknown number of
goats.
3. There is no history of the numbers of Golden Cheeked Warblers in
1 890 or 1 900, etc. Without this information there is no way to determine
whether or not the population is going up or down.
4. The Fish and Wildlife Service has no information at all about what
happens to the birds during their winter migration into southern Mexico
and Central America. There is speculation that their numbers are being
reduced by various means in their winter nesting area. If this is the truth,
what can we do?
5. There is no doubt that the cowbird is reducing the numbers of Golden
Cheeked Warblers. The director of the Kerr Wildlife Management Area
testified in a public hearing before a Joint Texas House/Senate Natural
Resources Committee that by trapping cowbirds they were able to
increase the numbers of Golden Cheeked Warblers and Black Capped Vireos
by a meaningful amount.
6. If the U. S. Fish & Wildlife Service should choose to declare a
critical habitat, even though they have NO biological support, there should
not be any private land used.
140
There are ample State and Federal lands available. There are over 300,000
acres of State lands - State school lands, Parks & Wildlife areas. Lower
and Upper Colorado River Authority lands, county parklands and others.
This does not even include available Federal lands - military areas,
national parks and wilderness areas, etc.
In closing I urge that you leave private property rights alone orget
ready for the fight of your life!
141
REMARKS OF JOHN ROGERS
REGIONAL DIRECTOR
SOUTHWEST REGION
U.S. FISH AND WILDLIFE
TESTIMONY BEFORE THE HOUSE COMMITTEE ON AGRICULTURE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS AND NUTRITION
FIELD HEARING-Cleburne, Texas
SEPTEMBER 16, 19SM
INTRODUCTION
Mr. Chairman, thank you for the <q>poitunity to speak to you, your colleagues, and the public
today about the possible designation of critical habitat for die golden-cheeked waibler and what
that could mean to farmers and ranchers in Texas. I hope that I can lay to rest some fears about
what such a designation would mean.
i
My message today is that the ESA contains the flexibility Aat we need as a country to protect
species and their habitat and to respect values and rights of citizens. These may at first seem
to be in conflict However, I believe that Congress wisely did not give us a rigid Act; it gave
us an Act that has as its motivation a grave concern for vanishing speaes and their habitat in
our country, but that allows us to take into account the needs and desires of the human
community. I
I have organized my remarks into three parts. The first part is a brief overview of the
Endangered Species Act and critical habitat. I realize that any law or regulation not encountered
on a r^ular basis dm be confusing and this will give us some common ground. I will then talk
about what farmers and ranchers can expect if there is a designation of critical habitat for the
golden-cheeked warbler. Lastly, I will discuss some of the ways private landowns.rs have
worked with the Service to protect species and derive benefit firom their lands.
First I want to clari^ a point of some confusion. The Service has not proposed critical habitat
for the golden-cheelxd warbler. We are still analyzing the biological information, and I expect
that we will make a decision on how to proceed in the next two or three months.
THE ENDANGERED SPECIES ACT AND CRITICAL HABITAT
The Endangered Species Act of 1973, as amended, states its purposes clearly: 1) to provide for
conservation of the ecosystems that support endangered and threatened species, and 2) to provide
a program of conservation. . .of such species. Section 2 of the Act declares that it is the policy
of C(Migress that all Federal departments and agencies shall seek to conserve endangered and
142
threatened species and shall use their authorities in the furtherance of the Act. Section 10 of the
Act was amended in 1982 to encourage partnerships between the Federal government and private
landowners and local and State governments when land use activities could result in incidental
take of listed species. The 1982 amendments established a habitat conservation plan and permit
program to help private landowners use their land while complying with the legal requirements
of the ESA.
Section 4 of the Act requires the Secretaries of Interior and Commerce to determine whether
species are threatened or endangered based on careful consideration of the best available
scientific and commercial data.
Section 4 also requires the Secretaries to designate critical habitat as a conservation tool to
further protect a listed species. The term "critical habitat* means:
o The specific areas within the geographical area occupied by the species... on
which are found those physical or biological features... essential to the
conservation of the species and... which may require special management
consideration or protection; and
o specific areas outside the geographical area occupied by the species... upon a
determination... that such areas are essential for the conservation of the species.
Regulations (50 CFR 242.12) list such things as space for individual and population growth,
food, water, cover, shelter, and breeding and rearing sites as components to be used when
determining critical habitat.
Section 4 requires the Secretary to designate critical habitat to the maximum extent prudent and
determinable at the time a species is listed. If critical habitat is not determinable at that time,
it must be designated to the maximum extent prudent within an additional year. The Secretary
has discretion in determining whether a designation is prudent and whether critical habitat is
determinable.
Critical habitat is not considered to be prudent when one or both of the following situations
exist:
0 The species is threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of such threat to the
species, or
o The designation of critical habitat would not be beneficial to the species.
Critical habitat is not considered to be determinable when one or both of the following situations
exist:
143
o the biological needs of the species are not sufficiently well known to permit
identification of an area as critical habitat.
The Secretary also may evaluate the existing conservation measures and management protection
afforded a species under Section 7 (consultation) and Section 10 of the Act and decide that given
the existing level of protection, the designation of critical habitat would provide no additional
benefit and thus is not prudent.
When the Secretary designates an area as critical habitat, the designation must be based on the
best scientific data available after also considering any economic or other relevant impacts of
specifying particular areas as critical habitat.
The Secretary may exclude any area from critical habitat if he determines that the benefits of
exclusion outweigh the benefits of specifying such areas as part of the critical habitat. The only
exception to this is when the failure to designate such areas as critical habitat would result in the
extinction of the species concerned.
What Could Critical Habitat Mean
As I mentioned earlier, the Service has not proposed critical habitat for the golden-cheeked
warbler. We are now weighing the possible contribution critical habitat designation could make
to conserving the species. This includes evaluating existing conservation measures and
management activities, such as section 7 consultations with Federal departments and agencies
and conservation agreements and section 10 habitat conservation planning with private land
owners, local government planning entities, and the State of Texas. In addition, the Service is
not and never was considering designation of 33 counties as critical habitat. The entire nesting
and rearing habitat of this warbler lies within those 33 counties. Our best estimate is that of the
millions of acres in these 33 counties, no more than 800,000 acres are suitable for the warbler's
nesting needs. The Service is looking at how much, if any, of that 800,000 acres should be
designated as critical habitat.
Critical habitat does not direcUy affect land ownership or land use. However, as the Service has
noted from the outset, there are ways in which this designation can impact a private landowner.
Federal agencies are currentiy required to consult with the Fish and Wildlife Service if an action
of that agency may jeopardize the continued existence of a listed species. Usually we think of
this in terms of some direct action such as logging timber on National Forests. However,
whenever there is a Federal involvement, the requirement to avoid jeopardy applies. For the
land owner this means that if a Federal department or agency makes a subsidy or issues a permit
to a landowner, that agency must determine whether that action may affect the survival of a
species. If so, the agency initiates consultation with the Service to determine whether the action
144
is likely to jeopardize the species' continued existence. The consultation may involve the
applicant for the permit or subsidy as a participant.
In the event that the action is found likely to jeopardize the continued existence of the species,
reasonable -and prudent alternatives are explored to the action as originally proposed. Those
alternatives would avoid or minimize the impact to the species. In some cases, this could mean
that the landowner may have to re-site or re-scale the action that triggered the need for a permit
or subsidy. If critical habitat is designated, then the consultation process that currently exists
must also consider whether the action is likely to destroy or adversely modify the designated
area.
The Service has received inquiries from ranchers and farmers in Texas who were worried that
the designation of critical habitat for the warbler would result in prohibition of certain ranching
practices. The Service provided guidance to the ranching community that ongoing ranching
practices are not likely to have a significant impact on this species.
MTNTMIZING INCONVENIENCE
The Secretary has said that the government has an obligation to treat all citizens reasonably, to
minimize inconvenience, to apply regulations in the least intrusive and most thoughtful way, and
to construct habitat conservation plans that impose the least burden on private lands. I agree.
What follows are some of the approaches that we use:
o The most obvious approach is to use, wherever possible, public lands for habitat
necessary to protect an endangered species. Sometimes public land is sufficient. In
other areas where it is not possible provide sufficient habitat protection on public lands
alone, it is still possible to use a core of public lands for reserves and impose lesser
restrictions on private lands. We attempt this approach whenever feasible.
o Another approach to habitat conservation is the concept of mitigation. Developers or
residential subdivisions pay a mitigation fee which in turn goes into a fund used to pay
for conservation measures on lands managed for a species. This allows development to
go forward while securing habitat elsewhere. In concept, this fee is no different from
a lot assessment to finance water, sewage or playgrounds or other infrastructure; in each
case, lot developers are paying to create common benefits for the community.
o In some instances, a few thoughtful, constructive changes in our approach to land
management will suffice. For example, to protect habitat of the red-cockaded
woodpecker in Georgia and Florida, the Georgia Pacific Company worked out a timber
management plan under which logging crews are trained to spot the woodpecker trees
and leave small buffer zones that affect less than one per cent of the timberlands.
145
o In other cases, particularly where there are larger landholdings it is possible to
accommodate development by working with local governments to create density transfers
which allow more dense development in exchange for protecting open space. This
concept is being used by the Champion International Corporation in eastern Texas.
Champion set aside 2000 acres for the red-cockaded woodpecker and is in the process
of translocating subadults to that site. Champion will continue to harvest timber within
its management area while red-cockaded woodpecker populations should increase.
0 Here in Texas, we have an opportunity to explore voluntary conservation planning
through the Rural Conservation Planning process. Private landowners, working with the
State of Texas and the Service, may be able to reach an accord on voluntary land holder
implementation for the preservation of the golden-cheeked warbler's breeding and rearing
habitat.
1 would like to close with a positive vision of what we expect can be done to work with private
landowners under the Endangered Species Act.
First, we recognize that the Fifth Amendment to the Constitution does protect private landowners
from regulatory actions that deprive them of all reasonable uses of their land, and it is the
Service's policy to steer well away from such regulatory results.
Second, the Service, wherever possible, will work to locate the burden of habitat conservation
on public lands, to use mitigation techniques, to work with local governments to create new
values where habitat conservation has impacted existing values, and in appropriate cases to
consider exchange or purchase with willing sellers.
Finally, the Service is seeking improved methods in its implementation of the Endangered
Species Act to respond to the needs of individual small landowners in the use and improvement
of their property. We will explore and use the flexible provisions of the Act that are available
to protect the incomparable biodiversity of the American landscape and to accommodate the
reasonable use and development expectations of landowners.
I believe that the Endangered Species Act enables us to do both, and we will continue to work
with landowners, and state and local governments, to meet the expectations that Congress has
entrusted to us.
Thank you for this opportunity to provide this testimony. I would be happy to answer any
questions you may have.
146
statement by Harry W. Oneth, State Conservationist
Soil Conservation Service (SCS)
United States Department of Agriculture (USDA)
SCS Testimony before the House Agriculture Committee
Subcommittee on Department Operations and Nutrition
Cleburne, Texas
September 16, 1994
Mr. Chairman, Members of the Committee, Congressman Geren,
and Congressman Edwards, I am Wes Oneth, State Conservationist
for USDA-Soil Conservation Service (SCS) in Texas.
I am pleased to have this opportunity to discuss the
activities of SCS in Texas regarding the golden-cheeked
warbler. Today, I will limit my remarks to Texas generally
and specifically to the Edwards Plateau Major Land Resource
Area (MLRA) . The Edwards Plateau is commonly referred to as
the "Texas Hill Country."
Our agency offers technical assistance to ranchers and other
landowners in restoring, maintaining, and enhancing their
rangelands and related grazing lands. As part of our agency's
mission, we help private landowners achieve total resource
management of their soil, water, air, plant, and animal
resources in an ecologically and economically viable manner.
Our assistance is available in every Texas county through
local units of government known as soil and water conservation
districts (SWCDs) . SCS technical assistance is requested and
provided on a voluntary basis.
For nearly sixty years, we have been assisting landowners in
the Edwards Plateau and elsewhere in Texas to develop resource
conservation plans for their ranches and farms. An
environmental evaluation is routinely performed as part of the
planning process on every farm or ranch we assist. SCS in
Texas was among the first to employ professional, college-
trained range conservationists and wildlife biologists. Since
the late 1940s, we have established ourselves both nationally
and internationally as a recognized technical leader in range
science and range management. Our agency pioneered the use of
quantitative ecology on rangeland. Land use of the Edwards
Plateau is primarily rangeland.
Since 1948, we have been inventorying the vegetation of this
and other range areas of Texas. Those inventories, along with
soils mapping and classification, the results of range
research, and other natural resource information have been
integrated into county level field technical guides for our
use in assisting individual landowners. Among the information
in our local technical guides is a description of the natural
potential plant communities which occurred in those counties
147
at the time of European settlement. Since the Edwards Plateau
is located in much of the area being considered as critical
habitat for the golden-cheeked warbler, it is important that
we examine the original plant communities which characterize
this area of Texas.
VEGETATION OF THE EDWARDS PLATEAU
This area naturally supports plant communities ranging from
desert shrub vegetation in the west to a mixed oak savanna
with tall and mid grasses in the east (TAES, 1975) . Mid and
short grasses and an abundance of low-growing woody plants
characterize the natural potential vegetation in the west.
Oaks (primarily liveoak) in association with mid and tall
grasses characterize vegetation in the central and eastern
parts. In the past, the savanna ranged from nearly open
grasslands with scattered trees to oak stands interspersed
with grasses (USDA, 1981; Buechner, 1944). In the late 19th
century, firewood on the Plateau was so scarce that wooden
telegraph poles were replaced with metal poles to keep the
telegraph poles from being burned. Forbs were in great
abundance throughout the Edwards Plateau.
Historically, ashe juniper (commonly referred to as " cedar")
was restricted to rocky canyons and escarpments (Bray, 1904;
Wilson, 1950) . Throughout the region, brush species like
juniper are generally considered as "invaders" with the
natural potential vegetation largely grassland or open savanna
(TAES, 1975) . Reduced burning of the savanna, prolonged
droughts, dissemination of juniper seeds by birds and mammals
and overuse of climax forage plants by livestock have
contributed to the spread of juniper over an area much greater
than that of the original coverage (Bray, 1904; Pulich, 1976).
The fact that juniper has spread from escarpments and steep
slopes to flatter slopes and deeper soils is well documented
in historical accounts dating back to the 17th century
(Inglis, 1964) as well as by modern brush inventories. These
areas where juniper and other woody species have encroached do
not represent the preferred natural habitat of the golden-
cheeked warbler (TPWD, 1989) .
IDENTIFICATION AND DESIGNATION OF ORIGINAL GOLDEN-CHEEKED
WARBLER HABITAT IN THE EDWARDS PLATEAU
Biologists and ornithologists with various public agencies and
universities differ in their beliefs concerning specifics of
golden-cheeked warbler habitat (Pulich, 1976; TPWD, 1989;
Mauro & Cox) . Most, however, seem to agree that mature
juniper trees occurring in mixed stands of deciduous hardwoods
are essential for optimum habitat. The original habitat would
have occurred in those areas naturally occupied by mature
juniper with some deciduous cover. That is, on steep slopes
148
and escarpments. An exact estimate of the original amount of
habitat is nearly impossible to obtain (Pulich, 1976) . When
we examine historical records and inventory data, however, it
is apparent that the amount of original habitat in relation to
the size of the entire Texas Hill Country was quite small
(Bray, 1904; Buechner, 1944; Wilson, 1950; Inglis, 1954).
ACTIVITIES OF THE SOIL CONSERVATION SERVICE
In working with our State's rangeland owners and operators,
SCS employees help evaluate the ecological status of rangeland
plant communities. We express this status as range
condition. Simply put, range condition is a measure of the
rangeland 's current plant community compared to its natural
potential. Excellent condition represents 76-100 percent of
potential; good condition, 51-75 percent; fair condition 26-50
percent; and poor condition, 0-25 percent. From our latest
inventory (1992), 82 percent of Texas rangeland is in poor and
fair condition. Rangeland in this condition often erodes at
excessive rates. Further, the lower successional stage of the
existing plant community has produced a subclimax vegetation
type which uses available rainfall at excessive rates.
The unmanaged spread of juniper and other brush species has
contributed to the lowered condition of Texas' rangelands. An
onsite range inventory serves as an essential tool in helping
rangeland owners evaluate the ecological potential of their
range resources. These inventories are the basis of resource
conservation management systems presented by SCS employees to
range managers and landowners for their consideration in
restoring and maintaining their natural resources.
Ultimately, the decision for resource management remains with
the landowner.
As part of our continuing process of updating our technical
guidance, we worked two years ago with the U.S. Fish and
Wildlife Service (USFWS) and the Texas Parks and Wildlife
Department (TPWD) to develop interim guidelines for
identifying golden-cheeked warbler habitat and determining
acceptable conservation treatment. The brush management
component of our interim guidelines are consistent with brush
management standards and specifications used previously by SCS
employees. Our conservationists received field training in
identification of golden-cheeked warbler habitat from USFWS
and TPWD biologists in 1991 and 1992 at the TPWD's Kerr
Wildlife Management Area. Our interim guidelines are a
working tool for trained SCS employees only.
149
MANAGING HABITAT AND OTHER RESOURCE NEEDS
Ranchers in Texas have long recognized that conservation
treatment applied to one part of the ranch affects the ranch
as a whole and may have impacts beyond the borders of the
ranch. Effective range management and profitable ranch
management likewise are inseparable. Just as resource use and
economic viability are not independent, neither are the
habitat requirements for individual endangered species. This
can be seen in an example from the Edwards Plateau. Five
aquatic species are currently listed as threatened or
endangered. These are dependent upon spring flow from Comal
Springs and San Marcos Springs. In contrast, the golden-
cheeked warbler utilizes juniper as part of its habitat. But
juniper, as a species, is a large user of available water.
Its encroachment and increase in density significantly reduces
water yields to the aquifer system. As a result, the habitat
needs of the terrestrial and aquatic species appear to be in
conflict. The connection between terrestrial habitat for an
endangered bird species and the aquatic habitat in the spring
systems must be recognized if a balanced management plan is to
be developed for the ultimate protection of the species in
question. It must also be recognized that humans are not the
only users of water which is available to recharge the
underground system.
As discussed earlier, brush and noxious woody plants have
increased on most Texas rangelands. Scientific authorities
have documented that juniper and other woody species use
available water at a substantial rate while providing very
little direct benefits to the natural range ecosystem. This
connection and the balancing act done for us long ago by
"Mother Nature" in the Edwards Plateau is not always
understood.
The Soil Conservation Service does not provide financial or
technical assistance that knowingly leads to the destruction
of habitat for a threatened or endangered species. SCS
assists landowners through technical assistance to achieve a
sustainable use of their natural resources, compatible with
conserving threatened and endangered species habitat. In
keeping with the Endangered Species Act, SCS technical
assistance encourages landowners to manage their rangeland in
a productive, yet environmentally sensitive manner.
150
SUMMARY
In summary, the Soil Conservation Service in Texas is doing
its best to present a balanced approach in helping landowners
achieve total resource management of their soil, water, air,
plant, and animal resources. This includes balancing the
resource needs of endangered species like the golden-cheeked
warbler with the resource needs of other species: aquatic,
terrestrial and human. It is the policy of the Soil
Conservation Service to comply with all federal, state, and
local laws.
Mr. Chairman, this concludes my remarks. I will be glad to
answer any questions.
151
References;
1. United States Department of Agriculture. Soil Conservation
Service. Agriculture Handbook 296. Washington, D.C. December 1981
156 p.
2. Texas Agricultural Experiment Station. Texas Plants: A checklist
and ecological summary. MP-585. College Station, Texas. January
1962. 112 p.
3. Humphrey, Robert R. Range Ecology. The Ronald Press Company.
New York, New York. 1962. 234 p.
4. Pulich, Warren M. The golden-cheeked warbler: a bioecological
study. Texas Parks and Wildlife Department. Austin, Texas 1976.
172 p.
5. Inglis, Jack M. A History of Vegetation on the Rio Grande plain.
Bull. No. 45. Texas Parks and Wildlife Department. Austin, Texas.
December 1964. 122 p.
6. United States Department of Agriculture. Soil Conservation
Service. Grassland Restoration: the Texas Brush Problem. Temple,
Texas. June 1964.
7. Westmoreland, Gary K. The Texas Brush problem: its impact on
water quantity and water quality. Presented to: Annual meeting of
Texas and Southwestern Cattle Raisers Association, San Antonio, Texas.
March 1984.
8. Westmoreland, Gary K. Increasing water yields and improving water
quality in Texas. Presented at: Lt. Governor's Conference on Meeting
Texas' Water Needs. Austin, Texas. March 1988.
9. Westmoreland, Gary K. The Seco Creek National Water Quality and
Water Quantity Demonstration Project — Protecting and enhancing rural
and urban water supplies. Presented to: Annual meeting of National
Association of Conservation Districts. Orlando, Florida, February
1993.
10. Mauro, Garry and Edwin L. Cox, Jr. The natural heritage of
Texas. Texas General Land Office and the Texas Nature Conservancy.
11. Dugas, William A. and Ralph Hicks, Water Quality and Quantity
Implications of Land Management Practices on Seco Creek. Texas
Agricultural Experiment Station. Report to USDA-State of Texas Seco
Creek Water Quality Demonstration Project. June 1993.
12. United states Department of Agriculture. Soil Conservation
Service. Interim guidelines for identifying golden-cheeked warbler
habitat and selecting acceptable conservation treatment practices.
Temple, Texas. April 1992.
13. Department of the Interior. U.S. Fish and Wildife Service.
Threatened and endangered Species of Texas. August 1992.
152
14. The golden-cheeked warbler in Texas. Texas Parks and wildlife
Department. Brochure 4000-327. January 1989.
15. Bray, W.L. The timber of the Edwards Plateau of Texas: its
relation to climate, water supply and soil.
U.S. Bureau of Forestry Bull. No. 49. 1904. 30 p.
16. Wilson, D.G. A study of the effects of clearing ashe-juniper on
species composition and successional trends on cleared rangelands in
Kerr and Real counties. M.S. thesis. A&M College of Texas. 1950
44 p.
17. Buechner, H.K. The range vegetation of Kerr County, Texas, in
relation to livestock and white-tailed deer. American Midland
Naturalist. 1944.
153
STATEMENT BY HAROLD BOB BENNETT, TEXAS SED
AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE
U.S. DEPARTMENT OF AGRICULTURE
BEFORE THE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS AND NUTRITION
COMMITTEE ON AGRICULTURE
U.S. HOUSE OF REPRESENTATIVES
SEPTEMBER 16, 1994
Mr. Chairman and Members of the Subcommittee, I am happy to be here with you today
in Cleburae, Texas, to discuss the implementation of the Agricultural Conservation Program
(ACP) and the impacts that the Endangered Species Act of 1973 (ESA) has on the ACP.
The ESA requires all Federal Agencies, in general, to protect animals, plants, and their
habitats which are in danger of becoming extinct due to the activities of people. Under the
ESA, agricultural programs and initiatives must be carried out in ways that do not jeopardize
the continued existence of endangered or threatened species. This includes the ACP.
As most of you know, the ACP provides federal cost-share assistance to agricultural
producers to restore and protect the Nation's land and water resoiu'ces and preserve the
environment. Cost-share assistance is provided to farmers and ranchers to install conservation
and environmental protection practices on agriculmral land that will result in long-term public
benefits.
The program is national in scope and is available to all farmers and ranchers who
establish the need for cost-share assistance in solving resource conservation and agricultural
pollution problems. To panicipate, a farmer files a request at the county Agricultural
154
2
Stabilization and Conservation Service (ASCS) office for ACP cost-share assistance. An ACP
practice must be approved before the practice is started.
In Texas, the Soil Conservation Service (SCS) has technical responsibility to detennine
the needs and feasibility for most ACP conservation prJactice requests. This includes
determining the environmental impact of the proposed conservation practices. ASCS has
technical responsibility for grazing land protection practices under ACP, which includes brush
control, a practice that can affect the habitat for these birds even though it is designed to
restore the range site to the original climax vegetation.
ASCS. in cooperation with the Interior Department's Fish and Wildlife Service (F&WS),
SCS, and the Cooperative Extension Service, provide training to all county ASCS offices to
ensure compliance with the Endangered Species Act. Extensive field training in habitat
identilicalion and habiiai proieciion of ihe Golden-Cheeked Warbler and the Black-Capped
Vireo was also provided by ASCS through the Texas Parks and Wildlife Service.
When an ACP cost-share request is received in the field, it is reviewed by trained field
ofGce staff to deiernuae die potential environmental impacts of the proposed practices. The
impacts are identified and any practice that may affect a threatened or endangered species or
its designated critical habitat is, at the producers option, referred to F&WS for their review and
determination or as mandated by law, if a practice request affect."; the.se species or habitat then
the request for cost-share assistance must be denied. In fact, roughly 15% percent of the brush
155
3
control practice applications in the Hill Country are rejected because of potential impacts on
endangered species. ASCS also spot-checks determinations by field office staff to ensure
compliance with the Endangered Species Act. Wc intend for future ACP requests for brush
control be in accordance with targeting for the highest priority practices and to ensure that no
approved request will contribute to the destruction of habitat for a threatened or endangered
species.
This Agency will continue to work with agricultural producers, conservationists, Members
of Congress, F&WS, and other interested groups to identify problems or concerns relative to
conservation programs and implementation of the ESA and to develop effective solutions that
meet both our conservation and ESA goals.
This completes my statement, Mr. Chairman, and I will be happy to respond to
questions.
156
Testimony of Lowell (Stretch) Smith, Jr. before Subcommittee
on Department Operations and Nutrition; Committee on
Agriculture; U. S. House of Representatives.
Public hearing to receive testimony on the activities of the
U. 8. Department of Agriculture involving the Golden Cheek
Warbler and the impact of those activities on production
agriculture. September 16, 1994, Cleburne, Texas.
Chairman Stenholm and other members of the committee, I
appreciate the opportunity to present testimony on the
proposal of H. S. Fish and Wildlife Service to designate
parts of 33 Texas Counties as critical habitat for the Golden
Cheek Warbler.
My name is Lowell (Stretch) Smith, Jr. I am a rancher living
on and operating Smith Ranch, 2 miles west of Rio Vista, and
approximately 8 miles southwest of Cleburne, Johnson County,
Texas. I am also chairman of the Board of First State Bank,
Rio Vista, Texas. We are also known as the "Cowpasture**
Bank and have several offices in Johnson County. Our total
assets are approximately $200,000,000.
The proposal by the Fish and Wildlife Service, as I
understand it, would require permitting by the Service if \
157
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landowners desired to eradicate cedar trees from their ovn
land. Apparently these cedar trees are a special habitat and
critical to the Warbler. The clearing of cedar is of vital
importance to every rancher in this area. Cedar trees are
very detrimental to pasture land. They produce absolutely no
value to the land, such as shade, etc. As they grow, they
cover the entire ground underneath, and absolutely no grass
vill grov there. They are a menace to the rancher. I asked
an old-time rancher what impact this proposal would have on
land values. He said it would be very difficult to
determine, but if cedar tree infestation is left unchecked
for several years, agricultural purposes of the land would
be little, if any. If landowners could not clear these trees
over a period of time, depending on how infested the land
was, the only value left would be for recreational purposes.
Development or other purposes would also be hampered because
anyone developing would have to do some clearing. In other
words, for agriculture production purposes, infestation after
a certain period of time, would render the land useless for
all practical purposes.
From the viewpoint of a banker who makes loans to ranchers,
farmers, and dairymen in the area, the collateral value of
land for purposes of loans would be substantially decreased.
This would hamper the landowner's ability to borrow to buy
additional land or to obtain operating loans using his land
as collateral. If this proposal is accepted as I understand
158
It, our bank would hav« to take a much closer look at loan
requests and the appraisals that would accompany them. It
could develop into an administrative nightmare and would
raise costs to the person desiring the loan. Anytime the
government gets involved, the cost to the consumer goes up.
Finally, this is just another "taking** by the sovereign. I
have to ask, where is it all going to end? In all walks of
life and in all businesses and industry, this encroachment on
personal property and freedom continues and seems to be
moving at a faster pace in recent years.
I can take you on a 15 minute drive from my house and show
you enough cedar to take care of all the birds you can
imagine. Why isn*t this enough for this special bird? In my
opinion, there will always be enough voluntary cedar left by
landowners to properly provide habitat for the Warbler. If
this is not enough, it appears that the government could
negotiate and buy land in cedar infested areas for this
purpose — or I am sure some landowners would be happy to lease
areas to the government for this purpose. But those of us
who don't want to do this shouldn't have to have our property
"taken** by the sovereign for this purpose.
Thank you for allowing me to comment today.
159
Presented to
The U.S. House of Representatives
Committee on Agriculture
Subcommittee on Department Operations
and Nutrition
September 16, 1994
by
Mike Dail
representing
Farm Credit Bank of Texas
Mr. Chairman, members of the Committee, thank you for this opportimity to
present this testimony before you today. My name is Mike Dail. I am president of the
Federal Land Bank Association of Mason, Texas. I £im a third generation member of the
Farm Credit System and a second generation employee. My family has been farming and
ranching in Texas for well over 100 years.
The FLBA of Mason serves a three-county area in the Texas Hill Country that
falls squarely in the middle of the proposed 33 county critical habitat designation for the
golden-cheeked warbler.
Like other Federal Land Bank Associations and Production Credit Associations in
the Tenth Farm Credit District, we are the lending arms of the Farm Credit Bank of Texas
headquartered in Austin, Texas. We are all a part of the cooperative Farm Credit System
that serves the financial needs of American agriculture.
The Farm Credit System nationally has more than $54 billion in loans outstanding
to 600,000 member/borrowers. We are the largest single provider of financial services to
agribusiness in the United States. The Tenth Farm Credit District presently serves over
52,000 member/borrowers in Alabama, Louisiana, Mississippi, New Mexico, and Texas
with total loans outstanding of $3.6 billion. Our borrower/stockholders have pledged
nearly 20 million acres of private property as collateral.
Property rights and the protection of those rights are paramount to our
members/stockholders, board of directors and management. Not only is the Farm Credit
160
System in Texas concerned vsdth protecting property rights, we are also concerned with
protecting our stockholders, the natural resources and our environment. The reason is
very simple: we finance agricult\ire and the individuals and businesses that derive their
livelihood fi-om the land.
SO GOFS AGRICIJT.TIJRE. SO GOES THE FARM CREDIT SYSTEM
This axiom has been proven many times throughout the Farm Credit System's 77
year history.
All short and long term financial assets derive their value from private property.
These assets are the vital underpinning for financial stability and economic health in our
nation.
As government regulations over private property increase, two things normally
happen. (1) Productive capacity of the property decreases and the value of the property
itself is reduced. (2) When the value of the property is reduced, financial assets
collateralized by that property diminish in value accordingly.
The term "property rights" and property control are synonymous. Property rights
refer to the ability of the individual to exercise control over his or her property. It is only
through the rights to control the use of property that the individual can make the property
produce value or wealth. I might add that this ability to produce value or wealth is what
provides the tax base for government operation.
When control over someone's property is transferred by regulation or law to the
government, then the ability of the property to produce value and wealth is also
transferred to the government. In 1990 alone, over 53,000 pages of federal regulations
were promulgated restricting an individual's use of private property.
Mr. Chairman, we fear that a whole new level of government is emerging in
America. Called "government by regulation," it could very easily be called the fourth
branch of government. It functions as a law-maker. Government by regulation, though
161
unelected, has the force of law. It functions as both judge and jury in cases involving its
own rules and is the accumulation of legislative, executive, and judicial power into the
same hands. Some call this the real definition of tyranny.
The fastest growing regulatory costs are in the area of environmental protection.
If more private property falls under government control through regulation, how much is
enough and how much more can the tax paying, law abiding citizens of this country
afford?
When it was learned that the designation of critical habitat for the golden-cheeked
warbler was being considered by the Fish and Wildlife Service, we became very
concerned for our stockholders and their rights as landowners. Unfortunately, the
Endangered Species Act, as many other environmental laws, provide disincentives to
landowners rather than incentives to protect species and their habitat.
This isn't necessarily because of the laws themselves, but because of misapplied
implementation and enforcement.
The possible designation of the warbler critical habitat underscores the need to
change the Endangered Species Act.
Serious questions should be asked of Fish and Wildlife about their plan to
designate critical habitat for the golden-cheeked warbler. Landowners, through other
federal and state agencies, have for years implemented best management practices that
included managing cedar and our vast natural resources. A federal prohibition fi-om
managing cedar could harm beneficial grasslands, wildlife habitat and subsurface water.
All of these prohibitions devalue the land, restrict productive capacity, and, in turn,
reduce the collateral value of all lending institutions.
Mr. Chairman, we must not allow environmental regulations and their
enforcement to destroy property rights, land values and production techniques.
Regulations designed to protect the environment leave many owners stripped of all but
fee simple title to their property with only the "privilege" to pay taxes. The potential
162
critical habitat designation of the golden-cheeked warbler has placed a cloud on the title
of all land in the 33 county area of Central Texas.
If private property values were to shift so as to become liabilities rather than
assets, there would be neither incentive to own private property, nor to provide the
tremendous quantity and quality of goods and services that have made this nation great.
As a lender, we must make and maintain viable loans in a secured property. That
is the primeiry basis of concern over environmental laws and regulations, including the
Endangered Species Act and the possible designation of critical habitat for the golden-
cheeked warbler. If we are to exist and prosper as a great nation, we must maintain what
the framers of the Constitution clearly recognized as a need to vigorously protect private
property rights.
