USING THE FARMLAND STEWARDSHIP PROGRAM
TO RESOLVE ENDANGERED SPECIES CONFLICTS

Click here to view the key recommendations in this document

Here’s how the Farmland Stewardship Program (FSP) might be used to resolve some of the controversy surrounding the cutoff of irrigation water in the summer of 2001 to farmers in Klamath Falls, Oregon so the water could be used to maintain habitat for the endangered suckerfish.

Arguments have been raised about the merits of the Bureau of Reclamation's legal standing in the case. According to the Department of Interior, the action rests on sound legal footing (courts have decided in favor of the Bureau of Reclamation on two separate occasions). But there is another issue here that is often lost when government (at any level) takes actions like this. This is the issue that is at the heart of this and many similar controversies.

Whenever government takes an action -- to implement a new program, to sunset an old program, to respond to an emergency, or to correct a past mistake -- the action is often scheduled to take effect at a specific time, often midnight on such and such a date.

In one swift movement of a second hand on a clock, rules change, disrupting the legal edifice -- and expectations -- that people have been living by, planning their lives around, and relying on to make investments. Prior to the cutoff, one set of rules prevails; after the cutoff another set prevails. After years of doing business one way, everyone is (unrealistically) expected to immediately comply with the new game plan.

There rarely, if ever, is an adequate transition period built into the rule change process, to allow people to phase out one set of expectations and habits, divest themselves of investments based on the old rules, and ease into the new set of rules.

No, for years people are given government funding to ditch and drain swamps. Then at the stroke of midnight, there's a 180 degree shift. Swamps become wetlands, "Swampbuster" comes to life and landowners begin receiving $10,000 a day fines if they fill in a wetland.

There have been a lot of government policies over the decades that have been misdirected. The ditching of America's streams by the Army Corps of Engineers in the name of flood control. The straightening of the Kissimmee River and the draining of the Everglades in Florida, also in the name of flood control. One could even claim that the water allowances given to farmers in the Klamath Falls Basin was a misdirected policy.

I call this the "Ooops" factor. We suddenly realize we've made a mistake, we gather scientific evidence and bring together the best minds we can find on the subject, and develop a new plan to correct our mistake, clean up some of the damage that has been done, and proceed ahead in a more environmentally sensible manner.

Problem is, while it may take years to recognize the mistake, collect scientific data to develop the new plan, and take the necessary legislative and administrative steps to implement the plan, we are always impatient to move ahead once we have an approved plan in our sights. That's because our previous misdirected actions have usually caused a crisis. And there's always pressure to "fix" the current crisis.

Notices of proposed rule changes are published and, too often, are considered to be an adequate "heads up" for the public to begin making the necessary adjustments to move from the old to the new.

However, no one ever gives up anything they've gained quietly. You can be certain that those who have benefited by a rule will fight any change that will put them at a disadvantage. Especially if it is an economic disadvantage. That's human nature. And it often results in litigation, confrontations at meetings, polarization between competing interests, and intractable controversy. That's the situation that existed in Klamath Falls, Oregon in the summer of 2001.

May I suggest there might be a better way?

I know a little bit about the farmers and ranchers in that region. I was born in Klamath Falls and spent a good part of my childhood there. My maternal grandparents (who are related to one of the signers of the Declaration of Independence) came from the mountains of North Carolina at the turn of the century by buggy, train, horseback and, finally, foot, to clear 1300 acres of sagebrush on Miller Island to create one of the most profitable cattle ranches in the Klamath Basin prior to the Depression. They had 10 children, half of whom stayed in the Klamath area to farm.

One of these children, Bill Hooper, helped settle Tulelake and farm its rich soils after it was drained.  While he had only a 3rd grade education, his sense of the land, his innate business sense, and his willingness to innovate allowed his farming operations -- and his family -- to thrive. Because of his success, he was able to provide his grandchildren and several nephews and nieces with an early inheritance, money that was used to go to college. His daughter, Virgie, married into another farm family that settled in the region in the 1880s. 

