nally it was thought of in terms of protecting the bald eagle or grizzly on public lands. But with the present listing of everything imaginable, including every subspecies, almost every rat, fish, snail or weed can qualify. With the hundreds of varieties now listed, the thousands and the thousands that are candidates to be listed, one can find few areas in the United States that are not impacted by the far reaching tentacles of the Endangered Species Act.

It use to be a 29 cents stamp was all that was required to abort justice by the fighting of a frivolous lawsuit. Today it is a 32 cent stamp and a request to list a plant or animal on your property as endangered and you can kiss your equity goodbye.

The listing of the desert tortoise as threatened has had a tremendous impact on my family's equity as well as many others in our

area.

Among other properties, our family owns approximately 1,200 acres just to the north of St. George. At the approximate time of the listing of the tortoise, we were seeking some financing and were anxious that we might either sell part of our land or use it for collateral for a loan. We therefore sought an appraisal. To our surprise, none of the appraisers that we talked to were willing to touch it. Their common statement was, "if it's got turtles on it, it isn't worth anything because you can't do anything with it."

That was a little difficult for us to accept because the adjoining land that we had previously sold was now developed into lots and selling for over $30,000 a lot. Not only did the value of the rest of our property become negligible, but the buyers disappeared as well, and the lending institutions shied at our collateral. By calling our land critical habitat, the Fish and Wildlife Service had reduced our multimillion dollar equity to pennies declaring it fit only for a turtle park.

The government goes the extra mile to bring a blue collar thief to justice, spends thousands to catch the more sophisticated white collar criminal, but it has jumped into bed with the "green collar" rapist to take advantage of the innocent and defenseless private property holder.

Trying to rectify this problem has been an interesting experience to say the least, because a good portion of Washington County was identified as suitable tortoise habitat, our county commissioners tried to be proactive in solving this problem by requesting a section 10, which under the Endangered Species Act allows for the setting aside of critical habitat as a type of preserve in order that other habitat areas in the county might be released for other uses. That process has been going on now for over 4 years with debate after debate as to what is critical habitat and what isn't. What needs to be protected and what doesn't. During all of this process, the Fish and Wildlife Service has held everyone hostage. Their arrogant attitude and gestapo approach has been criminal in my mind. Time after time, when all the committee came to the table in good faith, with the spirit of compromise, the Fish and Wildlife Service hedged, extended deadlines, and made more ambitious and greedy demands. It became very obvious from the various debates that the science community could not agree upon the facts because they had no hard science, just a lot of supposition. The Fish and Wildlife Service was of the opinion that they had full latitude of the "May

Affect Clause" in "The Act," and used threatening letters and section 7 denials as extra clout.

The most conclusive evidence that seemed to surface indicated that maybe the tortoise never should have been listed in the first place, but the Wildlife Service were running rough shod and rampant because they were untouchable. They could not be held to any degree of accountability in the whole process, therefore, they were making decisions based on pseudo science with blatant disregard to the financial impact on property holders or the county. What did it matter to them if their conclusions were wrong? It was no financial loss to them. No skin off their nose. Green collar theft at its finest. In the meantime, who bears the financial impact? The private property owner is the guinea pig in this whole experiment, the only one left holding the bag. But unfortunately, the bag is now empty.

Case in point. Our property was originally listed as high density habitat which means up to 400 turtles per acre. Excuse me, 400 tortoises per section. Because we strongly contested that designation, the BLM and Fish and Wildlife Service agreed to walk it with us. On 2 different days, seven of us walked the portion of our property that was designated as the prime portion of the critical habitat. After walking about 40 acres in grids, we found, to their chagrin, a total of one piece of scat, one shell of a dead tortoise, one den, and only one live tortoise. They simply did not have the scientific evidence to justify their designation. Fortunately for us, that portion of our property was not included in the final map of the recovery plan as being critical habitat. We still, however, have 240 acres listed in the middle of a proposed habitat conservation plan, but others have even more.