We appreciate the opportunity to address this subcommittee on a very important
issue and stand ready to assist is any way possible. Thank you.
163
smrwou
NBMIT flUHranr MMM » lEAtlOiti
As PkiBsident oi th« Gianbtav Bomd of Rmttms, I ivant to Oank you far
ifae time and opportunity to let you know the opinions of my fsSkw ReaUon
cxwoentinglJtepiKni^osedCdiicalHatAalfw We
as Rfidtois »» concerned for the enn^onment and
eveiy way possible.
We as Reaboks are abo concerned with the croalon of PRIVATE
PROPERTY RIGHTS of our dtlzsns. In ilie fhsi paragraph of the poMc^
sbittiemcsiit of the National Assodatton of Reoltiois, and 1 quote in part, HThe
Nafional Assodalion of Reaitois is dedicated to Hie protection and the
pseseivatton of the &ee enierpiise system and the tbg^tof the IndMldual loown
tesA piopedy as guaranteed l^the Constitufion of the United Stalti of America.*
h the McA paieasaph and 1 a^ain quote. "We b^ve ihat tiie potittcal staMily
and economic pxoqpetify <tf tte United States of Amcdch is dependent, inlai^
measuve, upon the inight of the inifividual to oum mtA miiapiaii; and to exerc^
and ei^oy the benefits of owneiship. We oppo^ undue adiom bv
QOiiManrtiBnia^ gctoups, or IndhAduidg uihieh dindinfeh o.t demy tba Cull and bee
exetdse of thb^ vg^C
The pioposed action by the United States ifish & Wddfife Satvlce to
de^gnate parts of 33 Texas Counties as a "Ciiticed Hahttaf for tiie Golden
Cheeked WaxUer \vouid cause many negaihw lesults ^md few if any peoven
164
pofifive imuUb. If what hm happened bi and arouiid Austin b any intfcaflaa
of wlwt could hi^ipen to these Texas CcMoiileskdutflnan^^ of
HoodttwcxiMhawadeuaBtstinaeftocmiKOptttyva^ Thfafnftumwoidd
bavd an adweise offset on levenuesfinm (aopeily tax^a feir local govemoKnt
WUt a leduc&m in pvcyperty values our local tax base wo«U be 8tie^
mote so dian it is now.
The 'taldnif of pdvalie ptopeacfy rights by % tanaK bitd is evan mtm
distmcfivethttnth«"ialiiD3'*ofapQ8sA]lehafailatf»ratan2flb^ V^useof
paiuaAdy owned land b further vastiicted, not only v^^
aifiected but also other lndu9tti«9 assodatBd wlft bt^Sding, n»d es^te sales,
tanning and tancUno would be affected..
As in att discussions of ofpoeSa^ vieivs some €oy»pio«nlses and solutions
should be pifopoeed by both sides. We sugi^ that th^^i PUl & WMdHfe Sendee
Inveslfeale mcHE Cutty the possfbttfy of inoenfivs loot- voluniia^
piopeity owneis iordonatkm of land fc»>paifcs, bad safu^tua^
ptQ)eds to adiieue die same lesidis as the pioposed "Cilflcai Habftat"
deaffnatkm and as an aitaniath« method ol ptesetvinei the xnzgBtaflon so loved
by th« OoUen Cheeked Waxbhnr and wtdiout ^ loe& of pe^aonal oontiol and
use of a poison's jprapetty.
H f^sh & ^^raUniiB warn allowed lo oontvol use of pexsonid pfopeity I woudd
ttugsesttiiat there ate aheac^ In eklstiaw^ in most couin^
ntuneRMU foundattons ttiat have as thdr misaiofB vaidio^ wags to pfseseive tfte
OTufaionnient, pvotect endand^ied q>edes» and ptovide ongotaig assistance and
management in their effoits. tf thew ofganizatikaw cot:dd nialte appttcalion Id
165
tiia U.S. Rsfa and VMMb Service for gnmt deflan Had wcxAI be used for limd
acQidsition s«vl devek^ment of bbd aanctuades, not only ooidd tlwiie be
stittiBs^ ocMitnol of ilie iocaiflons to best senw the pfes^watton of the types of
teoain, veQotaBon, ate. in wbich &e Golden Cheeked Waxbler Ukes to bear Us
idling, but &ese fioundafions would continue to manaeie tbe aanctuuteB. kmd
would be paid for and ttutvebv pieserve our Y»isKiJU2! pKopeity il^blB. As a
leouiiement for appnyviA of Ave ipanl anAcatton, ttie foundattoitt would need
Id be spedib in tfa^ plans to pte$etw and piotaet ttt« cmvlKMiaaent in legnd
to tngiese and egiew, pub&c aooes«, and how ttie aarictuaries could be
9ust«^i^ financially, peihaps ttmiufl^ adndttion feet, gMt
Our bdM, as Reritois, is that this enooacHroent of private pro^^
Is an ui^usthaidshlp on the fHopetiyowmeis of Hood Command Texas. WItfa
the coopeiafion of ^ of us on bodi $tdes» we can find a better way.
Tbank you a^aia foryour time and your inieieEt in ouv views bexe today.
166
Statement
Harold Chesnut
Chief Appraiser, Hood County Appraisal District
9/16/94
I would like to first thank you all for this opportunity to present our opinions and beliefs here today
about this very urgent topic. It is apparent that the positions expressed in testimony today
represent some of the most crucial basics of our lifestyle and society! It is so ironic that a very
small bird has brought us together in this somewhat emotional and controversial fashion when such
a great bird as the American Eagle has supported us for so long in our many rallies for beliefs,
positions, and causes wnth which we as a nation have sought to establish. There has always arisen
a solution or at least a satisfactory remedy fi^om these historical battles where none seemed to exist
when the lines were first drawn! I sincerely hope the goals we can all work for today in this
problem will include positive and rational movement toward a workable solution that does not
focus an overwhelming negative impact upon any single party to this issue. Some of the positions
we have heard may do just that! The basic values of the free enterprise system and the rights of
private property ownership are at stake here in this issue. Let us not be fooled into thinking the
impact upon all of us in this matter will not be very great! Today, we discuss the little warbler -
tomorrow, who knows what the issues and impacts may be! The impact of this present matter of
environmental preservation both in terms of real and potential factors is extreme to each and every
one of us! The matter is most serious indeed!!
I can certainly come before this audience today with a personal note of how the real backbone of
Texas and the carving of our raw frontier is so closely tied to the pioneering spirit and the
entrepreneurial vitality of early landowners! My Texas heritage traces to the late 1800's when my
grandfather broke horses, cut posts, and created a ranching operation from the wilderness. Times
were hard, conditions unbearable, and rewards few! The love of the land and the direct link
between wise use and retrieving sustenance prevailed! He stayed on and each succeeding
generation since has participated in the furtherance of working the land. The common thread that
binds all of Texas is this heritage of hard work to accomplish tough goals and to grow with our
experiences of learning to coax ever more from the land. Many, many families can share this
personal touch of feeling the strength we derive from the basic concept being able to develop and
operate the land independently from all others. The tremendous output of our agricultural efforts
provides stark testimony to these many individual stories! Yet, we obviously cannot rely solely
upon private histories or such personal stories to make our points clear about the strong opposition
we express toward such an approach of designating leagues of private property into specially
protected habitat! Fortunately, there are some most important other aspects that bring the realities
of what we are discussing more clearly into perspective - a perspective we feel will really disclose
the true potential impact and cost of what is being proposed.
In terms of money, let us understand that this designation will clearly be striking very prime
properties in Texas. In the thirty three county area alone, the 1992 market value was - in round
numbers - some $110 billion. The farm and ranch lands of these areas represent some 14.3% of
this figure, appraising in at $15,715,769,325. In some of these target counties, rural properties
represent 75% of the total market value of property in that county! We have already seen some
167
property values fell by a whopping 96.25% due to early effects of this habitat designation! If we
applied even a very conservative approach to the proposed impact area, the appraised figures
which show reduction are astounding! On the collective level, Texas and these conmunities cannot
afford this designation! On the individual level, the landowner knows only too well that the largest
asset they have is tied to the land. These lands are, of course in turn, tied closely to existing loans
and lie at the heart of the banking industry. Collateral, operational loans, future loans per assets,
and almost every aspect of banking will be subject to widespread disruption stemming directly
from reduced property valuations. Foreclosures, bankruptcies, financial institution failures, and
the tremendous ripple effect diminishing other local businesses may be just a few of the associated
economic calamities! None of this speaks to the removal of productive property from contributing
to the world's food and fiber formula. At a time when global pressures are very real for identifying
a stable means of survival for a continually growing population, can we really afford to tamper
with huge areas in such a fertile and producing geography?
No one wants to see a species of any kind disappear or even want for its survival! ! Throughout
history, though, there has been a constant evolution of species that come, go, or modify in relation
to survival and the conditions around them. I would say that all of the scientists put together could
not have saved the dinosaur - it was the conditions which moved toward massive change around
this creature that left the mark of extinction. The same has held for innumerable species and may
hold true for our friend the warbler some day no matter how much effort we are able to put forth.
The conditions of change are always present and their effects in terms of outcomes are always an
unknown to some extent! Throughout all of this change, man must seek the most rational
application of his abilities to have an impact in a feshion that assures his own well being alongside
that of all the other creatures striving in the same environment. We have been given the
intelligence to prevail, and the knowledge to know when we need to modify or show some restraint
for our own best interests. Now is the time to look for alternatives and reasonable compromises
rather than throw our established systems and successful practices to the' wind. This is not the time
to abandon what got us the successful status we as a nation enjoy among all others today! Private
property and fi'ee enterprise need even less restraint in today's competitive world. There are some
critical aspects to this whole thing that we need to disclose as a part of the public for\im process to
openly share all of our concerns with those to be effected by the full impact of this proposed
approach. Just as certainly, there are also some alternative approaches we should absolutely
explore before the current process under consideration even continues to get any serious attention
at all!!
I would summarize my comments relative to the many forms of impact that this major issue will
likely have by outlining issues along several lines with which we can surely all identify.
1. First, we can all appreciate the severe changes this designation of habitat will bring to
some prime properties in Texas. Productive land in femilies for generations and newly acquired
properties by individuals with fresh, innovative ideas on how to increase productivity will be taken
off the usable land list. As various uses of property becomes curtailed, desirability drops along
with property values! If there is no compensation for this new limiting set of fectors, those
property owners are directly impacted such that significant life investments are impacted which
may never be retrievable. If compensation is somehow able to be even remotely associated with
values, the personal costs wrought by the changes is still unable to be measured! Additionally, due
to converting some properties to the public domain, local areas will see many properties virtually
taken off the tax rolls. The implications of this are very far reaching for the long term well being
168
of the entire state and nation. From an appraiser's perspective, it is easy to see how land
designations along the lines of those quite possible here in this situation can calculate into the
billions of dollars referenced earlier in the reduction of appraisals. It does not take an appraiser to
extend this level of figures into catastrophically reduced tax revenues for Texas and these target
communities! None of this can take into account the destructive consequences on the personal lives
of those property owners or the long term effects of real reductions in the level of prime usable
properties! I do not believe Texas can withstand this process financially, with or without just
compensation!
2. Next, we find a great social toll is extracted for the uncontrolled designation of suitable
habitat. To divert any monies away from other social need areas at a time in Texas where many
matters are threatening our very survival is unconscionable! It requires complete focus of all
resources to imagine even minimal effects upon such social need areas as health care, crime
control, education enhancement, infiastructure upgrades and a host of other critical topics! Funds
at both the state and federal level simply have more urgent social need areas to deal with than we
currently have resources to handle! The likely legal and political battles that will ensue from
proceeding on in the direction indicated by the current approaches on this habitat matter that we
have seen will be costly beyond description! We must inspect our priorities more thoroughly
within the larger picture before we simply begin designating properties for critical habitat and
wreck havoc upon many very functional systems within our communities!
3. In terms of political impact, the issue at hand of designating critical habitat for one
species is going to have significant effect upon most all of our present societal systems which are at
least working today! Already overextended local governments will bear much of the impact of
reduced tax revenues. It is likely even then that state and federal dictates will continue to increase
expectations in a wde range of areas that local governments are required to somehow cover with
reduced monies! As property owners see the escalation of reducing their personal worth, as well
as, their alternative means to remedy the situation through creative use of private property, a
conflict at the local level politically will ensue the likes of which none of us could imagine here
today! The long-term fall out from this type of intense controversy at the heart of the American
way may never permit corrective action or a heading back in the direction of the methods that got
us here today. Surely we are intelligent enough to realize that our resources are strained to the
limits even now! To seek additional agenda items without regard for consequences is foolhardy by
us all!
In summary, the impact of the subject matter here today is potentially terminal for Texas! I do not
believe we can afford the proposition! From almost any perspective, the associated costs are so
great and the myriad of other critical need factors is so pressing, that I just cannot believe the
current approach has any merit. There has never been a time when our focus and energies as a
state and nation have ever been more importantly set upon larger key issues that threaten us all!
To divert money, time, and energy toward this issue of the Golden-Cheeked Warbler in the feshion
that we see in this process is simply going to be unacceptable to the public here in these areas of
Texas! When private property holders come to appreciate the gravity of the issues at hand on this
land designation matter involved with this little bird, we will see and hear a tremendous outcry!
When the public understands their costs in achieving progress on this matter, they will just not see
the economics of approaching it in this blanket way!
169
There are other approaches to dealing with the matter. Just as it is clearly unfair to move
roughshod through this process of reducing property rights and undermining the free enterprise
system, it is hardly fair also to expect only criticisms from those involved in making statements
without some rational suggestions for getting out of the dilemma we find ourselves in today.
Seemingly, the best solution lies in eliciting cooperation from all the parties required in order to
sustain a viable warbler population. A minimal cost is extracted from everyone to let cooperation
and coordination prevail! Blanket preservation and widespread land designations can be
substituted first by voluntary designations as bird sanctuaries as has worked elsewhere. Smaller
budget outlays for direct purchase of designated park habitat may also provide alternatives and
focus upon less costly methods. Public-private partnerships can be developed to acquire the
essential need areas without the deep damage brought on by the proposed route. Systems of
property tax credits, land bank allocations, and similar techniques defray costs away from the
wholesale designation approach. A proper search for alternatives will likely disclose several more
viable ways in achieving the worthy goals - ways in which we enlist the fiill participation and
cooperation from all parties rather than divide, separate, increase conflict, and diminish our
precious resource base!
I would implore all those involved to modify the current negatively perceived approach and
substitute instead the concept of allowing adequate time and application of proper techniques for
the development of socially acceptable and environmentally effective measures designed to assure
protection and recovery of the Golden-Cheeked Warbler. I know we can solve this matter to
everyone's benefit without an attack upon private property rights or the destructive undermining of
the free enterprise system! We just cannot let issues similar to this reduce our effectiveness or tear
into our way of life! It is only right that each community and the State be granted the opportunity
to explore alternative means to achieve the desired end! Federal intervention and more costly
government programs to administer are simply not the solutions we seek! We do not need more
restraints on how we operate our farms and ranches! In the very basic of terms, we simply need to
incorporate some of these new priorities into our continued proven management principles and
good stewardship techniques of the lands we have been blessed with utilizing in this portion of our
great state!
Thank you for your interest and this opportunity to present our opinions here today! I hope some
of these concerns will permit us all to yield in favor of more time to accomplish the objectives
through the same methods of cooperation that have always made Texas the very best place to live
and work!
(Attachments follow:)
170
171
172
Comments of Ted Lee Eubanks
before the U.S. House of Representatives
Committee on Agriculture
Subcommittee on Department Operations and Nutrition
September 16, 1994
My name is Ted Lee Eubanks, and I am speaking today on behalf
of the National Audubon Society. In November I will begin to serve
Texas as a member of the National Audubon Society Board of
Directors. I also speak today as a fourth-generation Texan, a
businessman, a lifelong environmentalist, and as a landowner in
this state. I begin by thanking each of you for the opportunity to
address the Subcommittee today on the extremely important topic
before you.
If asked to limit my comments to the two questions posed in
the Chairman's letter rather than my allotted five minutes, I would
be completed within seconds and well on my way back to Austin.
Critical habitat designation for the Golden-cheeked Warbler, in my
opinion, would not have impacted farmers and ranchers in Texas to
any measurable extent (beneficial or detrimental). Would this
designation have impacted the USDA? I would expect agency personnel
to be aided in carrying out their obligations as described under
Section 7 of the Endangered Species Act (the Act). Critical habitat
designation provides guidelines for both private citizens and
governmental agencies for where a species may or may not be found.
Nothing more.
Contrary to what has been alleged, critical habitat
designation is not a means by which the U.S. Fish and Wildlife
Service (USF&WS) expands protection for a species already listed
under the Act (such as the Golden-cheeked Warbler), nor do I
believe it to be a conspiratorial effort on the part of the federal
government and environmentalists to illegally seize lands nor
rights. The designation would have, if proposed and accepted,
offered those already obligated under the Act a description of the
species' preferred habitat and where that habitat may be found.
Nothing more.
Yet we here today know that this issue before us is far more
expansive, volatile, and emotional than implied in my answers.
Therefore I would like to use my remaining time in focusing on the
perceptions that have so inflamed many landowners in the Texas Hill
Country, and what you, as our public servants, might do to calm
these rather stormy Texas waters. I will begin by asking you to
serve all of the citizens of our splendid state in attempting to
redirect this debate back to within the parameters of rationality
and logic. Please, let's try to reattach this discourse to reality.
A few weekends ago a woman paraded before me in Austin,
carrying a poster that pictured a Golden-cheeked Warbler impaled on
a stick and the words "they taste just like chicken." This weekend
a sportsmen's club in San Antonio is hosting a fund-raiser billed
173
as a "Golden-cheeked Warbler Cook-Off." A few day's ago Marshall
Kuykendahl, of "Take Back Texas," labeled Sam Hamilton, a USF&WS
employee who I know personally to be a good and decent man, a
"thief." I appeared on San Antonio radio station WOAI Wednesday,
and one of the callers suggested that I inoculate my children with
the polio virus since it too was "endangered." And of course there
are the threats, but at least they now come by e-mail instead of
the postal service or telephone as in year's past.
Marshall Kuykendahl and kind want to take Texas back. We of
the Aududon Society want to take Texas forward. They ask for
environmental exemption; we ask for environmental equity. We
believe that all citizens have a right and obligation to shared
environmental cost and compliance, risk and responsibility,
opportunity to benefit and blame. We defend private landowner
rights, yet we also recognize that no rights in a governed society,
even those to life, liberty, and the pursuit of happiness, are
absolute. And we understand that certain natural resources, such as
air, surface water and certain wildlife, are held in common. In
this we of the. Audubon Society derive our standing in this debate
as a common, rather than a special interest, group.
The Brown Pelican, an endangered species once abundant along
the Texas coast, nested a few months ago in Galveston Bay for the
first time in four decades. The Bald Eagle, our nation's symbol no
doubt soon to be delisted due to its recovery, is now commonly seen
on East Texas reservoirs in the winter. A few months ago a
fisherman landed a tarpon four miles inside San Luis Pass in West
Galveston Bay. The Texas tarpon fishery, once world-renowned, is
rebounding, and the economic benefit that is derived from nature-
based tourism is now beginning to accrue to these coastal
communities so desperate for an economic boost. Let's not sacrifice
the environmental gains of the past three decades in one hysterical
hiccup.
In this sense and context I will perhaps stand alone among my
fellow environmentalists in supporting Governor Richard's recent
depoliticization of this issue. Although emotionally trying for me
personally, I applaud her efforts in recent days to remove this
issue from the political arena and allow those engaged in the heat
of the battle to step back and reassess their positions. We Texans
possess two defining and endearing qualities: civility and honesty.
To our state's detriment, this debate has become neither.
The Audubon Society has advocated private landowner incentives
for wildlife and endangered species management for years. We have
worked with private interests in Texas to develop programs and
protocols that marry economic, social, and environmental concerns.
Therefore I will end by reaching out all of my fellow Texans in
asking that we continue to work together for the Texas that we all
know can be, rather than the one that once was and never will be
again.
174
NATIONAL WILDLIFE FEDERATION
South Ceniral Office, 4505 Spicewood Springs Road. Suite 300. Auitin, Texas 78759 (512) 346-3934 FAX (512) 346-3709
®
TESTIMONY OF RUSSELL R. HYER
REGIONAL EXECUTIVE, NATIONAL WILDLIFE FEDERATION
4505 SPICEWOOD SPRINGS ROAD, SUITE 300, AUSTIN TX 78759-8540
before
The U.S. House of Representatives
Committee on Agriculture
Subcommittee on Department Operations
and Nutrition
Civic Center
1501 West Henderson
Cleburne Texas
September 16, 1994
In 1973, The Endangered Species Act was signed into law by President Nixon. It was then
and is today after three reauthorizations, a landmark piece of legislation. It is an
acknowledgement by Americans that we need to conserve the great natural resources of our
country and our world. The Endangered Species Act is a problem-solving statute. The
problem Is the accelerating extinaion of species caused mainly by destruction of their habitat.
Since the colonization of the Americas began, some 500 plant and animal species have become
extinct in the United States, among them California grizzly; Roosevelt elk; and passenger
pigeon. Human activity has caused at least a tenfold increase in the historical rate of
extinctions and each year dozens of species come closer to extinction while awaiting federal
protection. No responsible citizen can fail to be alarmed by this trend; no one wants to send
an animal or plant species to its doom - or even stand idly by while this occurs.
On the contrary, we are becoming increasingly aware that each extinction means knowledge
forfeited and opportunities lost - food sources never to be tapped, medicines never to be
extracted. At the same time, however, endangered species serve as environmental indicators.
As we discover the cause of a species' decline and move to reverse the trend, we usually are
identifying and removing threats to our human quality of life as well.
Just as a farmer can tell the vigor of his crop by almost imperceptible changes in the plants,
the fertility of his soil by weeds that move Into his pasture, or the health of his cattle by their
sounds and movements, the Increasing decline of species are telling us all that there are
problems with our human environment.
175
The Endangered Species Act is not solely a wildlife or a plant law, it is a human protection
law. With the passage and re-enaament of this law, we have put into place an early warning
system for our own well-being.
I like to think of it as an adjustable smoke detector. With such a device, we can adjust the
sensitivity to signal us when the first ions of danger to our health and safety are present. Or,
since it is adjustable, we can set it to ignore all warnings until the flames of extinaion
consume the safeguard. The choice is ours. Do we try to protect ourselves by heeding a
danger signal from a butterfly, a shiner, a toad, a small bird, a large bird, or a mammal? Or
do we wait until the dangers are upon us.'
The Endangered Species Act is designed with such flexibility that it lets us do all of this. It
recognizes the basic ecological principle that all living things including humans are
interdependent and the health of one species is dependent on the health of all the other species
sharing the environment. It also recognizes that humans are, for the most part, either
accidentally or purposely, responsible for loss of habitat - rhe most common reason for the
endangerment of species; and that people through their good stewardship of the land are the
only ones that can reverse this trend.
Such is the case with the golden-cheeked warbler, the only bird that nests exclusively in Texas.
This native Texan requires a very specific habitat. It requires the presence of Ashe juniper
with sloughing bark; the presence of broad-leafed species, including, but not limited to Texas
oak; Plateau Live Oak; Cedar Elm and Lacey Oak; a moderate to high degree of canopy cover
(50-100%); and relatively tall trees (height averaging over 13 feet). The bird uses the cedar bark
to build its nests in the nearby oaks. Once, it nested over a much wider area, from Mexico
to Oklahoma. However, today, it is limited to relatively few sites in Central Texas.
True, the bird leaves Texas for an extended vacation from household chores to visit the
highlands of Mexico, Guatemala, Honduras, and Nicaragua, but more than a few other Texans
do the same. Some claims have been made that it is there on foreign soil that the true
problems for this species exist. However, an article published in a recent journal of The
Cooper Ornithological Society on the wintering golden-cheeked warblers in the highlands of
Mexico clearly concluded "...its current population decline is more likely a result of habitat
losses on the breeding grounds than of changes in its wintering areas."
Because of the trends indicating a population decline, this warbler was listed as endangered on
May 4, 1990. At this time, the proteaions of the Endangered Species Act were provided the
golden-cheeked warbler, including protection against destruction of its habitats for breeding,
feeding, and shelter. The next action was taken in September, 1992, when the plan of
recovery for this bird was finalized. It outlined the tasks needed to recover the populations
of this warbler to the point when it can be changed in status or removed from the list of
endangered and threatened species.
176
Included in the provisions of the Endangered Species Act and the recovery plan are the
necessity to consider the establishment of critical habitat for the golden-cheeked warbler. This
is simply the delineation of that habitat absolutely needed for the species to survive and
recover. For a species that is in critical condition, this is the ICU, the Intensive Care Unit.
Once the decision is made to go ahead with a critical habitat designation, what happens? First
of all, the Service must look at the economic and other impacts of designating such an area.
Next, it delineates the area or areas on a map with descriptions and publishes it along with the
economic review and other pertinent facts in the Federal Register. A general notice is sent to
all appropriate federal, state, and local governments and agencies, as well as interested persons
of record. Notices are published in major newspapers. Public meetings are held. Comments
are encouraged. After all of this, a decision is made to modify, discard, or proceed with the
original plan.
So what does this accomplish? I stated earlier that back on May 4, 1990, the golden-cheeked
warbler was listed as an endangered species and its habitats were protected at that time. This
is true and will not change, whether critical habitat is designated or not.
What the designation of critical habitat does do is require that the agencies of the federal
government are, from the time of official critical habitat designation, going to be held to
a higher standard than the private land owner in Texas. Federal agencies must, after
delineation, consult with the Fish and Wildlife Service on any activities authorized, funded,
or carried out, that may affect critical habitat to ensure adverse modification of such habitat
does not occur. This ensures the aaivities of one tax-supported federal agency are not being
used to destroy what another tax-supported federal agency is trying to protect. No additional
restrictions are placed on any private landowner. In fact, if a private landowner is dealing
with one of these agencies on a potentially damaging project, it is the federal agency, not the
landowner, that is responsible for checking with the Fish and Wildlife Service.
What are then the potential effects of critical habitat designation on production agriculture?
For all existing normal agricultural praaices, I can see no impact. The normal routine clearing
of cedar or juniper scrub can be done presently. Some federal programs of assistance to land
owners for this practice are available through the Soil Conservation Service, directly in the
Great Plains Conservation Program and through the Agriculture Conservation Practices
Program. In both of these cases, the SCS has stated that they do site-by-site inspections and
will not proceed with projects that will damage warbler habitat. In short, I can see no effect
on agriculture as normally practiced.
177
This hearing and others hke it will bring the truth into the open. The Endangered Species
Act is not perfeCT. Changes are needed and the National Wildlife Federation is continuing to
work with you and other members of Congress to ensure not only proteaion for endangered
species, but to ensure a healthy sustainable environment and economy for all of us. Let's
continue to work together and not be so short sighted as to blame the smoke alarm for the
fire. A healthy environment is as much or more a necessity to sustainable agriculture, as to
the golden-cheeked warbler. Throwing the endangered species act away will benefit no one
in the long haul.
178
TESTIMONY OF MORINE H. KOVICH
September 16, 199A
My name is Morine Huepers Kovich. I have lived at 10618 Dunaway Drive,
Dallas, Texas 75228 for A2 years. As an entrepreneur businesswoman, with
clients in varied fields, my focus since the death of my husband in 1986 has been
to develop and implement educational projects for nonprofit organizations and
business, in the field of environment and possibilities we humans have to solve
our problems. I would describe myself as a flag-waving optimistic U. S. citizen,
a political independent, with a determined agenda to leave this land where I walk,
a better place, for all the children I've met and know, and all those I am waiting
to meet. I suppose because of ray longtime background in newsrooms of weekly and
daily papers, my curiosity remains to investigate, to look into things.
I do understand fear and what it can do to nearly any one of us. I also know
that misinformation can set off the panic buttons, even to the point of making us
distrust those around us, especially you fellows in Washington. We Homo Sapien
Texans do some fancy reacting if we think we're being suckered into a predicament
which we know for sure, for sure, will do us in. This is not just unique for
ranchers and farmers, newshounds, and maybe teenagers. Usually, it's about our
ownership rights. Now, we're facing some folks who've heard some gosh-awful
stories about what the Golden Cheeked Warbler will be doing to them.
In reading reams of reports, from every source I can get my hands on, my
personal belief is that the first thing to do is get the facts out: (1) We do
not know for sure just where this Endangered Species is, where he's headed or
when. However, we do know now, that preserving a species on this earth is very
important and that it just has to have its special habitat to make it. Kids teach
me that. They learn it in school. They even know what some of the subspecies are
in some of the special habitats, like in that of the Whooping Crane, for example.
(2) The government agency charged with seeing to it that our future generations
have the most of what we have now is at work.
Now, as 1 understand it, the next order of business is to determine how
that protection is affecting our farm and ranch owners. Most of our land is in
their private ownership, so it would be natural to expect that habitats, if any
remain, will be on their land. Some folks are already on the lookout for signs
of habitat that endangered species need on their own land. They are excited about
having such enrichment. And, be prepared if you see those tiny warblers, there
will be hundreds, even thousands of fellow Texans and other Americans wanting a
glimpse.
My personal view about landowners who are willing to nurture and enrich and
protect their Texas land is that we need a Ring of Honor for them. They are true
pioneers. What have we known about what our use-it-up, wasteful ways, there 's-
always-plenty-more ideas about our fragile environment? Not much! But we are
learning now. We are in the Model T years of learning about species, even our own!
Because I network with many children, I can tell you what they expect, at least
hundreds of them. Children want hope in their lives. They look to their environment
now to find some heroic story of saving a species, or finding a plant which will make
medicine. Watch their eyes when they are asked about dinosaurs, long gone. Ask even
the youngest school student if they know about Endangered Species. They know about
our problems, but because they learn that the Endangered can be saved in some
instances, they have hope. They need it, regardless of where they live and what
they face every day.
179
Morine Kovich - Page 2
Of course, I am a strong advocate for private property rights. There has never
been a moment when I doubted that 1 have that protection under our Constitution.
That's true for other folks, too, regardless of where they live.
As a journalist and one who develops public relations campaigns, getting
attention in the media is important. Sound bites in full living color are all
we can expect when what we need is an extra 30 seconds to explain what we plan
or want to do. My observation is that only when citizens start marching, even
with inadequate information of what's going on, especially if it sounds as if
the situation fits us, are some news sources shaken into coverage.
In the many reports about court cases, only a small fraction are actually
proved to have sufficient cause. In other cases, settlements are recorded.
The system works for all of us. In all my contacts with thousands of people,
we've never talked at any time about trying to place any other citizen in an
untenable position.
There are hundreds of corporations, large and small, in Dallas who are
voluntarily complying with regulations needed to clean up our city's air
pollution, toxic poisoning of water, hazardous waste. It is not easy, but
the rewards are really big for these companies — in dollars. I work with some of
these corporate leaders, taking information about citizen participation in our
environmental solutions to their home ground. Hundreds of jobs, maybe even
thousands of jobs have been developed. It is exciting to see this spirit of
cooperation. They are a part of what I call your Support Team, also. Now that
these corporations are into solving problems, the grumbling and complaints of
doom and gloom have been sharply reduced. It is the spirit of Americans at work.
All of us who work to bring equity into the land for all our remaining species
have supported legislation in Texas and elsewhere to grant tax emptions to those
landowners who manage to benefit wildlife. Interfering with any landowner's ability
to earn a living is not even a consideration, but we do know that landowners
can turn to alternative money-making endeavors because of their environmental
enhancement. The next generation will be even more enthusiastic users of such
environmental pleasures. They will know what they're looking at!
One of my first assignments as a columnist and editor took me to cover the
dedication of Texas' first chemical plant in Freeport, Texas. It was the dawn of
our chemical industry. It brought jobs galore. We had quite a peeling party at
the huge mound of shrimp served up for the media. Then came Texas City's chemical
industry. It was a grand birthing event to boost our economy. For one who saw the
arrival of the first pop-up toasters, it was heady stuff. We breathed a rarefied
air, so to speak, albeit laced, in some instances we now realize, with ingredients
worthy of a Molotov cocktail for our respiratory health. Now we're trying to solve
the problem of by-products. And not just for chemicals. I saw the first gusher
blow in at the Hastings Oil field. It would last 100 years, it was projected. What
a wild time. Sadly, our use-it-up age took it down in about 40 years to a trickle.
I know, I own some of it. And the environmental fall-out? How much salt brine
and wasted oil soaked into our groundwater can't even be imagined.
I explain all this because we Texans are working on a lot of problems. We're
pulling together on them. I know about that. Farmers and ranchers and other
land owners will learn that the alternative to protecting our treasures created some
180
Morine H. Kovlch - Page 3
costly events. Children are the benefactors of the stance we take to solve our
differences. The environment knows no boundaries, no color separations, no age
disparity. It is a meeting ground, non-judgmental, just waiting to be used in all
our best interests. If we do not use this common ground, confidence will lag
in our young. Hope, they say, FOR WHAT? In an age of nuclear waste, toxic
waters and God knows what else, these young people of this time, this place,
have a good question. I will never believe, however, that we won't come together.
I've been bitten by the hope bug myself.
Some of our best minds are pointing out some valuable truths, now that we
are learning more about our earthly treasures and what's happening to them.
Here's what Edward 0. Wilson, Professor of Science at Harvard University, wrote
in the May 30, 1993 issue of The New York Times Magazine:
"Natural ecosystems, the wellsprlngs of a healthful environment,
are being irreversibly degraded. . .When we debase the global
environment and extinguish the variety of life, we are dis-
mantling a support system that is too complex to understand,
let alone replace, in the foreseeable future.
