Sunday, June 10, 2007

Eagle Problem Update

Recently there have been a number of comments to our December 29, 2006 posting “My Problem with Eagles.” Since many of these raise the same issues, I decided to answer them here collectively rather than publish all the individual comments and my replies in the Comments section of the original posting. Also, while some readers have raised valid questions in their comments, they have also included obscenities, name-calling, or scatological terms. This blog will not publish any such comments. Therefore, I have extracted any valid issues from such comments, which are often the same as those raised by others with more civilized vocabulary, and will cover them in my reply below.

Probably the most common issue from readers has been concern over what will happen to the eagles occupying this one nest if my property is developed. Our earlier posting explained that, according to the U.S. Fish & Wildlife experts, eagles typically have 3 to 5 nests in their territory, among which they rotate their occupancy every few years. But then the question is raised: what will happen to the other 2 to 4 nests if other landowners have the same attitude you do, and where will the eagles go? This implies two incorrect assumptions: 1) that the eagles' other nests are also on private property, and 2) that there is no place for eagles to go except other private property. Actually, Minnesota has millions of trees available on millions of acres of forested public lands—several of these very close to my property. On three sides of my property, there are three state forests within 27 miles; the Rum River State Forest is only 12 miles away. Plus there are also state and federal wildlife refuges, as well as other state forests, close by. The state has lots of these, plus national park and national forests, with millions of acres of suitable habitat where development is prohibited.

Minnesota has the largest national forest in the lower 48 states, the Superior National Forest, with 4,000,000 acres. Another national forest in the state, the Chippewa National Forest, contains, 1,600,000 acres. Then there is the Boundary Waters Canoe Area, part of which lies in the Superior National Forest, but another million acres lie outside of it. Then there are 57 state forests, comprising approximately another 4,000,000 acres. There are also various state and federal wildlife refuges, state parks, and one national park. The Voyageurs National Park contains almost a quarter-million acres of suitable eagle habitat. Given the vast tracts of land set aside for preservation, it is difficult for me to believe that my 7 acres of buildable land must be sacrificed for the preservation of eagles, or that one tree on my property can be crucial to survival of the species when there are literally hundreds of millions of available trees in Minnesota.

On a line from my property to the Rum River State Forest, in the opposite direction lies the Pillsbury State Forest 27 miles away. From this line, at a 90 degree angle, lies the Wealthwood State Forest, 18 miles from my property. The Mille Lacs [state] Wildlife Refuge is also 18 miles away, to the southeast, while the Rice Lake National Wildlife Refuge is just 34 miles to the northeast. Thus those who lament about the eagles losing their home, not having any place to go, and being threatened by the loss of one tree on my property have simply jumped to conclusion without knowing the facts about the abundance of nesting sites available on nearby public forested areas.

It should be noted, too, that state and federal governments have determined the locations best suited for preservation of species in the selection of public forests, wildlife refuges, etc. They did not select my property for such purpose because they found far more suitable properties. Similarly, the state and federal officials selected thousands of Minnesota lakes for inclusion in state and federal parks, the BWCA, etc., where development would be prohibited. The lake on which my property is located was not included; there were thousands of lakes considered more appropriate for that purpose. My lake was officially classified as a General Development Lake, meaning it was appropriate for development and human habitation. There are currently a couple of hundred cabins on this lake. I would simply be doing what all the other property owners have already done. That I have not done so earlier should be reason for applause, rather than criticism for being “greedy.”

Another common issue among readers is the apparent assumption that if I forgo development of the property, the eagles will live there happily ever after. But once again people are making assumptions without knowing the facts. The fact is these trees don't last forever, and the particular tree with the eagle nest is very old. It's about as big and old as a white pine ever gets, and there are obvious signs that it is approaching the end of its life. There are 6 to 8 holes at the base of the tree and as far up as about 8 feet. Many of these are large enough to put your hand into. Squirrels and other small animals have been running in and out and carrying wood chips and wood dust out. And one can see from what they have brought out—the very dark, soft, decaying material—that the tree is rotting from the inside and being hollowed out. There are also several large cracks, running several feet in length, up to about 10 to 12 feet from the ground. And the tree has also lost some major branches higher up. So what will happen to the eagles if the tree falls from natural causes? They'll survive. They'll go to their other nests, and they'll build new nests in new trees from time to time as they have been doing throughout the history of the species. Denying me the right to develop the property—on which I and my family have been paying taxes since the 1930s—will have no effect at all on “saving the species.” And once the tree has fallen, the property will ultimately be developed by someone, if not me then by whoever comes after me. The development plan I proposed meets all the other federal, state and county specifications for development.

Several readers have suggested that I should drop plans to develop the property “because the eagles were there before you were.” Once again, these people do not know the facts. The fact is I was there 50 years before the eagles were. I grew up spending summers on this lake, and it was at least 50 years before any of us ever saw an eagle. The eagle nest on my property has been there for only about a dozen years. The eagles have become so prolific they have been expanding their range and building nests where there never were such nests before, such as on my property.