For good or for worse, the HCP is still on course with possible implementation this fall, but it hinges on several things happening. One of which is the super exchange which calls for all of the property holders within the boundaries of the HCP to be traded for BLM properties in other areas that don't have endangered species on them. Whether that will happen or not remains to be seen.

One of the challenges that is still facing this exchange is the value that is being placed on the lands to be traded. We agreed to trade value for value. The original agreement was that in order to facilitate the implementation of the HCP, the appraisers would treat the land as if there were no tortoises present. Even though that was agreed upon, that opinion has flip flopped several times and is still presently being debated. The third approved appraisal is now being made of our property. With the tortoise on our land, we are told it is worth approximately $200 to $300 an acre. Because confidential negotiations are continuing, I am not at liberty to say what the high appraisal is on our land, but without the presence of the tortoise, let it suffice to say, the difference in equity between the high and the low on these few acres is over $2 million. The difference for some of the neighbors would be ten times that much. Are we expected to donate that equity in the name of patriotism or just because we like to think of ourselves as good philanthropic citizens? Maybe so, but if so, it ought to be by choice.

My above example is only one little portion of an ongoing discussion, seeking for some sort of resolution. There are many others in

this county and tens of thousands of property holders throughout the Nation that are in similar circumstances. By one stroke of a pen, the Fish and Wildlife Service has the ability to almost arbitrarily, designate specie and habitat as endangered or threatened, without any accountability. The Omnibus Property Act would make the Fish and Wildlife Service accountable by saying if it was really critical habitat and worth protecting, we would pay far market value for it and it would be funded by the appropriate departmental budget. You can bet the supposed critical habitat would suddenly become much less critical. It would stop the Fish and Wildlife Service and others from saying, "there is no way we can fund this, therefore let's play Robin Hood and steal it for the public good by inverse condemnation."

I recognize that the Government has the right to declare eminent domain, but believe strongly that any exercise of that right should use just compensation, not unjust confiscation.

If it is believed to be the best good of the public to protect certain areas as critical habitat, it should be funded by the public on a shared basis nationwide, not by just those who have the misfortune of sharing their property with certain snakes, lizards or tortoises. I wish I had the time to talk about the multibillion dollar impact of the Endangered Species Act on mortgages, lending institutions, retirement funds, real estate investments, and economic development; about its impact on grazing permits and how it has severely impacted our ranch as well as many others, or talk about how the Fish and Wildlife Services tried to weasel 25 percent of our irrigation water for moving a diversion and many other injustices. Maybe another time. I just hope that some degree of justice can be brought about by this proposed property protection act.

My only concern of the bill is I feel the critical value of take that engages compensation should be more like 10 percent, 15 percent instead of the 33 percent. I wish you all the luck in the world in this and thank you very much for listening to me. [Prepared statement of Mr. Gardner follows:]

PREPARED STATEMENT OF LARRY H. GARDNER

I am Larry H. Gardner from St. George, Utah. My family has lived there since St. George was settled in 1862. I personally have lived there for all but a few of my 45 years. We have a ranching business as well as a business in town. I am also involved in education and I am presently serving on the St. George city council.

I appreciate the opportunity of speaking at this hearing and in so doing would like to thank you, Senator Hatch, for your aggressive leadership in protecting property rights. There have been many who have championed this cause in the past but in our mind, that leadership has never been more critically needed that now. Thank you for rising to the occasion.

It seems odd that we would even need to have this hearing to assess the need for laws to protect some of the most basics rights that we have in this good land, but the truth of the matter is, we have unfortunately come to this point. The proposed Omnibus Property Rights Act is not just an important act. It is essential!!! Particularly in the wake of the recent supreme court decision concerning the designation of critical habitat for endangered species on private property.

I needn't remind you that America was founded on principles of freedom and one of the most basic rights of this free nation is the freedom to own property, both personal property and real property.

