For several years, environmental activists have used the courts to force the Fish and Wildlife Service (Service) to federalize millions of private acreage of private land by imposing "critical habitat" designation to protect threatened and endangered species.

On January 16, 2002. the Center for Biological Diversity filed suit against the federal government seeking an immediate critical habitat designation for the endangered unarmored threespine stickleback. The suit against the Department of Interior and the U.S. Fish and Wildlife Service (Service) charged that the agencies are violating the Endangered Species Act by failing to designate critical habitat for the rare fish, which occurs in northwestern Los Angeles County and one location in Santa Barbara County.

Now the Service has admitted that establishing critical habitat designation is a inferior method of species preservation. Private landowners are also fighting back; using the courts to force the Service to reduce or eliminate designations.

The critical habitat designation too often is a shrouded effort by environmentalists and the federal government to intervene and control massive amounts of land, including private property. For example, in Nebraska, sixteen years after the piping plover was first listed as threatened, the Service targeted lrage areas as critical habitat. By tacking on the plover critical habitat to the existing whooping crane critical habitat, the Service would gain regulatory control over the entire Platte River, from the Wyoming and Colorado borders all the way to the Missouri River. About seventy miles of the Niobrara River would be impacted, as well as roughly fifty miles of the Loup River. Nebraska irrigators, farmers, ranchers, landowners and sand and gravel producers will be forced to recognize the formal designation of critical habitat for the piping plover. They predict that their water and private property rights will be adversely affected.

Landowners are combating the virtual takings. In California, eight million acres are burdened with the critical habitat designation. For the Marbled murrelet, critical habitat totaled almost four million acres, 48,000 acres, private land. The Service designated 28 critical habitat areas for the western snowy plover totaling 20,000 acres and 210 miles of coastline - 10 percent of the coastline of California, Oregon and Washington. But the Service failed to take into account the economic impact of the designation as required by law. They even failed to measure the environmental impact of their designation. So on May 6, attorneys for the Pacific Legal Foundation filed a lawsuit challenging the designation for the snowy plover.

And in New Mexico, livestock producers won a major victory in their ongoing battle to protect grazing rights from more restrictions under the Endangered Species Act (ESA.) The 10th Circuit Court of Appeals, on May 11, rejected the Service critical habitat designation for the Southwestern Willow Flycatcher in New Mexico. By a vote of 3-0, the appellate court panel said the Service needs to issue a new flycatcher critical habitat designation that's in compliance with the ESA, including meeting requirements that force the agency to take into account economic ramifications of the critical habitat designation. The appellate court said Service must consider all economic impacts when designating critical habitat, including any economic harm that would result from that designation.

The critical habitat designation has questionable value. The Fish and Wildlife Service has gone on record stating that designating critical habitat of little value in species preservation. They recently published a statement admitting "[it] believes that critical habitat is not an efficient or effective means of securing the conservation of species." The Service concluded that the costs associated with one designation of critical habitat "typically are ten times what would be required to list a backlogged candidate species." Worse yet, in the rush to meet the environmental activists court-imposed demands, the Service has in some cases, as in California, failed to comply with federally-mandated economic and environmental impact studies of the designation

By battling environmentalists' attempts to federalize private property, landowners are attacking the land grab at it's root. By forcing the Fish and Wildlife Service to comply with it's own environmental laws, they are tearing off the façade of species preservation and revealing it to be too often just another tool by environmentalist activists to regulate land use and value-uncompensated takings.

• Write to Arthur at bruzzone@rightturns.com

Award-winning TV producer, talk show host, and Republican leader Arthur Bruzzone has written over 150 political articles for national and regional media, and has commented on political issues for American and European television and radio networks.  His articles and columns have appeared in the Wall Street Journal, San Francisco Chronicle, San Francisco Examiner, Campaign & Elections Magazine, among other publications.

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