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Landmark Environment Law in Peril by Robert McClure Seattle Post-Intelligencer, September 6, 2005

Joy West kneels amid alder trees and snowberry bushes near the banks of Seattle's Duwamish River, where native people have caught and eaten salmon since before the ancient Egyptians were building pyramids.

Painstakingly, West tugs out knots of an invasive weed called "stinky Bob" that has shown up and crowded out native Washington plants in recent decades. It smells like a musty combination of garlic and licorice.

Over the roar of trucks hauling gravel and gasoline and who-knows-what, West explains why she does volunteer work to keep the riverbank natural and help the threatened Puget Sound chinook salmon.

West says she fears that the law protecting the fish -- the Endangered Species Act -- is itself endangered as Congress reconvenes this week.

"If anything, the Endangered Species Act needs to be enhanced, not toned down or eliminated," says West, who volunteers for People for Puget Sound, an environmental group. "They're doing this because they don't understand how important the Endangered Species Act is."

As Congress returns from its August recess, environmentalists and property-rights activists are focused on Rep. Richard Pombo, a California rancher who is chairman of the House Resources Committee. Later this month, Pombo is expected to introduce legislation to overhaul the 32-year-old Endangered Species Act, with House passage expected by year's end.

A draft of the bill that leaked earlier this summer "was comprehensive in trying to undo what's been done over the last 30 years" to protect endangered species, said Patti Goldman, Seattle-based lawyer for the Earthjustice law firm.

Before Pombo was tapped by Republican leaders to head the Resources Committee, he was one of the most virulent attackers of the landmark law. For example, Pombo in 1995 accused the "arrogant" U.S. Fish and Wildlife Service of trying "to make California farmers vassals of the federal government" by enforcing the statute.

But now Pombo speaks of "updating" and "modernizing" the law.

"The act isn't working to recover species now," he said during a recent visit to Snohomish County. "At the same time, it's caused a lot of conflict with private property owners. We have to have an act that works and eliminates a lot of those conflicts we have."

Pombo and other detractors say the law is broken because only a handful of species have ever recovered to the point they no longer require protection. Conservationists, however, point out that it's done a very good job of keeping species from going extinct.

In negotiations with Democratic leaders, Pombo has been able to reach agreement on a number of important points, said Brian Kennedy, a spokesman for the Resources Committee. "Take a good, close, hard look at this (bill) when it comes out," Kennedy said. "Put the partisan political hyperbole aside and really look."

Pombo, he said, "does have all the best interests at heart in trying to make this program work for species and for property owners and communities alike."

But the draft of the legislation that leaked earlier this summer outraged environmentalists because, among many other changes, it would have set the stage for getting rid of the Endangered Species Act in 2015 and reduced protection of forests and streams where imperiled animals live.

Would a weakened Endangered Species Act take the steam out of salmon-recovery efforts in the Pacific Northwest? That's what conservationists fear.

Said Dyche Kinder of The Moutaineers, a Seattle-based environmental and recreation group: "They're going to take a hard run at it. I'm bracing for a major assault."

Environmentalists aren't pushing the panic button yet. A major reason is that even assuming Pombo's bill clears the House, it will head to the Senate, where House-passed legislation to weaken the Endangered Species Act has died in the past.

This year, a key Republican senator, Lincoln Chafee of Rhode Island, said he wants to see a less-drastic overhaul pass Congress. As head of the Senate Fish, Wildlife and Water Subcommittee and a Republican with strong environmental credentials, Chafee's involvement could make a difference.

Chafee isn't planning to move as quickly as Pombo. It will be March before a Government Accountability Office report ordered by Chafee is finished; it is to examine what factors drive successful recovery of endangered species.

To build a coalition that could pass Endangered Species Act reform after years of failed tries, Chafee presumably would have to give some to property-rights advocates. Yet when he launched review of the law earlier this year, he told reporters: "I am wading into this apprehensively. I don't want to do any damage or weaken" the law.

Democrats could knock the Pombo legislation off course even before it gets out of the House.

While environmental activists have judged Democratic support for the species-protection law to be lukewarm in years past, this summer, House Democratic Leader Nancy Pelosi greeted environmentalists who came to Capitol Hill to lobby with red-meat rhetoric:

"The Bush Administration takes the same approach to the Endangered Species Act that it takes to all the other major environmental laws that protect our air, water and lands. Their approach is to appease, abuse and assault," she said.

Not all private-property-rights crusaders were happy about what they saw in Pombo's draft bill, said Chuck Cushman, executive director of the American Land Rights Association.

For one thing, the bill sets up a system of compensation for property owners if at least half their property value evaporated because of endangered species and related development restrictions. Some felt that allowing half a property's value to be sacrificed in the name of endangered animals went too far, he said.

"If I find gold on my property, my property value goes up. If I find spotted owls on my property, my property value goes down," Cushman said.

And he said that can backfire, even to the point that landowners secretly harm the very species the government is trying to protect.

Interior Secretary Gale Norton, on a recent trip to the Nisqually River near Olympia, told of a town hall meeting with South Dakota ranchers fearful of plans to protect the prairie dog.

"They told me the first time that proposal became public, that year the sale of prairie dog poison doubled," Norton said. "People were so afraid that if they didn't get prairie dogs off their land right away, then they were not going to be able to use their ranchlands in the future. That's the kind of situation we face if we don't have the tools to work cooperatively with landowners."

If instead a way could be devised to actually reward landowners when endangered species are on their property, more would be restoring habitat, say supporters of a change.

"You'd see an about-face by landowners, because they wouldn't have to live in mortal fear that some bureaucrat is going to come out of the shadows" to enforce the law, Cushman said.

It's on this point that private-property-rights advocates and environmentalists may finally find some common ground. It's a theme that has recently begun to come up repeatedly from those two groups as well as those in government: If you want to preserve endangered animals on private land, be prepared to pay for the privilege.

Although the law has been a target for change over the last decade, the biggest push came just after Republicans took over leadership of Congress in the middle of President Clinton's first term. That blew up in the Republicans' face, as the public strongly supported the law.

"There's never been enough support in the Congress to abolish the Endangered Species Act," said Bill Ruckelshaus, the Republican two-time former head of the U.S. Environmental Protection Agency who is spearheading salmon-recovery efforts in Western Washington. "There are enough Republicans in the middle who care about the environment who can block a change if it amounts to something that's going to devastate the law."

In negotiations that have led in many cases to salmon-protection strategies endorsed by environmentalists as well as business interests, the Endangered Species Act has rarely been mentioned directly, Ruckelshaus said.

But it's a major reason the negotiations kept going and produced salmon-recovery plans throughout Western Washington, he said: "It's the gorilla in the closet."