This Land Is My Land

If you want to understand why, after more than three decades of dedicated service, the Endangered Species Act may soon be replaced with legislation more friendly to farmers and landowners, you have only to stand on the banks of the San Joaquin River with Mario Santoyo, assistant general manager of the Friant Water Authority, and listen to him describe how concern for a dwindling species may wreck his community. Embroiled in legal battles since 1988, Friant has been ordered several times by federal courts to release enough water into the ailing San Joaquin River to support wild salmon. But Santoyo is having none of it. “To do that will take us out of play economically,” says Santoyo. “It scares the hell out of us. We are living the Endangered Species Act nightmare.”

Santoyo would be a fool to argue that the 319-foot-high Friant Dam, which stops up the San Joaquin River at a reservoir called Millerton Lake 20-odd miles northeast of Fresno, has not been a juggernaut for anadromous Chinook salmon, the kind of fish that swim heroically from the open ocean to spawning grounds high in the mountains. What Santoyo argues instead is that, since the Friant Dam was completed in 1944 by a post-Depression federal government determined to turn a barren valley fertile, an entire economy and culture have grown up in its shadow, “and to take all that away — it’s just wrong.”

Santoyo’s way of looking at the world explains why Congressman Richard Pombo, chairman of the House Committee on Resources, has become a local hero. A Republican from the Central Valley city of Tracy who last month pushed a bill through the House stripping the Endangered Species Act of its habitat provisions, Pombo argues that he was prevented from making money off his ranch land because it provided habitat for the endangered San Joaquin kit fox. Like Pombo, Santoyo thinks the act has allowed environmentalists to put the needs of rare creatures over those of humans. “I think where he’s coming from is not a whole lot different from other folks up here,” Santoyo says. “We want to put some balance in how that act is put into place.”

Ninety-five percent of Friant’s water goes to some 15,000 farmers who occupy a million acres — roughly 60 acres per farmer. Unlike the large, corporate farms on the valley’s west side, or the Westlands, the East Valley’s farmers manage small plots and live lean, says Santoyo. “Your margin of profit is pretty slim out here,” he says. If anything happens — anything like the freezes that killed so many orange trees in the late 1980s and early ’90s, sending valley farmers to Washington begging for help — “then you’ve got nothing left.”

Victor Lopez, the labor-friendly mayor of the small Central Valley city of Orange Cove, remembers those freezes. He also remembers devastating droughts, when “we were rationed to 10 gallons a day. There was no irrigating. We washed dishes and threw water on the lawn. Whole families bathed themselves in the same water.” But these days, he fears an environmentally friendly court decision more than he fears the weather. “We have a very good conservation program year ’round because we’re so afraid,” he says. “We rely solely on our citrus trees, and if you don’t water them, they die.”

Back in 1974, around the same time most of the country’s environmental legislation was taking effect, Lopez was working in the Central Valley’s fields, demanding that Big Agriculture’s bosses provide full-time day care for farm workers’ children. He succeeded, guaranteeing himself 30 years in office. And he cannot grasp the rationale for releasing Friant’s water to support salmon when the people in his community will suffer from the loss.

“I’ve never eaten a fish in my life,” he says, laughing. “I have nothing against fish, but I’m a person that values number one human beings. And I cannot understand how endangered species can be more important than human lives.”

Pombo, says Lopez, “is a good, good man. He understands what we’re going through here.”

Barry Nelson, a senior policy analyst with the Natural Resources Defense Council, the primary litigant against Friant, says he also understands what the farmers of the East Valley are going through. But he doesn’t have much patience with Friant’s constant appeals of court decisions. Other water districts throughout the state, such as the ones that serve rice farmers on the Sacramento River, have had to adapt to changes in environmental law; so should Friant.

“Friant is an exception to every other major dam in the state in that it doesn’t release a drop of water into the [California] Delta or the river,” says Nelson. Since 1950, when California’s then-Attorney General Pat Brown declared Friant’s federal managers exempt from a state law protecting fish downstream, Friant’s water users “have been isolated from the regulatory world,” says Nelson. “They haven’t had to deal with the Endangered Species Act or the Clean Water Act or any of the regulatory requirements that have affected any other water user. They’re still living in the 1940s.”

And to hear Santoyo tell it, they’d like to keep it that way. “Good, bad or indifferent,” he says, “the government made a decision 50 or so years ago to build this dam. We understand that times have changed, that environmental issues have become more important. But they shouldn’t become more important than our livelihoods here in the valley.”

The environmentalist versus the farmer, the human against the fish: It’s an endangered species showdown that has analogues all over the country, says David S. Wilcove, professor of ecology and public affairs at Princeton, who has spent the last 20 years analyzing the Endangered Species Act. “We faced the same dilemma in the Pacific Northwest a decade and a half ago, where the timber industry was a really powerful economic force, but you got down to the last 10 percent of the old-growth forest, and the timber industry wanted to continue logging it.” At that time, the species in question was the infamous spotted owl, which opponents of habitat protection adapted as sort of an antimascot. More recently, farmers in Oregon’s Klamath Basin wailed loudly in October when the 9th Circuit Court threw out a Bush administration plan for returning water to the Klamath River to support endangered Coho salmon. The Bush plan would have gradually increased flows over 10 years, by which time, said the three-judge panel, all the fish would be dead. A spokesman for the Klamath Water Users Association, Greg Addington, cited the decision as another reason to rewrite endangered species law.