The 5th Amendment to the Constitution states, "No person shall be✶ ✶ ✶ deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Even though this amendment is a critical part of the Constitution, it is glibly overlooked by many, particularly by those who have little or no property. Some envíronmentalists, Fish and Wildlife employees, other Government workers, and even Congress seem to have lost sight of the vital role that the 5th amendment plays in the exercise of our freedoms.

It is important that we understand A person's net worth is a general composite of all of his assets. Assets of course can be anything of value; i.e., the number of dollars you have, the value of the house you live in, the car you drive, the stocks and bonds in your investment portfolio, the amount of real estate you own, etc. The protection of that property is what the 5th amendment is all about.

Most people in America would not tolerate a thief stealing your money from a bank, nor would they allow an arsonist to set fire to your home, or a computer whiz to defraud your stocks and bonds, even if it was Robin Hoodish in nature in that the equity was to be used for public purposes such as parks, zoos, etc. The end does not justify the means. Why then do we look the other way, or even shout approval when the government makes paupers out of people by stealing equity from private property holders.

Nobody would debate the need for occasional government condemnation. And most understand how the 5th Amendment protects citizens in that process. Unfortunately, we have reached the point in America where the Government, the protector of the people, is now using circuitous and devious means to avoid that process and is destroying the financial well being of many of its citizens. By using regulations, policies, legislative acts and ensuing procedures of implementation, the government, through inverse condemnation, is obtaining private property without just compensation to that individual. They may not end up with clear title of ownership but by being able to tell you what you can do or can't do with your property, they have total control without ownership and without compensation, thus inverse condemnation.

A classic example is the way the Endangered Species Act impacts private property.

I must say that I do not disagree with the intent of the endangered species Act. In fact, I believe in the natural rights of plants and animals but I also believe that priority must be given to the more important God given inalienable rights of man. I support protection for and conservation of all animal and plant life, but not at the expense or denial of the personal property rights of man guaranteed under the Constitution. The consecration philosophy of the endangered species act is acceptable but I do not agree with the hidden agendas of certain environmentalist who seek to control private property and all public lands under the guise of this law.

Under the Endangered Species Act, huge penalties are levied for the destruction of any of the listed species or their habitat. Originally it was thought of in terms of protecting the bald eagle or the grizzly on public lands, but with the present listing of everything imaginable, including every subspecies, almost every fish, rat, or snail can qualify. With the hundreds of varieties now listed, and the 1000's that are candidates to be listed, one reaching tentacles of the Endangered Species Act. Habitats over lay all of the West and many other parts of the country. And not just on public land but on private land as well. All someone has to do to rob you of the value of your asset as previously mentioned is to find something on it that can be listed as endangered or to suggest that it is critical habitat. It used to be a 29 cent stamp was all that was required to confuse justice by filing a frivolous law suit, but today it is the 32 cent stamp and a request to list the plant or animal on your property as an endangered specie and you can kiss your equity good-bye.

The listing of the Desert Tortoise as threatened has had a tremendous impact on my family's equity as well as many others in our area.

Our family owns approximately 1200 acres to the north of St. George. At the ap proximate time of the listing of the Tortoise, we were seeking some financing and were anxious that we might either sell our land or use it for collateral for a loan. We therefore sought an appraisal. To our surprise, none of the appraisers that we talked to were willing to touch it. Their common statement was "If its got turtles on it, it isn't worth anything because you can't do anything with it."

That was a little difficult for us to accept because the adjoining land that we had previously sold was now developed into lots and selling for over $30,000/acre." Not only did the value of the rest of our property become negligible, but the buyers disappeared as well. By calling our land critical habitat, the FWS had reduced our multimillion dollar equity to pennies and declared it fit only for a turtle park.

The government goes the extra mile to bring the blue collar thief to justice, spends thousands to catch the more sophisticated white collar criminal, but it has jumped into bed with the “green collar" rapist to take advantage of the private property holder.