...Despite the seemingly bottomless nature of creation, humankind
has been chipping away at its diversity, and Earth is destined
to become an impoverished planet within a century if present
trends continue.
Mass extinctions are being reported with Increasing frequency
in every part of the world... 4A of the 68 shallow-water mussels
in the Tennessee River shaols...in the United States as a whole,
about 200 plant species, with another 680 species and races now
classified as in danger of extinction."
The main cause, reports Professor Wilson, is the Destruction of natural
habitats. Close behind is the introduction of exotic organisms that outbreed and
extirpate native species.
Professor Wilson's conclusions leave cause for panic In my own life. As a
diabetic, I await a cure for this disease, along with at least 12,000,000 others.
Some farmer or rancher, some property owner in the Hill Country of Texas or other
site could be pondering the extirpation of some native species which could lead
to new pharmaceutical research, or perhaps new fibers. The keepers of such plants
would certainly find their status in a Ring of Honor. After all, the yew tree
in the Ancient Forests of the Northwest yielded taxol, now used for cancer with
much success. There is a problem, however; most yew trees have been destroyed
in clearcuttlng logging in those national forests. Do we know what makes yew
trees thrive? No, we do not. The ecosystem in the forest is much too complicated
and yields not its secrets.
Does the Endangered Species Act affect all of us? My belief is yes. Do
the majority of Americans want the Act to be fully operative. Yes, according to
a Roper Poll for the Times Mirror Magazine (April, 1994). All the kids I know
would be Jumping up and down and waving their arms: Yeaaaaaal
(Attachments follow:)
181
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REPRINT: THE DALLAS MORNING NEWS July 3, 1994 EDITORIAL PAGE
.v^
;^
Bald Eagle
Species Act played a big role in its recovery
What better way to observe the Fourth of
July than to recognize the triumphant
revival of the bald eagle, the proud emblem
of our nation? On Thursday, the US. Fish
and Wildlife Service removed the majestic
bird from its endangered species list.
, Despite its official status, the bald eagle
has had its eo'emiea. It was the frequent tar-
get of buntera in the early 1960s, often elec-
trocuted wheij nesting on power lines and
victimized by pesticides, like DDT.
rJust 20 years ago, the stately bird was
perched on the edge of extinction. Fewer
than 800 pairs werecounted in the continen-
tal United States.'Fears were that the bald
eagle might go. the way of the dodo. Today,
however, 4.000 pairs nest in the Lower 48.
• Although the banning of DDT waa an
essential first step toward rescuing the bald
eagle, the Endangered Species Act has been
largely responsible for the bird's dramatic
resurgence. Under the farsighted law, the
eagle received the environmental protec-
tion it needed to recover.
That is an important point to keep in
mind, because this worthwhile act is imper-
iled Itself right now. Critics of the 21-
year-old law want to amend it and create an
army of bureaucrats and expensive proce-
dures that would hamstring efforts to pre-
aerve endangered species.
Such socalled reforms would be terribly
shortsighted. Had they been in place years
ago, they almost certainly would have
impeded the resurgence of our national
emblem, as well as other species.
The bald eagle's flight back from the
brink of extinction is an occasion for all to
celebrate. But the real test of Coiigress' com-
mitment to preservation will come later.
La'wmakers must make sure that the Endan-
■ gered Species Act remains effective.
182
EXAMPLES OP PUBLIC OPINION SURVEY RESULTS ON ENVIRONMENTAL ISSUES (1994)
Roper Poll for Tlmea Mirror Maqazlnea (April 1994)
Q. "Most of the time, do you think environmental protection and economic
development can go hand in hand, or that we must choose between
environmental protection and economic development?"
Can go hand in hand 66%
Must choose between 25
Depends (volunteered) /don' t know 10
(percentages are rounded
to the nearest whole no . )
Q. "When it is impossible to find a reasonable compromise between economic
development and environmental protection, which do you usually believe
is more important: economic development or environmental protection?"
Environment more important
Economy more important
Depends (volunteered)
Don ' t know
60%
22
12
6
■There are differing oppinions about how far we've gone witli
environmental protection laws and regulations. At the present time do
you think environmental protection laws and regulations have gone too
far, or not far enough, or have struck about the right balance?
Gone too far 16%
Not far enough 53
Struck about the right balance 23
Don ' t know 8
Q. "Thinking now about some specific areas, at the present time, do you
think laws and regulations for (see below) have gone too far, not far
enough, or have struck about the right balance?
Gone
too far
Not far
enough
Right
balance
Don't
know
"Protecting endangered
species of plants,
animals, and insects"
"Protecting wild or
natural areas"
"Protecting wetland areas"
"Fighting air pollution"
"Fighting water pollution"
16%
51%
26%
6%
0
54
28
8
9
52
24
14
8
66
21
5
4
76
16
4
183
n. S. Poreat Service Valuea Poll (June 1994) ;
[This poll was conducted for the report "Architecture for Change : Interim
Report of the Forest Service Reinvention Team" and is found in Appendix D of
that report.]
The surveyors used a 1 to 7 ranking for the questions (one was strongly
disagree with the respective statement, and seven was strongly agree with
the respective statement) . Two questions/responses of significance to the
debate over environmental regulations and related issues are as follows:
Statement: "Threatened and endangered species In American public forests and
grasslands should be protected even if it has a negative economic impact on
U.S. citizens."
Strongly 13% 4% 7% 15% 13% 14% 34% Strongly
disagree V ) Neither (,_ ) agree
Y agree nor , Y
24% disagree 61%
Statement: "The Federal Government Should Regulate Private Land 0se to
Protect America's Natural Resources."
Strongly 15% 5% 6% 15% 13% 12% 34% Strongly
disagree ^, ) Neither ^ ) agree
V agree nor V
26% disagree 59%
184
WHO CARES ABOUT CONSERVATION?
Conventional wisdom
has it that the public's
environmental concern
peaked sometime around
Earth Day in 1990 and has
been sliding ever since.
Indeed, many pundits
claim there's a full-scale
backlash under way — cit-
ing the supposed growth
of the anti-environmental
movement and recent
environmental setbacks in
Congress and the courts.
Problem is, somebody
forgot to tell the public.
A recent nationwide
poll shows that an over-
whelming majority of
Americans is more con-
cerned about the environ-
ment than they were a few
years ago. The poll, con-
ducted by KRC Communi-
cations Research for The
Nature Conservancy,
found a healthy interest in
the environment and
strong support for conser-
vation programs through-
out the country.
For example, 65 per-
cent of respondents
thought that more land
should be set aside for
conservation and 59 per-
cent said that some restric-
tions on private property
are justified to protect
plants and animab.
"It's clear that Ameri-
cans strongly support con-
servation," says Gerry
Chervinsky, president of
KRC. "They want to leave
a healthy environment for
future generations."
— Mark Cheater
POLL: NATURE STILL A PRIORITY
Are you more concerned or less concerned about the
envirorunent than you were a few years ago?
AAore concerned 66%
Less concerned 18%
Same 14%
Don'f know 2%
Some people say we need to set aside more land for
conservation. Some say we have set aside enough
land. What is your view?
Need to set aside more 65%
Alreody set aside enough 25%
Depends on circumstances 5%
Don't know 5%
Some people say that landowners have a right to do
what they want with their land. Some say that some
restrictions on landowners are justified to protect
pbnts and animals. What is your view?
Restrictions are justified 59%
Landowners can do wfiort they want 30%
Depends on circumstances 9%
Don't know/ no answer 2%
Tele^^^one poll of tondom xtmpie of dCO Amencons nationwide, conducted
May 21-24 by KJIC CommunKS.TOra Seieorch ol Newfon, Mass, Margin
of emy plus Of minui 3 percent
SEPrEMBEH/OCrOBEK I9»«
185
STATEMENT OF JUDY PIERCE
My name is Judy Pierce. I am a veteran of the U.S. Navy with
over 20 years service, having reached the rank of Commander, and
a member of the U.S. Navy Reserves. I am a former high school
teacher, financial consultant, and am an active volunteer
educator and task force chair for the Texas Committee on Natural
Resources, an all volunteer non-profit organization that works to
conserve our nation's natural resources and is a strong supporter
of private property rights.
My family's ranch is in Bandera County in the Hill Country and
has been identified by a Texas Parks and Wildlife biologist as
containing Black-capped Vireo and Golden-Cheeked Warbler habitat.
Our ranch has supported a large family and cattle, as well as
chicken and sheep at various times since about the turn of the
century. Stories about our land indicate that for well over 70
years our beautiful, sweet springs have never run dry. Even
through the severe drought years of the 50 's.
Come on my land and find critical habitat for the Golden-Cheeked
Warbler or any other endangered animal! I welcome it. My
children, husband, I are excited to help wildlife on our land.
And I have happily discovered I am far from alone! I have
contacted the Texas Parks and Wildlife and learned that about 400
more ranchers in 23 counties of the Hill Country have voluntarily
entered their lands in our state's Private Lands Enhancement
Program. In this important program a wildlife biologist helps
ranchers and other landowners manage, preserve, and improve their
lands for wildlife. I love the program. The grasses have
improved in both quality, height, and diversity in both my high
and low meadows. I and my family have much more frequent
wildlife sightings especially of hogs, bucks (which are known to
be too few in number for healthy deer herds), jackrabbits, cotton
tails, Painted Buntings, and hawks. Our ranch has grown more
picturesque over time because there are far more wildflowers and
numbers of trees on the hillsides which I believe used to have
no chance to grow before being eaten.
I see the value of my land growing right along with the grasses
and forbs. Recently, I have had two requests to rent out the
hunter's cabin off-season to families who wanted to vacation
without hunting, I believe they wanted an escape from the city.
I love the possibilities for additional income from this as well
as from hunting leases and fishing fees which have provided
income in the past. (Today, as I speak, my husband is guiding a
bow and arrow feral hog hunt on our ranch.) I have been offered a
couple of hundred dollars a day to host birdwatchers who want to
see the Golden-Cheeked Warbler. Some of them keep lists of all
the different birds they have seen in their lifetime and they
want to add the Golden-Cheeked Warbler to their list! Talk about
186
birdwatchers! My ranch and two other ranches share the same road
and this past spring we split the cost of a solar gate because
from time to time we have found birdwatchers, hikers, and/or
tourists wandering around our lands.
However, I believe that our way of life in Bandera County is in
danger. I have seen the land destroyed all around the Hill
Country by gravel mining (Marble Falls is a good example) ,
overgrazing, clearing of the land causing severe erosion which in
turn creates arid conditions, lowering of the spring flows and
the water table, and ugly urban sprawl around Kerrville and
Austin and its attendant noise and pollution. All of which
increasingly costs landowners money directly or indirectly, and
hurts our quality of life.
Thank goodness for the Endangered Species Actl And thank
goodness there are Golden Cheeked Warblers and Black
Capped Vireos on my land. I believe that is a significant reason
that my land and the surrounding Hill Country in my area still
has springs, clean creeks, clean flowing rivers, stock ponds and
lakes with lots of fish. Under the law there is not much direct
protection, except the indirect effects of enforcing the
Endeuigered Species Act to protect the recharge of my watershed
which I share with a number of ranches in Bandera County. Last
February of this year, enforcement of the Endangered Species Act
by a district judge may have limited the City of San Antonio from
pumping the Edwards Aquifer to severely low levels which possibly
could have dried up ny springs as well as those in San Marcos.
It also may have helped prevent other ranchers with wells from
tapping into contaminated water. If the springs do dry up or
become contaminated I stand to lose everything as do my
neighbors. But, we all would lose because the Hill Country's
wild animals like deer, hogs, turkeys, quail, beaver, porcupine,
eagles, heron, ducks and tropical migrating prairie birds could
die out even though they are not now considered endangered. Is
there another place left in this country like the Hill Country? I
don't know of any, and I have driven all over the west looking
for an area with as much beauty, animal life, clean water and
air, little population and great weather. It may, in fact, have
some of the cleanest water left in the whole state of Texas
according to the The State of Texas Water Quality Inventory by
the Texas Water Commission.
I believe, there may be great risk if the Endangered Species Act
is weakened to the point that a bird like the Golden-Cheeked
Warbler becomes extinct before we find out if it is an indicator
species. Rachel Carson, in her book Silent Spring, taught us that
birds have been known since the first half of the 1900's to be
good indicators of severe threats to our health in our
environment on a broad scale and in specific cases, such as in
mining operations, because of their biological sensitivity. What
could it mean, on my ranch, for instance, if the Warbler
disappeared? It could mean the springs dried up, for example, or
it could mean other birds could be dying, too and it could mean
187
that the larger mammals, like deer could soon die out. Or like
these Fathead Minnows [live fish presented in a glass bowl during
the hearing] which are known indicator species because they die
before a number of other water species do when they encounter
poisonous water, it could mean some sort of dangerous
contamination is present on my land. These minnows have been
raised in an aquatic testing laboratory. However, they used to
be more common in a large number of our U.S. rivers, but they are
disappearing in places. I find that alarming. In the Trinity
River of Texas, these minnows were only found in samples taken
near the Elm Fork Preserve in Fort Worth according to a Texas
Water Commission biologist who conducted a five-year study of
that river. I think this is alarming and it aay portend frtiat
could happen to the Guadalupe and Medina Rivers in the Hill
Country if their watershed habitats are left unprotected.
No one in my family has been pressured by any government
biologist or by agents of the Soil Conservation Service or the
U.S. Forest Service to stop cattle from grazing along the steep
canyons where the cedar trees are old, forming canopies, and
making a habitat for the Warbler. I have been asked not to cut
the old cedars, but I never would cut or clear anything there
anyway. The slopes of the canyons are steep and the hills are
rocky with loose soil. I am so glad to have trees and anything
else growing there to keep the topsoil in place and not bury the
springs!
I believe that as ranchers, farmers, and landowners we need to
encourage each other to take actions that demonstrate that the
majority of us are good stewards of our land and our country's
natural resources including our animal and plant species, like
the Golden-Cheeked Warbler. I believe that a large number of us
do love the land and do appreciate its value as open wild land in
today's world. I believe more of us then you might think are
voluntarily managing our lands in a way which sustains our
nation's economy. However, without strong public laws, like the
Endangered Species Act, the Clean Water Act, and a Watershed
Protection Act I believe the unique ranch life in Bandera County
is at risk.
(Actachments follow:)
188
I TECH MEMO I
THE ECONOMIC BENEFITS OF
LAND CONSERVATION
By Holly L Thomas, Senior Planner
Dutchess County Planning Department
There is a long-held belief about undeveloped land — that
even though it may be nice to look at it's not economically
productive, and that it onty really carries Its weight in the
local tax base after it is developed. Communities ingrowing
areas are finding out thai this belief is wrong. More and
more studies are showing that conserving open land and
choosing carefully those areas that should be developed is
not contrary to economic health, but essential to it.
The choice we face is not one of environment and aesthetics
versus economics, after all. Instead, the fact is that land
conservation is a sound investment. Studies comparing the
fiscal Impacts of development to Ihose of open space
protection have found that open space preservation has a
more positive impact on a communilv's economy than most
convenlional forms of suburban-style development, even
when property is preserved through public dollars.
This does not mean that open space protection should be
used as an excuse to exclude the diverse housing, scfwols.
roads, businesses, and services needed to keep a commu-
nity accessible and sound. In fact, providing affordable
housing and infrastructure and protecting open space all
involve using land appropriately and concentrating develop-
ment where it can best be served.
What the findings that land conservation is a sound invest-
ment do mean is that development is not a sure-fire eco-
nomic boon and protecting the resource base pays off.
Development that destroys community resources and nalu-
raj features is both economically and environmentally wasti-
tul. ~ ■
Economic Benefits
The following seven points indicate Ihe range of economic
benefits of land conservation.
1. Land conservation is often less expensive for
local governments ttian suburban-style devel-
opment.
The old adage that cows do not send their children to school
expresses a documented tact — that terms and olher types
of open land, far from being a dram on local taxes, actually
subsidize local government by generating far more in prop-
erty taxes than they demand in services The opposite is
true of most suburban forms of residential development. In
olher words, maintaining a subslaniial open space system
is one imporlani way of controlling the costs of government.
To cite one example, a recent study of Boulder, Colorado's
open space program costs found the following:
Average Annual Public Cost of Maintaining
Public Open Space Lands (including debt
service on land purchases and
admlnlslrallve costs) S32.^acre
Average Annual Public Cost of Maintaining
Developed and Developable Lands
S2,524/acre
Closer to home, a 1 990 study of revenues and expenditures
tor various types of land uses in Red Hook. Fishkill, and
Amenia, by Scenic Hudson. Inc. found that residential
land required $1 .1 1 to $1 .23 In services tor every dollar
□UTCHESS COUIMTY PLAINJIMIINliS OEPARTIVIENT
FEBPUARY 19S1
189
II conlrlbuKd In rivcnu*. whilt optn land required only
$0.17 In services in Amenla, $0.22 In Red Hook, end
$0.74 In Fishklll (or each one dollar conlrlbutlon.
A 1 989 study by Cornell Cooperative Extension o( Dutchess
County and the American Farmland Trust found that In
Beekman and North East, residential lands required $1.12
to $1 .36 (or every dollar they contributed, while agricultural
land required only $0 21 (or every dollar it contributed in
North East, and $0.48 (or every dollar it contributed in
Beekman.
Studies throughout the country are showing similar results.
Researchers In Wright County, Minnesota, (or example,
found that the average annual shorttall between taxes paid
and the cost o( services required was $490 (or developed
house lots larger than one acre, and $1 14 for quarter-acre
lots. The extent to which undeveloped land subsidizes
development, particularly the kind o( iarge-lol suburban
development that consumes more space than it realty
needs, is beginning to hit home.
The Scenic Hudson and Cooperative Extension studies and
others have shown that corfimercial and industrial land uses
also demand less in services than they pay in taxes.
However. It Is Important to remember that commercial
and Industrial growth encourages residential growth.
Working (arms do not.
Although the methods used in the two Dutchess County
studies do not address all variables, the magnitude o( the
dit(erences between the costs o( serving agricultural or
other undeveloped land and residential developments is
striking. Their findings agree with experience; taxes
Increase as farms turn Into suburbs.
2. Giving land conservation a high priority en-
courages more cost-efficient development
Clustering Involves grouping buildings on parts of a piece of
property instead of spreading them out In a way that
consumes the entire parcel. The concept of clustering can
be applied lo single-family detached homes as well as multi-
family or townhouse styles and non-residential uses. Clus-
ters are frequently referred to as open space subdivlsior«
because they can be designed to keep the most important
undeveloped land on a site — such as productive farm fields
or wildlife corridors — intact.
The National Association of Home Builders first docu-
mented the economic benefits of clustering in 1976. In
evaluating this tool for encouraging development and land
conservation at minimal public cost, the association found
that a sample 472-unit cluster cost 34% less to devetop than
a convenL'onal grid subdivision.
These costs vary from site to site, but follow the general
principle thai well-designed clusters — both high-density
clusters in community centers and low-density clusters of
detached units In njral areas — consume less land, require
shorter roads and pipes, and fit In better with traditional
community densities than do lh« suburt>an grids and spider-
wet» that are spreading across our landscape They also
altow for the preservatkxi of natural systems and agricul-
tural resources whose true value canrxX be calculaled.
When communities make it clear that protecting open space
Is a high priority and that unsatisfactory designs will not be
accepted, developers are encouraged — or required — to find
attractive ways to increase the cosl-etficiency of their pro-
posals.
Responsible open space protection Invohres deciding
where and how development should occur as well as
where It should not. By retaining the most Important
natural, scenic, historic, recreational, or agricultural assets,
it concentrates development where it Tits best, and leads to
better declsioru about how and where tools such as cluster-
ing should be used and where investments in roads, water
supplies, and sawers should be made.
3. Communities with well thought-out land
protection programs may improve their
bon'd ratings.
Bond ratings are measures of the financial community's
faith in the ability of a government to meet its obligalions and
manage its debts. Favorable ratings save governments
money by enabling them to raise money tor capital improve-
ments at relatively low costs. The poorer the bond rating,
the higher the interest the government has to pay to attract
investors, and the greater the chance that potential inves-
tors will place their money elsewhere.
Bond ratings are beginning
to reflect the (act that unlim-
ited or mismanaged growth
can threaten a community's
fiscal health, while land con-
servation and sound planning
can help sustain it. The rat-
ing assigned to Howard
County, Maryland, which lies
in the rapidly growing Balti-
more to Washington, DC.
corridor, is one example.
Howard County has one of
the most innovative farmland
preservation programs in the
country. It slietches public dollars by combining Installment
purchases of development rights with property tax abate-
ments.
In May, 1990, Fitch Investors Service gave the county a
AAA bond rating for the issuance of over $55 million in bonds
for capital projects because of Its record and Its specific
plans for limiting and managing growth. In its report on
the bond Issue, Fitch stales
The recently completed general plan for future county
development Is an example o( the county's superior
planning skill. A conscious decision has been made.
190
after discussions with residents and business, to
control future growth wcthin ttie county to ensure
that the quality of life continues to be desirable.
Components of the plan include maintaining a rural
character in parts of the county, adopting adequate
public facilities ordinances to require that Infrastructure
is in place before permitting development, and provid-
ing a contribution of funds to ensure that slate roads are
in a condition necessary lo provide adequate transpor-
tation access.
The report goes on to state that
an Important and unique part of the capital Im-
provement plan Is the agricultural preservation
program under which development rights are pur-
chased by the county to control growth and main-
tain the area's character.
In other words, the development limits the county has put In
place, including a farmland preservation program financed
by public dollars, enhance the county's fiscal integrity by
demonstrating the county's commitment to to maintaining
the quality of life and controlling the costs of development.
In its presentation to the Fitch Investors Service, the county
argued that because its programs lim ited the amount of land
that could be developed, they limited the amount of infra-
structure the county would have lo provide. This meant that
the county would not have to go into as much debt for
infrastructure construction, and could more easily carry any
other debt it incurred. In awarding the AAA rating. Fitch
Investor Service agreed. It acknowledged that rationally
limiting growth would be significantly less expensive than
allowing growth to continue unconstrained.
The Howard County agricultural development rights pur-
chase program won the Government Finance Officers 1 990
national award for innovation in financial management and
continues lo attract national attention.
4. Open space protection saves public funds by
preventing development of hazardous areas.
Floodplains function well as emergency drainage systems —
tor free — when they are left undisturbed. The public pays a
high price when misplaced or poorly designed development
interferes with this function. Human encroachment on the
natural flood conldors often increases the risk lo down-
stream homes and businesses by increasing the volume of
runoff and altering the flood path. The resulting demands for
cosily drainage improvements, flood control projects, flood
insurance, and disaster relief are £ill. ironically, preventable
by conserving and respecting the floodplains from the
outset. Rockland County's flreenways acquisition pro-
gram was Inspired by the county's dismay over the
costs of coping with drainage problems caused by
encroachment Into floodplain systems.
S.
Conserving land allows nature to continue
its valuable work.
Two functions that wetlands provide for free — groundwater
recharge and water purification — are lost when those wet-
lands are developed. Suffolk County's groundwater
X^charge area acquisition program was^trlggered by
public awareness (Ranincdntrolled growth threatened
the quality and quantity of the county's water supply.
The county's voters realized that protecting the ground-
water system by buying Important areas above it made
better economic sense than finding another water source.
As noted above, the ability of a natural floodplain to channel
floodwalers efficiently — for free — can cause a public emer-
gency when development gels in the way. The remedies
needed to protect life and properly after floodplains are
improperly developed are limited and costly.
Sleep slopes are another example of natural systems that
operale 6esl when left alone. Woodlands hold fragile soils
in place on steep terrain — for free — when they are left
undisturbed. Too often when those slopes are cleared fo^
development, their soils erode and clog streams, lakes, and
drainage ways. Soil is an irreplaceable resource and the
cost of dredging streams and lakes is prohibitive,
yVooded slopes also_he|p_absorb rain_waler_and_sjk)w the
raleofstormwater runoff. When too much pavement
replaces the vegetation, the costs of preventing more seri-
ous and frequent floods and of maintaining water quality
skyrocket.
6. Open space increases the value of nearby or
adjacent property.
Results of a 1 978 study of Boulder, Colorado's greenbelt in-
dicated that property value decreased by $4.20 for every
foot of distance from the public open space. More
recent studies of greenway corridor paths, park lands, and
lands under conservation easements throughout the coun-
try, in settings ranging from the most urban to rural, have
also found that access to protected open space Is a
valuable amenity In the real estate market.
7. Outdoor recreation, tourism, and agriculture
are big business.
Tourism and agriculture are vital components of Dutchess
County's economy, and both depend on the resources and
191
amenrties ihat open land-
scapes provide. Accord-
ing to the 1987 Census
o( AgncuNure. Dutchess
County's (armefs sold
$38 million worth of
agricultural products In
1987 and employed
1,500 people on (arms
and another 2,000 to
2,500 In farm-related
goods and services.
They spent over $33
million on goods and
services, which multipfied
to an infusion o( ever $ 1 00
million into our local
economy.
Tourism is also a multi-
million dollar business in
Oulchess County- Sta-
tistics from the Dutch-
ess County Tourism
Promotion Agency show
ihattourlslsspenlover
S127 million hero In
1988, up nine percent
from 1987. The agency
estimates that this rep-
resented an economic
benefit to the county o(S376 Smillion. The tourism business
employed over 8.850 persons in 1 988. one in every ten of
the county's workers.
The county's historic buildings and sites are important
tourism attractions. Many of these historic features are
linl<ed to natural and scenic settings that are relativety
unprotected. Conserving these landscapes would help
sustain the appeal of the cultural sites, thereby protecting
both their historic integrity and their economic contribution.
Outdoor recreation is a major component cf the tourism
economy, but also serves the county residents who con-
sider access to parks. Hudson River views, historic sites,
(ishing streams, forest trails, hunting areas, or rural scenes
important elements ofthe quality of lite that drew them here.
Conclusion
The value of a productive (arm field, a healthy wetland
system, or an irreplaceable scenic vista goes la; beyond
dollars and cents. It is important, however, that we under-
stand the real economic benefits o( protecting open space.
As these examples show, the benefits can range from
filtering water and channelling floods (or tree, or avoiding the
increased costs o( serving homes arranged in sprawling
grids, to attracting tourist dollarslo the region, or Influencing
the bond ratings that govern the costs of long-term debt.
Too often our communities are presented with a false
choice between economic growth and environmental
protection. Success in attaining and sustaining economic
health depends on recognizing the economic contribution
that undeveloped land already makes.
^
In cfioosing which areas should develop, and
how, we owe It to ourselves and to oor heirs
to ensure thai Important natural systems and
our most productive landscapes remain intact.
We should also provide for development that
will meet community needs (or housing, jobs,
recreation, and services, arxi insist tfiat such
development respects and complements the
values of open lands. By following these prin-
ciples, we can join the growing number o(
communrties throughout the country that
have found that a public commitment to com-
bining land stewardship with well-designed
development pays off.
€J
References
Note; Many of the concepts included here were pre-
sented in 1 979 by the New Jersey Consen/atlon
Foundation, in Open Space Pavs: The Socioenvi-
rcnpmics of Open Space Presenyation. The fol-
lowing sources were used to update, augment,
and amend the 1979 information to reflect current
knowledge and facts relevant to Dutchess County.
Anwicvi Faxnlam Tiut rvn»r»-°gl«n»1 P.iMe Coaa W»»lwqcn. PC 19M.
A/cvx. Rart^. -PMera In »w ni*»l Ijrttacaoe.' Oicn Nau* OuKiaf. 50 2*-?7.
Autunn tSaS.
BucMI. OvoKsW P. n» P^ Com r< n^ytjoer.,^ PojgMimxl*. M»: Se»fc
HudMn, Inc. 1990
C*CUaD«itylF ^ra^SoacePavr Thg Sock3env>Qnnm<3 rf Open SpgCg P-C3<n't-
rxr Manaowfv NJ New JerMv CoTBWvawn F(x«l^or\ 1979-
Ccrr*n CoecMsove ^f\n^ d Oulcnass CoiK*f •nd Ame»Scan Farmland Tf\«. Cfl»
t<Co^T.^nin^v<;^r.^f^Snr^f Tn-^ el g~>man ana Unmeant PulcncnCarM.Nfr
Ygfc. MilBrOofc. *t1 ISeS.
C^rafl Mart R, Jarv H. u^daK and Larry 0. S^v* Tha EUacls d Graartarta on
RMidenOal Prwarty Vrtvjm Soma F ,nding» on »» PoWcal Econtjrriy rf Open SpacA'
Ijr^ Economna. Vd. i4 p(y 204-217. 1978.
Crain, Jamea C. ajromnlnij w«i Aibad Bartrt. 'r^avoad E .UrriaadCoKs 10
Marntaei Op«wi Sp«a v«^v* Oavalwad. Anneied Lanrl- Baidar. CO: Pa(«lFnaf«<«
naal EstaiarOCMn Spaca. C^V d BoAJar, Ntv. 2. 19«a.
F«cnln»e»l<xSwve«.1rK. •PuHtcF«nca-TaiSyc<x=™»dN«wl»»AHo«rtCa*«r.
Marrlaral' Na-Yrrt. NY: May 22. 1990.
F» Tom llrt»nOoan5ce;-»nl,~».war.T>».P.»^-F»«alETO«eV»ltffl.Na-Y<»>.
NY: Tha Ne^noarliood Opan Sp«» Coaraon. 1990.
t llef<\«. WMTw^sian. DC Tha Urban Land Inotiw. 19«a
Lxl Oa<n Baaa-Hv Inc r^rn,<9^ SI. Planr.no Waa>w<tlon. DC: Tha
Naorvtal Aaa<»Mk>n tf Homa Skjldera. 197&
Pelara. J«in« E. ■Sav.^F«mland: Mo«.We(IM».aWaOonar J
9. PP12.17. Saplambar 199a
Ragonal Plan Asaoriafion ^-yrp-n,"' and nrear-T>T ' r*^ OpC iOKt '"W*
tt»s^ New York. NY: 19«7
Y«arVj<»nO n««la«O.»<i»x«."arryl.0r>chon.andEliabah«.Bra£««. Css«!S
»m rj»roa In rt> r^r.^t1lcK P-" VrJ^ « n^Km "jr^O 'V r,C"JfY.Wn jag:
.weCTan^«m^^«^ UA CgVar Wr P^l Maa.^>.«aa^ Ury.ari.r> d u- - "
« Amharit. I9a&
E7 HIGH STREET • POUGHKEEPSIE • MEW
YORK • 12S01 • ACOT»l aBS-SSBI
192
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
HIOLAND/ODBGSA DIVISION
SXERKA CLUB and CLARK HUBB8,
Plaintiffs,
va.
BRUCB BABBITT, Sacr«tAry of
th« interior; united states
FI8H k NZLDLirS SERVXCS:
TEXAS NATURAL RESOURCE
C0N8BRVATZ0H CONNX68ION)
CITY or SAN XtfrOHlOi
UNITED STATES ENVIRONMENTAL
PROTECTION AOENCYi
UNITED STATES
DEPARTMENT OF DEFENSE;
UNITED STATES DEFENSE
BASE CLOSURE AND
REALIGNMENT COKMISSION;
UNITED STATES DEPARTMENT
OF AGRICUI/TURSr and
UNITED STATES DEPARTMENT
OF TRANSPORTATION,
DafandantB.
CIVIL ACTION NO. MO-91-CA-069
TO THE HONORABLE LUCIUS 0. BUHTON, III, SENIOR DISTRICT JUDGE:
NOW COME th« Siarra Club and Clark Kubbs, Plaint if fa, b/ and
through thair attorn«ya of rocerd, and file this thair Anandad and
Supplaiaental Conplaint, aaaking additional r«li«f undar th«
Endanyerad Spaclea Ao« CESA"), 16 U.S.C. § 1531 at aaq. , tha
Conprahanaiva Environmantal Raaponaa, Companaation and Liability
Act ("CERCLA"), 43 U.S.C. I 9601 et a«q. , and othar fedaral
atatutas becauaa of the growing thraat to endangared ap«ci«B and
hunan water auppllea dependent on the Edwarda Aquifer.
193
On February 1 «nd May 26, 1993, this court ordared tha Unltad
States Piah and Wildlife Service ('•USFWS") to define the mlnimun
oontinuoua natural iprlnqflowa from tne Edward» Aquifer ("EdwardB")
at Conal Springe and San Harcoa Springe needed to avoid takinga of,
jeopardy to, or damage or destruction of endangered and threatened
apeciae. In reeponae to thia Court's Order, USFVfS determined that
Fountain Oartera begin to be taken when the sprin^flow from tlie
Comal Springs drops to 200 cfs, tbat the continued existence of the
species is jeopardized when cemal springflcw drops to 150 nfs, And
that tha continued axlstanca of othar species is jeopardized when
San Marcos apringflow dropa to lOO of a.
The Court also ordered tha Defendant- Intarvanor tha Tevas
Water conniaaion ("TKC") , pradeceeaor of the Tevae Natural Reaource
Conaervation Comnission ("THBcc"), to prepare a plan for regulation
of Edwards water withdrawal^ under state law that "assures that the
coaal Springs and san Marcoa Springe will, not drop below jeopardy
levalt aa defined by the ysPVS, even in a repeat of the drought of
record. ..." In response to thia Court's order, the TWC prepared
a plan and filed it by the deadline est by the Court. However,
that plan "doss not uome cloa« to providing for adequate flow."