Jack and Virgie Liskey have continued to maintain the farming legacy of the Hooper and Liskey families.  Jack and Virgie are now nearing their 80s, yet they still live on their farm, which is now operated by three of their children -- Tracey Liskey (hay and grain), Rocky Liskey (livestock), and Vickie Azcuenaga (greenhouse) -- the fourth (and probably last) generation of the Hooper and Liskey clans to farm in the Klamath Basin.

I gained much of my appreciation of nature, of all critters big and small, from my uncles, who always had time to take a small tot out on a horse or tractor and show off the "really good parts" of their land -- the habitats where we could find eagles' nests and the haunting call of sand hill cranes that we'd listen to for hours on end. My uncles were great sportsmen, avid hunters and fishermen, and proud stewards of their land. They, and my parents, instilled in me the environmental ethic that I live by to this day.

These are not irresponsible people. They are some of the best allies one could have for environmental protection. But the events that led to the shut off of water to farmers have further embittered feelings toward the Endangered Species Act. 

Because no transition was been laid out, that would allow them to remain in business and earn a reasonable livelihood, people who have worked the land for generations are being forced into bankruptcy. Their lands may now be sold, used in any way that can turn a profit or, at the very least, lie idle. The last crop on some of lands will be asphalt.  Others could sit vacant and forlorn, as management activities cease and invasive species take over and crowd out native habitats and species.

Those who do survive and, until now, have been proud stewards of the ecological resources on their land will see that these resources are a liability, and will do all they can to eliminate them. Love of nature will be replaced by the 3 Ss - shoot, shovel and shut up.

With the controversy this has stirred up, the suckerfish could very well become a sucker punch for the Endangered Species Act. This has become a catalyst and rallying point for groups opposed to the ESA. The Bureau of Reclamation may win this battle, but the U.S. Department of the Interior -- and environmentalists everywhere -- could very well lose the war.

There may be a more reasonable alternative.

For instance

1) Use the Farmland Stewardship Program to tie together as many programs as possible to help private owners and operators maintain profitable activities on their lands that accommodate the ecological values of these lands and the new water restrictions.

2) Where existing programs are not available, use the Farmland Stewardship Program to "fill in the gaps."

3) In short, enter into contracts with these owners/operators to buy a series of "services" from them -- services that will pay them to manage their lands to maintain ecological values, to care for or restore wildlife habitats, to grow grain to feed migratory waterfowl in the Pacific Flyway, to control and continue management activities to eliminate invasive species, and that will pay them, perhaps on a sliding scale, for the value they've lost as a result of the change in water policies.

The FSP "service contract" provides "a legally binding agreement between two parties, whereby one party agrees to perform one or more services, according to criteria spelled out in the contract, and the other party agrees to pay the first party for the service(s) rendered."

This provides a direct benefit to owners/operators: because it represents a way to create new, stable, ongoing source of revenues.

It also provides a benefit to society: because it provides a way of changing farming practices and instituting new environmental practices, without disrupting families and their livelihoods.

If water use is restricted, but it is possible to foresee that water will become available again in the future, then the water portion of the contract can act as a bridge, to help owners/operators survive during dry periods. If it is necessary to permanently take away some of the water allocation from the Klamath Basin, then the water portion of payment should be designed to assist owners/operators in making a transition to other economic activities and production systems that are less water reliant.

The point is, the Farmland Stewardship Program can be used to "hire" owners/operators as "vendors" to provide specific services to society. In this case, the principle "service" will be to reduce or forego the traditional water allocation for livestock and crops in years of drought so that an endangered species may receive that allocation instead.

Government policy provided water allocations that created expectations, were used as the foundation for business plans, and were relied on to build livelihoods. Now government wants to change those policies. 

Even though government may feel its original policy was misdirected, it has an obligation to recognize that the change being pursued removes an entitlement that has created a tangible value in the market place. To remove an entitlement upon which people have built their livelihoods, businesses and lives without a means of compensation to provide an adequate period of transition from the current set of expectations, based on the water allocations that have been provided, to a new set of expectations, based on the allocations that will be provided in the future, is a very clear "taking," because it removes economic value from land and causes economic disruptions to the people who own and work those lands.

The Farmland Stewardship Program can help mitigate this imbalance, and facilitate any transition that needs to take place.

-- Craig Evans
President
Stewardship America
June 2001

For more information on the Farmland Stewardship Program, click current status