Dear Sir,
The Texas Parks and Wildlife Department has a new way of implementing the Endangered Species Act, which they would like to sell to Texas property owners as "safe harbors" agreements. Over supper I tried to explain this innovative idea to my family. I began, "These 'safe harbor' agreements being offered by the government are sort of like selling your mineral rights, except instead of selling mineral rights, you sell them your surface use rights.

"Selling the surface use rights of your property to the government," I continued, "is the moral equivalent of selling your soul to the devil for a few fleeting sinful pleasures in exchange for an eternity in hell. Because, you see, if you sign a 'safe harbor' agreement, the government will give you some tax relief, or maybe they'll put a few dollars in your pocket in exchange for your surface use rights, and from then on, forever, regardless of who buys or inherits that property, the surface use rights will stay in the hands of the government."

I then commented that, "This new idea makes about as much sense as castrating your breeding bull." It became apparent that my son, age 12, had grasped the meaning of these new "safe harbor" agreements when he observed that, "It's almost like the government owns the land." Touché, touché'. If only we could impart that level of comprehension to the adults involved in this con game.

This new effort at implementing the Endangered Species Act by the TPWD's "safe harbor" Central Texas Habitat Conservation Plan is nothing more than a repeat of the 1994 U.S. Fish and Wildlife Service's plan to designate critical habitat for the golden cheeked warbler in 33 Central Texas counties. Now, as was the case then, your right to use your property will be severely curtailed if the government has its way. Grazing, hunting, land clearing, fencing, road building and building construction projects will all he affected. The "safe harbor" plan would place all property in the targeted area, whether the property owner had signed on or not, under the scrutiny of the TPWD and the USFWS.

According to a February 23, 1998, draft of the "safe harbor" plan, "If the USFWS received a complaint concerning habitat destruction or take of species under the ESA within the area covered by this regional plan, they will contact the Endangered Resources Branch of the TPWD concerning the location of the reported violation. If TPWD finds that the landowner is not covered under Safe Harbor or is violating his agreement, the complaint becomes a law enforcement issue to be addressed by the USFWS."

The primary difference between the old golden cheeked warbler plan and the new one is the implementation tactics. Under the new plan a Texas agency (TPWD) rolls out the welcome mat and calls out to the USFWS, "Y'all come on in." Before, the USFWS broke down the door and barged into Central Texas uninvited, using about as much finesse as was displayed by the BATP at Waco.

Why this betrayal of Texas property owners by the Texas Parks and Wildlife Department? Why do they want to stoop to the level of federal informants and police officers under the ESA?

As was the case before, it is up to the property owners to fight off the implementation of this new and improved golden cheeked warbler plan. Through public protests and through our state officials we need to pressure the TPWD into killing their proposed "safe harbor" invitation to the feds. Also, to provide long term relief, we need to work to kill reauthorization of the Endangered Species Act. Reauthorization has been proposed under S1180 and will soon be considered by the U.S. Senate. S1180 is opposed by the California Farm Bureau, the Washington State Farm Bureau, the Texas Wildlife Association, the Florida Farm Bureau, Frontiers of Freedom, and many other property rights organizations.

One organization conspicuously absent from the ranks of those opposing reauthorization of the ESA is the Texas Farm Bureau (who also happens to support the "safe harbor" plan). So, a call to your Farm Bureau representatives, in conjunction with calls to your elected representatives would be very helpful in our continuing fight to preserve our God given and constitutionally protected rights to private property.

Michael Leamons
Mason, Texas

(Editor’s note: Many of our readers, like those of us at Livestock Weekly, may not have heard of this controversy until recent days, though it has apparently been brewing in the hinterlands for some weeks. Our first inkling that something was a’stir came when LW received — and published — a statement from Texas Farm Bureau president Bob Stallman addressing the issue. What follows is a column on the matter from Texas Wildlife Association executive director David K. Langford, reprinted with TWA’s gracious permission from the upcoming issue of the organization’s Texas Wildlife magazine. For those readers who may not be aware, TWA is most assuredly not a "green" group, but is made up primarily of ranchers, hunters and wildlife managers who guard property rights like a hungry dog guards a bone. We believe Langford’s comments on the "safe harbor" question should lay the issue to rest, at least until there is actually a plan to debate.)