(The Center for Research in Katar Resources, using tha Texas Hater
Developnant Board's own computer model.) Not only would the
aprings go dry In the next eevere drought, they would go dry
"probably even during a mild drought." (CRWR (1993) at p. 83.)
In ite 1993 Judgments and Findings, this Court also found
that, "even if the needs of endangered apecieo were disregarded
entirely, there is a water-quality floor below which the level of
-2-
194
the water In the Edwards should not be allowed to drop, solely for
water supply purposes. ** The court found that water-quality floor
to be essentially the same as the floor needed to protect
endangered species -- pumping must be limited to the extent
necessary to maintain adequate, continuous natural springflowe from
the Comal and san Marcos Springs at all timee. including in a
repeat of the drought of record, in order to •lininate the threat
of release of a haeardoue aubatanoe (hydrogen sulfide) into the
fresh water In the Edwards. Contamination of the fresh water by
tne migration of such haeardous substance and other pollutants
could permanently and irreversibly ruin the Bdwards as a water
supply.
In its 1993 Judgments and Findings, this court raoognlsed thet
the Sierra Club and Plalntifr-Intacvenors had delibarately dsferred
requesting more drastic relief, in hopes that responses to these
orders by the State of Texas, San Antonio and the Federal
government would result in adequate regulation of Edwards
withdrawal* by the state of Texas and the rapid acquisition by san
Antonio of adequate additional water supplies. But this Court also
recognised that these authorities might fall or refuse to carry out
thair respective duties ooncernlng the Edwards, In the absence of
stronger judicial nandatee. This court therefore provided that
Plaintiff and Plaintif f-Intervenors could seek additional relief.
In this Court's February 39, 1994 order appointing Joe 0.
Moore, Jr. as monitor, the Court found "there is no plan in affect
by any Federal, State or loosl governmental entity that adequately
-3-
195
protoata aqalnet violationo of th» E8A caused by unregulated
pumping from the Edwards Aqulfar." In th« words of this Court:
. . . Ona year after tha original Judgraant and Findinga
of Fact and Conclusiona of Law wara antared in thia oaaa,
the State of Taxas still deaa not hava in affact a
regulatory systSBi for tha Edward* Aqulfar, and tha City
of San Antonio has failed to davalop any water auppliaa
froa Bourcas otnar than the Edwards Aquifer.
February 25, 1994 Order Appointing Joe C. Moore, Jr. Aa Monitor, p.
2, n. 1.
Tha Court in ite order "strongly urged" the city of San
Antonio and th« TNRCC to act. With raapeat tu the THRCC, the Court
"strongly urged", the TNRCC to act by April 1, 1994, by aubnlttlng
by that date a corrected plan that would ba adequate avan in a
repeat of the drought of raoord.
Unfortunately, but predictably, San Antonio continues to
refuse to take any meaningful steps to ac^tuire new water auppliaa,
and the TKRCC apparently refuses to assist this Court in any way
unlasB it is ordered to act by this Court. Strong urgings by this
Court e imply are not enough to overoone the political pressures
inposed upon the TNRCC by san Antonio and others.
Aa recogni«ed by this Court, thrao major objectivea must be
achieved in order to both protect ths speaies against jeopardy and
allminsta the threat of a relaaaa of a hasardoua subatance into the
fresh water in the Aquifer:
(1) Withdrawal Regulation. Withdrawals roust be Halted to
whatever levels are needed to insure ^hat the required
Binimum jeopardy aprlngflowe (at least 150 ofs at Comal
and at least 100 cfo at San Marcos) will be maintained at
-4-
196
•CQnonio ham ia a laudabl* ob}aetlva in and of itaalf.
In thia eaaa, hov«v«r, takln? action that will avoid or
■inlaiia aoonoaic hara during major drought* will also
b«at inaura protaotion of tha llatad apaeiaa and
alinination of tha thraat of contaainatlon of tha
Aquifar — if tha ourtailamnt of punplng raquirad during
« major drought will not oauaa an doonoalc trainwraoki
thara ahould ba no raal inoantivo to try to puap aora
than tha allowabla aaounta during that drought.
Thia Anandad and Supplanantal CoMplaint aaaka additional
rallaf baoauaa of tha unlawful failuraa or rafuaala of tha Stat* of
Taxaa to Unit Edwarda withdravala aufficiantly to protact
andangarad apaciaa and huaan watar quality and quantity, and of San
Antonio to conaarva and rauaa watar and davalop altamatlva watar
auppliaa for itaalf and othara in tJia flan Antonio ragien. Thia
Aaandad and flupplamantal Complaint alao aaaka additional raliaf, to
tha axtant auoh rallaf bacovaa nacaaaary, bacauaa of tha unlawful
failuraa or rafuaala of tha flaoratary of tha Intarlar, tha
oapartnant of tha intarior ("USOOI"), usnis, Envlronaantal
Protact ion Agancy ("UflSPA"), Oapartaant of Tranaportatlon
(NU800T"), oapartaant of Agrioultura ("USDOA"). Oapartaant of
Dafanaa ("USDOO") , Unitad Stataa Dafanaa Baaa Cloaura and
Raalignnant Coaaiaaion (*<US Baaa Cloaura Coimiaaion"), THRCC, and
Ban Antonio to carry out fadaral dutlaa to avoid Jaopardiilng
andangarad apaoiaa and to allainata tha thraat of ralaaaaa into
huKan watar auppliaa of haiardoua aubatancaa.
-«-
197
THE .WAWoST;REET| journal 9/1994
Birding Trail Takes Aim
At Affluent Eco-Tourists
By MiCIIARL AU.RN
Stajf Heporter of Tmf Wai.i, Stufkt JotinNAL
Furget the Chisholin Trail.
That dusty path, wiiich led many a
rangy iunghuni to its dcniisc and ce-
mented Texas' reputation as a rough-
and-tumble, cowboy-friendly itlnd of
place, is a bit, well, passe. So Texas
tourism officials have come up with a
new route they hope will update the
state's image.
Say helk) to the Great Texas Coastal
Birding Trail.
Now, before you choke on that hard-
lack and jerky you're no doubt eating for
breakfast, have a listen: It turns out tiiat
bird watchers - or "birders," as they
prefer to be called - are some of the
more affluent travelers around. They
can have a particularly healthy impact in
underdeveloped rural areas as they flock
to catch a glimpse of the yellow-bellied
sapsucker or the roseate s|)oonbill.
And that's why the Governor's Task
Force on Nature Tourism tomorrow will
The Great Texas
Coastal Birding
Trail
Aiiglclon ^
Port Lavaca ,
Rockpoil jj.
, Corpus,
• Chiisll / "
i
198
announce plans to establish a 500 -mile
automobile louring route stretching from
Port Arthur to Brownsville. Encompass-
ing more than 50 prime bird-watching
sites, and featuring interpretive signs
and guides to local accommodations, the
trail will tie together isolated conununi-
ties along the Gulf Coast and "pump
millions of new tourism dollars into
coastal economies," according to the
Texas Parks and Wildlife Department.
But that's just the begimilng. if the
birding trail takes off as planned, offi-
cials hope to follow up with other ways of
attracting "eco-tourists," who now out-
number traditional hunters and fishers
in the U.S. Among other things, officials
would like to do a better job of marketing
such things as Texas' hiking, camping
and rafting oj)portunities.
"We have an abundance of scenic
resources," says Ted Eubanks, a Hous-
ton environmental consultant and mem-
ber of the governor's task force. "We
want to be able to compete inlernalion-
ally, not only with the states of the U.S.
but with Costa Rica and Kenya."
Still, even l)oosters concede Texas has
a long way to go m cliaiigmg perceptions
among the iiiteriiational iiaTure set- par-
ticularly given the current set-to be -
(ween central Texas property owners
and the federal government over efforts
to protect the endangered golden-
cheeked warbler.
"We've got an image problem," sighs
task-force n»en>ber Victor Emanuel,
whose Austin-based Victor Emanuel Na-
ture Tours Inc. takes birders on tours all
over the world. Many see Texans as "not
concerned about the environment"
s(ate it.self as a fiat boiing
desert." he says.
liut Texas also has a lot going for It:
I lard-core birders know the state offers
among the widest varieties of species iri
the U.S. -particularly during the winter,
when migratory birds .settle in. Indeed, a
veiy c(jn
ana the
199
recent survey o( American Birdlng Asso-
clalion members shows Texas was the
inusl-po|)nlar destination (or birding
tours in tlie 1988-1993 period.
Tourism officials hope to build on that
with the new birding trail. Slated to cost
$1.5 million by the time it is completed in
199G, the project will make existing high-
ways along the Gulf Coast more user-
friendly to birders. Signs will point the
way to local attractions, and maps will be
provided along the way. A small portion
of the stale and federal money will be
used to buy pieces of private land for
rights-of-way along the roads, so trav-
elers can pull off to the side.
The effort may seem puny, but the
revenue generated could prove signifi-
cant. In just a six-week period during
the spring of 1992, some 6,000 visitors
poured into tiny High Island, an interna-
tionally renowned bird-watching site
near Houston, spending some $2.5 million
In lodging and other travel-related activi-
ties, notes a study by Mr. Eubanks.
And Rockf)ort, a town of about 6.000
just north of Corpus Chrlsti, has practi-
cally perfected the art of "birding for
bucks," ais Mr. Eubanks puts it.
rrom late October to March, wlien
vast flocks of migratory birds settle
In and around the nearby Aransas Na-
tional Wildlife Refuge, vast flocks of
tourists come to observe them. Between
75,000 and 100,000 tourists visit Aransas
each year, providing at least a $5 million
boost to the local economy, says Diane
Probst, executive director of the Rock-
port-Fulton Area Chamber of Conunerce.
Among the biggest beneficiaries are
the boat captains who haul birders out to
see the endangered whooping cranes that
winter there each year. Bobbie Appell,
who runs Captain Ted's Whooping Crane
Tours along with her husband and daugh-
ter, says the number of customers has
200
grown lo between 8,000 and 10.000 from
less than 1,000 a decade ago, when (hey
began. At $28 a head for a three-hour
tour, (hat generates enough income to let
the owners take off half the year.
Not content merely to make money off
of whoopers, whose five-foot height
makes them the tallest U.S. bird, Rock-
port recently began exploring ways to
capitalize on the smallest of birds, too.
Six years ago, the (own inaugurated its
first Hummer/Bird Celebration in honor
of the tiordes of hunmiingbirds that zip
through in the fall on their way south.
To ensure that they attracted enough
hummers, local leaders planted a demon-
stration garden with a variety of native
plants such as Firecracker bush for them
to feast on. Then they persuaded local
residents to do the same thing in their
own gardens. Meatiwliile, nearly every-
body sets out at least a few hummingbird
feeders - ificluding the chamber of com-
merce, which sports five.
The result: The hummingbirds get as
thick as flies, and so do the tourists. The
festival, which takes place in early Sep-
tember. last year attracted between 2,700
and 3,000 visitors, wIToleft beliirid a cool
il milllon,Jl^s^Msisay^.
201
8TATEMEMT OF OLIVER B. MEADOWS.
RAKCHER. JOHNSON COOMTY SEPTEMBER 16. 1994
BEFORE THE SUBCOMMITTEE ON DEPARTMENT OPERATIONS
AMD NUTRITION OF THE COMMITTEE ON AGRICDLTURE.
Mr. Chairman, members of the subcommittee, I appreciate your
kind invitation of September 6th inviting testimony at these
hearings.
Your letter of invitation outlined the areas of Subcommittee
interest as follows:
"testimony on the activities at the state and local level
involving the golden-cheeked warbler and the impact of those
activities on production agriculture."
and - "The subcommittee is investigating how this designation
will impact farmers and ranchers in Texas".
Mr. Chairman it is difficult to be precise and avoid
speculation for two reasons:
1) The U.S. Fish and Wildlife Service states that at this
time it has no proposal to designate critical habitat areas, and
2) The U.S. Fish and Wildlife Service is reviewing draft
guidelines on what can and can't be done on property considered
endangered species habitat. The state administrator of U.S. Fish
and Wildlife Service is quoted as saying he hoped to release the
guidelines by the end of August. That has not been done.
In view of these circumstances, Mr. Chairman we do not know
what areas may be designated as critical habitat and what
restrictions may be placed on those areas.
Page 1
202
Because of the lack of important and pertinent information we
must resort to considerable speculation.
To learn as much as I could I contacted the Texas Parks and
Wildlife Department and had lengthy discussions with their resident
biologist expert on the golden-cheeked warbler. He confirmed that
no draft guidelines are available and said that he and others in
his department are working in cooperation with the U.S. Fish and
Wildlife Service on guidelines.
The resident biologist also said that no geographic areas of
critical habitat had been designated.
I discussed with him at length the problem of designating
areas.
He said there was no definitive census or count as to the
number and location of golden-cheeked warblers in the 3 3 counties,
but that it is estimated there are about 1,500 pairs, remaining.
He said that he conducts an annual survey of State Parks and that
the bird is present in the Meridian State Park, the Dinosaur State
Park in Sommervell County and has been located as far north as
Possum Kingdom. I asked about the Cleburne State Park and he said
that when the lake was built it destroyed most of the habitat and
that there had been no recent sightings.
Since the resident biologist assisted the U.S. Fish and
Wildlife Service in preparing its Recovery Plan for the golden-
cheeked Warbler I questioned him at length about procedures for
habitat designation.
Page 2
203
He confirmed the information that appears in most scientific
publications that the habitat of the golden-cheeked Warbler is
primarily in old stands of the Ashe Juniper which we know locally
as the blueberry cedar. He further confirmed that the old Ashe
Junipers should be in wooded areas containing live oak, shumard oak
and other trees. He said that to make attractive nesting area
there should be from 60% to 80% coverage in the upper story forest
cover. There is considerable other information available on
nesting and breeding habits, food supply, etc.
Mr. Chairman this leads me to one of the critical areas that
you are considering, that is -
"the impact of critical habitat designation on production
agriculture" . I am going to speak principally about Johnson County
and the northern end of the known nesting area of the golden-cheek
Warbler.
Johnson County has three major soil groups, the blacklands,
which make up the eastern third of the county, the East Texas Cross
Timbers which occupy the central portion of the county, and the
Grand Prairie that makes up the western third of the county. The
Brazos River and its brakes are on the western edge of the county
and that is where the Ashe Juniper occurs.
Ashe Juniper does not grow on the blacklands. It does not
grow in the sandy cross timbers. It is native in this area in the
Limestone hills, canyons and river bottoms of the Brazos and its
tributaries.
Page 3
204
The problem for production agriculture is that Ashe Juniper is
a strong and vigorous encroacher.
Originally, it did not occur on the Grand Prairie. It was
kept in check by fires and the thick cover of tall grasses. In the
early nineteen hundreds almost all of Johnson County was farmed in
row crops, cotton, corn, and oats. The remaining pastures were
overgrazed.
When the cotton economy ended in the 40 's most of western
Johnson County reverted to grass but the tall grasses were gone.
Fire could not be tolerated to burn the pastures and the Ashe
Juniper moved out of the Brazos brakes and started to encroach on
the prairie. This touched off a 50 year battle to contain the Ashe
Juniper and keep the land usable for farming and ranching.
In passing let me say that there is an extremely efficient
method of spreading the Ashe Juniper, the blueberry cedar. It is
spread by another bird, the Robin. Each year thousands of Robins
migrate through Central Texas and spend about six weeks in the
Brazos brakes eating the berries of Ashe Juniper. They roost there
at night in the shelter and go out on the prairies during the day
to feed and digest and drop the blueberries of the Ashe Juniper.
This process is constantly reseeding the prairie with Ashe
Juniper and as a result keeps land owners fighting to keep their
lands from becoming a cedar thicket.
Now we come back to the original problem. What part of the
Ashe Juniper growth might be declared "habitat", and what
restrictions would it place on the land owner.
Page 4
205
I discussed this problea in detail with the resident biologist
and he was frank to say that he did not think cedar bushes and
clumps out on the prairie were suitable habitat, for the golden-
cheeked Warbler, but on the other hand did not know what nethod
might be used to designate habitat. It is this unanswered question
that it causing so much anxiety among land o%mers.
If a line was drawn that included a band about 10 miles wide
east of the Brazos River because that area now has Ashe Juniper
which has encroached along fence rows, in small clumps, and
scattered bushes and land owners were told they could not cut the
Ashe Juniper or the seedlings that occur annually it would be
disastrous to production farming and ranching in western Johnson
County.
If the habitat designation is confined to old growth Ashe
Juniper occurring in the canyons and braJces of the Brazos and its
tributaries it would be a different matter.
In short, Mr. Chairman the critical question for the conmittee
should be, who will draw the lines designating habitat and what
will be the criteria. As of today we do not know the answer to
that question:
I obtained a Fact Sheet from the U.S. Fish and Wildlife
Service that contained the following question and answer.
"Does critical habitat prohibit specific private actions,
change land ownership, or alter private property rights? - answer -
Page 5
206
"No. Critical habitat only applies to private citizens if an
activity planned for their land requires Federal authorization of
funding or is carried out by the Federal government."
In plan English this means Mr. Chairman that habitat
designation has no impact on private land use and ownership unless
the land owner applied for Federal assistance or funds. A typical
case would be an application for funds from the Soil Conservation
Service to clear land. That would require clearance between the
Soil Conservation Service and the U.S. Fish and Wildlife Service
There is a potential conflict between two Federal Agencies in
the designation of habitat for the golden-cheeked Warbler.
For over 3 0 years the Soil Conservation Service has supported
a program of eradication of encroaching Ashe Juniper. Ranchers and
Farmers have signed agreements with the Soil Conservation to keep
their land free after it was cleared the first time. If land is
declared habitat and cutting of Ashe Juniper is prohibited the
policy could be in direct conflict with an agreement made by the
land owner with the Soil Conservation Service.
The Wall Street Journal on September 7, 1994 characterized the
problem as follows:
"- the Feds don't provide any consistent guidelines as to what
the regulations will and won't allow; investigations are typically
launched after a landowner does something that might be a
violation. "
Mr. Chairman, now that this matter is on the table, Federal
agencies owe the public two things:
Page 6
207
1) A draft of clear and concise guidelines as to how habitat
designation would affect a landowner, and
2) A clear and concise territorial map showing the specific
boundaries of the proposed designated habitat areas.
Anything this subcommittee can do to force the appropriate
Federal agencies to face up to these responsibilities would
certainly contribute to the solution of this problem.
In the final analysis saving the habitat of the golden-cheeked
Warbler will depend on the cooperation of the landowner. Federal
and state agencies should approach the problem with that in mind.
Page 7
208
SCHUTTS LAND &> CATTLE COMPANY, INC.
Roure 1, BOX lis
LIPAN, TUMS 7(463
S17.$99-8224
ROBERT SCHUTTS E. ALAN SCHUTTS
RANCH HEADQUARTERS
•17-530-SOM
I am a full time rancher and landowner in Parker County, residing
between the communities of Brock and Lipan.
In my opinion, the whole environmental Issue of federal responsibility
to preserve biological diversity and manage land use has become so
polarized that both sides have lost perspective.
The Endangered Species Act is a different animal now than it was when
1t first became law In 1973. The species have become pawns In a much bigger
game, and now the private property owners are becoming pawns In that same
game.
It is frightening to see the popular and financial support given to
' large organizations who openly oppose development and certain types of
agricultural practices, including cattle ranching. Just as the endangered
species has very little choice In his habitat, many of the ranchers In this
33 county area have very little choice In their management techniques if
they hope to survive.
I for one would oppose any type of financial renumeration for any
landowner or operator who Is negatively affected by this program for two
reasons.
1) Fanners and ranchers in my community have been paid off, signed
up, and regulated enough by the federal government. If this is just
the tip of the Iceberg, as so many fear, then the people making laws
and enforcing laws have got to show some sensitivity to a dwindling
way of life in rural America that Is still necessary to keep food on
the tables In town.
2) I oppose financial renumeration as possible solution because I
realize that it is not THEY paying US, we are they, and I do not want
my tax dollars spent dictating management practices In a huge scope
of circumstances under the pretense of preserving a species that
cannot adapt.
After the real devastation of the dust bowl. President Roosevelt
attempted to regulate farming practices to prevent another disaster. It
didn't take him long to realize that It would be impossible to set rules
and enforce them from one location when each circumstance was so varied.
His attempts failed, and he formed the soil and water conservation districts
made up of grassroots people Involved in agriculture in their respective
areas and elected by their peers. The federal soil conservation agency was
to act in an advisory role to give technical assistance to the districts.
That kind of approach has proven that It can work. Extension services or
even new grassroots organizations that work with the government to educate
and aid in helping producers make changes that benefit all of us can work.
A centrally located E.P.A. approach with threats of frightenlngly large
fines or prison terms for non-compliance will only serve to unite rural
agriculture and private landowners in a revolution that they cannot win
and nothing positive will come of it.
209
before the
Subcommittee on
STATEMENT
of
ROBERT JOE JACKSON
House Committee on Agriculture
Department Operations and Nutrition
September 16, 1994
Mr. Chairman and Members of the Committee, my name is Robert
Joe Jackson. I'm a fourth generation rancher from Stephens
County, Texas, and am currently County President of the
Stephens County Farm Bureau, President of the Caddo Wildlife
Management Association, and District Director for the Texas
Sheep and Goat Raisers Association. My family settled in
Stephens County in 1891
R
that a
res tr i
suppos
s i ght i
habi ta
contro
other
betwee
more a
h i s tor
loss 0
warble
anch
fed
ct i 0
ed 1 y
ngs
t" f
1 of
habi
n 1 i
cres
y so
f ha
r' s
ers in my area are concerned and even angered,
eral agency would attempt to impose more
ns and regulations on our daily operations,
to protect a bird which I know of no verified
in our county. This designation as " critical
or the golden-cheeked warbler could restrict our
noxious brush--namel y Ashe juniper-- or to do
tat improvements which I always try to balance
vestock and our native wildlife. There are many
of mature Ashe juniper in our area than in recent
many people have a hard time believing that the
bitat in our county is the golden-cheeked
probl em.
Since ranchers started using modern range management
methods in recent years, our carrying capacity for both
wildlife and livestock has increased. In fact wildlife
numbers and diversity, as well as plant variety and quality,
has improved markedly in recent years. Techniques of range
management including controlled burns, chemical herbicide
applications, and mechanical brush control has put the land
in much better condition than a generation ago.
Before our area was settled, periodic wildfires
controlled many of the invading plant species that we now
have a problem with. We have just recently learned again,
how to use fire to improve range condition. When burning is
210
modern
In recent years, farmers and ranchers have seen
production input costs and taxes increase at a much faster
rate than commodity prices. In fact, with the loss of the
wool and mohair incentive program and the restriction we
have on the use of many herbicides, insecticides, and
predator control, farmers and ranchers have seen a decrease
in their net i ncome .
Farmers and ranchers in Stephens County have, in
general, enjoyed a close working relationship with the Soil
Conservation Service and the Agricultural Stabilization and
Conservation Service. Services provided by these agencies
are appreciated. We realize that benefits we receive such as
assistance in construction of erosion control structures and
seeding of old fields to native vegetation come with certain
obligations to the landowner. We are willing to fulfill
these requirements and understand the necessity of doing
so. However, in the case of many federal mandates, we are
unable to see what benefit we receive for complying. In
fact, it becomes evident in most cases, that we are paying
the cost for a benifit received by someone else. Our ability
to pay these costs are diminished with every regulatory
burden .
In addition to our direct cost, we wonder how much it
will cost in terms of the loss of other services. Will other
agencies be allowed to make recommendations to us relative
to management practices? Will SCS be able to recommend how
to increase carrying capacity? Will the Texas Parks And
Wildlife Department be able to give advice on land
management practices to enhance wildlife habitat? What will
it cost to run their recommendations past another layer of
bureaucracy before they can offer us help? Who, ultimately,
will pay these cost? These are just a few of the questions
which have been raised by this proposal which concern me and
my nei ghbor s .
Many producers in our area must rely on outside income
to survive the really tough years, whether caused by market
forces or severe weather conditions. Some of this area has
oil and gas production which has helped many landowners by
royalty payments and by carrying much of the local tax
211
Mr. Chairman, I have no problem with the simple
protection of an endangered specie, however I don't believe
congress's intent when it passed the Endangered Species Act
was to enact central government planning by some mid-level
bureaucrat to^ control the daily lives of private property
owners all over the USA. Many people believe as I do that
many of these designations have been made not to protect a
specie but to gain control of private property by the
federal government .
Thank you for your interest in this issue and I hope
Congress will take a closer look at how many agencies are
interpreting and implementing the bills you have written
such as the Endangered Species Act.
212
TESTIMONY FOR PUBLIC HEARING REGARDING
GOLDEN CHEEK WARBLER
CLEBURNE CIVIC CENTER
SEPTEMBER 16, 1994
HONQRi^BLE CHfilRMON STENHOLM, CONGRESSMEN GEREN, EDUfiRDS, PMC
BhRTDN. thank you for INVITING ME TO ADDRESS THIS IMPQRTfiNT ISSUE
AT THIS PUBLIC HEARING.
MY NAME IS JACK MOORE. I AM A BUSINESSMAN AND CATTLE RANCHER
1^J EASTERN JOHNSON COUNTY. I SERVE AS THE VICE CHAIRMAN OF JOHNSON
COUNTY SOIL AND WATER CONSERVATION DISTRICT. I AM A MEMBER OF TEXAS
AND SQUTKUESTERN CATTLE RAISERS ASSOCIATION AND NATIONAL CATTLE
RAISERS ASSOCIATION AND SERVE ON THE PRIVATE PROPERTY RIGHTS
COMMITTEES. ALSO, I AM THE IMMEDIATE PAST PRESIDENT OF THE
CHAROLAIS ASSN. OF TEXAS, AND THE CURRENT VICE CHAIRMAN OF THE
A^^ERICAN INTERNATIONAL CHAROLAIS ASSOCIATION. I HAVE BEEN INVOLVED
IN AGRICULTURE MOST OF MY LIFE.
ON BEHALF OF LANDOWNERS IN THE JOHNSON COUNTY SWCD, I BELIEVE
THAT THE U.S. FISH & WILDLIFE SERVICE'S PROPOSED CRITICAL HABITAT
DESIGNATION FOR THE GOLDEN-CHEEKED WARBLER WILL HAVE A NEGATIVE
IMPACT ON PRIVATE PROPERTY RIGHTS, LAND VALUE, AND PRODUCTION
AGSICULTURE-
FURTHERMCRE, IF THE APPLICATION OF THE ENDANGERED SPECIES ACT
IS CARRIED OUT WITH THE GOLDEN CHEEKED WARBLER, IT WILL PROVE
DI5;:>STR0U3 FOR PRIVATE LANDOWNERS AND CITIZENS OF JOHNSON COUNTY
ANI CENTRA,^ TEXAS. FEDERALLY SUPPORTED LAND SALES AND IMPROVEMENTS
WILL BE INHIBITED. IT WILL FUTHER REDUCE POTENTIAL BUYERS OF LAND
AND 3R DEVAl-UE THE PRICE TO AN UNACCEPTABLE LEVEL. IT WILL RESTRICT
3«N£R DECISIONS ON IMPROVING RANGELANDS SUCH AS BRUSH CONTROL,
213
CONSTRUCT I ON OF FENCES, NEW PENS ftND C0RRPL3, STOCKPONDS «ND
OTHER IMPROVEMENTS. IT WILL RESULT IN LOWER TAXES DUE TO LOWER
PRQLUCTIVITY OND LAND WfiLUES. CONTRIBUTION OF PRODUCTION
fi3RICULTURE TO THE GNP WILL BE SIGNIFICANTLY REDUCED. fiGRICULTURE
IS ALREftDY DEPRESSED PND HAS A SHAKY FUTURE DUE TO HIGH PRODUCTION
COST AND LOW PRICES RECIEIWED. LAND OWNERS WILL BE VULNERABLE TO
THE WHIMS AND CHANGES OF THE FEDERAL GOVERNMENT. THIS WILL
INCREASE FEAR AND DISTRUST. LANDOWNERS BELIEVE THIS IS JUST AN
EXCJSE FOR THE GOVERNMENT TO START TAKING OVER THEIR PRIVATE LANDS
AND USAGE. WE DO NOT NEED ADDITIONAL GOVERNMENT REGULATIONS.
THE LOCAL USDA SOIL CONSERVATION SERVICE OFFICE ASSISTS
LANDOWNERS IN THE JOHNSON COUNTY SWCD ON NEEDED CONSERVATION
PRACTICES, INCLUDING BRUSH CONTROL, IN AN ENVIRONMENTALLY SAFE
MANNER. CONSERVATION ACTIVITIES OF SCS AND THE DISTRICT HAVE
A VERY POSITIVE IMPACT ON OUR ENVIRONMENT AND PRODUCTION
AGRICULTURE. BRUSH CONTROL OF CEDAR IS MAINLY ON RE6R0WTH CEDAR THAT
IS RE-INVADING PRODUCTIVE RANGELANDS. MATURE CEDAR, OCCURRING
PRIMARILY ON STEEP SLOPES WITH SHALLOW SOILS IS GENERALLY MAIMTAINED
FOH WILDLIFE AND AESTHETICS.
I
WE BELIEVE THAT THE CONSERVATION ACTIVITIES OF SCS AND
SWCDS ARE BENEFICIAL FOR LANDOWNERS, PRODUCTION AGRICULTURE AS WELL
AS THE GOLDEN-CHEEKED WARBLER AND ITS HABITAT.
UE CAN CO-EXIST WITHOUT THE U.S. FISH AND WILDLIFE SERVICE BURDENING
US WITH CRITICAL HABITAT DESIGNATIONS.
THANK YOU FOR ALLOWING ME TO ADDRESS THIS COMMITTEE TODAY ON
OUR VIEWS IN JOHNSON COUNTY TEXAS.
214
statement by John L. Merrill
Burnett Ranches Professor, Texas Christian University
Member of the National Steering Committee for the
Grazing Lands Conservation Initiative
before the
U.S. House of Representatives Committee on Agriculture
Subcommittee on Department Operations and Nutrition
Cleburne, Texas
September 16, 1994
Thank you for holding this hearing on the golden-cheeked
warbler, such a critical issue that affects thousands of Texas
citizens, thousands of Texas acres, and multi-millions of dollars
in productive income and tax base.
My great grandfather came from Georgia to ranch in Kendall
County, Texas, in 1856. My grandfather removed the family to
Somervell County in 1872, and we have ranched under the same
brands ever since. These are two of the 33 counties being
considered. I grew up working in the cedar brakes of Somervell
County, which even in my father's memory had been plains of grass
without any juniper. As one who has spent most of his life
living on, producing from, studying, teaching others about, and
caring for rangeland, I deeply appreciate your interest in this
marvelous resource, the people, animals, and communities it
supports .
The Western Gulf Region of the USDA, Soil Conservation
Service with headquarters in Fort Worth, Texas, undertook and
published in 1948 the first-ever brush inventory performed on
Texas and Oklahoma rangelands . This inventory documented the
invasion of juniper and other woody species onto once luxurious
grasslands.
215
Some have blamed greed of early ranchers for degradation of
rangelands, when almost invariably it was lack of knowledge that
led to decline. The science and art of rangeland management has
been developed only in the past 50 years. With this knowledge
provided by SCS technicians through locally governed Soil and
Water Conservation Districts, using information developed by
federal and state experiment stations and the ranchers and
technicians themselves, dedicated ranchers voluntarily made
tremendous strides in brush suppression, grazing management, and
restoration of rangelands during the 1940 's, 50 's, and 50 's.
Progress has been slowed in the past 20 years by reduced
technical assistance available for grazing lands and by the
increase of production costs over prices received that has
reduced capital available for needed improvements. During recent
years, brush encroachment, especially by juniper, has taken over
abandoned cropland fields and continued to invade rangelands.
I want to return to those points, but first to step back in
history for some documentation. Writing in 1846, Ferdinand
Roemer, father of Texas geology, described the vegetation just
west of present day New Braunfels, Texas. Roemer says "An open,
grassy plain, broken only here and there by brushwood and
scattered live oak trees, spread out before us. It extended to
Mission Hill about two miles distant and we had to follow a
narrow Indian trail to reach it... From its (Mission Hill) summit
one has a panoramic view of the surrounding hilly country, which
is almost barren. Only here and there a sparse growth of trees
216
is seen. This view impressed me as being more nearly an original
wilderness than any other place I have ever seen in America."
The Mission Hill panorama described by Roemer had been
greatly modified by the time SCS range conservationists performed
their brush inventory in 1948. B.W. Allred, chief of the
regional range division, wrote in recording the results of the
survey: "Two short grasses, buffalograss and curlymesquite, and
numerous weeds have replaced the "high grass" that Roemer
referred to. Ashe juniper, also called blue-berried cedar,
migrated from its original canyon habitat and is interspersed on
the uplands with live oak, mesquite, hackberry, cactus, and a
variety of invading underbrush. This range is less than half as
productive as it was when Roemer saw it over one hundred years
ago . "
Roemer ' s is not the only account documenting that much of
the area occupied today by cedar was once devoid of it. The
earliest traverse of what is now Medina County was evidently made
in 1691 by Spanish explorers. A diarist, Manzanet , recorded the
Teran expedition's journey 14 miles north of D'Hanis to the
northeastern boundary of Medina County. Prior to reaching
present Seco Creek, they had been traveling "over level country
without any trees." As they approached the creek, they "reached
a mesquite woods and observed some cedars." Further travel
across Medina County to the northeast revealed no other presence
of cedar. Today, the same area has been invaded by many other
woody species, including ashe juniper (cedar). Early 20th
century Texas scientists like Foster, Krauss, Leidigh, Bowman,
217
and Bray have all dociimented the invasion of the Edwards Plateau
and other prairie regions of Texas by juniper and other brushy
plants .
