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 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.

"[They] turn private land into safe harbor for wildlife," says Robert Cook, the head of the Texas Parks and Wildlife Department. "But they provide safe harbor for landowners, too--assurance that if endangered species do come in, regulators won't come in after 'em saying you can't do this and you can't do that. We've needed something like these for a long time. I wish to hell we'd had them 20 years back."

"Safe harbor agreements have given us ranchers the luxury of being the guys in the white hats for a change," says Jon Means. They've done the same for resort owners in Florida, timber-lot owners in California, and just plain property owners in numerous states. Altogether, in the decade or so since the idea was dreamed up, almost four and a half million acres and 16 linear miles of stream in 21 states have been enrolled in the program.

Safe harbor isn't a one-size-fits-all panacea, and it doesn't rectify every conflict between property rights and the rights of endangered species. In the Boiling Spring Lakes case, for instance, many small, individual building lots in the downtown already lie within the territories of existing woodpecker groups, which require not only nesting but also foraging habitat; it's not feasible to have safe harbor agreements there. And public awareness of the program could be better. Again, landowners in Boiling Spring Lakes appear not to have known they had better options than the chainsaw. Despite such limitations, safe harbor agreements now cover 59 endangered species, including such former pariahs as the northern spotted owl, the Mexican gray wolf, the golden-cheeked warbler, the Karner blue butterfly, and, yes, the red-cockaded woodpecker, which now benefits from safe harbor agreements in nine southeastern states. So far only for the aplomado falcon, the Mexican gray wolf, and the nene (a Hawaiian goose) is safe harbor being invoked to reintroduce an extirpated species.

The aplomado's case has gained special urgency. In a dramatic turn of events, the small wild population that has hung on in the Chihuahuan grasslands in northern Mexico is rapidly being wiped out by a community of Mennonite farmers sinking deep wells for irrigation and plowing up the grasslands for crops. Within the past year eight of the 25 known breeding pairs of aplomado falcons in Chihuahua have disappeared. Now, it seems, restoring a healthy population in the United States may be the bird's only chance of survival in the region. Without the safe harbor agreements, there would be even less hope--if any at all.

 

Rolling down the dusty ranch road in a standard-issue white pickup, Angel Montoya recounts the aplomado's history. A tall, handsome, intense man in his mid-40s, his own history intersects curiously with the aplomado's. As a student intern at the Laguna Atascosa National Wildlife Refuge in Texas in 1989, he struck up a conversation with a visiting ornithologist--Pete Jenny, now president of The Peregrine Fund. "Where are you from?" Jenny asked. Deming, New Mexico, Montoya replied. "You know," said Jenny, "the last known nesting of the aplomado falcon was in your hometown." In 1991 Montoya documented an aplomado in White Sands, New Mexico--the first recorded in the United States since 1952, he says with pride.

"There weren't any studies done on aplomado falcons before they disappeared, so no one can say why," Montoya says. "There's probably a number of things that happened."

The northern aplomado falcon's historic range in the United States was confined to just the coastal savannas of Texas and the dry shortgrass prairies of the Southwest. (A southern aplomado falcon inhabits grasslands of Central and South America.) By the turn of the century some of the coastal savanna had been converted to farmland, and cattle grazed the remaining grasslands there and the dry shortgrass prairie to the southwest--too many cattle in too many places. Overgrazing led to erosion, which opened the soil to invasive creosote and mesquite, inadvertently abetted by ranchers suppressing range fires. Increasingly, brush replaced the grasslands, creating a new landscape aplomados couldn't hunt in as effectively. Loss of native vegetation made the populations of the songbirds, insects, and lizards on which aplomado prey harder to catch, Jenny says.

Fortunately a thousand miles away, in southern Mexico, an isolated population of northern aplomado falcons survived. In the 1980s ornithologists captured 25 chicks there and established a breeding program at The Peregrine Fund in Idaho. The aplomados proved fussier about breeding behind bars than peregrines did, but the falcon specialists persevered and in the summer of 1993 began releasing captive-bred chicks at the Laguna Atascosa refuge, where thousands of acres of restored grasslands lay under the protection of the federal government. They used a falconry technique called hacking--confining month-old chicks in high, ventilated boxes for a week or more, then opening the boxes and continuing to place food on the towers while the birds gradually learned to hunt on their own. One hundred aplomados had been released by 1997, and two captive-bred adults were rearing young. It looked like the reintroduction was working, and the program took off.

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.

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."

Safe harbor has restored millions of acres of habitat for dozens of endangered species. The populations of many have stabilized, and some are even on the rise. And the Endangered Species Act need no longer make endangered species the enemy of landowners.

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