Some readers have also said I should donate the property to the government. These people should put their money where their mouths are. If they think saving one aging tree with an eagle's nest is worth foregoing several hundred thousand dollars (the appraised value of the property, if developed), then they should get together, come up with that sum, and I'll be glad to sell to them so they can demonstrate their pious devotion to their cause by donating the land to the government at their own expense, not mine.

Actually, if I were wealthy enough (which I am not) to be willing to forgo the money for the sake of an eagle's nest, I certainly would not trust the government to preserve the property for its intended purpose. Across the lake from my property, there was a resort for many decades, operated by a man named Ed Linehan. He owned additional property (perhaps 10 acres or so) behind his Squaw Point Resort. Eventually he deeded this heavily wooded land to the county explicitly for the recreational use of the public. But several years later the county voted to sell that land for development on the grounds that the money could be better used for other purposes. The heirs of Ed Linehan then sued the county on the grounds that since the terms for which the land was donated to the county were not being fulfilled, the land should be returned to the Linehan family. The whole episode was written up in the local newspaper 2 or 3 years ago. I am not an attorney, but it certainly seemed to me from the newspaper account that the county was not fulfilling its end of the bargain and the property should be returned to the Linehans; however, the article said that the county attorney had advised the county board that its actions were legal. I don't know how the case turned out because I discontinued getting that local newspaper. But that is just one reason not to trust government to safeguard the environment. There are many more, as I have explained in my book MAKERS AND TAKERS (available from American Liberty Publishers).

Government at all levels has a terrible record on conservation. For decades it has driven some species, such as wolves and mountain lions, to the verge of extinction by paying bounties and even hiring government employees to kill them. The federal government also presided over the virtual extinction of the buffalo. The federal “open range” policy was detrimental to the buffalo, as was the government's policy of killing buffalo as a means of subduing the Indians. Government persistently refused to act even when buffalo numbers became alarmingly small. At one point Congress strongly argued that the buffalo was a “pest” and should be eliminated. When Congress finally passed a bill for conservation of the buffalo, President Grant vetoed it. The government had many opportunities and failed them all. By 1900 the once-vast wild herds of buffalo had dwindled to a mere 20 animals, these being in Yellowstone National Park. But even with so few animals left to watch over, and these confined to federal land, the U.S. government with all its mighty power—and its usual incompetence—could not prevent 16 of these last 20 from being slaughtered by poachers. It wasn't government that saved the buffalo from extinction. It was private concern and private property. One man (it may have been the Pend d'Oreille Indian Walking Coyote) had earlier roped two two male and two female calves and protected them on private property. From this grew the great Allard-Poncho and Conrad herds in Montana after the disappearance of every last buffalo in the public domain there. In the Panhandle, Colonel Charles Goodnight lured a few wild calves to his ranch and protected them. Mitchell Pablo, a half-Mexican half-Blackfoot Indian orphan who became a cattle baron, started protecting buffalo on his property in 1883. By 1906 he was ready to sell, but even at this late date Congress refused to buy any. So he sold to Canada. The 691 buffalo he sold were shipped to Canada's vast 17,300 square mile Wood Buffalo National Park and grew to a herd of 14,000 in half a century. It was these few men, acting in their own interests and by means of private property, who preserved the buffalo and later furnished the animals for restocking national parks and other public lands—for which the government now claims credit for saving the species! There are similar stories about the pronghorn antelope and the tule elk, which you can read about in my book. You can also read about the world leader in wetland and waterfowl conservation. No, it's not the federal government—which for decades used taxpayer money to promote the draining of wetlands. The conservation hero here is not government at all but a private organization with none of the powers of government. Supported entirely by voluntary private donations, Ducks Unlimited has conserved almost 12 million acres of wetlands, accomplished more than 1200 water control projects that have benefited 60 different species of mammals, 19 types of fish and 250 species of birds. It and similar organizations, including many small hunting and fishing clubs, have preserved more wetlands than the federal government. But the public isn't aware of these facts. If people were aware, they wouldn't be so quick to depend on government to accomplish environmental objectives. Through most of our history, it was recognized as beneficial to turn more and more public land over to private ownership, as, for example, with the Homestead Act of 1862. In recent decades we have been going against our own history by government policies that are bent on converting more and more private properties back into government ownership. And regulating more and more of what remains private, treating it as though everything is really public.