From these and other accounts it is absolutely clear that
the original extent of juniper suitable for warbler habitat was
extremely limited to steep canyons and escarpments, a tiny
fraction of the area invaded since and now considered for
designation as warbler habitat. There certainly is no ecologic
basis and certainly a disproportionate economic and social cost
to designating more than the small original acreage of juniper as
critical warbler habitat. Whatever number of warblers that area
would support would indicate the original number of warblers that
ecologically should be saved. That acreage and number of birds
may be no more than the parks and other public lands already set
aside.
A second reason to limit the area designated to let grow up
in juniper is that cedar is a vicious invader and competitor with
other plant and animal life. If allowed, the canopy of juniper
will close with almost complete ground coverage, unlike other
invading shrubs. The severe competition for light and moisture
plus a heavy leaf fall and slow decay virtually prohibits growth
of other vegetation, and provides poor habitat for other kinds of
wildlife, almost no forage or browse for domestic livestock, nor
recreational experience for people.
I give this background because one of the areas of dispute
among golden-cheeked warbler researchers and laymen alike is the
habitat of the warbler, both its nature and its extent. The
218
recovery plan for the golden-cheeked warbler published by the US
Fish & Wildlife Service in 1992 points out the significant
difference in opinion of researchers like Pulich, Kroll, Morse,
and Ladd in published works prior to 1990 versus opinions of
Wahl, Pease and Gingerich, and others appearing in unpublished
reports. Those published works prior to 1990 generally agree
that the golden-cheeked warbler is an "edge species," preferring
habitat along grassland/woodland interfaces. On the otherhand,
the unpublished reports favor large blocks of unfragmented
woodland as preferred habitat. From reading the recovery plan
discussion, one can only conclude that USFWS does not know and/or
has not determined what constitutes critical golden-cheeked
warbler habitat.
There are a couple of other items in the recovery plan that
demand attention. First, it is astonishing that the US Fish &
Wildlife Service says that endangered species recovery plans are
exempt from the National Environmental Policy Act (NEPA) process.
It is hard to believe that anyone would consider a recovery plan
not to be a major federal action, and I hope that policy
statement will be carefully investigated by congressional staff
for legitimacy. Second, the recovery plan for the golden-cheeked
warbler lists as its first needed action: "Studies of golden-
cheeked warbler population status and biology, ecology, habitat
requirements, and threats on the breeding ground and in the
winter range and along their migration corridor." If we do not
already know most of the answers to these items, then it is
highly questionable that this species merits endangered species
219
status. It is obvious that the cart is way out in front of the
horse .
I dislike even constructive criticism without concrete
suggestions for improvement. Not only the warbler issue, but a
host of others occur because the present Endangered Species Act
is fundamentally flawed in concept and implementation. It should
be replaced with legislation that is carefully constructed,
science-based, ecologically and economically sound, and with
strict respect for constitutional private property rights.
Provisions should include:
1. Careful determination of which species are in natural
decline that cannot reasonably be halted and which declines
are caused by human activity with reasonable hope for
survival in nature by appropriate action.
2. Thorough investigation, scientific documentation, and cost
benefit analysis before endangered species listing and
habitat decisions, including review of previous listings and
decisions on that basis with a careful determination of how
many of that species and how much habitat is enough.
3. Meaningful balance of species needs with socioeconomic
reality.
4. Positive incentives and workable procedures to encourage
participation of private landowners in recovery efforts.
5. Respect for private property rights.
A second major need has arisen because implementation
of the Food Security Act of 1985 has required 98% of Soil
Conservation Service effort for conservation compliance on
220
croplands, leaving only 2% of effort and personnel for technical
assistance on the grazing lands that comprise 50% of the US
private land areas, that are the breeding ground for livestock
that constitute the largest economic segment of American
agriculture, the major watershed, wildlife habitat, and open
space aesthetics so many enjoy and upon which we all depend.
Recognizing this major need, the American Farm Bureau, the
National Cattlemens Association, American Sheep Industry, dairy
producers, the Society for Range Management, American Forage and
Grassland Council, and National Association of Soil and Water
Conservation Districts have worked together to develop the
Grazing Lands Conservation Initiative, and each of the
organizations has agreed on and voted policy to support it. We
hope both the House and Senate will include the GLCI in the 1995
Food Security Act with specific language that will provide line-
item funding restricted for increased voluntary technical
assistance only by grazing lands-trained personnel of the USDA
Soil Conservation Service that will provide technical assistance
for the half of the nation that unintentionally has been
abandoned .
These two pieces of much-needed legislation will accomplish
more environmental improvement with maximum private voluntary
participation as it should be and with less cost to the taxpayer
than almost any other actions the Congress could take.
We beg your most careful consideration of these two
initiatives that mean so much to so many, that address the root
causes of our concerns today and so many others as well in the
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most positive, constitutional, and cost effective ways. We
salute your presence, interest, and support and look forward to
working with you toward these important means and goals.
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Testimony of
Bob Stallman
President, Texas Farm Bureau
before
the Subcommittee on Government Operations and Nutrition
U.S. House Committee on Agriculture
September 16,1994
Mr. Chairman, members of the committee, I appreciate the opportunity to testify before
you today on how critical habitat designations for endangered species potentially
impact farmers and ranchers. As President of the Texas Farm Bureau, I represent the
largest farm and ranch organization in the State. I operate a rice farm in Southeast
Texas near Columbus.
It is difficult to specifically assess the impact of critical habitat designations, because
the ambiguity of regulations and the statute leave producers in a quandary as to what
they can or can't do to their property. Initially, we were advised that as much as 20
million acres could be included as habitat area for the Golden-Cheeked Warbler.
Obviously, we don't think that much land mass should be included in the final analysis.
Discussions now have apparently reduced the impacted area to what Fish and Wildlife
refers to as "only" 800,000 acres. Even this much acreage is unacceptable to property
owners.
The problem occurs when producers are advised that they could be retroactively liable
for any cedar they have cut on their property since 1990, when the Golden-Cheeked
Warbler was added to the list. Even now, the only way producers can be sure that they
are not in violation of the law is to obtain permission from the Fish and Wildlife Service.
Currently, the Fish and Wildlife Service will not issue an individual a permit for a
possible "take" of a species.
Section 1 1 of the Endangered Species Act prescribes specific penalties for a "take" of a
species and includes such violations as "disturbing" or "harassing" an endangered
species. Penalties include as much as a $25,000-$50,000 fine per violation.
In many instances the Fish and Wildlife Service has indicated that farmers and
ranchers have no problems at this time. We as an organization cannot in good
conscious advise our members of the consequences of mistakenly destroying a nest or
habitat of a species when removing cedar for any purpose.
Although not directly related to the warbler issue here in central Texas, the ESA has
been used as a tool by environmental groups to reduce the pumping of irrigation water
from the Edwards Aquifer. A constitutional property right has been taken away from
producers there in the name of protection of the fountain darter. Certainly dq.
compensation has been provided in that loss of property rights. In the lawsuit involving
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the Edwards Aquifer, the judge was requested to use the full extent of the law and
requested that the expenditure of all federal funds in that area be reviewed by the Fish
and Wildlife Service prior to expenditures. In that area, it included ASCS farm program
expenditures as well as Defense Department funding for military bases. Are these
individual cases extreme? We do not know, but when we hear such stories as the U.S.
Government filing a lawsuit against a tractor for the destmction of "kangaroo rat" habitat
in California we do not think so.
Mr. Chairman, the Texas Farm Bureau supports legislation to re-authorize the
Endangered Species Act in the form of HR 1490 by Congressmen Tauzin and Relds,
and co-sponsored by all of the members of Congress at this hearing. We hope
Congress will further consider language to provide for the creation of a Critical Habitat
Reserve Program, suggested by our organization. This language would provide the
mechanism whereby society could pay for the environmental purity it seeks rather than
force individual property owners to assume the burden of those concerns. The latter
would work similarly to the current Conservation Reserve Program, where producers
are compensated for the taking of sensitive lands out of production on a voluntary
basis. In addition! we support legislation developed by Congressman Edwards to delay
any further listing of species and designation of critical habitat until Congress moves to
address this law. We would urge other members of this committee to join
Congressman Edwards in this effort.
In conclusion, we look forward to working with you and the other members of Congress
in seeking a "Common Sense" approach to the continuance of the Endangered Species
Act.
###
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STATEMENT OF CHAUNCE THOMPSON
My name is Chaunce Thompson. I am a cow-calf rancher from Stephens County,
Texas. Currently, I serve as First Vice President of the Texas and Southwestern
Cattle Raisers Association.
TSCRA is a 117-year-old livestock trade organization representing
approximately 15,000 cattle producers in Texas and Oklahoma. Our members raise
approximately two million head of cattle on millions of acres of agricultural
lands. Our land and our livelihoods are impacted by the federal Endangered
Species Act of 1973, as amended.
We appreciate very much the opportunity to share with the subcommittee and
its guests our members' concerns regarding the proposed designation of parts of
33 Texas counties as critical habitat for the golden-cheeked warbler. As
requested, we also want to discuss briefly how activities of the U.S.
Department of Agricudture are involved in this matter.
As I said, I live and ranch in Stephens County, one of 33 counties in
Texas considered by the U.S. Fish and Wildlife Service to have golden-cheeked
warbler habitat.
In my business, time is money and I don't waste it unnecessarily, which is
typical of most ranchers. Imagine our frustration and anger when we get less
than straightforward answers to our questions about this little songbird. The
"maybe so, maybe not" approach of the federal employees who enforce this law
has cost all taxpayers, not just ranchers, a good deal of time and money since
the bird was elevated to endangered status in 1990.
Even today, many ranchers may not know that it is a federal offense to
kill, injure, trap, harass or otherwise "take" a golden-cheeked warbler. Some
agency officials have chosen to take the broadest view of what "harass" means.
In fact, some Service employees have told the news media that "harass" could
simply mean scaring a warbler off the front porch of a ranch house .
A brochure produced and distributed by the Fish and Wildlife Service in
Texas encourages pet owners to "bell" their cats so the little birds know they
are being stalked! It should go without saying that we can't "bell" bobcats.
Nor is the Service forthcoming on what our responsiblities are regarding
another warbler predator, the fire ant. What are we supposed to do?
If more protection is provided the warbler by designating critical
habitat, ranchers will experience financial hardship with compliance.
Mary A. Davidson, a Austin, Texas, property owner, shared her own bitter
experiences July 19, 1994, with your congressional colleagues on the Senate
Committee on Environment and Public Works in Washington, DC. In 1984, Mrs.
Davidson and her husband bought 1.4S acres in Travis County to build their
homestead. By the summer of 1993, they had managed to save enough money to
finally begin planning and construction. Here, in her own words, excerpted from
that testimony, is her sad account of what the endangered species law can do to
small landowners and, by implication, what it can and will do to farmers and
ranchers .
225
I quote: "On the advice of our architect, we sought from the FWS a
document, known as a 'bird letter,' without which we could not likely obtain a
loan. Essentially, the 'bird letter' acknowledges that a property owner's land
has been unoccupied (by warblers) for at least three years, or that there is no
suitable habitat on the land. Land appraisers will tell you that without a
'bird letter,' the value of your property is seriously diminished. . .from 25
percent to 75 percent devaluation."
The Service took 16 weeks before advising the Davidsons that a "bird
letter" was not forthcoming. Because the property was considered by the Service
to be suitable habitat, the couple would need a Section 10(a) permit before
they could build their home.
Under Section 10(a) mitigation, the couple could get permission to build
if they bought land for the government in exchange for the right to use their
own land. Mrs. Davidson told the senators, "After hiring two different
biologists, it became clear that our land was not good habitat for
golden-cheeked warblers. The nearest documented sighting of a warbler was about
a quarter-mile away from our land. . .FWS told us it was irrelevant whether the
endangered species were actually on our property. Their concern was for the
birds that were supposedly near by."
Joe Johnson of the Fish and Wildlife Service in Austin later told Mrs.
Davidson that "the procedure outlined by congress in the 10(a) permit are (sic)
not procedures the small landowner can go through."
In fact, there is no time limit for the Service to decide on a incidental
take permit for private, state and local projects. Typically, according to
legislative analysis, the process takes one to five years. The costs are steep,
typically in the hundreds of thousands of dollars to both prepare and implement
a conservation plan. Compliance with Section 10(a) is certified through the
issuance of permits 12 times in a decade. Environmentalists and public
officials may be invited to join steering committees to review and revise the
private landowner's plans for the use of their land. Without question, property
rights may be lost if the Service denies the permit.
So, what happened to Mr. and Mrs. Davidson and their dream home in the
Texas Hill Country? They spent thousands of dollars in consultants' fees. They
lost the chance to take advantage of low- interest rates because of the
project's "stop, start, restart" history. Finally, the failure to win a "bird
letter" may deny them the use of the land as security for a loan.
I am reminded of the words of Kevin J. Sweeney, director of the Office of
Public Affairs for Interior Secretary Bruce Babbitt. In a scathing opinion
piece for the Sept. 7, 1994, edition of the Austin American- Statesman, he
flatly denied the hardships suffered by folks like Mrs. Davidson. I quote:
"Third, the debate over critical habitat designation (for golden-cheeked
warblers) has nothing to do with private property. Nothing at all... People can
still farm and build their homes and businessess . "
It is important that we remember that the Davidson's private property
troubles occurred before critical habitat was even proposed!
226
There is no shortage of horror stories where the enforcement of the
endangered species law has ground ranchers and other landowners into the dirt.
In February 1991, the Fish and Wildlife Service office in Arlington,
Texas, wrote a strong letter to a 79-year-old, widowed ranchwoman near Austin.
The federal agency took her to task for using a bulldozer to cut a fence line
across a juniper-covered, 104-acre tract of her land. The bureaucrat told her
that she had destroyed potential warbler habitat. He warned her that she could
be fined $50,000 and could go to jail. After a lot of publicity, the Service
sent her a second letter giving her permission to finish her fence, but to
contact the Service before cutting any more trees .
In April of this year, the Austin office of the Service sent a letter to a
rancher near Hunt in Kerr County, Texas, warning him that clearing activities
on his property could result in a "take" of golden-cheeked warblers. The
Service based its opinion on "aerial photographs, and other information"
including sightings of the bird on adjacent properties in similar habitat. The
owner was told it was in his best interest to stop clearing activities and to
pay for a biological survey.
Cattle have grazed Matagorda Island for 153 years, but no more. The Fish
and Wildlife Service forced the last rancher and his cattle off the barrier
island by arguing that the cattle threatened endangered species. The decision
was roundly criticized by wildlife biologists, area landowners and local
government officials. One veteran biologist, who spent a good part of his
career on Matagorda Island as a state wildlife employee, was outraged by the
arbitrary decision. He said, "The characterization of cattle as having been
dangerous to the survival of whooping cranes on Matagorda Island is truly
unfortunate and a gross misrepresentation of fact."
I believe it is generally recognized that many of the Fish and Wildlife
Service ornithologists feel that cattle have no place in the whole Edwards
Plateau. Cattle grazing is considered a poor range management practice from
their perspective. In several endangered species listings, cattle grazing is
listed as one of the reasons the species in question, such as the southwestern
flycatcher, and its habitat are in jeopardy. Despite significant evidence that
properly managed grazing programs can benefit a variety of wildlife species,
these agenda-driven bureaucrats stubbornly cling to their biases. As in the
case of the golden -cheeked warbler, that mindset could be and probably is being
manipulated by groups with anti -grazing agendas to prohibit grazing on private
ranches ostensibly to protect warbler habitat.
Ranchers between Sonora and Del Rio in remote Southwest Texas have had to
"work" fatal automobile accidents along a sparse two-lane track of highway that
is barely notched into the canyon walls. The Texas Highway Department agreed to
the landowners' request to upgrade the narrow strip of road. The project was
brought to a screeching halt, however, by the endangered species law. The area
serves as "potential habitat" for not one, but two federally protected species.
Up to 250,000 acres of prime farm and ranch land in the Rio Grande Valley
of Texas are being bought to turn into a thorny wilderness for the ocelot, a
rare cat in Texas, but hardly rare elsewhere with the global population
estimated to be more than 100,000.
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In recent weeks, the Service's Phoenix office has proposed to extend the
endangered status of the jaguar to portions of Texas, Louisiana, New Mexico,
Arizona and California. The significance of this proposal, which resulted from
a petition by a group of schoolchildren in New Mexico, is that the cat would be
protected in its historic range although it has been rarely seen there in this
century. Among the actions that could be prohibited under this proposal are
trapping and animal damage control measures for other predators not listed as
endangered.
Also in recent weeks, the Service has proposed to list the swift fox as
endangered throughout its entire range, which includes big chunks of farming
and ranching country in the Texas Panhandle and West Texas. The state wildlife
agencies in Texas and nine other states question the scientific evidence
supporting the decision.
Everywhere you turn in Texas, there seems to be a proposal to lock up
large blocks of land for the protection of some endangered animal or plant. The
list of candidate species or endangered species-in-waiting covers several
pages. Things are going to get worse for ranchers, not better, unless something
is done by Congress to bring this law back to reality.
If the advocates of no-growth inside and outside the federal government
are successful in getting critical habitat designated for the golden-cheeked
warbler, there will be a severe devaluation in property values in the affected
areas. This decline will hurt the current property owners, diminish and
restrict what they can convey to future heirs and erode the local tax base now
and in the future .
Endangered birds , invertebrates and plants in the western section of
Travis County have sent the value of undeveloped land plummeting by almost 40
percent. Figures presented in 1991 to Austin city officials indicate the value
of property on the city's certified tax roll plunged $358.7 million.
The Real Estate Center at Texas A6tM University confirms that environmental
regulations are already hurting rural property values. In its April 1994
technical report, called "Rural Land Prices in the Southwest: Second Half,
1993", the center's researchers said long-term prospects for land markets in
the Southwest, including Texas, "remain clouded as landowners and buyers face
the specter of uncertainty arising from a variety of sources. Environmental
regulations and legal battles raging throughout the area add to the uncertainty
of an already risky investment .. .markets for land subject to immediate
regulation suffer when compared to unencumbered acreage. Nonirrigated land in
the Edwards Aquifer area of Texas serves as an example of this kind of
influence. Because proposed protection of endangered species has resulted in
prohibition of further development of irrigation wells, markets for dryland
have practically vanished."
Just last month, Bexar County Commissioners Court unanimously approved a
resolution opposing the inclusion of Bexar County as critical habitat for the
golden-cheeked warbler. County officials expressed fear that a critical habitat
designation would restrict land use, adversely affecting property values. The
coimoiss loners cited Travis County as an example of what can happen to property
values when the endangered species law comes into play.
228
If the endangered species law was being used for environmental
protection- -and there is some question about If It Is in our opinion- -then it
would not be a tool for environmental depredation as it is today.
Ranchers, as good stewards of the land, know firsthand the importance of
brush management not only to their bottomline but to the ecosystem as well. A
federal prohibition against managing cedar because of the golden-cheeked
warbler could have some very serious downside effects on grasslands, wildlife
habitat and subsurface moisture.
Cedar trees produce a toxin that kills all competitive plant life. It
produces deep shade, which kills any plant life that manages to survive the
toxins. Cedar starves the wildlife, that depend upon grass and forbs and
insects that live on the grass and forbs. Cedar causes erosion and flooding
because there are no plants to slow down the rainfall and soil loss. The cedar
tree uses huge volumes of water. If ranchers cannot manage cedar, disastrous
fires could threaten humans, livestock, property, wildlife and other resources.
Cedar is an invader species, a trash shrub, that disrupts the delicate balance
of wildlife, livestock and plant life.
Your urban constituents should take heed. Good rangeland practices such as
cedar management save water that can recharge aquifers such as the Edwards
Aquifer. Cedar clearing can actually save endangered species such as those that
depend on the Edwards Aquifer by providing water they need for survival.
Studies at Texas AfitM University's research station at Sonora, Texas, shows
the dramatic effect cedar has on evapotranspiration, which means the total
water loss from the soil, including that by direct evaporation and that by
transpiraton from the surface of plants. Rangeland with 70 percent grass and 30
percent cedar and range sites with 40 percent grass and 60 percent cedar rob
the soil of any deep drainage. Conversely, 100 percent grass sites provided 3.7
inches of deep drainage per year, which is the equivalent of 100,500 gallons of
water per acre per year!
Texas A&M University recently made available the proceedings of its 1994
Juniper Symposium held at the Sonora station. Several statements from this
distinguished body of researchers are worth reporting in the context of this
hearing.
"Additionally, growth of A'she juniper in the immediate vicinity of
more desirable woody species such as live oak, not only denies
browsing animals access to these species but may in time cause
mortality of the desired species (Rykiel and Cook 1988)."
"As juniper outcompetes grasses for limited resources, they cause a
reduction in grass productivity in the interspaces between the trees
and shrubs. This can result in a greater amount of bare soil exposed
in interspaces."
"Research indicates that juniper trees will not likely reach maturity
and stop, or substantially reduce their growth rates until they reach
75 or more years of age . "
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"With dense stands of juniper, livestock are difficult to roundup,
feed, and inspect and may become wilder and more difficult to manage.
All of this will usually increase the amount of labor needed to
manage livestock."
"Vast, dense stands of juniper are not conducive to either wildlife
or livestock management. Even golden -cheeked warblers are not well
served by juniper monocultures; they prefer a diversity of woody
plants, including mature Ashe juniper. Ideally, enough juniper should
be cleared to increase forage production and handling ease for
livestock, but maintain sufficient cover for wildlife."
"Much of the debate over golden-cheeked warbler habitat revolves
around how much (i.e., how big a 'block') of Ashe juniper needs to be
preserved to provide quality warbler habitat. There is not unanimous
agreement about the relative values of large blocks of undisturbed
habitat or smaller tracts with increased 'edge' (Keddy-Hector 1992)."
"Under the current interpretation of the ESA, there is no distinction
between currently occupied golden- cheeked warbler habitat and
historical areas of habitat. If habitat for the warbler presently
exists, then that site comes under the jurisdiction of the Act
regardless of historical land descriptions."
"Another confusing descriptor is 'potential habitat.' Potential
habitat as used by the U.S. Fish & Wildlife Service (USFWS) refers to
habitat that currently exists in a form that is presently acceptable
to an endangered species although there are no endangered species
currently occupying the habitat."
As night follows day, ranchers in areas with endangered species and
critical habitat will surely suffer delays and added costs for federal permits
and cost-share assistance. As Mrs. Davidson pointed out in her testimony before
a Senate committee, the cost of compliance particulary with Section 10 of the
Act and mitigation is going to be way too high for many "mom and pop" ranch
operations.
The way this battle over endangered species and property rights is shaping
up, the ESA might well be renamed the Lawyers Enrichment and Retirement Act!
These lawsuits, for those ranchers who can afford them, will hit them where it
hurts--in the wallet. Instead of devoting themselves to producing food and
fiber, these ranchers will be cooling their heels at the courthouse.
The Agriculture Council of America estimates that each year one American
farmer or rancher provides food and fiber for 129 people- -97 in the United
States and 32 abroad. Clearly, the heavy-handed enforcement of the endangered
species law, if spread around to enough species, can undercut agriculture's
productivity and our economy.
The proliferation of proposed endangered species listings in Texas in
recent months along with existing critical habitat designations should cause
any reasonable person "justifiable paranoia." Look at the maps and consider the
setbacks in recent months that the courts and Congress have dealt those who
would use the endangered species law as a land-use management tool. It is hard
230
to dismiss a growing rumor out In the country that the federal government,
egged on by so-called environmental groups, Is going for the big land grab In
Texas .
Get it while they can... in a state with 97 percent of the land in private
hands .
As the conspiracy theory grows, so does the distrust of ranchers and other
landowners with their own government.
Fish and Wildlife Service Regional Director John Rogers Jr. told state
lawmakers this week in Austin that "If your pastures have been used for years,
they aren't habitat. If your hay fields are maintained each year, they aren't
habitat. If you have been farming on it for years, it isn't habitat. If you've
got regrowth cedar that is invading traditionally grazed areas, it's not
habitat .. .the fact is prime warbler habitat is not 33 counties, is not 20
million acres, is not 800,000 acres, is not even a fraction of a percent of the
land in Texas. "
Gentlemen, I sincerely hope that you will remind Mr. Rogers of those
words .
Those words may sound comforting, but do they ring true?
What about those ranchers who have been the recipients of threatening
letters regarding their brush clearing and other land managment practices? The
79-year-old lady that faced a big fine and possible jail time for clearing
brush along a fenceline was doing so on a ranch in her family since 1911!
Mr. Rogers also told Austin lawmakers that his agency is only studying the
idea of designating critical habitat for the warbler. He said it "may or may
not" come up with a critical habitat proposal.
Only studying the idea? May or may not come up with a critical habitat
proposal?
In response to a request from our organization, Sam Hamilton, state
administrator for the Texas Ecological Services office in Austin, gave this bit
of news on July 29, 1994. He said that his agency began soliciting information
from local, state and federal agencies regarding potential economic impacts of
critical habitat designation on March 17, 1993. He further advised that the
anticipated decision on critical habitat was due in the late fall or winter of
1994. He explained, "The Endangered Species Act (Act) requires designation of
critical habitat for an endangered species within one year of listing (or
within two years if a not determinable finding is made) or conclude that there
would be no net conservation benefit to the species and therefore conclude with
a not prudent finding."
Mr. Hamilton went on to say that "Since the time of the listing (December
1990) the Fish and Wildlife Service (Service) has been evaluating the
conservation benefits of a possible critical habitat designation for the
warbler... In January 1994, an Austin developer filed a complaint against the
Service for failure to meet statutory deadlines in designating critical habitat
for the warbler. The outcome of that suit is pending. Several environmental
231
groups have also conveyed their concerns regarding our progress towards a
decision, but none have sued to date."
It sounds to me that there is a very, very high likelihood that the
Service will designate critical habitat for the warbler. Of course, until that
decision is made, there remains a regulatory cloud over virtually all the land
in the 33 Central Texas counties under consideration.
How does one go about making the appropriate decisions for prudent estate
planning? As a land buyer, would you want to buy property that may have
environmental restrictions that could lower the value at some point? As a
banker or farm lender, would you be willing to take such land as collateral on
a loan? What then is the dollar value of heretofore productive agricultural
land now encumbered with environmental liabilities?
Therein lies what we think is a fatal flaw of the endangered species law.
It provides no incentives to landowners to protect truly endangered plants and
animals. Instead, it offers up rather substantial disincentives for the
voluntary protection of the endangered species.
Our association believes that a "taking" of property rights without
compensation will occur when critical habitat is designated. In some cases,
that extra protection for the bird could resialt in the eventual loss of the
land to federal or state agencies or groups who broker land for those agencies.
Mr. Hamilton of the Service told our people that his agency is "in the
process of purchasing approximately 45,000 acres, some of which is warbler
habitat, from willing sellers to protect certain key tracts near Austin, Texas,
(this area is the Balcones Canyonlands National Wildlife Refuge)."
The Nature Conservancy, an organization that purchases land for natural
preservation, has designated the Texas Hill Country as one of 12 international
areas to serve as working models for large-scale ecosystem conservation. The
conservancy called its project "Last Great Places."
Jim Fries, bioreserve project director, told the Houston Chronicle in
November 1992 that the conservancy buys land at fair market value from willing
sellers. The conservancy has been quite active in Texas real estate markets in
recent years, especially in the portfolios of foreclosed property held by the
Resolution Trust Corporation and the FDIC.
If a landowner has endangered species habitat and no one else on the
market will buy the land, then, yes, I guess he becomes a willing seller to the
Nature Conservancy or some federal land-use agency. What choice does that
person have? How willing is yet another question.
"Last Great Places" has a more ominous meaning for Texas ranchers. It
means land grab and it means the ranchers are the endangered species . The
bitter irony is that the endangered species law does very little to protect
endangered homo sapiens.
We need your help.
232
Mr. Chairman, as head of the subcommittee with oversight of the U.S.
Department of Agriculture, you asked that we address how activities of USDA are
involved with this matter.
Section 7 of the endangered species law governs Federal agency conduct.
The ESA directs agencies such as USDA to conserve listed species generally
[Sec. 7(a)(1)]. The agencies also must ensure that their "actions" are not
likely to jeopardize the continued existence of a listed species or to destroy
or adversely modify critical habitat [Sec. 7(a)(2).].
Let me give you a very high profile example of how Section 7 of the Act
can be the legal equivalent of the Texas Chainsaw Massacre. I refer to the
ongoing struggle over the Edwards Aquifer, who controls underground water and
what to do with endangered species dependent upon the aquifer. Last month, the
news media reported that the Sierra Club was preparing a lawsuit against the
Defense and Transportation departments and other federal agencies. The group's
lawyers want to use Section 7 to force them to cut back or close their
operations in San Antonio. Such a lawsuit, successful or not, could seriously
harm San Antonio's bid to save Kelly AFB from the Base Closure and Realignment
Commission.
The thrust of the Sierra Club's arguments is that San Antonio's massive
military installations make water demands that endanger species at Comal and
San Marcos springs. Also highway funds and other federal activities promote the
growth of water demands in the region.
It might also name the Environmental Protection Agency, asking it to cut
its wastewater discharge permits for San Antonio. The suit also would likely
target USDA for any funds that promote farming in the region.
The Sierra Club filed a motion in April to include such demands in its
successftil lawsuit against the U.S. Fish and Wildlife Service, but was turned
down by U.S. District Judge Lucius D. Bunton III. However, his ruling did not
preclude a new lawsuit filed under Section 7 of the Endangered Species Act.
Under the endangered species law, this sort of high stakes litigation is
referred to as the nuclear option. The implications are obvious.
The 1991 Catalog of Federal Domestic Assistance lists 119 programs
available to farmers and ranchers and other customers of USDA. Many of these
programs could be denied under Section 7 of the endangered species law. They
include programs for animal damage control , of critical importance now that
Texas has two rabies epidemics in South Texas and Central Texas. They also
include cotton production stabilization, the Forestry Incentive Program, the
package of loans available from the Farmers Home Administration, food stamps,
the cost-share programs of the Soil Conservation Service and on and on.
Kevin Sweeney of the Interior Department says, "Within critical habitat,
those who want the benefit of federal taxpayer dollars must check with one more
agency. That is all it means."
Once again, Mr. Sweeney has a flirtation with fiction. It is those kinds
of glossed-over , half-truths that make ranchers distrustful of their own
government .
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10
Service spokesmen like Sam Hamilton, however, seem to contradict Mr.
Sweeney's "not to worry" assertion. At a landowners' rally in Llano last month
to field questions about the golden-cheeked warbler and the endangered species
law, Mr. Hamilton was quoted by the news media as saying, "I know that there
are a lot of people concerned about property rights and about the government
taking their land. These are all real concerns and are all valid."
Ranchers need someone they can trust to shoot straight with them about the
endangered species law. We think USDA's Soil Conservation Service can and
should provide voluntary technical assistance to ranchers upon their request
regarding the law and how they should comply with is regulations. This
SCS-generated information, however, should not be used against the ranchers by
other regulatory agencies such as the Fish and Wildlife Service.
Protection of endangered species is a legitimate and worthwhile function
of society. It can be achieved without driving our members out of business.
On this point, Sam Hamilton agrees. I quote: "Endangered species can
co-exist on the landscape with agriculture and rural Texas. The mere fact that
these rare plants and animals are found here is a tribute to the private
landowners who have taken such good care of the land."
Somehow that message needs to find its way into the current endangered
species law.
Regarding the Act itself, let me paraphrase William Shakespeare. We come
to amend it, not to kill it.
First of all, the scientific requirements for listing must be strengthened
with decisions based on sound biology, full field testing, and peer review.
As an example of why this is absolutely necessary, I would mention the
Concho Water Snake, which held up construction of Stacy Dam on the Colorado
River in Congressman Stenholm's district for years. It is continuing to cost
taxpayers thousands and thousands of dollars to arrange for their survival.
Substantial proof, however, has been presented in recent years that the Concho
Water Snake was not endangered at all and, in fact, exists in large numbers.
Secondly , the new Act must provide significance to the recovery planning
process. Recovery plans must incorporate economic impacts, biological
significance, optional goals, socioeconomic impacts, clear delisting criteria,
and public hearings in the affected counties.
Simpler, less costly consultation procedures with incentives for
compliance by private landowners are needed. These procedures must insure that
compliance requirements for private landowners be no more burdensome,
time-consiiming or costly than those applicable to federal agencies.
The Act must recognize impacts on private property and provide
compensation for major takings of property. Private property rights are clearly
guaranteed by the Fifth Amendment of the U.S. Constitution. Our individual
property rights must not be subverted by land-use legislation passed in the
name of the common good of all Americans.
234
11
Endangered species preservation must become a partnership of the private
landowner with government providing technical and financial help. It is time to
end the "us versus them" gridlock over endangered species.
As Chairman Stenholm wrote recently, "Measures should be taken to protect
our environment and natural resources, but these proposals must be equitable,
cost-effective, and based upon sound scientific research. It is absolutely
necessary that we use sound judgment and base our decisions on the actual
environmental benefits, not just emotion."
Texas and Southwestern Cattle Raisers Association commends Chairman
Stenholm on his efforts to restore commonsense to the Endangered Species Act
an4 other environmental laws. We appreciate your support for private property
rights legislation. Texas and Southwestern also applauds the efforts of
Congressmen Barton, Edwards and Geren not only for being here, but for their
advocacy of property rights and commonsense environmental laws .
