Let’s Make a Deal

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

There was a hitch, however. Adult aplomados are ferociously territorial, Montoya explains. Paired birds whose territories encompassed hack sites terrorized the younger birds, creating a constant need for new sites. "Our plan called for releasing 100 aplomados a year for 10 years in multiple sites to really get the species established," he says. "The refuges could hold fewer than a dozen pairs." An infectious disease or even a single killer storm could wipe out the whole population.

More habitat was crucial, but the grasslands of southern Texas belonged to ranchers. The Peregrine Fund's Pete Jenny began knocking on doors. Ranchers listened politely to his request--and declined. The project was stalled.

Then a U.S. Fish and Wildlife Service refuge manager told Jenny an interesting story. An ingenious new legal compromise reconciling the needs of landowners and rare wildlife had been devised on behalf of an endangered southern insectivore--the red-cockaded woodpecker.


"What difference does the loss of a single species make?" critics of conservation are apt to say. In the case of the red-cockaded woodpecker, the answer is clear. Unique among North American woodpeckers, these birds chip nesting cavities in live pines, creating homes for dozens of pineland animals, from tree frogs to screech-owls. At the time of European settlement as many as four million red-cockaded woodpeckers lived in roughly 90 million acres of mature, fire-maintained pine forests, ecologists estimate. Only slivers of that forest persist, many in even-aged stands with dense understories, ill-suited to red-cockaded woodpeckers. Listed in 1973, the birds pecked along in relative obscurity, declining in population year after year. Then, in 1990, the northern spotted owl was listed. The resulting shock waves jolted the Southeast.

"The timber industry and private property rights organizations thought that what could happen with owls in the Northwest could happen with woodpeckers in the Southeast," says Ralph Costa, the former red-cockaded woodpecker recovery coordinator for the Fish and Wildlife Service. Timber-lot owners stopped clearing the forest understory and began preemptively logging immature trees, depriving themselves of top dollar and the woodpeckers of crucial habitat.

Michael Bean, a lawyer with Environmental Defense, was wrestling with the problem of preserving woodpeckers on public lands at that time, negotiating with the U.S. Army over birds at North Carolina's Fort Bragg. The conflict intrigued him. "It was becoming increasingly clear that conserving wildlife will require the cooperation of private landowners," Bean says. "Yet the Endangered Species Act does nothing to encourage conservation on private land." It wields a cudgel, leveling fines as high as $50,000 for knowingly harming or killing listed species, and threatening landowners with a year in jail for destroying designated critical habitat if an endangered species is harmed or killed. But the act dangles no carrot, and there's nothing in it to prevent landowners from simply letting habitat deteriorate to avoid land-use restrictions.

"The problem I came to appreciate was that a lot of private landowners had land that if maintained differently would provide better habitat for endangered species," Bean explains. "But they were unwilling to make those improvements for fear their only reward would be more restrictions."

In 1982 Congress authorized a legal compromise called a habitat conservation plan (HCP), which caught on in the early 1990s. This legislation lets a landowner who has developed a plan modify habitat and incidentally "take"--bureaucratese for remove or simply displace--endangered species on his or her land in the course of logging or other types of resource extraction or development, after first agreeing to mitigate for those impacts. But HCPs apply to land that's already restricted by the presence of an endangered species. What about someone, say, whose maturing forest adjoins an area containing resident red-cockaded woodpeckers? Or has woodpeckers residing on part of his or her own property and has habitat for more? The temptation to preemptively log or even to just stop maintaining land in good condition would be a strong one.

Bean had an idea. "There's a provision in the act that permits incidental take of individuals in order to enhance the probability of survival of an endangered species," he says, "a provision that allows collection of individuals for captive breeding. But what if a private landowner were willing to restore habitat for an endangered species and maintain it for a long time? Wouldn't that enhance the survival of the species?" Bean floated the idea to the North Carolina red-cockaded woodpecker working group. Dubbing this brainchild a safe harbor agreement, they hashed out a protocol they thought just might work.

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