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

A property could be surveyed for the presence of the endangered species--in this case, woodpeckers. That preexisting number would constitute the "baseline" population; those animals would be explicitly excluded from the agreement, but the landowner would be obligated to maintain that many. The landowner would then sign a safe harbor agreement in which he or she would agree to maintain or improve habitat by controlling the understory, encouraging the growth of mixed-age tree stands, and so on. In return, any new breeding groups of woodpeckers attracted to the improved habitat would be covered. If at any time the landowner wanted to cut the trees where the safe harbor woodpeckers were established, Fish and Wildlife personnel would remove those birds within 60 days of notification, keeping them in captivity until they could be placed elsewhere. Those who had no woodpeckers could also sign on if they committed to managing the species' habitat; their baseline population would be zero--an incentive to sign up early.

A key refinement was added: An intermediary, such as a state agency or a nonprofit, could develop an "umbrella" safe harbor agreement to cover an endangered species across a given region. Multiple landowners could then sign on with the intermediary, which would handle the red tape and act as a go-between, keeping the not-always-popular federal government out of it.

In April 1995 the Pinehurst Golf Resort in North Carolina signed the country's first safe harbor agreement. In short order other woodpecker safe harbors rolled in. And within five months of that signing The Peregrine Fund's Pete Jenny was back in south Texas with the offer of an agreement in hand. This time ranchers opened their doors and kept them open. Today at least 60 breeding pairs of safe harbor falcons have free run of more than two million acres of coastal south Texas ranchland and West Texas grasslands.

"We consider that south Texas population to be self-sustaining and most likely expanding," says Montoya. In West Texas, 14 ranchers have signed safe harbors to date; 503 birds have been released; at least five breeding pairs have formed; and two chicks have hatched in the wild. These newly established populations in Texas are especially important in view of events across the border in northern Mexico, where Montoya did his graduate-level fieldwork. If the conversion of grassland to crops continues at the rate it has during the past two years, Montoya says with evident anguish, aplomados in the northern Chihuahuan grasslands are unlikely to survive.

 

Morning has lit the prairie, and the young falcons at the Means ranch hack site are already up and about, ignoring their breakfast, frolicking in the green-gold grass. Released from the hack box just four days ago, the exuberant fledglings swoop around and through the legs of the tower in a manic game of chase. This is the second hack site built here. To Jon and Jackie Means's great delight, the original one had to be abandoned when two birds released in 2006 paired up--somewhat prematurely--and staked it out as their territory. It's easy to distinguish the adults, Jon points out. Sun has turned their bright cinnamon fronts to white; their backs have faded from black to aplomado--Spanish for "lead-gray." "We like to talk up the program, and to bring the neighbors out here to see the birds," Jackie says. "It's good for people to see that you can do something like this, that's good for nature and that doesn't hurt ranching, and have it be a success."

"There were those in the environmental movement who thought safe harbors let landowners off the hook to the detriment of conservation," Michael Bean says. "They didn't want to concede that there was this conundrum for landowners that if they restored habitat, they'd be incurring restrictions. And there were landowners and property rights people who said safe harbors weren't to be trusted, that the government would come back and slap restrictions on landowners despite the agreements, or change the terms on them. Well, these agreements have a track record now. If you're a landowner, you can see that the sky doesn't fall because you've signed one, and if you're in the environmental community and were inclined to be skeptical years ago, you now have 12 years of research."

Bob Irvin, senior vice-president for conservation programs at Defenders of Wildlife and a 20-year veteran in activist conservation organizations, agrees. "It's fair to say some in the conservation community feared that landowners would agree to protect habitat in exchange for these assurances, and then destroy it down the road. But experience has shown that landowners have protected more habitat than they would have without safe harbor, and they're continuing to do so."

Remaining among the few existing skeptics, R.J. Smith, senior fellow for environmental policy at the National Center for Public Policy Research, a conservative think tank, calls safe harbor agreements "a last desperate effort on the part of 'greens' to make the Endangered Species Act work. Small landowners who do join safe harbor do it out of fear."

Perhaps some do. But the data--and the actions of many landowners--prove otherwise. As the Means's eldest daughter, Lizzie, puts it, "The program has allowed us to align our interests--the interests of this ranching community--with the conservation community."

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