Trying to rectify this problem has been an interesting experience to say the least. Because we were not the only ones affected, and because a good portion of Washington County was identified as suitable tortoise habitat, our country commissioners tried to be proactive in solving this problem by requesting a section 10, which under the Endangered Specie Act allows for the setting aside of critical habitat as a type of preserve in order that other habitat areas might be released for other uses as the property holder sees fit. That process has been going on for over 4 years now with debate after debate as to what doesn't. During all of this process, the Fish and Wildlife Service has held everyone else hostage. Their arrogant attitude and gestapo approach has been criminal in my mind. Time after time, when all the committee came to the table in good faith, with the spirit of compromise, the FWS hedged, extended deadlines, and made more ambitious demands. It became very obvious from the various debates that the science community could not agree upon the facts because they had no hard science, just a lot of supposition. The FWS was of the opinion that they had full latitude of the "May Affect Clause" in "The Act".

The most conclusive evidence that seemed to surface indicated that maybe the tortoise never should have been listed in the first place, but the FWS were running rough shod and rampant because they were untouchable. They could not be held to any degree of accountability in the whole process, therefore, they were making decisions based on pseudo science with blatant disregard to the financial impact on the property holders or other county residences. What did it matter to them if their conclusions were wrong? It was no financial loss to them. No skin off their nose. Green Collar theft at its finest! In the meantime, who bears the financial impact? The private property owner is the guinea pig in this whole experience. The only one left holding the bag and unfortunately the bag is empty.

Case in point. Our property was originally listed as high density habitat which means up to 400 tortoises/section. Because we strongly contested that designation, the BLM and FWS agreed to walk it with us. On two different days, seven of us walked the portion of our property that was designated as the prime portion of the critical habitat and after walking many acres found, to their chagrin, a total of 1 piece of scat, 1 shell of a dead tortoise, 1 den, and only one live tortoise. They simply did not have the scientific evidence to justify their actions. Fortunately for us, that portion of our property was not included in the final map of the recovery plan as being critical habitat. Even though we still have 240 acres listed in the middle of the proposed HCP, others have even more.

For good or for worse, the HCP is still on course with possible implementation this fall, but it hinges on several things happening. One of which is the super exchange, which calls for all of the private property within the boundaries of the HCP to be traded to the BLM for properties in other areas that don't have endangered species on them. Whether that will happen or not remains to be seen.

One of the challenges that is still facing this exchange is the value that is being placed on the lands to be traded. We agreed to trade value for value. The original agreement was that in order to facilitate the implementation of the HCP, the appraisers would treat the land as if there were no tortoise's present. Even though that was agreed upon, that opinion has flipped flopped several times and is still presently being debated. The third approved appraisal is now being made of our property. With the Tortoise on our land, we are told it is worth $200-$300/acre. Because confidential negotiations are continuing, I am not at liberty to say what the high appraisal is on the land, but without the presence of the Tortoise, let it suffice to say, the difference in equity between the high and the low on these few acres is about $2,000,000.00 The difference for some of our neighbors would be 10 times that much. Are we expected to donate that equity in the name of patriotism or just because we like to think of ourselves as good philanthropic citizens?

My above example is only one little portion of one ongoing discussion, seeking for some sort of resolution. There are many others in this county and tens of property holders throughout the nation that are in similar circumstances. By one stroke of a pen, the FWS has had the ability to almost arbitrarily, designate specie and habitat as endangered or threatened, without any accountability. The Omnibus Property Act would make them accountable by saying if it is really critical habitat and worth protecting, we will pay fair market value for it and it will be funded by your departmental budget. You can bet that the supposed critical habitat would suddenly become much less critical. It would stop the FWS and others from saying, "There is no way we can fund this, therefore let us steal it for the public good by inverse condemnation."

I recognize that the Government has the right to declare eminent domain, nut believe strongly that any exercise of that right should use just compensation, not unjust confiscation.