Langford writes:
When it comes to the Endangered Species Act and its current implementations, TWA's position is crystal clear — the ESA must be abolished or fixed. That was our position when the organization was formed. That was our position when I helped lead the Private Property March on the State Capitol in '94. And that is our position today. Nothing's changed — including the ESA's status.

Frankly, it's taking a lot longer than anyone ever expected to get this wrong-headed law right — and unfortunately, not even the best soothsayer (or lobbyist) can predict when this uphill battle will be over. Furthermore, the Kempthorne Bill (S. 1180) being bandied around D.C. as a good overhauling, is an abomination instead. Please reread the November '97 "Back Sendero" for TWA's official comments thereon. The only thing that's certain is that regular folks like us have to keep ranching, keep farming, keep timbering, keep hunting and keep living on the land.

In order for us to keep on keeping on in the short-term, TWA has tackled a tough question, "How can we live with this unwieldy, hammer-handed law?"

Well, our first answer was to battle like a fightin' rooster drawing blood. We did. We screamed, we yelled, we faxed, we phoned and eventually we marched on the Capitol with many thousands of our brethren. It worked. Private property rights went from being relegated to the appendices of government textbooks to the daily headlines. Your TWA's philosophy went to the top of legislative agendas. But more importantly, private property owners went from sitting in the back of the room being snickered at — if they were invited at all — to sitting at the head table where natural resource issues were being discussed and decided.

Once we won the battle to be recognized, we went to work to win the war. Rallying with our like-minded allies (including the Texas Farm Bureau, Texas and Southwestern Cattle Raisers Association, the Texas Agricultural Extension Service, the Texas Department of Agriculture, and others) we set up our own table and pounded out a step-by-step plot to fix the ESA so well that it would actually conserve rare species. Imagine a law that worked: a law that real people could live with!

The Texas Parks and Wildlife Department was invited by us to answer questions and to serve as our information resource throughout this whole process. Keep that in mind. These meetings were our group's, not TPWD's. TPWD representatives were present only at our request and only to provide answers to our questions.

Eventually, we sent the white papers we developed to Washington D.C. and it caused quite a stir. We must've really hit on something useful, because the radical "greenies" had a genuine wall-eyed fit. We apparently touched a nerve, and they squalled like a hog stuck under a gate. They hated our proposal because it focused on actively managing for rare species instead of controlling land. Unfortunately, our suggestions died right along with every other sensible amending attempt ever tried on the current ESA.

At that point we could've retreated. Instead, we retrenched. Throughout this debate, conscientious landowners/managers had been asking for "best management practices" for rare species. They were saying, "Tell me how to manage these things, treat me like the Extension Service does, and I'll raise a flock of black-capped vireos (or whatever else you need), just like I've raised a herd of quality deer."

You want vireos? Give us some BMP's and you'll get enough to have 'em shrunkwrapped over at the H.E.B. The Texas Parks and Wildlife Department responded with Endangered and Threatened Animals of Texas, a compilation of management practices guidelines written by Linda Campbell. A new era of "letting Texans take care of Texas" had begun.

That's where we are today — and that's why I, on behalf of TWA, have been serving on the steering committee for the Central Texas Rare Species Conservation Plan that is being developed by TPWD. At this point, the plan is nothing more than a draft of ideas on how to provide landowners more flexibility in dealing with, and hopefully overcoming, some of the ESA's perverse disincentives and immense regulatory burdens. It's not concrete. It's not final. It's not a habitat conservation plan. It's not a critical habitat designation. It's not a confiscation of property. It's not even a plan. It's a process. And it is completely voluntary.

Perhaps, the whole thing will be easier to understand by looking at the hypothetical case of hypothetical landowner J.R. Pumpjacque. Ol' J.R. made a large bundle in the oilfield around Giddings during the hot, Austin Chalk days and used his newfound wealth to purchase l500 acres in Real County. The property has a nice rock house for his retirement, and deer enthusiast that he is, J.R. plans to sit on his porch watching big whitetails parade by. J.R. knows that to grow big deer you need plenty of native vegetation for deer forage, so he set about reversing the effects of the "heavy goating" previously used to control the same brush he now wants to grow for deer.