As you may know, Texas and Southwestern has joined with the Texas Farm
Bureau and approximately 27 other farm, ranch and agriculture groups in Texas
to create a new coalition called Farmers and Ranchers for Property Rights.
Together, we have more than 500,000 members who are being educated on these
important issues and encouraged to vote their position at the ballot box
November 8th. It is our sincere belief that an energized, pro-active
agricultural community can still have a major impact on elections and the
legislative process. As one old rancher said recently, "Birds don't vote, but
we do . "
We will be there in this Congress and the next to help you pass
legislation that protects the environment, endangered species and property
rights .
Again, we thank you on behalf of our members for this opportunity to share
our concerns with you and for the record.
-TSCRA-
235
EXHIBITS
236
A14
REVIEW & OUTLOOK
Endangered Property Rights
Ointon Administration officials
are puzzlini over the President's re-
cent dive in popularity: his approval
ratings have fallen 15 points in the
past eight months. One reason not
likely to ever come into focus around
this While House is that Mr. Clin-
ton's regulatory poliues are alienat-
ing large numt>ers of constituency
groups. Whether it's small-business
owners, gun collectors, anti-HUD
protesters or people who drive to
work in urban areas, this adminis-
tration has picked fights with a whole
lot of folks. But perhaps the most an-
gry of all are propcrt)' owners who
feel they are being unfairly deprived
of the use of their land.
Last month, coordmaled rallies
were held in three states to protest
overzealous enforcement of the En-
dangered Species Act In California, a
Taiwanese immigrant farmer faces a
year in prison and S300.000 in fines for
killing five kangaroo rats while tilling
his land. Residents of Idaho's Bruneau
Valley are fighting the listing of a pin-
head-size snail that differs from other
snails only in that it has a larger-than-
nomial sexual organ.
The most vociferous demonstration
was in Austin, the Texas state capital.
More than 3,000 marchers protested
plans by the U.S. Fish and Wildlife
Service to declare 600,000 acres in a 33-
county area as "critical habitat" for a
migratory songbird called the golden-
cheeked warbler.
Many farmers whose roots in the
area go back 120 years say they will
be prevented from doing anything
that could be viewed as "harass-
ment" of the warbler, including build-
ing new fences. Dorothy Deas of the
Fish and Wildlife Service says the
agency's enforcement is "reasonable
and prudent." However, she acknowl-
edges that "harassment" would in-
clude chasing away a warbler that
took up residence on the front porch
of a farmhouse.
A group called Take Back Texas is
fighting back and has support from
many state officials. Democratic At-
torney General Dan Morales says he
will sue the Interior Department U
they lock in the 33 counties as war-
bler habiut. "The Endangered
Species Act has been recently em-
ployed In ways that appear to defy
Congressional Intent, sound govern-
mental policy and basic common
sense," he wrote Secretary Bruce
Babbitt. Governor Anne Richards has
written a "Dear Bruce" lener noting
that most landowners practice "good
land stewardship" and urging "an
extraordinarily cautious approach"
by Mr. Babbitt's agency.
The reason they are concerned is
exemplified m the case of David Trot-
ter He and some partners wanted to
turn 1.102 acres into residential hous-
ing. Fish and Wildlife officials agreed,
but first took 76S acres as a habitat for
the golden-cheeked warbler and cave
bugs. In exchange for allowing devel-
opment on the remaining 339 acres,
the feds demanded the landowners
"mitigate" the harm they would cause
by buying 873 acres for additional Fish
and Wildlife habitat. So the agency's
idea of "reasonable and prudent" reg-
ulation includes forcing a landowner
to hand over 1,638 acres of land to the
government before he can develop the
339 acres he has left. This sounds like
a form of bureaucratic extortion.
Secretary Babbitt's office has a
two-pronged defense of his policies.
On the one hand, it insists he sup-
ports property nghts. But it also
lashes out at property owners when-
ever they try to defend those rights.
Last week, his assistant Kevin
Sweeney argued that the efforts of
Interior's Texas critics, "with no ac-
knowledgment of the greater needs of
the community," could deny "two
centuries of law and tradition" on
land use limits. "If ttiis group has its
way, those limits will be gone, and
we'll pay a huge price: pom shops
can be built across the street from
churches, and liquor stores can be
put in next to junior high schools,"
he claimed. Mr. Sweeney's state-
ments weren't some off-the-cuff re-
mark. They came in an op-ed he sent
to the Austin American-Statesman.
The truth is that the Texas
landownen only want to restore a rea-
sonable balance in the regulation of
their property. Tex Laiar, a former
U.S. Justice Department official who
is running for lieutenant governor of
Texas, supports the landowners'
cause. He wants to let independent
economists assess how much landown-
ers should be compensated if govern-
ment takes or locks up their land.
Last month, Texas Senator Phil
Gramm introduced a bill to clarify tak-
ings policies. He would require com-
pensation when the government's ac-
tions reduce property values by at
least 25% or $10,000. Payments and le-
gal fees tor property owners who win
their court cases would come out of the
budget of the agency that Issued the
regulations. Exceptions would Include
land seized as a public nuisance.
Something embodying Senator
Gramm's compensation principle is
undoubtedly called for. In Texas
alone, 83 species have been placed on
the Endangered Species List: another
200 species are candidates for the list.
The phenomenon we are viritnesslng
here is that when no clear limits are
placed on a government's authority, it
is very likely to run out of control
eventually. If Washington decides it
needs land to preserve "the greater
needs of the community," it should ac-
quire it justly: by paying for it.
EXHIBIT A
237
WHAT'S ALL THIS ABOUT...
■i:j^-
jj.TCAL HABfD^OT
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WA,RELER.Ste«:i-
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(^i'Mciickcked Warblfr ^SW^
EXHIBIT B
238
THE BIRD •
THE GOLDEN-CHEEKED
WARBLER
The golden-cheeked warbler is a small,
insect-eaiing songbird that nesls and feeds
in the oak-juniper woodlands of Central
Texas known as the Edwards Plateau. It is
a Mrikinj: bird; black back, wings, ihroal,
and head contrast with a white breast and
belly. The golden-checked warbler gets its
name from its brilliant yellow cheek patches.
A black eyeline runs through the middle of
each patch.
llic golden-*, becked warbler, a neotropical
migrator)- songbird, migrates from its sum-
mer nesting range in Texas to wintering
•jrounils in southern Mexico (Chiapas), Gua-
temala. Nicaragua, and Honduras.
The preference to use Ashe juniper bark
strips to build its nest appears to limit the
birds to woodlands containing Ashe juniper
with slouching bark. It also uses Ashe
juniper, oaks, and other broad-leafed tires
for nesting and feeding.
THE STATUS -
ENDANGERED
A Declining Population
Historicall>. the golden-cheeked warbler
bred in about 41 counties in Central Texas,
but now nests in less than 35 due to loss of
suitable habitat. Urban encroachment, along
wuh continuing habitat destruction and
modificaiion. threatens what remains. These
threats not only reduce habitat through
destruction and changes in the types of
u oodland plants, but reduce imponanl, large
bl(Kks of habitat to less suitable, small
p.ilihev. This Iragmcnlation of habitat iso-
lates smaller numbers of birds, making them
more susceptible to random local
extinctions, and reduces the likelihood thai
the warblers will continue to use the areas.
The increased distances between the patches
also limits mating opportunities and ge-
netic diversity along with incitiasing preda-
tion and the opportunities for cowbirds to
parasitize warbler ncsIs by laying their eggs
in them. The larger cowbird young are
unwittingly raised by the warblers at the
expense of the waitler's own young.
Protected by Federal Law...
The Endangered Species Act is one of the
most important conservation laws ever
enacted by any country to prevent the
extinction of iinperiled animals and plants
(see box on reverse). The law defines an
"endangered" species as one that is in
danger of extinction throughout all, or a
significant portion, of its range.
On May 4, 1990, the golden-cheeked
warbler was emergency listed as an
endangered species, providing temporary
protection under the Endangered Species
Act. On December 27, 1990, the golden-
cheeked warbler was formally added to the
list of endangered species. Listing the
golden-cheeked warbler as an endangered
species protects it from "take", which
includes killing, capturing, harming, and
harassing. Harm includes modifying habi-
tat to the point that the species' breeding,
feeding, or sheltering is impaired. A plan to
recover the golden-cheeked warbler was
finalized in September, 1992, and outlines
the tasks needed to recover, to bring to the
point of delisting, the warblers. While
much work has already helped the golden-
cheeked warbler, much more work remains.
Tht Recovery Plan
Map
CRITICAL HABFIAT
What is Critical Habitat?
Critical habitat consists of those areas of
land, water, and air space that an endan-
gered or threatened species needs to survive
and recover. Such areas may include sites
for breeding, feeding, and roosting, cover
and shelter, and enough surrounding habi-
tat toallow normal behaviorand population
growth. Critical habitat may be one or more
large geographic areas, or just a small area
depending on the needs and distribution of
the species.
239
Whal types of areas are being
considered for golden-cheeked
warbler critical habitat
designation?
The goal for designaling critical habitat is to
include habitat necessary to recover the
Npccics.asdescrihcd in the Golden-checked
Warbler Recovery Plan. The Recovery
Plan calls for a viable population in each of
eight regions (as shown on map). Critical
habitat v^'ill be proposed to include habitat
that is needed for a viable population in
each region.
.Service biologists are preparing a list of
pdtontial critical habitat areas, based on
uarbler distribution and habitat require-
ments during the breeding season.
The counties within which critical habitat
(or the golden-checked warbler is being
considered include:
Handera. Bell. Bexar, Blanco, Bosque, Bur-
net. Comal, Coryell, Edwards, Erath,
Gillespie. Hays, Hill, Hood, Johnson,
Kendall. Kerr. Kimble. Lampasas, Llano,
.Mason. McLennan. Medina, Menard, Palo
Pmto. Parker. Real. San Saba, Somervell,
Stephens. Travis. Uvalde, and Williamson.
Criiicul habiiai may be designated based on
areas that support golden-cheeked warbler
breeding activities, including nesting, feed-
ing, rearing young, and dispersal of family
members after nesting. The vegetationcha^-
acteristics of golden-cheeked warbler habi-
tat arc: ( 1 ) the presence of Ashe juniper
with sloughing bark, (2) the presence Of
broad-leafed species, including, but not lim-
ited to. Texas oak. Plateau live oak, cedar
elm. and Lacey oak, (3) a moderate to high
degree of canopy cover (50- 1 00%), and (4)
a rclaiiv ely tall forest (tree height averaging
4 meters or more).
What is the process for
designating critical habitat?
The Service begins the process by working
w ith Slate and Federal wildlife biologists to
uleiiiilN areas important to golden-cheeked
warblers. Then the Service analyzes the
economic and other impacts of designating
ihese polenlial areas as critical habitat.
Ncxl, the Service prepares a list of pro-
posed areas and publishes it, with the perti-
nent background information, in the Fed-
eral Register as a "propascd rule". At that
point, the Service formally notifies all ap-
propriate Federal agencies. State and County
govemmenLs, and interested citizens, and
publishes notices in major newspajjers
where critical habitat is being considered.
The goal is to encourage all interested par-
ties to provide comments.
After the public review period, the Service
reviews concerns and issues that have been
raised, makes appropriate changes in the
rule, and publishes a final list of designated
critical habitat areas. The areas will offi-
cially become critical habitat when the ef-
fective date of the rule is reached (usually
30 days after publication).
What happens if economic
costs of designating an area
as critical habitat outweigh the
benefits?
A critical habitat designation requires the
Service to prepare an analysis that consid-
ers the economic and other impacts of the
proposed designation. Certain areas may
be excluded from the critical habitat desig-
nation if the economic benefits of exclusion
outweigh the benefits of conserving the
areas. However, such areas cannot be ex-
cluded if their exclusion would result in the
extinction of the species.
What are the effects of
designating critical habitat?
There arc two main effects of designating
an area as critical habitat. First, and fore-
most, the Federal agencies must consult
with the Service on any of their activities
that may affect critical habitat to ensure
adverse modi ficationofcritical habitat does
MM* rw-flir
240
Ini L-xiiniplc. ;i Federal utcncy planning to
btiild a hi-ihway or waicr dcveli)pment slfuc-
turc in critical habitat must first discuss the
project with the Service. Because the law
prohibits any Federal action that would
adversely affect critical habitat, the project
may have to be scheduled at a different time
or modiried. This process applies to any
project that requires a Federal permit or
involves Federal funding even if it is coor-
dinated by a State, municipality, or indi-
vidual. For example, a commercial devel-
«)pmcnl that requiresa Federal permit would
How do I obtain more
information?
If you have other speciFic Questions or
comments, please write to the office
below. We will be happy to help.
State Administrator
Austin Ecological Services Office
U.S. Fish and Wildlife Service
61 1 E. 6th Street, Room 407
Austin, TX 78701
How can I comment on
golden-cheeked warbler
critical habitat?
be reviewed to make sure that golden-
cheeked warbler critical habitat would not
he adversely alTeeted by the project.
The second effect is simply one of aware-
ness. Designating critical habitat can alert
Federal. Slate, and private organizations, as
vx ell as individuals, thai an area is important
ID an endangered species. Such groups and
individuals have done much in the past to
protect animals and their habitats.
What effect does designating
golden-cheeked warbler
critical habitat have on State,
local, and private land-
owners?
Designation of critical habitat does not
pro\ ide for Federal government review of
private land use, unless the landowner is
planning a project thai requires a Federal
permit or uses Federal funds. However, the
protections afforded the golden-cheeked
warbler by virtue of ils listing and the pro-
hibitions against taking of the warbler un-
der the Endangered Species Act are not
cliunged by designation of critical habitat
and Mill apply where the golden-cheeked
vv.iihli.-r i'- IViiind in the U.S.
The Service will issue news releases
when the comment period is open.
Watch for the notices or write to the
office listed above if you would like to
be added to a mailing list to receive
notifications related to the designation
of critical habitat for this species.
How can I help?
• Share this information with
others.
• Support conservation efforts to
protect endangered species and
their habitat.
• Attach bells to the collars of free-
ranging cats or, better yet, keep
cats inside. Free-ranging cats are
potential predators on songbirds
such as the golden-cheeked
warbler and other endangered and
threatened birds.
• When birdwatching, avoid
disturbing birds during their
breeding season.
• Protect desirable warbler habitat
on private property and encour-
age others to do so.
241
ir;:t*?fe^''<
-(I-;;
THE ENDANGERED SPECIES ACT
The Endangered Species Act gives »he SecreUry of the Interior, acting through
the Fish and Wildlife Service, broad powers to protect and conserve all fbnns
of wildlife and plants that are found to be iii periL The Secretaty of Commetoe,
acting through the National Marine Fisheries Service (NMFS). hai timUiar
authority for protecting and conserving most marine life. The taw created a '. -;
national program that now involves the Federal government. theStstea,";.*"'* j.;>.,
conservation organizations, individual citizens, business and indtiMiyl and ^ ';':'' ■*
even foreign governments in a cooperative effort to conserve endangered
species throughout the world. • '.•.•■>,•--
What the Act does - in a nutshelL
Defines Deflnes an 'endangered" q>ecies as one that is .
terms in danger of extinction thrtHighout all or a ' ' "
significant portion of its range.
Defines a 'threatened* species as one tfiat is
likely to become endangered within the ' .'.iC^ '.' ■
foreseeable future. . vt"'-^;; ^Vj/i^-^- ';j
The Sets up a way to deteniiine which species should
Listing be placed on the U.S. List of Endangered and
Process Threatened Wildlife attd Plants. Listings are
based on criteria specified in the Act.: The process
involves the public, the scientific community, the .
States, other Federal agencies and, tometimes,
foreign governments. .,. . .
Critical Sets up a procedure to identify areas' that are''''
Habitat essential to a species' survival and conservation.
Such areas are earmarked for legal protection as
critical habitat
Interagency Requires all Federal agencies to cbiisalt widi the --■-.
ConsulUtion Fish and WildUfe Service (or NMFS) when it looks
like any of their activities (building tugfaways or; ;::'.' ';
dams; harvesting timber or mining ixe, fijr>Ji! 'jiJs^'-'^!;
instance) might affect protected spedes or their' !/ • •' '
critical habitats. ' ■ ^,' 'o* ' > 't 'i'.
Recovery Requires the Fish and Wildlife Service (and NMFS) -
Plans to prepare and cany out recovery plans. The goal ;
of endangered species conservatioti is to restore. .
populations of these species to a point where they .
no longer require protection under the Endangered
Species Act and can be 'delisted.* Recovery plans
outline the steps necessary to accomplish this goal.
•'l
242
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243
EXHIBIT C
4TH STORY of Level 1 printed in FOU. format.
Copyright 1994 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
July 19, 1994, Tuesday
Page 28
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 5630 words
HEADLINE: TESTIMONY JULY 19, 1994 MARlf A. DAVIDSON PROPERTY OWNER ADSTIN.
TEXAS SENATE ENVIRONMENT/CLEAN WATER, FISHERIES AND WILDLIFE ENDANGERED SPECIES
ACT REAUTHORIZATION
BODY:
TESTIMONY
MARY A. DAVIDSON
BEFORE THE
SDBCOMMITTEE ON CLEAN WATER, FISHERIES AND WILDLIFE
SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ENDANGERED SPECIES CONSERVATION ON PRIVATE PROPERTY
JULY 19, 1994
I an here to speak for those millions of Americans who would like to see a
fair and balanced BSA. I appreciate the opportunity to share my experiences
under the ESA. They have not been pleasant. My hope is that this will be
helpful to those involved in making much needed and necessary changes to the
ESA. In 1984 my husband and I purchased 1.45 acres Co build our homestead. We
worked hard for the next nine years to make enough money so that we could build
our home . By the sximmer of 1993 we had managed to save enough to finally begin
the process of planning and construction.
As scale of you may know, the area around Austin, Texas is home to a number
of species listed under the ESA. One of those species is the golden - cheeked
warbler. On the advice of our architect, we sought from the FWS a document,
known as a 'bird letter,' without which we could not likely obtain a loan.
Essentially, the bird letter acknowledges that a property owner's land has been
unoccupied (by warblara) for at least three yeiurs, or that there is no suitable
habitat on the land. Land appraisers will tell you that without a 'bird
letter, ' the value of your property is seriously diminished - - from 25% to 75
percent devaluation. This devaluation shows that, at least in central Texas,
endangered species do not add to the value of one's land, but rather greatly
subtract from it.
FWS told us that requests for 'bird letters" generally take about 6 weeks to
LEXIS- NEXIS'^ LEXIS- NEXIS'^ LEXIS- NEXIS'^
244
Pjfc 29
FDCH Congrttsiooal Testimooy. July 19. 1994
process. Ours took 16. The FWS refused to give us a bird letter, despite the
fact that they have never surveyed our property, or that of our neighbors. They
said that our property was in a suitable habitat area, thus, the FWS said, ve
would need a Section 10 (a) permit before we could build our home.
We asked what a 10(A) permit was, and what it would require us to do. The
FWS told us that we would need to 'mitigate' by setting aside land for habitat.
I told them that we only had 1.45 acres, and that we didn't have any land to set
aside. The#r response was that we could purchase other land elsewhere that was
good mitigatioa habitat . We were astonished -- this felt like extortion - -
buying land for the government in exchange for the right to use our own land.
It wasn't long before we became familiar with the jargon and the law that
had taken our property and effectively put it into escrow. We learned that a
10(A) permit was required when a "taking" of a listed species would result from
» project. Yet, after spending several thousand dollars, we also discovered
that building our home on our property would not "take" an endangered species.
After hiring two different biologists, it became dear that our land was not
good habitat for golden -cheeked ««rbl*rs. The nearest documented sighting of a
warbler was about a quarter-mile away from our land. After hearing that a
number of recent federal court decisions have ruled that "taking" a species
means to physically injure a species, we had trouble understanding why we were
being prevented from building our home. FWS told us it was irrelevant whether
the endangered species were actually on our property. Their concern was for the
birds that were supposedly near by.
Here it was the middle of December I had no idea what to do. I put our
building project on hold. I was shocked that this could be happening to us . I
couldn't imagine being asked to go to this expense in order to use our land. I
would never be able to sell this piece of property, or use it for anything as it
was too small for any use except for a residence. I felt betrayed that this was
all brought about by a government regulation. It was at this point we finally
realized that we were being denied the use of our land by FSW and there was
nothing we could do!
The abuse of the ESA by the FWS results in citizens being damaged with no
practical redress - I assume the vast majority of Americans that fall into this
same situation are like us - without the financial resources to bring a law
suit. We are living proof that the current interpretation of the ESA does
deprive citizens of their constitutional property rights, and unless you have a
rich uncle you can not do any thing about itl
Through the Texas Wildlife Association I was directed to Texas State
Representative District 47, Susan Combs . In January I asked Ms. Combs to
assist us with our dealings with FWS. She did make an appeal and at first it
looked as though we would get a favorable response . Then when we had not heard
for several weeks from FWS, Ms. Combs office contacted FWS and was told that the
staff maintained we must still comply with the requirements of the 10(A) permit.
Ms. Combs recommended I call FWS for an explanation and also write to my OS
Congressman J. J. Pickle and Senators Kay Bailey Hutchison and Phil Granm. I
did write to these people as well as several otheps^
I called FWS for an explanation as was suggested and Joe Johnston of FWS
LEXIS- NEXIS'^ LEXl5^#XIS'^ LEXIS- NEXIS*^
245
Page 30
FDCH Congressional Testiotooy, July 19. 1994
told us chat our land wae "in an existing bird habitat (217/94)" -• which
contradicted the opinions of the two biologists we hired. After paying for two
biological surveys, it became dear that our little plot of land was devoid of
warblera, and would be poor habitat for them if they ever exceeded the carrying
capacity of that which they currently utilized. We did not have the money to
buy additional land. I asked Mr. Johnston why we had to. and his response was
that building our home constituted *urbanixation. ' Even though ....
homee/fainilies, ...children lived in the neighborhood, the government said that
the camotion of our three children and pets would somehow "disrupt" th»
habitat of tha vmrblars that were once 'sighted' a quarter-mile away. He also
told me the ESA did not allow for any exceptions for sire ot property or nature
of land use such as building our hocnestead.
I expressed that I thought the cost of complying with the requirements of a
10(A) permit might be astronomical. Johnston agreed and said that 'the
procedure outlined by congress in the 10 (A) permit are not procedures the small
land owner can go through . "
This conversation left me with the definite impression that the FWS was just
as interested in preventing growth (urbanization) as in saving endangered
species. They notify me in writing I must obtain a 10 (A) permit, but then in
conversation they admit there is no way I can comply I
My neighbors were all very concerned. They did not understand how a new
subdivision of 13 houses less then a mile away was being built yet our one home
was not allowed. They realized this affected their property value and their
ability to utilize their property. On February 22, 1994 I wrote a letter to f^
John Rogers, Regional Director of FWS. The Austin FWS office responded with a f*"*"^*/
letter dated March 25, 1994 letting me Itnow that they had decided that we would ■" "
not be required to obtain authorization under the Act provided no warblers are ^^^
found on our property; if we agree to follow certain conditions.
This entire experience with the ESA has caused us great hardship. I spent I'^t
many hours each day, I can't even begin to figure total number of hours, trying f'"*'^
to resolve this situation. We have three children. My responsibilities include fl^x i
parenting, teaching, and assisting in my husband's home based business. Z was
left with considerable fewer hours to perform these tasks because of the
enormous amount of time chat was required to pursue our goal to overcome this
obstacle .
We have spent several thousand dollars to pay consultants to assist us. We
put our building project on hold after we learned we would not have immediate
use of our land. To start, stop then restart a project is costly. We lost our
opportunity to cake advantage of low interest rates, in fact assuming we will
have to obtain an $200,000 loan, Che 30 year anorcized increased cose for us Co
build has increased over S70,000. This could be of such a significant
difference that we may now not qualify for che projected mortgage payments.
There is even some question as to whether we will be able Co use our land as
security for our loan because of this. The bank requirement that we have a
■bird letter' is one of the main reasons we have worked so hard Co resolve this
issue. Without financing we vill h.ot be able to build so we could not proceed
without a 'bird letter.
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Page 31
FDCH CoogressioDaJ lestimooy. July 19. 1994
One of the worst aspects of this entire ordeal is the horrible no man's land
in which we find ourselves. The delays and uncertainty have been extremely
costly, not only financially but in stress to our family. It has cost us money
we should not have spent, but more importantly it has cost us uncertainty as to
whether or not we can actually build our home .
I found FWS in Austin to be insensitive . They have never had me in for a
face to face meeting. The one time I was in the FWS office I found the
receptionist rude and uncooperative. In my phone conversations I found the
staff defensive. There was no effort made to try to work something out for us.
I was told they would be working on something for people with small tracts of
land that might be available in the future, but at the time of our conversation
there was nothing that could help us. There still isn't anything available for
the small land owner. When the salaries of these people are coming out of our
hard earned tax dollars it is appalling to find this level of disregard toward
tax payers. ~
I made an effort this spring to learn what the City of Austin was planning
with regard to the Balcones Canyonland Conservation Plan (BCCP) . a regional
habitat conservation plan. FWS indicated this was a mechanism that would be
available to small land owners if it were to pass. I called the assistant city
manager eUDout the draft of the habitat conservation plan. I wanted to express
my concerns about the excessive cost to the small land owner. 1 figured from
their numbers the mitigation would be somewhere between 300-600% of the value of
my land. There is a great deal of uncertainty with the amounts because there
are two factors that are figured based on each case. One factor is the
mitigation ratio which would still be figured by FWS the other being the actual
cost per acre. The lemd would be bought at market value so depending on what
price had been paid for that particular piece this would determine what the cost
to me would be. "Hie assistant city manager's response to me with regard to cost
was that was just the price I would have to pay to live out there!
When I requested that the city council consider exempting small land owners
at a public hearing regarding the BCCP the mayor responded by saying that the
BCCP was totally voluntary so I should deal directly with FWS if it didn't work
for me. There is voluntary then there is "voluntary". FWS on the other hand
says the habitat conservation plan is just what small land owners should use?!
I have some great concerns over what I have experienced as well as what
effect the ESA has in a much broader context. First, it is a very negative Act.
Some have said it is flexible but I have seen no exajnples of this. It brings
about an adversarial situation between the land owner, FWS and the species in
question. If I have good habitat or create good habitat then I will be
penalised if endangered species are found. The ESA puts the rights of the
threatened species eUbove those of the landowner. The current application of the
ESA results in the egregious implication that the land owner has caused the
plight of the species in question. When in fact most of the time it is because
of the good stewardship of the land owner that wildlife actually thrives. The
landowner is financially responsible to bear the cost to preserve the endangered
species.
I see groxips and individuals using citizen lawsuits to bully Federal
Agencies in an effort to manipulate compliance with their 'Ecosystem Management'
agenda, which includes radical concepts such as the biocentristic view of humans
LEXIS- NEXIS*» LEXiS-NEXIS-^ LEXIS-NEXISW
247
P«ge 32
FDCH CoQgressiooal Tesumooy. July 19. 1994
as just another ' biological resource.
There is a great deal of uncertainty with regard to how the ESA might affect
an individual. One cannot make firm plane if some time down the road the rules B»»''*
change and you can no longer continue your project. For example 'Mr. Ihi— n1 L.
Burris Jr. inherited property that has been in the family since 1946-. In 1976
Mr. Burris finds it necessary to offset burdensooie property taxes. He inquires
of several conservation groups to see if they are interested in buying his land.
He is told by the Audubon Society that they would accept it as a gift but they
say that at the time this land has little value as wildlife habitat as there are
millions of acres of identical ecosystem beyond the city limits. They indicate
that the Audubon Society would be better served if they could have the land to
sell and use the proceeds to purchase habitat elsewhere. How ironic! Mr. Burris
now considers developing the land into home sites. Austin's City Planners agree
with the subdivision proposal. In 1978 Mr. Burris makes the financial
commitment to begin this project. The project was moving along successfully
until more then ten years later when Mr. Burris is confronted with a federal
injunction from proceeding with any further activity because of the threat to
endangered species .Trying to resolve this problem Mr. Burris eventually lost
most of his remaining land to foreclosure. Now conservation groups contact Mr.
Burris to see if they can acquire the remainder of the tract at ranch land
price. They cannot afford to compensate Mr. Burris for the value of the
improvements he has made over the preceding fourteen years . How can any one
make plans or consider investments with this type of uncertainty.
Another example is Mr. David Trotter. He is in a partnership that invested -^ ^fT""
in 1. 100 acres. Their intent was to develop 800 acres and leave the rest
undisturbed. There was a window in the contract to allow necessary time to
investigate the particulars of this property. FWS had already began their work
on preparing a response under section 7. Mr. Trotter was reassured that he
would have their determination within that window. F.D.I -C. the seller had
already spent $250,000 dollars to comply with the necessary studies and
requirements for the section 7. FWS did not have the determination completed
within the window and the sale went to dosing. Then Aft. Trotter receives the
response from FWS it is as follows. 1) 650 acres to be established and
naintained as a preserve for the golden cheek warbler. Financed for an
indefinite period of time by the owner. 2) 78 acres to be established and
naintained as a preserve for cave invertebrates. Financed for an indefinite
period of time by the owner. 3) 850 additional acres of land to be bought as
mitigation which will also be required to be established and maintained as a
preserve. Financed for an indefinite period of time by the owner. Mr. Trotter
in exchange for this may develop 250 of the 1,100 acres. I guess Mr. Trotter
may have wished he had invested in one of these organizations that he will now
have to pay to maintain the land that will be set aside as a preserve.
Yet another example. Mar-) and Roger Kruegar bought a lot in an improved
subdivision in 1989 . They had a custom home designed and were in the final
stages to begin building. They learned when they went to obtain a building
permit from the city of Austin that they would be required to get a "bird
letter" for this permit to be issued. Although this subdivision is fully
developed, road utilities and yes other residences, the Kruegera were told they
would be required to obtain a 10(A) permit in order to build. Their lot backs
up to an undeveloped area and there is bird habitat in this area. Biological
surveys have been done to show no evidence of birds on their property. It would
LEXIS- NEXIS'^ LEXIS- NEXIS'^ LEXIS- NEXIS*^
248
P«gt 33
only be necessary to remove one tree to/^uild this home . They could not afford
the astronooiical cost to obtain and ggnply with a 10(A) so they have lost
everything . Unfortunately there are many others who have been harmed, I have
included a list with this statement. These examples as well as those listed in
the attached list show there are indeed many people who have been negatively
affected by the ESA.
Some have suggested that financial compensation to the landowners who are
substantially deprived of the economically viable use of property as a result of
action under the BSA would impair the protection of wildlife because it would
make implementing the ESA too costly. I think we need to realize that
implementing the ESA as it is being applied currently is far to costly to the
landowner. We are back to the question of balance. If it is recognized that a
landowner has indeed been deprived of the economic viability through the ESA why
should the landowner have to bear this burden? We as landowners will be
excellent stewards if allowed to do so and most of the time it would cost
nothing from the government. I believe the reason more people have not filed a
"takings" suit is because for most this is cost prohibitive. It is simply out
of reach for the average citizen.
The ESA is being applied so stringently that it appears the government
controls the land, therefore I no longer own it but the government owns it. Let
us look at the condition of the countries in this world that have tried central
planning by the government. We see a ravaged and abused environment, a
suffering economy and people who must live at a much lower standard of living
then most in the United States . We should not be so naive to than we can do it
better therefore the end result will not be the same. I believe the landowner
who has a vested interest in the land he owns will want to maintain and improve
the property so as to maintain its value. This motivation in most cases will
result in the land owner being the most reliable steward.
Land owners should have a significant role in all plans by our government
that affect the use of their private property. Let history remind us how this
country got started. A land with great freedom, let us pass that freedom on to
the future generations. To make me pay a fee or provide land for mitigation is
nothing more then asking me to pay a tariff in order to use land I purchased
legally.
These disincentives must be removed. By punishing property owners for
having endangered species the ESA discourages people from being
conservationists. Reports of people "doing away with" endangered species
habitat on their land is not uncommon. Others simply make sure endangered
species can find no refuge on their land by removing any potential habitat for
the species. What I see happening is that the ESA is creating enemies of
wildlife rather than to encourage conservation. The risk of having one's real
property assets turned into liabilities overnight is enough to make some people
act perversely. For many small property owners, the choice between having
endangered species on your land and having a home to live in, or the revenue to
live on, is an easy one. This, in my view, does not have to be. I am convinced
that most people like wildlife, and they would go out of their way to attract
wildlife to their land, if they weren't likely to lose the use of their land if
they did this. I' think the history of conservation in America shows this to be
true.
LEXIS- NEXIS'^ LEXIS- NEXIS'^ LEXIS- NEXlS«s
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Page 34
FDCH Cocgrcssiooal Teslimony. July 19. 1994
Once the disincentivee are removed then we win not have to be concerned that
our property values will plummet if a listed species is found on our land.
Voluntary cooperation, initiatives, and management are the very methods used to
restore the wood duck nation-wide and the eastern turkey throughout the south.
Wood duck«, for example, were thought to be on the brink of extinction
during the first quarter of this century. When people learned of this, they
came to the wood duck's defense. Thousands of people put up nesting boxes for i~at\
the wood duck on their own land, hoping to provide a home for a homeless and
beautiful species of waterfowl. As a result of these cooperative community ^*'*'^
efforts, today wood ducks are abundant. FWS now issues guidelines to state fish
and game departments to allow hundreds of thousands of wood ducks to be hunted
without harm to the species.