One reader says I am incorrect in interpreting the Constitutional principle of compensation for the taking of private property for public use. He writes: “You are only owed just compensation on a regulatory taking IF there has been a physical invasion of your property OR you have lost all of the economic value of your property.” But that is precisely the point: I have indeed lost all economic value of the property. There is no part of the buildable area of my property that is not included in the 330-foot radius from the eagle nest where the law prohibits any construction or habitat modification that would allow any economic use whatsoever. My property is bounded on one side by the lake and on the other three sides by two roads and by wetlands. The eagle tree is only 250 feet from the lake. So observing the 330-foot setback requirment from the eagle nest would put construction 80 feet out into the lake. Thus none of the property between the eagle tree and the lakeshore can be used. And in the other directions, the longest dimension from the eagle tree to roads or wetlands (which must be preserved) is only about 130 feet. So nothing at all can be built on any of the property. The property is completely wooded, but I cannot cut and sell firewood, plant corn or anything else. If the writer of that comment above can suggest any economic use that does not involve harvesting anything, planting anything, building any structures, or clearing trees to allow for such economic activity, I would like to hear about it.


Ben said...

Thus those who lament about the eagles losing their home, not having any place to go, and being threatened by the loss of one tree on my property

Why don't you just ask those lamenters to swap property with you? They can have yours if they give you theirs. They could observe the eagles day and night and write a book "Is saved the last eagle".

This whole story becomes ridiculous.

Unknown said...

I was the commentor who posted about your Constitutional misinterpretation. As long as your property is alienable (meaning you can sell it), it is still considered to have economic value. There is no guarantee of the ability to develop the land. Plus, my original understanding was that you already had built something on a part of that property, although not in the area you are now considering leveling. In determining loss of all economic value, you can't just look at the part of the property that has the restriction on it, you must look at all of the property owned in the parcel. Plus, I'm sure the government in a suit would be willing to do a great song and dance about other ways you could get economic value out of your property. Since I'm not familiar with your property or the area I can't say what that song and dance would entail.

Your original post insisted that the government had exercised its eminent domain power. My post was just to point out that it is not nearly so clear, and the courts are hesistant to find that a regulatory taking has resulted in triggering the compensation requirement of the 5th amendment.

Edmund Contoski said...

It is amazing the assumptions people make that are counter to the facts—and then put forth as reasons for being against my plans for my property. I never built anything on any of the property—this property or any other. The property I sold several years ago was a long-standing cabin on a separate parcel—thus making irrelevant your assertion “In determining loss of all economic value, you can't just look at the part of the property that has the restriction on it, you must look at all of the property owned in the parcel.”

Furthermore, I never intended, said anything about, or even considered “leveling” the property. It has always been my plan to cut as few trees as possible on the property. I have no desire to incur the expense of cutting trees unnecessarily—particularly when wooded lots are more valuable for building cabins. The only trees that would be cut are those required to build the short cul-de-sac road on which the 5 lots would front; state law and county ordinance both require all lots to have frontage on a public road.

The lots on my plan are very large, averaging over 73,000 square feet each. That is equivalent to a rectangle 200 feet by 365 feet. Thus there is plenty of room for the buyers of these lots to make their own site plans for their house designs and have plenty of space left for trees and other vegetation. And, or course, they would have to comply with all ordinances and regulations for setbacks, lot coverage, and other building requirements in order to get building permits. So the entire development will be one of environmentally sound design with a high percentage of the natural environment preserved—not a “leveling” of the property.

The right to sell the property does not mean that the property can be used for anything. A new owner would face the same restrictions. Although the eagle has been removed from the Endangered Species List, the government has said it intends to impose the same regulations under another law from 67 years ago. In other words, it intends to turn that law into the Endangered Species Act and thus wants to continue to regard the eagle as endangered even though it isn't—and even though Congress in passing that act of 67 years ago did not (according to Congressional discussions at the time) intend that act to include habitat. The government has issued its definition of the word “disturb” as they apply it to the eagle, but the complete regulations have yet to be issued, a process that could take several months, perhaps even a year or more. Undoubtedly the government will stretch the process out as long as they can. Maybe several years. If not for my lawsuit, the eagle would still be on the endangered list. When my lawsuit was filed, the court set a date for the trial in March 2006. The government asked for a postponement to a date in April, to which we agreed. Then they changed their minds and asked for a date in May instead. Then they told the court that May was inconvenient and asked for a postponement until June. The court heard the case in June but did not render a decision until August, at which time it gave the government six months to comply with delisting the eagle. That pushed the date to Feb. 16, 2007. But shortly before that date arrived, the government said they needed another four months, which pushed the date back to June 29th. It is hard to see why they needed all these postponements for something that by law the government was supposed to have done within one year of the U.S. Fish & Wildlife Service report in 1999. It just shows how reluctant the government is to surrender any of its control. So I am not optimistic about an early date for completion of new regulations governing the eagle.

We shall just have to wait and see what the new regulations are before contemplating further action, which may very well include another lawsuit against the government. My attorney feels we have some very good arguments on our side. You have mentioned that the government will probably do a great song and dance about “other ways you could get economic value from your property.” But if the regulations remain the same, it is very difficult for me to see how anyone can make a case for any economic use of the property that does not involve planting anything, harvesting anything, building anything, or clearing trees to allow for any economic activity (the property is entirely wooded.) I can't even imagine any possible use under the current regulations.