Let’s Make a Deal

Chip Simons
Chip Simons

Let’s Make a Deal

With a signature and a handshake, an innovative legal tool is allaying private landowners' fears of one of the nation's most powerful environmental laws to create critical wildlife habitat.

By Susan McGrath
Published: January-February 2008

A bad case of chainsaw fever struck the small city of Boiling Spring Lakes, North Carolina, in the summer of 2006, launching its otherwise laid-back citizenry into a paroxysm of clear-cutting that reduced miles of shady, wooded lots to stumps and scorched white sand. The U.S. Fish and Wildlife Service itself triggered the massacre by announcing an intention to update maps of the trees where endangered red-cockaded woodpeckers nest. The agency suggested that city officials temporarily restrict building while the new maps were being drawn up, but they couldn't prevent landowners from felling mature pines in a frenzied rush to ensure they wouldn't become "infested" with woodpeckers--then or ever. "You had to stand in line to get a chainsaw," a resident marveled to a reporter with the Raleigh (North Carolina) News & Observer.

The disheartening mess boiled right up into the national news. It made good copy, what with its power tools and outraged property owners and sensational evidence that "the Endangered Species Act is the enemy of endangered species," as some proclaim. But rare was the newspaper or television account that bothered to point out a key--and most newsworthy--aspect of the case: the increasing rarity of such clashes. And that's precisely where the real news in conservation lies. More and more these days, ingenious new legal approaches are helping reconcile the economic needs of private landowners with the habitat needs of endangered species, increasingly making what seemed intractable conflicts a thing of the past. In the last 12 years an innovative legal tool has been applied to almost 60 listed species, providing and enhancing millions of acres of habitat on private lands.

Ironically, a grand example of one of these radical approaches was unfolding even as Boiling Spring Lakes was heating up. Had reporters only looked westward onto the yucca-dotted, dusty-brown West Texas plains they would have caught a fourth-generation cattle rancher named Jon Means unpacking endangered falcon fledglings from a cardboard box. With the help of a neighboring rancher named Bill Miller and a biologist from The Peregrine Fund named Angel Montoya, Means was stowing the birds in a falcon halfway house called a hack box right there on his own ranch. The chicks were photogenic little creatures, their sooty backs and cinnamon breasts tousled with fluffy bits of down, their big, round baby's eyes bestowing a beguilingly childish, woebegone air. As Montoya decanted them the chicks set up a squeaky-hinge complaint that sounded like gulls calling.

"Sorry, fellas!" murmured Bill Miller's mother, Jody. Taking advantage of her seniority--she turns 82 this year--Jody watched the proceedings with pleased interest from a lawn chair placed under a tarp intended to whittle a degree or two from the skillet-hot plains. "This is your new home. You'll have to rough it from here on out."

This endangered-species-on-private-property story hasn't received much attention--lacking chainsaws and garrulous Southerners--but it's the more dramatic of the two. Just consider: These were aplomado falcons, Falco femoralis, North America's rarest. These birds were extirpated from the United States more than a half-century ago, and they've been on the endangered-species list since 1986. These southwestern grasslands hadn't housed a breeding pair of them since Jody Miller was a girl. Nor do some ranchers welcome them here, where, in typically sardonic shorthand, locals are apt to summarize their endangered-species management policy as: "Shoot, shovel, and shut up."

A grizzled cattleman passing through Van Horn, Texas, expanded on this view. "A landowner in his right mind would sooner welcome flesh-eating zombies onto his property than endangered species," he growled, graciously pausing to discuss the subject in a motel lobby. "A man takes real good care of his land, some endangered species moves on there, and what's his reward? The federal government coming in and restricting his ranch operations, that's what."

But this is a new millennium and the Means, the Millers, and 12 other ranching families are pioneering a new approach. They've signed special contracts sanctioned by the federal government under the Endangered Species Act. These so-called safe harbor agreements are specifically designed to encourage conservation on any non-federal land--state, county, or private. By signing one of these agreements, a landowner commits to maintaining or improving habitat for a specific protected species. As its end of the bargain, the Fish and Wildlife Service guarantees the landowner will incur no additional land-use restrictions down the road if and when that species moves onto a property or begins breeding there.

It's an agreement born of pragmatism. Without the cooperation of private landowners like the Means and the Millers, many conservationists have come to believe, most endangered species don't stand a chance. The data are startling: Almost three-quarters of the contiguous 48 states is privately owned property. Half the endangered species in the United States don't even occur on federal land. Here in Texas less than two percent of land is federally owned. The safe harbor agreements recognize that.

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