Imagine if the ESA had been in force during the time wood ducks were
imperiled. How many property owners would have gone out of their way to attract
an endangered species to their property? If the wood duck had been Listed under
the ESA, I doubt very many would have risked losing their property by putting up
the nesting boxes. In fact, my guess is that people would have viewed wood
ducks much like they view spotted owls and red cockaded woodpeckers. Even
though both of these listed species have proven themselves capable of utilizing
artificial nesting boxes, and even fledging young in them, I have not heard of
people putting them up so as to attract the birds.
Some other successful recoveries are White tail dear, Rio Grande Turkey,
prong horn antelope, white wing dove.
Texas has success stories where land owner and State fish and wildlife
agencies have worked together amicably to enhance habitat for wildlife and
recovered threatened species. I am confident that other states have also
experienced some success as well . Lets look to these States to learn how they
were able to get these results and use these examples m making changes to the
ESA.
For small property owners like myself and my husband, insult is added to
injury. We do not even have golden -cheeked warblers on our property. The
nearest documented sighting of warblers if a full quarter-mile away from our
little plot. No one gave us any hints on how to make our land conducive to
golden- cheeked warblers. They simply told us that, even though there aren't any
on our property, our property rights are subordinate to those of the
goldencheeked warblers .
It is my view that the ESA is creating enemies of wildlife, rather that the
defenders it should be fostering. I resent not being allowed the opportunity to
use my own land. It has cost my family dearly. But I also resent the
government's arrogance . In my expedience. FWS is more interested in working
against landowners than with them. In Austin, their view seems to be that the
ESA gives them the right to deprive property owners of their own land, even if
that land is devoid of listed species.
My understanding of the law is that the government cannot declare that
private property is off limits to the property owner simply because the owner
has land that could potentially be used by wildlife.
LEXIS- NEXIS'^ LEXIS- NEXIS'^ LEXIS- NEXIS'^
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P»ge 35
FDCH Coogressiooal Testioxny. July 19. 1994
If the people of the Dnited States want to protect the environment through
something such as the ESA then we all should have to share the financial burden.
We can't just say well the govertunent doesn't have the funds to do this
ethically so wall just give the bill to soineone else.
A question I have as an individual that once was told by the govemnent that
I must file for a 10 (A) , is exactly how many individual land owners have been
issued this permit in the entire 21 year history of the ESA7
There are only two of us here to represent all of those who have been
adversely affected. I know of many more people who would also like to have an
opportunity to tell you their experience with the ESA. VAiat mechanism is
available for these people to do this?
LANGUAGE: ENGLISH
LOAD- DATE -MDC: July 20, 1994
I FXIS-NEXIS'^ LEXIS'-NEXIS"^ LEXIS- NEXIS"^
?7 lit SSf
251
Enemies of
habitat plan
misleading
the puhhc
■■- SEP 0 7 B3»
Br Kevin J. Sweeney
Sp«aal ID th* AA)«rc«rv-Suicsin«n
There's xn old adier in poLdcs: If yoiir
opponent u loo touch. Just invent a new
one. Build a straw matv say the 6ons\il-
tajus; then knock it down. And so Geor^
W. Bush and his cjonjes are choosine tiot
__^^_^ to i-un atainsi Ann
D 1 1 D t I r> Richards, but against
r'tJOI.I^^ obscure bureaucrats
FORUM and the federal Endan-
gered Species Act
Theirs is a cynical and deliberately mis-
leading campaign.
They say designation of critical habi-
tat for the golden<heeked warbler, au-
thorized by the Endangered Species Act.
is depriving Texzns of private property
rights. Tnej- say it means Texans cannot
continue to Urm. or build houses, busi-
nesses and n>ads Tney are wrong, and
they know it
First, though they keep claLTdng oth-
erwise, there has been no designation of
critical habitat None whatsoever.
Second, their numbers are wrong.
They originally claimed the designation
— which, again, does not cxisi — would
lock up 20 million acres. Then, they said
800.000 acres. The facts: critical habitat.
if designated, would include a fraction of '"
that area. And it would not lock up the
land.
Third, the debate over critical habitat
designation has nothing to do with pri-
vate property. Nothing at all Under the
law. critical habiui sunply means that
when federal funds are involved. Fish t
WDdlife Service biologists must rrview
the plans.
Thus, this is not an issue of private
propertj-. it is instead about federal firnd-
ing. Within critical habitat, those who
want the benefit of federal tai-payer dol-
lars must check with one more agency.
That is all it means.
People can still farm and build their
homes and businesses. But if they seek
federal funds, they need to check — and
they should Using federal funds for a
road or hospital m a pristine area may
not be wise, particularly if it contradicts
other community goals.
Those who say the Enda.^g^^ed Species
Act has problems an quite right the fed
eral approach to endangered species
must change. But those who mislead the
public via not help us find solutions. The
problem is less the law itself than its im-
plemenution. For 12 years, federal ad-
ministrations wanted the act to fail, so
they never used the creative Dexibility
contained in the law. That »Ta then.
The Qinton administration has taken
a series of steps that acknowledge the
problems — and bring us much closer to
solutions.
The act enables us to develop habitat
conservation plans, or HCPs. creative
agreements that allow for development
and protection of t.'ie species. Prior to this
admmistrauon. only 17 HCPs had been
complete± we now have more than 100
in the works. Interior Secretary Bruce
Babbitt announced a policv that consid-
ers species not yet listed Li uhe develop- -
mem of HCPs, giv-ng lindov-ners in the
region greater eco.iomic cer^inty.
Critics complained of a bias in federal
studies and called for peer review of list- '
mg decisions: we agreed a.iiunilafraj '
ly unplemented this policy-. The almin :
istralion now brtigs eco:io=ic consid-
erations to bear tauch earlier in the
process by allowing outside parties to
help draft recoveo' plans. We are con-
tinuing to find new Oexibibty. and are
Civme special anention in this search lo
problems faced by small landowners.
In other parts of the country, where the
rhetoric is not driven by campaigns,
landowners are seeing something inter-
esting under the Qinton administratiDn.
the Endangered Species Aa is a Oexible
and useful tool for communities.
By saying Individuals have a right lo
do whatever they want with their prop-
erty — with no acknowledgment of the
greater needs of the community the
opponents deny two centuries of law and
tradition. Zoning law acknowledges rea-
sonable limits to one's right to develop
properti'. If this group has its way. those
limits will be gone, and well pay a huge
price: pom shops can be built across the
street from churches, and liquor stores
can be put in nen to Junior hijEh schools.
Two simple rtatements guide our poli-
cies in this area. First, pnvai ■ property
ownership is a fundamental American
value, and the individuals have tl^e right
to develop their own land for private
gain. Second, the United States is an ut-
terly beautiful land, and we will fight to '
help future generations inherit a nation
as beautiful and productive as the land
we love today. These two statements are
not a conttadiction, and we cannot give
in to those who say we must choose be-
tv.-een them,
S-ten«v IS &sxis-,ara lo the tecreury o( lh« m-
lerof.
EXHIBIT D
Sweeney, Kevin J., Director, Office of Public Affairs. Depi, of the Interior.
Room 7214. 1849 C St,. NW, Washington. DC 20240, Education: Univ. of
Califomij at Berkeley. 1976-80. A.B, in political ,Mrlence, editor, eenerjl mer„
California Pelican. Career Record: 1 98 1 , Research Specialist, Aiialysis Center
for the Evaluation of Energy Statistics. The Whanon School, Univ, of
Pennsylvania; 1985, pre,ss secy,, Subcom. on Energy Conservation and Power.
House Com, on Energy and Commerce and Rep. Edward Markey. MA: 1988
Reponer. Political Analyst, WAGA-TV. Atlanta, CA; 1989-92. Public Affairs
Dir. Patagonia. Inc.; 1992. Mgmt, and Communications consultant to corpora-
lions and non-profit groups; 1992. Congressional candidate; 1993-present.
current position. Political experience: 1983-84. lA press ,secy.. scheduler and dir
of advance. 1984 Gary Han for President Campaign; 1985-87, press secy, and
.spokesperson for Sen. Gary Han. CO, Publications: articles and book reviews
in Lt>s Anjielei Times. San Francino Examiner. Sacramento Bee. Cleveland Plain
Dealer: "Press Secretaries: A Guide for Democrats." Democratic Natl, Com..
1986 and 1990; co-author. "Jackie and Joe." screenplay. 1990. Interests: fly
fishing, surfing, furniture repair
Peja^<^y\/$iA.^
252
EXHIBIT E
UNITED STATES
DEPARTMENT OF THE INTERIOR
KISH AND WILDLIFE SERVICE
Ecoto(ical Services
Stadium Centre Bw!l(lin|
711 Sodium Drive Eut. Suite 2S2
Arlinflon. Tcxat 7i01I
Fabruarj 20, 1991
Oers />- i-ju^
I^O^y^cX*. -Fie-**-...-*- Ccv-t,
•A v^
\x. baa coae Co our acvenclon that clearing of a ocrlp of uoodlaod hat
recently occurred on a tract of land located aouth of FM l<i31 In tho vicinity
of Lago Vlcta, Texaa. We uodaratand that you arc ooe of cho Joint ovneca of
tbe property. Infoi-atation available Co u* Indlcaceo that thia property
supports prino b^hltac for the f cderally-llated endangered goldon-cheekad
--.-(. .'b lav. Se« = ruc'i3n .of hahlcat'of an endangarad apacla* nay cooatituca a
"cako" o.'. that apcclea a* defined by the Endancored Speclea Act, »<ilch
prohibit* "cake" of • f ederally-lletad cpeclo* unlesa the "take" Ic
iDcldentsl to ocbervlae lawful activity and a permit in coiDpllanc* vlch the
Act hda boAn obcainod. In thla caaa, a ponslt under Section 10(a) of Cbe Act
would ap'plj. Isfonaation on the Section 10(a) permit proce«a is enclosod.
Deatructlnn of endangered cpecle* habitat, without a pci-mlt, that reaulta in
"C«k«" of t f edorallj'lisced endangered apeclea could be held to b« •
violacio-i of tha Act and could expose a violator to the criminal penaltie*
pra-^fldcd far urJcr Sccclsr. IKbJC) cf the Acz or to tbo =:vll p=nsltla«
"provided 'or under Socclon 11(a)(1) o£ the Act. Section ll(b>(l) providea
for a fine of not more than $30,00C or inpriaonmeot up to ooe year, or both.
Section 11(c)(1) pcrreita assesancnt of up to $25,000 oa a civil penalcy for
each violation.
Thle matter ic currently under ir.vcstlgatioB by Special Agent AJ.ax Eaaycbak
of tbe Fiah and Vlldllfe Service Law Enforcemant Office in San Antonio and
by pcrscnnel of ihls office. If you arc indeed an ovmer of the property in
<lucatlo>., wc respectfully urge that you ceaca any further land clearing
25S
acClvlCl** kod cootsct Alex Ilaajcbak kc (S12) Z29-S412 or Jo« Jobnftoo of
t.bla offlc* at (817) 865-7830 for additional loformatloo on coapllaiica of
ntch acClvlClaa vlcb Cba Endaogarcd Spaclaa A£C.
Zr.cloccrc
cot Law EoforcamonCi FUS, San Ancoolo, TX
Roglcnal Dlraccor, FVS , Albuquerque, KM (FWE/HC)
ttaslooal Sollclcor, USDl, Tulsa, OR
254
EXHIBIT F
United States Department of the Interior
nSH AND WILDUFE SERVICE
61 1 £. Sixth Street
Grant Bldg., Suite 407
Austin. Texas 78701
Bunt, Texas 7B024
\PR 0 7 fiSV'
Deair Kr. •^^■h:
This letter is in reference to recent clearing activities on your property on
'HVMMft near Bunt, in Kerr County, Texas. This property supports vegetation
that is possibly occupied by the federally listed endangered golden-cheeked
warbler. According to our files, golden-cheeked warblers have been sighted on
adjacent-pcoperties in similar "habita-tr^aTid are possibly present on your •
property close to the area that has been bulldozed.
If the activities taking place on the subject site disrupt the breeding and/or
foraging activities of the federally protected golden-cheeked warbler, these
activities would constitute a "take" of listed species. Take of listed
species is prohibited under section 9 of the Endangered Species Act (Act) and
must be avoided or authorized under section 7 or section 10 of the Act.
The term 'take* means to harass, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to engage in such conduct. 'Incidental
taking*, authorized under section 7 or 10 of the Act, means any taking
otherwise prohibited, if such taking is incidental to, and not the purpose of,
the carrying out of an otherwise lawful activity.
Based on aerial photographs, and other Information available to this office,
we recommend that clearing activitiies on the property be discontinued and a
biological survey be performed by qualified biologists to determine if this
habitat is currently being utilized by golden-cheeked warblers. This would
help you, and our office, determine if further development of this site would
require authorization under the Act. Please see the enclosure for minimal
survey requirements for the golden-cheeked warbler.
If you have further questions regarding the ecology of the golden-cheeked
warbler, or the Act, please contact Bob Simpson of my staff at (512) 482-5436.
Sincerely,
255
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EXHIBIT H
REAL ESTATE CENTER
Rural Land Prices in the
Southwest: Second Half\1993
m:^3-W^
Charles E. Gilliland
Associate Research Economist
WiUiam Swanson » o Troy J. Vanderburg Holly Paige Patrick
Graduate Research Assistant Graduate Research Assistant Student Research Assistant o
Technical Repor^ 1020
April 1994
257
Summary
*-
Land markets throughout the South-
west continued to improve in the second
half of 1993. There was strong demand for
good quality cropland on a broad geo-
graphic basis. However, potential buyers
frequently found a dearth of good quality
land for sale. Observers continued to see
an emergence of investment buyers
throughout this region, and acquired
properties were only a problem in a few
isolated areas. Further, home building has
resulted in shortages of good developed
lots in some locations. Panelists in those
locatior\s project upward pressure on
prices of urban fringe land. On balance,
observers generally were optimistic about
the near term for land markets.
Long-term prospects remain clouded as
landowners and buyers face the specter of
uncertcunty arising from a variety of
sources. Environmental regulations and^
legal battles raging throughout the ctrea
add to the uncertainty of an already riskyr
investment. Confrontations continue to
erupt between environmentalists and
landowners. Little common ground exists
for these antagonists to reach, and final^
outcome of their confrontations is yet to be
determined. Until then, markets for land
subject to Immediate regulation suffer
when compared to unencumbered acre-
age. Nonirrigated land in the Edwards
Aquifer area of Texas serves as an exampje
■ of this kind of influence. Because pro-
posed protection of endangered species
has resulted in prohibition of further
development of irrigation wells, markets
-^ for dryland have practically vanished.
Coming changes in agricultural
programs further threaten the status quo
in many land markets. Potential buyers
and sellers are anxiously awaiting news
regarding the retirement of Conservation
Reserve Program (CRP) land. Presuiruibly,
this land will be returned to the owners for
some agricultural use. When surveyed by
the Soil and Water Conservation Society,
56 percent of CRP owners indicated that
they would either return the land to
cultivation themselves or rent it to a
farmer. Only 3 percent intend to sell the
CRP acreage. The following table reports
scheduled CRP retirements in the
Southwest. Texas leads the four-state area
with a total 4,150,485 acres enrolled. More
than three million acres will be retired in
the 1995-97 time frame. Texas has
approximately 150 million acres of
agricultural land, meaning that CRP
acreage composes only about 2.8 percent
of the total. At the other extreme, Arizona
htis no CRP acreage. New Mexico will
retire 483,181 acres while Oklahoma will
return 1,192,504 acres to owners.
If these acres are released without
further regulation, they represent a sub-
stantial shift in land use during the next
seven years with most of the changes
coming in 1996. CRP retirements will
likely have a two-pronged effect on mar-
kets. First, they will increase the amount
of land in production and could affect
commodity prices by contributing output
in the market place. Second, the sudden
addition of acreage to the land market
could expand supplies and ease upward
price pressures. Uncertainty about how
the markets will accommodate this added
acreage concerns Southwest land market
observers.
Changes in grazing lease arrangements
for federal land and the phaseout of the
wool and mohair incentive program are
examples of current changes in federal
policies that are causing imcertainty in
land markets. Agricultural policy experts
predict that the 1995 farm program likely
will depart from the traditional approach
' /
258
Oklahoma
The number of farms sold has remained
stable with 95 to 98 percent of the tracts selling
when offered. North Central Oklahoma has
experienced adverse weather conditions, such
as a wet spring followed by a devastating hail
storm in portions of Garfield, Alfalfa and Grant
counties. Currently, we are dry and need
moisture to boost wheat growth for stock
grazing. These adverse conditions could
provide for a tough spring land market, when
most of our auctions occur. (Oklahoma ap
praiser)
The prices of commodities produced, a lack
of oil/gas production, and the erratic weather
patterns for the last few years have all affected
the market. (Enid area appraiser)
Improvements in agriculturzd income and in
the non-ag economy, especially the oil/gas
industry would help. (North Central Okla-
homa appraiser)
Texas
The land market is as good as it has been in
several years. However, many fear the USDA's
restructuring and are not willing to take on
more long-term debt, (f^nhandle broker)
Land is becoming very closely held smd less
available for purchase. Very little land is for
sale. Real estate agents are actively seeking
sellers. We anticipate strong price increases
due to good grain prices and cheap interest
rates. Buyers are investors with cash. (Pan-
handle bar\ker)
Low interest on bank deposits, low interest
on loans and little land on market may equal
higher land prices. (Panhandle broker)
We completed a good harvest in this area,
and young farmers have some money. (South
Plains broker)
Over-priced land is the only aaeage not sold
in our area. This area is going to see a big
demand for good land due to the good cotton
crop. (Permian-West broker)
Lower interest rates have sparked some
additional buying by people for himting and
recreational purposes. There appears to be a
continued sell-off of larger tracts due to
financial stress. The recent news of reduction
in mohair subsidies may drive market lowen
There is some renewed interest of buyers for
recreational and hunting properties due to
lower interest rates. (West Texas landowner)
Recently legislated phaseout of the wool
and mohair subsidy program will strongly
influence ranch land prices. (Phaseout: 1993 -
100 percent, 1994 - 75 percent, 1995 - 50 per-
cent, 1996 - 0 percent). (Hill Country and
Edwards Plateau broker)
Supply is really reduced, and the demand is
much greater. Prices are upwardly mobUe,
particularly in close-in or transitional proper-
ties. Ranch land in the western area of this
report is not moving as well, but there are a
few really good properties being offered.
Distress and lender sales are at a minimum.
Very few bargains remain. Breakup of larger
ranches continues into smaller tracts with a
large disparity in price per acre between larger
(1,000 acres and up) and smaller (50-300 acres)
properties. Hunting and recreation are the
driving force, with a future homesite upon
retirement close behind. People are fleeing the
metropolitan areas if they can afford the move
and relocation. Younger middle-aged families
are buying for future relocation. Agriculture is
relatively unimportant and is secondary to
hunting, with hunting leases bringing a
premium. (Hill Country landowner)
Acquired assets are pretty well cleaned up.
Recreation buying is the big motivator for
buying rangeland. Some interest in irrigated
farmland. Water from the Edwards limestone
is a disturbing influence. (Edwards Plateau-
South appraiser)
There are lots of sales in the area. Listings
are getting scarce. Buyers are mostly big deer
hunters. Environmental problems that may
restrict land use, lack of long-term financing
except through PCS for smaller tracts, the
status of CRP conti-acts which will expire in
19% are all concerns influencing current
markets. (Rio Grande Plains appraiser) .
Due to low interest rates pziid on CDs and
the risk factor involved in the stock market,
numerous individucils are purchasing land as
an alternative investment. (Wichita Falls area
appraiser)
Very littie change noted in market activity
except a slowdown in new commercial dairy
site purchases. It seems that environmental
concerns axe deimpening demand for the sites
259
in Erath County. We are seeing a modest
increase in demand again for good scenic
hunting and recreational places. Buyers still
seem to be looking for a bargain, but sellers
seem to be less inclined to sell too low. There
are fewer REOs on the market, so sellers no
longer are forced to discount their holdings in
order to compete with other offerings.
(Stephenville area appraiser)
Ranch land appears to have attracted some
investors who are new and were not in the
market last year. (Hill Country-North broker)
The smaller tracts are receiving the most
activity, with the larger tracts seeing little
activity. The buyers for the smaller tracts
appear to be willing to pay a premium for the
tracts having good location, water well and
good fences. The most important issues in this
market are private property rights, endangered
species act. National Biological Survey and
other environmental issues. (Hill Country-
West lender)
We are still feeling the results of a distressed
market. (Highland Lakes area appraiser)
There is good demand for properties under
200 acres but little supply and little activity on
larger properties. Most buyers anticipate
holding their properties for many years.
(Highland Lakes area broker)
Recreation and hunting are primary motiva-
tions for purchases. There is a spillover from
the strong San Antonio housing market into
Kendall County. A realization or belief that
market has bottomed is strong factor. (Hill
Country-South trust officer)
Sales in late 1992 and 1993 increased dra-
matically. Sale prices did not change signifi-
cantly as did the number of properties ex-
changing ov^mership. Due to the general
recovery in the local economy, market activity
has increased; however; land prices have not
changed significantly, only the number of sales.
With the low land prices coupled with a
recovering economy, many of the large land
sales are being purchased for division and
resale as acreage homesites. (Hill Country-
South appraiser)
Brokers are looking for listings. River tracts
have been active. The inventory of available
properties has decreased significantly due to
the active market experienced throughout
1993. A large percentage of buyers have upper
limits of $300,000 to 400,000. (Hill Country-
South appraiser)
Nonfarmers are starting to return to the
market. (San Antonio area appraiser)
Comal County has seen four to five ranches
purchased from both RTC/FDIC and private
individuals for subdivision into rural tracts.
Management of the Edwards Aquifer and
related development restrictions as well as
uncertainty as to final outcome of lawsuits on
the Edwards Aquifer cause problems in this
market. (San Antonio area appraiser)
Sales have increased, and, as price goes back
up, more offerings will be listed. People from
cities are looking for rural homesites and small
farm operations. (Coastal Prairie-North broker)
The inventory of distressed properties is
gradually going down. The number of sales is
gradually increasing. There is greater demand
for small tracts as homesites. (Dallas area
appraiser)
There is a short supply of realistically priced
working cattle ranches. The 'good' deals have
already been completed. Many buyers are
looking for good improved pasture ranches in
central Texas with economically sized units that
can carry 250 to 500 animal units. Most row
crop farms have sold rather quickly when
priced to current market. (Blacklands-North
lender)
Asking prices above market prices are
keeping real estate from moving. (Blacklands-
North lender)
With the deployment of the 5th Mechanized
Division to Ft. Hood, western Bell County land
suited for urban residenfial development is in
great demand. Demand is also great for
ranchette sites in Killeen. Western Bell County
land values are appreciating from 10 to 15
percent per year for well located urban and
rural land areas, assuming urban tracts have
sewer and rural tracts have amenities such as
view, tree cover or water (Blacklands-North
appraiser)
Eastern McLennan County property owners
are very much concerned with the effect on
land values if the bullet train becomes a reality.
(Waco area appraiser)
Real estate held by financial institutions has
for the most part been liquidated. Acreage
bought for rural homesites has become a
primary buyer mohvation. Location and land
260
aesthetic qualities are factors affecting buyer
decisions and thus the location premiums lost
during the past price declines are being re-
newed. (Georgetown area appraiser)
For the first time since 198J8, larger tracts
show some sign of improvement. My best
guess as to why? Fewer tracts available and
Houston's economy. (Brazos area broker)
All of the lower priced properties in the
Fayette and Colorado county area have been
sold. Only the higher priced tracts remain.
(Houston area broker)
Good land in all categories is in short supply.
(Houston area appraiser)
Most sales are from acquired property
inventories which have kept farm values
down. Farmers are not making any money
from fetrming, and many farmers are losing
their farms. Buyers are converting land use
from farming to grass and raising cattle.
(Eastern Houston area broker)
Transitional land is on the upswing. (North-
east Texas appraiser)
Demand is very good right now for most
types of acreage. Demand is very good for
timberland. At this time, demand for most
types of acreage is exceeding supply. For this
reason, we are seeing appreciation. (Piney
Woods-North broker)
Prices have not increased during the past
year at levels expected. Cattle prices were
relatively high, but most producers feared a
rapid deterioration during herd building. Fear
of national economic pressures is also a major
concern (anti-ag, anti-landowners in Washing-
ton.) (Piney Woods-South appraiser)
The wetlands act is beginning to catch the
attention of many landowners in the area. The
prevention of potential grazing land being
reclaimed may prove to be a detriment to land
values. Timber prices are high currently.
Opportunities to pay for a significant portion
of the cost of land and its maintenance through
timber production are prevalent. (Piney
Woods-South appraiser)
We are currently deliberately slowing down
our land sales but continue to be active in
outside sales market. (Piney Woods-North
timberland manager)
494-1M-1020
261
EXHIBIT I
Coimnissioners reject making
Bexar critical habitat for bird
SAN AMTQNIO KXPf)E£S
By Gloria Pedllla
,E.p.-..ws»«w„«. AUG 18 ffiV
Fearing the loss o{ up to $4.6
mlllloD in tax revenue. Commis-
sioners Court unanimously ap-
proved a resolution Wednesday op-
posing the inclusion of Rpyy Coun-
ty as a critical habiut for the gold-
eD-che«ked wartOer.
County officials fear a critical-
habitat designation will restrict
land use, adversely affecting prop-
erty values.
The court will forward the
resolution to the U.S. Fish and
Wildlile Service, a division of the
Interior DefiartmenL The depart-
ment has proposed classifying up
to 800,000 acres in 33 Central Texas
counties as critical habitat for the
warbler, which is listed under the
Federal Endangered Species Act
Commisaoners noted that Trav-
is County suffered a loss of 3 per-
cent to 4 percent of the total tax
base for 1991 aiter It was designat-
ed a chtical habitat
The Bexar County tax base for
1933 was $30 billion. A 3 percent to
4 percent loss of tax revenue could
result in a net loss of 13.4 million to
H6 million for the county, com-
misslonen said.
Other Uxing entitles in the
county, including frh"o* districts
Golden-cheeked warbler habitat
The endangered golden-cheeked
warbler's habitat is a mixture of
oaks and cedars. It extends
northwest to central Texas.
BPtm WW»0«AWC
Commissioners noted that Travis County
suffered a loss of 3 percent to 4 percent of the
total tax base for 1991 after it was
designated a critical habitat.
and the hospital district, also would
be affected adversely by the desig-
nation, offloals said.
Commissioners also called for
completion of a thorough and
Impartial economic and social im-
pact study with input from land-
owners and local offidaK
The study, accontng to commis-
sioners, shotjjd be required before
private land use restrictions are
imposed to protect endangered
species and their habitats.
An endangered bird survey coi>-
ducted at Camp Bullis in 1993 esti-
mated that between 300 and 500
pairs of golden-cheeked warblers
were nesting on the grounds of the
27,880-acre facility.
At nearby Friedrich Parte, a 2S-
acre dty-owned wilderness pariL,
10 pairs of the birds were spotted
during last spring's nesting seasoa
262
.'EXHIBIT J
Texas A&M University
Research Station
At Sonora
1994
April 14, 1994
263
Foreword
The puqjosc of this book is to provide greater ir\sight on the biology of jumper and how it
impacts rangeland productivity, including hydrology, livestock, vegetation, wildlife and the
ranching enterprise. We will also emphasize the regulation and management of juniper by various
control methods including chemical, mechanical, fire and biological. We hope that our audience
includes students, ranchers, wildlife biologists, agribusiness and other agricultural professionals
and the growing segment of the public interested in natural resource management.
Our approach has involved the synthesis of research from other locations but we have
concentrated mostly on research generated by the Texas A&M University System. The central
theme of this book is to provide a basic understanding of juniper with a minimum amount of
scientific jargon. Each author has written his respective chapter at a level that should be easily
understood by the novice who is serious about learning about juniper and its effects on our Texas
rangelands.
Within Texas, blueberry juniper (Junipenis ashei) is a serious problem on approximately
10 million acres and rcdberty juniper {Juniperus pinchohi) on 12 million acres of the Edwards
Plateau and Rolling Plains. Increases in juniper alter wildlife habitat, reduce plant and aoimal
diversity, increase soil erosion and alter hydrologic properties of most invaded communities. The
invasion of juniper is readily apparent; however, information regarding the effects of juniper on
rangelands is scarce. Hopefully this book will be read and understood by a wide array of the
public, so that all can understand better the effects of juniper on our rangeland resources.
Charles A. Taylor, Jr.
Associate Professor &
Research Station Superintendent
Texas A&M University Research Station
Sonora, Texas 76950
264
Authors and Symposium Participants
Dr. Jim Ansley
Bill Armstrong
Deirdre H. Carlson
Dr. Richard Connor
Sam Fuhlendorf
Jimmy Holman
Dr. Ed Huston
Dr. Keith Owens
Dr. Dale Rollins
Dr. R. C. Rowan
Dr. Fred Smeins
Erika Straka
Dr. Charles Taylor
Dr. Tom Thurow
Dr. Darrell Ueckert
Dr. Steve Whisenant
Dr. Robert Whitson
Assistant Professor. Texas A&M Uni\ersitv Research and Extension Center.
P. O. Box 1658, Vernon TX 76384 (817)'552-9941
Assistant Area Manager, Texas Parks and Wildlife Department, Kerr
Management Area. Rt. 1 Box 180, Hunt. TX 78024 (210)238-4483
Research Associate, Texas A&M Univcrsitv, Department of Rangeland
Ecology and Management, College Station, TX 77843 (409) 845-7332
Professor, Texas A&M University, Department of Agricultural Economics,
College Station, TX 77843 (409)'845-2336
Graduate Student, Texas A&M University, Department of Rangeland
Ecology and Management, College Station TX 77843 (409) 845-7332
Rancher and Landowner, P.O.Box 1446, Sonora. TX 76950 (915) 387-3122
Professor, Texas A&M University Research and Extension Center, 7887 N.
Highway 87, San Angclo TX 7690 1 (915)653-4576
Associate Professor, Texas A&M University Research and Extension
Center, 1619 Gamer Field Road, Uvalde TX 78801 (210)278-9151
Associate Professor. Texas A&M University Research and Extension
Center, 7887 N Highway 87, San Angelo TX 76901 (915) 653-4576
Texas A&M University, Department of Agricultural Economics, College
Station, TX 77843 (409) 845-2336
Professor, Texas A&M University, Department of Rangeland Ecology and
Management. College Station TX 77843 (409)845-7332
Graduate Student, Texas A&M University, Department of Veterinary
Physiology and Pharmacology, College Station, TX 77843 (409) 845-7261
Associate Professor and Research Station Supcnntendent, Texas A&M
University Research Station, P. 0. Box 918, Sonora TX 76950
(915)387-3168
Associate Professor, Texas A&M Univcrsitv, Department of Rangeland
Ecology and Management, College Station TX 77843 (409) 845-3765
Professor. Texas A&M University Research and Extension Center, 7887 N
Highway 87, San Angelo TX 76901 (915)653-4576
Associate Professor. Texas A&M University, Department of Rangeland
Ecolog\'and Management, College Station TX 77843 (409)845-0317
Professor and Head. Texas A&M University, Department of Rangeland
Ecology and Management, College Station TX'77843 (409) 845-5579
265
Table of Contents
Chapter 1 A History of Land Use of the Edwards Plateau
and its Effect on the Native Vegetation Page 1
Chapter 2 Biology and Ecology of Ashe (Blueberry) Juniper Page 9
Chapter 3 Biology and Ecology of Redberry Juniper Page 25
Chapter 4 Juniper Effects on Rangeland Watersheds Page 31
Chapter 5 Effects of Juniper on Livestock Production Page 45
Chapter 6 Cedar Through the Eyes of Wildlife Page 53
Chapter 7 Juniper Control and Management Page 61
Chapter 8 Economic Considerations in the Control of
Ashe Juniper Page 69
266
46 - Slate Delegations and District Maps
EXHTRTT k
SENATORS
Phil Gramm
Kay Bailey Hutchison
TEXAS
REPRESENTATIVES BV
1. Jim Chapman
2. Charles Wilson
3. Sam Johnson
A. Ralph M. Hall
5. John Bryant
6. Joe Barton
7. Bill Archer
8. Jack Fields
9. Jack Brooks
10. J.J. Pickle
1 1 . Chet Edwards
12. Pete Geren
13. Bill Sarpalius
14. Greg Laughlin
15. E(Kika) de la Garza
DISTRICTS
16. Ronald D. Coleman
17 Charles W. Stenholm
18. Craig A Washington
19. Larry Combest
20 Henry B Gonzalez
2 1 . Lamar Smith
22. Tom DeLay
23. Henry Bonilla
24. Martin Frost
25. Michael A. Andrews
26. Dick Armey
27. Solomon P Ortiz
28. Frank Tejeda
29 Gene Green
30. Eddie Bemice Johnson
See pages 47 and 48 for detailed
maps of Dallas and Houston.
IQQ4
^Congressional Yellow Book
267
Stare Delegations and District Map\ - 47
DALLAS/FORT WORTH METROPOLITAN AREA
REPRESENTATIVES BV DISTRICT
3. Sam Johnson
4. Ralph M. Hall
5. John Bryant
6. Joe Barton
12. Pete Geren
24. Martin Frost
26. Dick Armey
30. Eddie Bemice Johnson
12
Part
W»ii1« 5«ltl*m«nt Fort WorlhJ
©Congressional Yellow Book
Summer 1994
268
269
Golden-cheek-cd Warbler
Dendroicii chrysopuria
^1 Present Kange
Hap only shows Texas range
270
Grzybowski, J.A. I98Sa. Final Report: PopuUtion and nesting ecology of the black-capped virco {Vireo an-icapillus).
