Good Neighbor Forum  ----  ESA misused, speakers say February 27, 2007 by Dan Barker, Fort Morgan Times (Editor’s note: This is the second in a series of three stories on the theories of why farmers are facing hardships as presented at the Good Neighbor Forum in Greeley.)

Jim Chilton believes there are environmental activists hiding within the government who are acting out their own agendas at the expense of farmers and ranchers.

The Arizona rancher was not alone, as the consensus at the Good Neighbor Forum in Greeley Saturday was dominated by those concerned about how different government land agencies such as the Bureau of Land Management, the Forestry Service, the Fish and Wildlife Service and the Department of the Interior in its decisions about the Endangered Species Act (ESA) damage the rights of agricultural producers. About a quarter of those attending were from Morgan County.

In Chilton’s case, he faced officials who wanted to limit his grazing rights on federal land after an Environmental Protection Act analysis was completed in 1996. When he accessed information on his file under the Freedom of Information Act, he found untrue information such as 44 percent of his soils on the lands were unsatisfactory due to overgrazing, he said.

He was told he had to reduce his herd from 500 head to 252. However, when range science experts came to examine the land, they did 1,000 samples of his land and concluded Chilton’s land should be allowed 559 head for light to moderate grazing, Chilton said.

Also, the analysis claimed the area in which his cattle grazed was home to the only Sonoran chub in the United States. Minnows he called “little wetbacks” migrating north into the area were “greeted as heroes” by environmentalists, particularly the Center for Biological Diversity (CBD). The lesser long-nosed bat was also supposed to be in the area, he said.

However, a biological assessment by the Forest Service found 99.9 percent of the time there were none of these chub in the area, Chilton said.

Chilton said he found out later two of the offending officials were married and met with CBD to discuss the case sympathetically.

“I found it outrageous,” he said.

Eventually, a judge found in favor of Chilton’s argument that the government did not have authority if the species were not really there. An appeal to the 9th Circuit Court, which he called the “most liberal in the nation,” upheld the first judge unanimously, saying the burden of proof was on agencies to prove species are there and there is harm to them, instead of simply assuming grazing would harm the species, Chilton said.

All of this turned out to be motivated because his land was in the middle of an area which was part of the federal Wildlands Projects. People in various agencies believed in the idea and were encouraged by environmentalists. A small group of activists within the government agencies found it safe and easy to create scenarios where species were endangered, although they had no evidence. Claims were overblown, such as saying cattle might step on chub minnows or accidentally ingest them when taking a drink. It all reflected an anti-use philosophy, he said.

All of this amounted to a “loss of freedom for people in rural areas,” Chilton said.

Jim Beers, a retired Fish and Wildlife Service employee who flew from Virginia to speak on the history of environmental and animal rights, said this kind of overreaching was part of a slow process which began when President Theodore Roosevelt set aside national parks such as Yellowstone. Social experiments like Prohibition, the New Deal, the United Nations and the Great Society, along with the income tax amendment, paved the way for the federal government to interfere in people’s lives and property.

During the 1970s, factors came together like the “perfect storm,” he said.

Federal agencies wanted to do more and groups like the Wilderness Society and the Nature Conservancy joined with those like People for the Ethical Treatment of Animals and the Audubon Society. Even Ducks Unlimited and Trout Unlimited were infected with the desire to limit land use, Beers said.

Those administering the Endangered Species Act started finding not just species but “populations” and “distinct populations” and what had started as a grand idea to save animals such as the bald eagle took on a life of its own, he said.

No one ever said the ESA would affect the building of roads or dams when it was first created, Beers noted.

This led to a “subtle perversion” of state agencies, which had previously been watchdogs against federal control, he said.

Beers also claimed Roe vs. Wade, the U.S. Supreme Court decision about abortion in 1973, also had an effect by setting a precedent of interpreting the U.S. Constitution with “penumbras formed by emanations.”

Agencies began to dream of a “Pre-Columbian fantasy” of the Wildlands Project, Chilton said.

Despite the ascendancy of environmental popularity, there are things producers can do to protect their property rights and should remain optimistic, both speakers said.

There are certain principles which must be encouraged. Agencies must base decisions on peer-reviewed science, not fears of imagined scenarios. Those in federal agencies who become “rogue agents” need to be “ousted.” No agency should have the power to affect lives and the economy without external scientific review. Agents should be held personally accountable. Congress should pass a code of ethics for agencies dealing with nature. The Endangered Species Act must be redesigned to reward landowners for creating habitat instead of punishing them, Chilton said.

Remember that state government is the best friend for the producer to resist federal agencies and environmental groups, Beers said. Do away with the Electoral College. Find senators who will stand up for their states. Know the issues. Talk to other affected groups. Understand community values. Protect those who might be minorities, who could help later, he added.

Fighting for property rights may seem hopeless, but many thought they could not undo Prohibition, but that happened, he said.

While the Great Society was popular during its time, politicians now brag about reducing welfare, Beers said.

One specific suggestion was trying to create a law similar to the Arizona Private Property Act, which is good at defining when the government can use land or resources for a public purpose, Chilton said.

The act says when legislators pass a new law that devalues property, they must pay for it, he said.

A recent Supreme Court decision approved cities taking homes by eminent domain if they are trying to increase the tax base. That has scared a lot of urban homeowners and might be easy to sell to voters, Chilton said.

— Contact Dan Barker at business@fmtimes.com or 970-324-1254.