Farmers, foresters squeezed between a ‘rock’ and ESA regulations

By Sarah Gonzalez

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, April 2, 2014 - Like many landowners, Joe Hopkins purchased a farm with the expectation that he could generate income from his “crop” in southern Georgia - in this case, trees. But his income potential has been taking a severe hit due to a combination of Mother Nature, the Endangered Species Act and ongoing threats of litigation.

Hopkins' farm had a forest fire that destroyed a portion of his timberland in March 2000. Ordinarily, he could have salvaged some of the wood and pocketed somewhere between $250,000 and $300,000, he testified before the Subcommittee on Conservation, Energy, and Forestry last week. However, that tract of timber contained a colony of red cockaded woodpeckers, which are listed as “endangered” by the U.S. Fish and Wildlife Service.

Together we can feed the Bees"

Clearing the downed timber, “would have exposed myself and family to potential litigation,” said Hopkins, who also serves as President of the Forest Landowners Association. Hopkins says he and his members are concerned that the ESA has “draconian, one-size-fits-all approach” that is being used “as a powerful tool in the hands of those who would halt land management activities.”

Due to the presence of the listed species, he says he has a loss of timber income on 600 acres of land that equates to roughly $36,000 in annual growth rate income plus the costs of required management activities.  Hopkins said the Southeast Regional Office of the U.S. Fish & Wildlife Service has been “deluged” by lawsuits and noted that activist groups are also sending threatening letters to landowners. Hopkins' testimony set the stage for members of the subcommittee to call for revisions to a law they say is damaging agriculture and rural areas.

Rep. Kurt Schrader, D-Ore., said the FWS endangered species listing of the spotted owl and subsequent hit on the logging industry “crippled” some rural communities in his state. 

“It's clear that the ESA is no longer an act to help the survival of species, it's meant to shut down forestry,” which he said is the goal of some environmental communities, Schrader added. “They've made an originally good law bad,” he said, adding that the government needs to reform ESA to bring it back to its original intent of maintaining diverse species. “The Forest Service doesn't have a plan to change ESA. But that shouldn't preclude Congress.”

Jim Peña, the Associate Deputy Chief of the U.S. Forest Service, acknowledged that the ESA's intent to maintain multiple-species management is difficult to achieve, because it's difficult to “manage for viable populations across the board.”

Several members took issue with the ESA's citizen suit provision, which allows private citizens to sue federal agencies and private landowners for allegedly failing to fully comply with the Act. Subcommittee Chairman Glenn Thompson, R-Penn., referenced a recent study in the Journal of Forestry that examined over 1,000 management cases filed against the Forest Service in federal court from 1989-2008.

“These abusive activities are a significant threat to the health of forests and pose an equal threat to the economic well-being of our local communities,” Thompson said.

Eileen Larence, the director of Homeland Security and Justice at the U.S. Government Accountability Office (GAO) reported that about $16.3 million in attorney fees and costs in 241 environmental cases from fiscal years 2000 through 2010 was awarded against or settled by the Forest Service.  However, the GAO report concluded that it's difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes.

Pena said about 18 percent of cases filed against the agency are related to ESA violations. He noted that the total impact of all litigation, and particularly ESA-related litigation, is hard to discern and is not tracked by the agency. “Direct and indirect litigation costs may result from judicial orders requiring payment of attorney fees and costs to a successful litigant,” he said.

Just days after the House Agriculture Committee hearing, the U.S. Fish and Wildlife Service (FWS) announced its final listing of the lesser prairie-chicken as “threatened” under the Endangered Species Act (ESA) last week. FWS said it determined that the lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as “threatened” under the ESA.

“The lesser prairie-chicken is in dire straits,” said U.S. Fish and Wildlife Service Director Dan Ashe. The lesser prairie-chicken population, due largely to habitat loss and ongoing drought in the southern Great Plains, has been reduced in the past 15 years by an estimated 84 percent.

Rep. Randy Neugebauer, R-Texas, who is part of an ESA Congressional Working Group formed by House Republicans, said he is “incredibly disappointed” with FWS's decision. “The timing of this decision is being driven by activist lawsuits, instead of what's best for the species and the communities near its habitat,” he said. 

Several bills designed to reform the ESA are supported by the members of the ESA Working Group, based on the recommendations and findings of their report published in February. The House Natural Resources Committee will hold a Full Committee legislative hearing on the bills on April 8. 

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