When J.R. changes his livestock management practices and balances his deer numbers, he will automatically create black-capped vireo habitat. J.R's wife, Ona, who is a bird lover, can't wait to get the vegetation renewal started so she can brag to her San Antonio friends that she has nesting pairs on the place. (See the problem shaping up for J.R and Ona?)

Both of them (and their consulting wildlife biologist) understand that nature is dynamic, and that to create optimal habitat for deer and vireos they're going to have to actively manage vegetation growing. Some roller-chopping and prescribed burning are going to have to be utilized to promote the dense regrowth that both species prefer. (But remember, under the ESA, J.R. and Ona can't touch that brush without risking regulatory reprisal because it is now home to vireos.)

Here's where the potential Central Texas Rare Species Conservation Plan comes in. If the plan works as intended, the Pumpjaques can negotiate a conservative agreement with TPWD as part of their confidential wildlife management plan. This will allow them to modify the occupied habitat that they actually created through their conscientious management. Because the Pumpjaques can actively manage their property, even though it's inhabited by rare birds, they effectively sidestep the ESA's biggest disincentive.

Guaranteeing that J.R. and Ona don't place themselves into any additional jeopardy at any time is a big hurdle that your TWA is insisting be overcome in any potential plan. But, would the Pumpjaques be better off defending themselves with a legal document signed by state and federal governments or by going unarmed against the existing ESA?

Of course, right now the proposal is just a process that might result in a plan, and nobody can predict how it will work in every situation. But one thing is for sure, this proposed plan isn't any worse than the current ESA. Right now, the ESA with all its regulatory burdens looms over every Texas landowner. It is an unmitigated threat to responsible land management.

The Central Texas Rare Species Conservation Plan is a much better idea than the Kempthorne bribery scheme and is a good-faith effort by TPWD to blunt threats by keeping landowners out of ESA trouble while accomplishing real conservation. It is a voluntary management option that landowners can choose to participate in or not.

Nonetheless, I've had to pick some buckshot out of the south side of my Wranglers for serving on the steering committee shaping this plan. Getting shot at doesn't surprise me, but getting peppered by friends does.

Misleading attacks in the media have confused TWS members and complicated an honest effort by TPWD to work with Texas landowners to solve the vexing problems of ESA disincentives. I don't fully understand why some folks would rather be part of the problem than part of an attempt at a short-term solution. (But then I don't understand why these same people believe deciding to plant a nuclear waste dump on your land is a property right, but deciding to enter into a voluntary conservation agreement isn't. Seems pretty clear to me who the genuine property rights proponents are.)

The fighting days of '94 were glory days, alright. (One of the highlights of my life was speaking to the huge crowd from the same spot on our State Capitol's south steps where Willie Nelson sang.) But, TWA has moved on to the even more difficult and tedious task of waging progress. It's not selling out, it's sitting at the grown-ups' table — the table that used to be off-limits. Nothing forces us to stay at the table, especially if something is wrong. But we proponents of responsible, active management on private lands have worked too hard to get a seat just to pull the chair out from under each other now.

And now, the back sendero is beckoning. Spring gobbler season is here and all those "unidentifiable" neo-tropicals will be moving north, foraging in the same creek bottoms where the turkeys roost. Bird-watching comes easy in full camo, and fried turkey tastes great chased by foaming beverages.

After lunch I imagine I'll curl up like an old tomcat to catch a midday snooze in the warm spring sunshine. But, while I'm waiting for Morpheus' visit, I'll be fitfully wondering why any Texans object to us TWA'ers voluntarily taking care of natural resources that fate or fortune have placed in our care.

Oh, and one more thing before I drift into slumber. If this process or this emerging plan begins to smell just the littlest bit "off" — I'll help lead another march up Congress Avenue. And, if anyone doesn't think that's so, they'd better be smiling while they’re thinking.