Part I; Population sutus of the black-capped virco in Oklahoma - 1985. Prepared for the U.S. Fish & Wildlife
Service, Albuquerque, NM.
-. 1985b. Final Report; Population and nest^g ecology of the black-capped vireo (Vireo atricapillus) . Part
11: Nesting ecology of the black-capped vireo. Prepared for the U.S. Fish & Wildlife Service, Albuquerque, NM.
. 1986. Interim Report: Population and nesting ecology of the black-capped vireo (Vireo atricapillus).
Prepared for the U.S. Fish & Wildlife Service, Albuquerque, NM.
. 1989. Interim Report: Black-capped virco investigations: PopuUtion and nesting ecology. Prepared
for the U.S. Fish & Wildlife Service, OfGcc of Endangered Species, Albuquerque, NM.
Marshall, J.T., R.B. Clapp, and J.A. Grzybowski. 198S. Status Report: Vireo atricapillus. Black-capped virco. U.S.
Fish aiid Wildlife Service, Office of Endangered Species, Albuquerque, NM. 40pp.
Tazik.D.J. 1991. Proactive Management of an EndangercdSpecies on Army Lands: The black-capped virco on the Lands
of Fort Hood, Texas. Unpublished PhD Dissertation, Uoivenity of Illinois, Urbana, Illinois.
U.S. Rsh and Wildlife Service (USFWS). 1991. Black-capped virco {yireo atricapillus) Recovery Plan USFWS,
Ecological Services, Austin, TcMis '74pp.
REV. DATE 8/92
Black-capped Vireo
Vireo atricapillus
^^m Present Range
Map only shows Texas range
271
American Perecrine Falcon
. Faico peregrinus anatum
,^^^ Present Nesting Range
Migratory Elsewhere in Stat
Map only shows Texas range
272
SWIFT FOX
Distribution based on known
county records.
From: Davis, Wm. B., 1974. The Mamals
of Texas. Texas Parks and Wildlife Dept.
273
Red-cockaded Woodpecker
Picoides borealis
Present Range
Map only shows Texas range
274
Scoa, N.J.. Jr., «nd L.A. Fitzgerald. 1985. Status survey of Nerodia harleri, Brazos, Concho-Colorado Rivers,
Texas. Denver WUdlife Research Center, U.S. Fish and Wildlife Service & Mus. of Southwestern Biol.,
Albuquerque, NM. 44pp.
, T.C. Mixv/cU, O.W. Thornton. L.A. Fitzgerald, and J.W. Flury. 1989. Distribution, habitat, and future
of Harter's Water Snake, Nerodia harleri, in Texas. J. of Herpt. 23(4): 373-389.
Thornton, O.W. 1991. 1991 Annual Report, Con«ho Water Snake FVoject.
Big Spring, Texas 106pp.
Colorado River Municipal Water District,
Concho Water Snake
Nerodia harteri paudmaculata
^^m. Present Range
WM Critical Habitat
275
Present Range
Critical Habitat
Houston Toad
Bufo houstonensis
276
Ocolol
{•'elis pnrdali:
M^/M. Present. Range
M«p only shows Texas range
277
STATEMENT OF MELTON HARMS
I live in Springlown, Parker County, Texas. My name is Mellon Harms. I am the fourth
generation of Harms to make their living from agriculture dating back some 1 15+ years. My
education comes from the sweat of my brow, dirt on my hands, and manure on my shoes.
The Harms family has been involved in rowcrop farming, milking dairy cattle, and beef & pork
production. We are losing our property rights.
Let me give you an example involving a California farmer who may have killed a rat while
plowing his field, but no one actually found a carcass. His properly was confiscated by the
Federal Government because Ihe rat has more rights than the farmer has rights. Don't tie our
hands pnn't lalcp niir lanri
Farmers and ranchers are willing stewards of the nation's wildlife population, in spite of the
fact that it costs an average of $423.00 and 42 hours of labor annually in wildlife damage.
In 1993, a study funded by the American Farm Bureau Research Foundation of some 7,300
American agricultural producers shows estimates thai livestock and crop loss of$4 billion and
86 million hours of labor nationwide.
Don't tie niir hands. Don't Uke our lands. Bui yet farmers and ranchers like sharing their
land with wildlife. In addition lo actual habitat support, we spend an average of 12 hours of
labor and $150.00 lo encourage wildlife to flourish. On a national level, that translates lo an
investment of 25 million hours of labor and $300 million by agricultural producers lo benefit
wildlife. When left alone, farmers and ranchers manage their property well lo enhance wildlife
population. What other group can say they spend ihis kind of lime and money?
The infringemenl on the righlsofpropcrty owners has now reached astaleof unbridled passion
by government leaders, judges, and anti-property groups. They are armed with countless
numbers of laws, regulations and judicial decisions to literally lake the land or restrict the use
of it, and all using lax dollars. Don't tie our hands. Don't take QUr lands.
The U.S. Fish and Wildlife Service is tryiiig lo lake control of 33 central Texas counties lo
protect the habitat of the Golden Cheeked Warbler and Barton Creek Salamander. Do we
need this taking of the land? I think not. Farmers and ranchers already have to deal with
enough negatives. The warm sun to nurture or the hot burning sun to destroy, the gentle breeze
lo cool and dry, or ragging winds lo rip and tear, or the cow you have cared for and fed for two
years wailing lo have her first calf only lo discover one morning the long wait was only a slill
born calf, no pay check for another two years.
Dnn'i tie our hands. PftnM ''''^'•"■"' ''^"ds. All Americans should be concerned about the
potential impact that high levels of wildlife management will have on feed costs.
We hope you can forge a plan that will allow us all to enjoy wildlife, without unduly penalizing
farmers, ranchers, and landowners.
Remember, if you eat. you are involved in agriculture.
Thank you.
MELTON HARMS
Stale Pork Producers Board Member
278
CRAWFORD, CARTER AND THOMPSON
CERTIFIED PUBLIC ACCOUNTANTS
200 LYNCH PLAZA
P.O. BOX 87
MINERAL WELLS, TEXAS 760680087
TELEPHONE (817) 3281 167
FAX (817) 328-1541
ALLEN D. CRAWFORD II. CPA
CHARLES R. CARTER. CPA
KAREN G. THOMPSON, CPA
SHARON ALLEN. CPA
MICHAEL BARRON, CPA
MEMBER
AMERICAN INSTITUTE OF CPA's
TEXAS SOCIETY OF CPA'i
PRIVATE COMPANIES PRACTICE SECTION
September 12, 1994
U. S. House of Representatives
Committee on Agriculture
Subcommittee on Department Operations
and Nutrition
Room 1301, Longworth House Office BIdg.
Washington, D.C. 20515
To The Subcommittee on Department
Operations and Nutrition:
I am a Certified Public Accountant, as well as a rancher, in Palo Pinto County in North
Central Texas. My brother and I raise cattle and feed crops on 10,000 acres in Palo
Pinto, Stephens and Eastland Counties. IVIy father, grandmother, great-grandfather
and great-great-grandfather operated ranches on land in the same general area. I think
I can safely say that all of my ancestors have been good stewards of the land. I
certainly intend to follow in those footsteps and impart the same intentions in my
children.
I am in a unique position to analyze the financial aspects of operating our ranch and
compare it to other ranch operations due to my accounting occupation. I can tell you
that it is very difficult to malce a living in the ranching business these days. In Palo
Pinto County, brush control is an absolute necessity to keep the land productive and
cedar is one of the most difficult to control.
It is my understanding that the United States Fish and Wildlife Service plans to
designate 33 Texas Counties (including Palo Pinto County) as critical habitat for the
golden cheeked warbler. On the surface this proposal does not sound like any matter
in which I would be overly concerned, especially considering that I have never seen
a golden cheeked warbler and I consider myself generally favorable to environmental
concerns.
279
The Subcommittee on Department September 12, 1994
Operations and Nutrition Page 2
However, as I consider the possible ramifications and repercussions of this proposal,
I find myself having strong reservations as to both the designation of the counties and
to the Endangered Species Act of 1973 in general. Specifically, my reservations are
as follows:
1 . Why is the Fish and Wildlife Service designating Palo Pinto County as
critical habitat? I have never seen a golden cheeked warbler in our
county and I don't know anyone in the county who has. This raises a
question in my mind as to whether the "bureaucrats" know what is going
on in my county as well as the people who live here.
2. If Palo Pinto County is designated as critical habitat, what effect does
this have on my rights as a property owner and rancher? Any barrier to
brush control will be devastating to the ranching industry. These barriers
could adversely effect property values in our county.
3. If the golden cheeked warbler is endangered, why is it important to save
it? Obviously, I have no expertise in this area, but I definitely think it
should have some importance if it effects my livelihood.
4. Where did the golden cheeked warbler nest in the old days when there
were no cedar trees in this area? Stories have been passed down from
older generations not only within my family, but from other families as
well. It is common knowledge among our residents that the cedar trees
are not native to this area.
5. If the federal government can dictate how we operate our ranches and
business over a seemingly unimportant bird, where does it stop? Has
anyone considered our basic constitutional rights? I have no problem
with what the federal government does pertaining to its own land, but
I wonder if the basic intent of the Endangered Species Act was to extend
it to where it overrides property rights.
6. Where does the U.S. Department of Agriculture stand on this issue? I
believe that the possible repercussions of the critical habitat designation
would be in direct conflict with what the USDA has been trying to do
with the agricultural productivity in our area.
280
The Subcommittee on Department September 12, 1994
Operations and Nutrition Page 3
7. Who is in charge of 'common sense"? My reservations seem so natural
to me that I really can't understand why it should be necessary for a
private citizen to have to present these views at this stage of the
Endangered Species Act of 1973. I will have to admit that in my work
as a CPA, no one has ever accused the IRS of having "common sense".
I firmly believe that "common sense" is the overriding issue in any discussion of the
critical habitat designation or the Endangered Species Act itself, and I certainly hope
that our legislators and regulators consider all the facts before making any decision
on this matter.
Yours very truly.
'Or-
Don Crawford, Director;
PALO PINTO LIVESTOCK ASSOCIATION
281
Testimony of
Calvin Rueter
before
the Subcommittee on Government Operations and Nutrition
U.S. House Committee on Agriculture
September 16,1994
Good afternoon gentlemen. I am Calvin Rueter and I live in Bosque County,
East of Clifton in the Womack-Cayote area. I am a life long farmer/rancner in this area
and for 1 2 years I have served as County Commissioner for Precinct 3.
Thank you for this opportunity to share some thoughts and views with you
concerning USDA, theEndangered Species Act, the Fish and Wildlife Coordination Act
of 1 958, US Fish and Wildlife Service, their interpretation of these various acts and their
affect on agriculture and rural areas. And in particular the golden-cheeked warbler and
Bosque County.
I would like to share with you a resolution adopted by the Board of Directors of
the Bosque County Farm Bureau and subsequently adopted by the commissioner's
county of Bosque County.
(With your permission I will insert this resolution for th6 hearing record)
There is as cited in the resolution, a real danger to private property rights and
the ability of us involved in agriculture to put our land to its best possible use to produce
food ana fiber for our fellow man and to feed and cloth our families.
If land is devalued by being designated as "critical habitat" and property and
property values go down, then taxes on other property have to be increased, thus
affecting others in the County and school distnct.
If my income is reduced because of "critical habitat" designation, then I cannot
spend that income with merchants in Clifton or Waco or Dallas-Fort Worth, thus
affecting their businesses. To be sure my spending might be small but multiply that by
33 counties or 800,000 acres and it becomes much more significant.
Such an invasion of Private Property Rights without compensation must be
stopped. Under present rules I could face the Toss of various USDA programs and
payments for cutting the wrong tree or making too much noise during the Warblers
mating season.
Far-fetched? No! I am building several bridges in my precinct in cooperation
with Texas Department of Transportation in the 80-20 bridge replacement program.
Contracts are to be let in October 1 984 - Guess what? There are trees in the area that
might-no one knows for sure - be habitat for the Warbler - not on the construction site
but in the area according to U S Fish & Wildlife Service office in Arlington. Therefore no
loud noises from March 15 to July because the birds that we don't know for sure are
there might be disturbed. The construction site is less than .2 of one acre. U S Fish &
Wildlife Service rounds this up to one acre and then wants a 3-1 mitigation somewhere
to restore potential habitat for a bird that they don't even know is there - citing the act of
58 as their authority. This bridge, with a 5,000 lb limit is on a school bus route. I pray
it will not break under a bus and kill or injure some children, while U S Fish & Wildlife
studies about possible warblers in the area.
Gentlemen, we need and solicit you help and Influence in restoring some sanity
and common sense to these agencies.
Thank you again for this opportunity.
(Attachments follow:) ###
282
Resolution
The United States Fish and Wildlife Service is considering the designation of "critical
habitat" for the golden-cheeked warbler to include some or all of Bosque County; and
the federal Endangered Species Act may be construed to give endangered species
absolute priority over the needs of individuals regardless of economic cost, to limit uses
of private property without providing just and adequate compensation, and to curtail
other legitimate human activities solely for the benefit of endangered species;
the Commissioners Court of Bosque County hereby oppose any designation of "critical
habitat: for the golden-cheeked warbler that would include any portion of Bosque
County; and
we oppose reauthorization of the Endangered Species Act unless specific provisions to
protect the legitimate rights of human beings are included:
A resolution concerning the Endangered Species Act, it's recovery plan, their affect on
private property rights and on the income of affect private property owners, the tax base
of various entities and the economy of business and others wnen an area is designated
in and by a recovery plan.
the Endangered Species Act was written to protect various species in danger of
extinction and interpretations of the act have now been expanded by various groups
and federal employees to include many species never considered by its writers and
recovery plans have been written and adopted through actions by these groups and
federal employees and the plans infringe on the rights of private property owners, can
affect income for private property owners and cause adverse values to these
properties, thus causing problems for taxing entities and an increase in the rates to
overcome lost value, thus affecting all taxpayers,
Therefore be it resolved that the Bosque County Commissioners Court urge Congress
to re-visit the Endangered Species Act and clanfy its intent, to assure the scientific
criteria have been met and all local, state and federal agencies have a chance for input
during an open hearing process in any and every County that might be effected when a
species is to be considered for the "endangered designation.
If a species is placed on the "endangered" list after such a series of hearings and a
"recovery" plan is to be instituted, then that plan must be subject to hearings in each
and every county or smaller area that is to be designated, such areas to be proposed
prior to said hearings and adopted only after such nearings.
In addition to criteria for recovery, such criteria to have input from local, state and
federal agencies, the plan must contain provisions to compensate for lost income, if
there is lost income, to private properly owners, taxing entities and other affected by the
recovery plan. Such compensation shall be paid on an annual basis and shall assure
no decrease in value to the property by implementation of the plan. Any disputes
concerning compensation snail be resolved by one person designated by the school
district, one by the county and one by the agency proposing the plan.
The Bosque County Commissioners Court believes that private property rights are
assured in our constitution and that too many agencies are infringing on these rights
with no compensation to private property owners for taking those rights.
We oppose extending the Golden-Cheeked Warbler plan to any of the 33 counties still
designated. We do not believe any species should be deliberately killed off, however
we do believe many species can and do adapt to the constantly changing environment
and are stronger because of their ability to adapt.
283
TESTIMONY OF
PUTTING PEOPLE HRST
PUTTING 0
PEOPLE f
FIRSTV:/
Vs <••
IN OPPOSITION TO V-
USFWS DESIGNATION OF CRITICAL HABITAT
FOR GOLDEN-CHEEKED WARBLERS IN TEXAS
SEPTEMBER 12, 1994
Kathleen Marquardt, Chairman
I am a representative of Putting People First, a national
grassroots organization made up of ordinary citizens who are fed up
with being pushed around by environmental extremists who have
decided they are better stewards of the natural resources in this
country than the private property owners who have cared for the
land, in some instances for generations, to coax forth a sustainable
living using a renewable resource.
On behalf of our over 40,000 members and supporters, I urge
you to oppose the U.S. Fish and Wildlife Service designation of parts
of 33 counties in Texas as critical habitat for the endangered Golden-
Cheeked Warbler.
The Endangered Species Act (ESA) is scheduled for
reauthorization this year in Congress, and has come under
increasing criticism for the heavy-handed and unscientific way it has
been implemented to deprive property owners of the use and value
of their land. From its lofty beginnings as a tool to prevent the
extinction of large groups of wildlife, the ESA has mutated into a
nightmarish federal weapon used to destroy citizens' livelihoods and
private property rights in a zealous attempt at hoarding all manner
of creatui?e6ifrom insects to microscopic snails.
S{iffiJ^973 the Endangered Spedes Act has been reauthorized
five tii^^^opefully, this year the ESA will be char\ged to include
protectifcJn'Sr human beings and their property rights. We can strike
\'r V:
«s
n 44 JL.'J^ffChance Gulch, P.O. Box 1707, Helena, Monlana 59624 (406)442-5700
0 44(lfCbrif»eclicut Ave., N.W., Suile 310-A, WashinKton, IX 20008 (202) 364-7277
i% n 44|'^irc
'• 0 44(l!Cbn'f»e
284
a balance between htunan costs and ecological benefits, if we have
the courage and common sense to do eo.
In the case of the Golden-Cheeked Warbler which spends only
part of its lifetime in Texas, land owners in 33 counties are beii^
asked to trust on faith the wonl of government officials that this
enormous designation will help the tiny endangered spede. Please
consider the following:
1. The government has no scientific documented evidence that
the habitat is threatened. In fact, evidence to the contrary exists, as
historically the area in question was grassland.
2. The government has no proof that this designation will help
the Golden-Oieeked Warbler as the bird winters in Central America
where no such protection exists.
3. The only truly endangered element of the Texas Hill
Country eco-system is the farmers, ranchers and land-owners who
strive to earn a living bearing the burden of increasingly hostile and
frivolous government regtilations.
4. The designation of areas in 33 counties as critical habitat
may in fact constitute a 'takings' of private property as protected
under the Fifth Amendment of the United States Constitution; a
"takings " of historic proportions that neither the goverrunent nor the
land owners can afford.
Please consider the human and economic impact of this ruling
before proceeding with this uz\sdentific and potentially catastrophic
designation.
285
Subcommittee on Department
OperetioBs and Nntrltioii
PubUc Hearing
Cleburne, Tejuw
September 16, 19M
The Association of Texas SoU and Water Conservation Districts is con^jrised of 213
local soil and water conservation districts. Each individual district is a political
subdivision of the state of Texas widi the express responsibility of coordinating and
carrying out comprehensive natural resovirce management and conservation programs
at the local level.
Each district board is comprised of five directors. To be a director, you must be an
eligible voter who owns land in the district, and must be actively engaged in the
business of fiurming or ranching. Clearly, the Association of Texas Soil and Water
Conservation Districts represents people who are sincerely concerned about this
state's natural resources and the inq>act that designation of lands as critical habitat
for the golden-cheeked warbler will have on the overall well-being of those resources.
As conservation-minded landowners, we believe that the roui^ rolling terrain and
inaccessible areas of the Texas Hill Country provide more than adequate habitat to
support the golden-cheeked warbler. We are not aware of any scientific study that
woidd prove otherwise. Gk>od conservation practices include maintaining the land in
its natural state in some areas. Through good management practices, fanners and
ranchers have maintained adequate cedar stands to provide habitat for the golden-
cheeked warbler while still utiliring their Sana and ranch land to produce food and
fiber. Our educational programs over the past fifty years have taught landowners
about good conservation practices which h^p to protect the golden-cheeked warbler
and are consistent with landowners' rights.
Our nation was founded on certain rights, including private property rights. Our
ancestors fought to protect the right to maintain private property and otir
Constitution contains evidence of the importance of private property rigjati in the
Fifth Amendment. We are guaranteed that our property will not be taken by the
government without adequate compensation. Designating lands as critical habitat and
restricting the use of that laxui amounts to a taking without compensation.
The rules and regulations resulting from the Endangered Spedee Act to protect the
golden-cheeked warbler are considered to be excessive, ujonecessary, and detrimental
by a significant majority of landowners and other citizens in the designated area. But,
this is just the tip of the iceberg. Landowners are concerned about the trend in
286
conservation law and regulation. Not only do we have the Endangered Spedea Act,
but we also hear of things like the Biodiversity Treaty and the ecosystem
management trend. Landowners are systematically being forced into a position where
they can no longer manage their own land in a manner that is consistent with their
rights and beliefs in conservation. Oovemment is attempting to tell the landovmer
how to manage his or her property.
The problem with the Endangered Species Act is the varied interpretation allowed
the United States Fish and Wildlife Service. The Endangered Species Act is an
example of federal agency bureaucrats forcing their agenda upon private landowners.
If we are to have a law such as this, it should be clearly written with distinct
limitations. As written, the Endangered Species Act allows individuals within the
United States Fish and Wildlife Service to carry out their own agendas in any
manner they deem appropriate. Additionally, the U.S. Fish and Wildlife Service is
unaccovintable to anyone for their actions concerning private proi>erty and endangered
species.
Finally, as written and currently enforced, the Endangered Species Act places soil
and water conservation district programs in a predicament. Producers and
landowners are so concerned about the implications of having warbler habitat on
their land, that they are hesitant to come to districts for conservation program
assistance and technical assistance through the Soil Conservation Service. The threat
of requirements relating to the reporting of critical habitat when assistance is
delivered is a clear example of how regxilatory agencies have been using a farmer and
rancher-friendly agency to implement programs that attempt to diminish private
property rights for which much blood has been shed.
287
September 16, 1994
To: Charles W. Stenholm, Chairman
Subcommittee on Department Operations and Nutrition
Committee on Agriculture
U.S. House o-f Representatives
Washington, B.C. 20515
Statement o-f Earl H. Burnam , Conservation Chair
Audubon Council o-f Texas
3821 Burkett Drive
Fort Worth, Te!-;as 76116
PUBLIC HEARING ON ACTIVITIES OF THE U.S. DEPARTMENT OF AGRICULTURE
INVOLVING THE GOLDEN-CHEEKED WARBLER AND THE IMPACTS OF THOSE
ACTIVITIES ON PRODUCTION AGRICULTURE - CLEBURNE, TEXAS
I would 1 ike to begin with a quote by Daniel Conway in the North Texas
Cathol ic . "According to the Genesis view o-f things, we are meant to be
stewards - ambassadors o-f God who exercise a special care -for the world
and its riches, including the air we breathe, the water we drink, the
land that gives us -food and shelter, and all the creatures (great and
small) who co-habit our world. Because we are made in God's image and
share in the responsibility -for creation, we are challenged to treat
material goods not as disposable things to be used up and thrown away,
but as precious resources to be nurtured and developed for the glory o-f
God and -for the good o-f the human -family."
The Audubon Council o-f Texas (ACT), comprised o-f over 25,000 members
■from Audubon Chapters across Texas, believes the concern addressed here
today is more than about the golden-cheeked warbler and property
rights. We believe all this clamor and -fear across the state has been
caused by mis-in-f ormat ion and propaganda being disseminated by a
wel 1 --f inanced coalition o-f industry groups who want to exploit natural
resources without having to comply with reasonable environmental
protect ions .
This group, which we believe includes developers as well as the oil ,
timber, insurance, chemical , forestry, and mining industries, 3.re
seeking higher pro-fits at the expense o-f others and -future generations.
They claim designation o-f critical habitat -for the golden-cheeked
warbler, authorised by the Endangered Species Act (ESA) , is depriving
Texans o-f private property rights. Critical habitat designation simply
means that when -federal -funds are involved, the Fish ?< Wildli-fe Service
biologists must review the plans to determine if it conflicts with
greater needs of the community. People can still farm and build their
homes and businesses.
ACT believes this is really about ESA opposing groups who want to
change our laws such that the government would have to use tax payer's
money in order to keep industry from polluting our land, soil and
water, or in order to conserve some natural resources or prevent
exploitation of them just for short term profits. These highly
organized and financed conglomerates sre not really concerned about the
small , individual private property owners. They are misleading some of
them, as well as some government officials, while trying to enlist
288
their help to eliminate, or reduce to ine-f -f ect i veness , most o-f our
environmental laws.
We believe they are using scare tactics regarding the ESA protected
golden-cheeked warbler to bolster their opposition to not only the
Endangered Species Act, but all environmental laws including the Clean
Water Act, Sa-fe Drinking Water Act, Clean Air Act, Resource
Conservation And Recovery ACT, etc. We believe they want to eliminate
all restrictions to developing wetlands which are so vitally important
to water pur i-f icat ion , -flood prevention, -fishing industry economics,
and critical wildli-fe habitat. Millions o-f migratory birds rely on the
wetlands along their -flyways.
In other parts o-f the country 1 andowners are seeing that the ESA is a
-flexible usable tool -for communities. The ESA ' s protections actually
enhance private property values by conserving the natural ecosystems
and scenic beauty in our communities.
By saying individuals have a right to do whatever they want with their
property, with no concern o-f the greater needs o-f the community, we
would say that there should be no zoning laws, that porn shops can be
built across the street -from churches, and 1 iquor stores can be put in
next to junior high schools.
While most Te;<ans and Americans understand the responsibilities o-f
stewardship o-f their land, as well as their rights o-f private
ownership, there have always been a hand-ful who think many local ,
state, and National laws are inconvenient. But, time a-fter time, it has
been shown that a healthy environment, protection o-f public health, and
even just a beaut i-f ul view o-f a natural landscape increases the value
o-f communities and improves the economy. We must save some o-f our
natural areas -for posterity. We must not use all o-f it -for short term
pro-f its .
ACT believes in private property rights. They are one o-f the most
important constitutional guarantees. We also believe in the rights o-f
all citizens to clean water, -fresh air, abundant wildli-fe, and healthy
crops grown on unpolluted lands. The values o-f a healthy environment
are traditional Texas values. We believe that environmentally sustained
development can be consistent with both private property rights and the
Endangered Species Act. We believe the endangered golden-cheeked
warbler and its critical habitat should be protected.
Earl H. Burnam
Copies :
The Honorable Joe Barton
The Honorable Chet Edwards
The Honorable Pete Seren
289
STATEMENT OF UNITED STATES SENATOR KAY BAILEY HUTCHISON
THE EFFECT ON TEXAS AGRICULTURE
OF DESIGNATING CRITICAL HABITAT FOR THE GOLDEN-CHEEKED WARBLER
SUBCOMMITTEE ON DEPARTMENT OPERATIONS AND NUTRITION
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
September 16, 1994
Mr. Chairman, thank you very much for allowing me to submit a
statement on the effect on Texas agriculture of designating
critical habitat for the golden-cheeked warbler. You should be
commended for holding this hearing today, because it will make the
real effect of the Endangered Species Act clear — not to farmers
and ranchers here in Texas, many of whom already know what it means
for them — but to rulemakers in Washington, who haven't set foot
on a farm since their third-grade class field trip.
Too often Congress views issues from the narrow focus of
committee jurisdiction and Administration policy. But designation
of critical habitat for the golden-cheeked warbler is not an
"environment" issue that exists in a vacuum. It is an agriculture
issue, because it restricts farmers and ranchers from using their
land to the best of their ability to raise food and grow fiber for
clothing. It assumes that United States Fish and Wildlife Service
rulemakers know more about how to care for our land, plants, and
animals than we do.
Generations of Texas farmers have tilled the soil and cleared
the rangeland. They depend on it for their own food and clothing,
and for their families' . They will not throw that investment away.
It is their wealth — their property, which our government was
formed to protect. James Madison, in The Federalist Papers, made
it clear that the purpose of government is to protect property. He
said that "Government is instituted no less for protection of
property than of the persons of individuals." This principle is
embodied in the Fifth Amendment to the Constitution, which states
that "No person shall ... be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation."
This constitutional requirement has been ignored by Congress
and Washington rulemakers for too long. Property owners should not
have to fight the government to exercise their constitutional
rights by building a new home on their land, or hire lawyers to
convince bureaucrats that their farming is in compliance with
regulations. Farmers in Texas should not live in fear of being
treated like the farmer in California who was arrested in a
government raid for allegedly harming a kangaroo rat while he was
plowing his field.
J
BOSTON PUBLIC LIBRARY
^ Illillillilllllllillliil
^ 3 9999 05705 7323
During the next session of Congress, I intend to work with my
colleagues to rewrite the Endangered Species Act so that
unjustifiable interpretations of the Act will not harm agriculture
and other businesses. I agree with the D.C. Circuit Court of
Appeal's decision in the Sweet Home case, which states that habitat
modification is not a harm under the Endangered Species Act. The
Act should be clarified to prevent expansionist views of harm from
being used to prosecute landowners .
Most important, I support revisions to the critical habitat
requirement that will prevent land from being pushed into second
class status. Designating critical habitat puts unjust limits on
the use, market value, and transferability of property. The
requirement that federal agencies must consult with the Fish and
Wildlife Service before taking actions that may jeopardize a
species puts land under the control of the Service, and thus limits
the ability of both present and future owners to make the most of
their land's economic value.
To prevent loss of economic value, the stigma of critical
habitat should not be imposed by the government. If it is, the
landowners should be compensated for the loss in market value.
Opponents of compensation for takings of property argue that the
government can't afford it. That is an argument I cannot
understand. If we can't pay for an action, we shouldn't do it —
instead of pushing the cost off on landowners.
If we want to protect the critical habitat of endangered
species, we have to pay for it, and not harm economic interests.
This can be done by fully compensating landowners, or by
establishing wildlife refuges as alternative habitats for
endangered species. If opponents of compensation are truly opposed
to this principle, they can propose an amendment to the
Constitution. But until it is passed, anything short of full
compensation is to ignore the Constitution, which we are sworn to
uphold.
Thank you very much, Mr. Chairman. I look forward to working
with you in Washington to protect the private property rights of
Texas farmers and ranchers.
291
Texas Farmers Union
TFIJ
P.O. BOX 7276 /i400 BOSQUE BLyO./ffACO, TEXAS 76714-7276
TELEPH0NE-(ei7) 776-4700 • FAX— (817) 776-S940
TESTIMONY OF WES SIMS ON BEHALF OF THE TEXAS FARMERS UNION,
REGARDING THE ACTIVITIES OF THE UNITED STATES DEPARTMENT OF
AGRICtlLTURE AT THE LOCAL AND STATE LEVEL INVOLVING THE
GOLDEN-CHEEKED WARBLER AND THE IMPACT OF THOSE ACTIVITIES
ON PRODUCTION AGRICULTURE; PRESENTED TO THE SUBC(XIMITTEE ON
DEPARTMENT OPERATIONS AND NUTRITION.
I am Wes Sims of Sweetwater, member of the Executive Board, .of
Directors of Texas Farmers Union. '^'
Today, I am speaking on behalf of Texas Farmers Union, a general
farm organization formed for the purpose of promoting and
protecting the interests of family farmers, ranchers and others
who live in rural communities. As owners and operators of the
land, water and air resources, we accept the responsibility and
duties of the stewardship of adequate and proper conservation
practices to preserve all of our natural resources.
Texas Farmers Union Board of Directors, in an August, 1994
meeting, reaffirmed its long standing support for private property
rights, but had harsh words for groups attempting to subvert the
issue for partisan political gain. In a strongly worded
statement, the farm organization criticized the political motives
of some of the people wrapping themselves in "private property
rights" banners.
The present controversy is an Endangered Species Act issue^-that
must be resolved with fairness and equity to property owners.
"Private property rights" includes many other things, such as the
power of eminent domain and the Texas Homestead law that provides
protection and security of the fcimily farm and ranch and is too
important an issue to be subverted by political demagoguery.
Texas Farmers Union disagrees with some government agency
proposals regarding environmental regulation. Texas Farmers Union
also recognizes that sincere and concerned citizens are being
manipulated by a group of political consultants whose concern is
not for property rights but for the electoral success of the
candidates who are paying them.
The United States Fish and Wildlife Service Regional Director John
Rogers told a State legislative hearing this week that the effect
of the Endangered Species Act on property is misunderstood.
292
(TFU, September 16, 1994, page #2)
Mr. Rogers continued, "Secretary Babbitt (Bruce Babbitt, Secretary
of the Interior, United States Department of the Interior)
directed us to sit down at the table and hammer out the details
with the people most affected by the law. We can then put together
Habitat Conservation Plans that protect species, protect landowners
and their development plans, and avoid more species listings."
At the heart of this issue is the Golden-cheeked Warbler, -a^
federal designated endangered species. The federal government can
impose regulations and restrictions on the property if it is
designated as critical habitat. Government at all levels should
consider the fragile balance between individual property rights
and societal benefits. If economic value of the property is
diminished by government restrictions imposed for the public good,
then the government should pay for that loss.
The United States Fish and Wildlife Service should ensure that the
public is provided adequate opportunity to have input and adequate
comment time in the process of determining ENDANGERED SPECIES and
establishing the CRITICAL HABITAT designation.
The right of eminent domain should apply only to public and
societal benefits and not for private enterprises or personal
gain.
Texas Farmers Union is committed to protecting our natural
resources and calls on the United States Fish and Wildlife Service
to provide for state and local government in the decision of
designation, permitting and enforcement of the Endangered Species
Act.
I thank the Committee for the opportunity to appear today and will
be glad to answer any questions.
^1
O
I
ISBN 0-16-046708-X
9 780
60"467080
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