But Wilcove thinks that’s missing the point. “It’s easy and common to turn the act into a caricature of itself,” Wilcove says. “Which do you value more? A fish or a family? An owl or a town? That’s the kind of thing Pombo and his cronies like to do. But that does a disservice to the broader issues involved.

“The Endangered Species Act functions as something like an alarm,” Wilcove continues. “And if you don’t pay attention to the alarm sounded by the loss of a species then you run the risk of major, cataclysmic upheaval and suffering in the future.” Had the wetlands of the Louisiana Bayou, for example, been protected for fish and bird habitat, Hurricane Katrina’s storm surge would have slowed before it hit the Gulf Coast; had the mangroves of Thailand not been wrecked by shrimp farms, many stretches of coastline crushed by the December 2004 tsunami would have been spared.

One of the architects of the original Endangered Species Act in 1973, former Congressman Pete McCloskey, doubts that, for all Pombo’s courting of Central Valley farmers, he really has their best interests at heart. “To Pombo and his family, who own hundreds and thousands of acres, it isn’t the farming they’re concerned with, it’s the development of subdivisions,” says McCloskey, who served as a Republican in the House of Representatives from 1967 to 1983. “It’s more of his ‘property uber alles’ formula.” Scapegoating the Endangered Species Act, he says, ignores the larger issue that dogs all of California: Western agriculture uses too much water. “Compared to the water problems those farmers will face sooner or later, the Endangered Species Act is a gnat on an elephant’s behind.”

Just about everyone agrees that the Endangered Species Act has problems that have created resentment in ranchers and farmers who suffer disproportionately when the law is applied. But McCloskey contends that the solution Pombo proposes — that the federal government pay landowners for the loss of future revenues sacrificed to habitat protection — is just a stealth ploy.

“It’s a way of ending the act completely,” says McCloskey, who lives on a ranch in the Central Valley city of Rumsey. “If you paid every developer for every project he could claim he might be denied because the kit fox roamed across his land one day, you’d bankrupt the government agencies in a year. It’s clearly a secret way of getting at the act.”

A spokesperson for the House Resources Committee, Brian Kennedy, calls that a gross misinterpretation of the compensation provision in Pombo’s Threatened and Endangered Species Recovery Act. “It’s a fair-market-value compensation determined by appraisers for both property owners and the federal government in a potentially lengthy process,” he says. “It’s meant to eliminate what is now viewed as a huge disincentive to protect species — the old ‘shoot, shovel and shut up’ controversy — by protecting the property owner.” Kennedy says that it will cost taxpayers no more than $10 million through 2008. “Some people say that’s not enough,” he says. “And I say, does that mean that every year the federal government takes more than $10 million worth of private property for species? Because clearly, that’s not good.”

Nevertheless, McCloskey prefers an idea Reps. George Miller of California, a Democrat, and the Republican Sherwood Boehlert of New York put forth in a failed bill meant to counter Pombo’s: “In the original act we wanted to provide that people who voluntarily assigned portions of their land to habitat were entitled to compensation. And that’s feasible. We could still do that.”

After Pombo went to work on endangered species law, McCloskey — who once liked Pombo enough to contribute $100 to his campaign — decided he’d run against him in next year’s Republican primary if he can’t find a better man to do it. It would mean relocating to Pombo’s 11th District, but it might be worth it, says McCloskey. “Any act can be amended from time to time, but this assault on the act comes from that sizable group in the Republican party who think the environmental movement is communist, and that private property rights are the basis of democracy.

“And when you have a man who thinks all federal land should be turned into private property,” says the former congressman, “that curdles the soul — even the soul of a land-rights lawyer like me.”

Which points to a thudding irony in Pombo’s philosophy: The Friant Dam, and the entire Central Valley Project that transports California’s water throughout the state, is maintained and supported by state and federal money. Without publicly funded engineering and taxpayer subsidies, the Central Valley’s private property — including Pombo’s own ranch — would be worthless.

The NRDC and Friant are due in court again in February, this time to come up with a plan both sides can live with. For Mario Santoyo, that can only mean that the NRDC gives up the dream of naturally reproducing salmon in the San Joaquin River. “Why does everything have to revolve around anadromous fish?” he asks. “We have an existing hatchery. You could grow the salmon, and introduce the fish. That’s an option that has not been explored adequately enough.” As for the biologists’ claim that hatchery fish show signs of genetic differences that distinguish them from wild, seagoing salmon, Santoyo wonders why that matters. “Have you talked to a fisherman? Can he tell the difference? Because if it doesn’t make a difference to the fisherman, I’m not sure what the big deal is here.”

In the meantime, the Senate may soon put forth an endangered species bill of its own, possibly with the same provisions for excising critical habitat protection and compensating landowners. “It will definitely affect this case if that happens,” says the NRDC’s Barry Nelson. “But it won’t stop us from fighting to restore the river.”

This is not the first attack against the act. Click here to read Judith Lewis' accompanying article, “A Long, Final Act.”

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