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Endangered Species Act is upheld

The U.S. Supreme Court has ruled that the habitat of threatened and endangered species cannot be destroyed, even if the habitat is on private property. The decision is a blow to the timber industry and property-rights proponents and potentially has major implications for Florida developers.

The ruling Thursday on a suit brought to ease protection of the spotted owl in the Pacific Northwest and the red-cockaded woodpecker in the Southeast was a surprise for environmentalists, who had expected the conservative court to rule the other way.

"It's a major victory," said John Fitzpatrick of the Archbold Biological Station near Sebring. "Protection of endangered species had ground to a standstill while this case wound its way through the courts."

Last year, a federal appeals court ruled as too broad the government's 20-year-old interpretation of one key word in the Threatened and Endangered Species Act. The word is "take," and it is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect." The appeals court concluded that "harm" referred narrowly to direct action against one or more individuals within a species.

Getting back to basic research, the Supreme Court turned to its Webster's Dictionary and found this definition of "harm": to cause hurt or damage; to injure. There was no reference to direct action. And since habitat loss causes damage, the justices voted 6-3 to overturn the lower court decision.

The court also said the rules don't change when the habitat is on private land. More than 90 percent of the 781 species listed as threatened or endangered are found on private property.

In Florida, the habitat of the red-cockaded woodpecker once stretched from Lake Okeechobee north to the Georgia border and west across the Panhandle. Today, most of the woodpecker populations are gone.

"The bird's habitat is the longleaf pine, and it was once the principal upland tree in Florida," said Manley Fuller of the Florida Wildlife Federation. "They've been cut heavily for timber and by developers, and the woodpecker is disappearing with them."

Florida ranks third among all 50 states in the numbers of threatened and endangered species found within its borders. If all of the candidates for threatened or endangered status were included, Florida would rank first.

"Florida has the long shoreline, as well as upland habitat, and the tropic and temperate zones meet in the state, so we have a great variety of plants and animals," said Laurie MacDonald, a wildlife zoologist from St. Petersburg and chairwoman of the Sierra Club's endangered species committee. "Florida is the epitome of the wonder of our natural world and the epitome of our concern about it."

The Florida scrub jay has become almost an emblem of the struggle over wildlife habitat. The largest populations of the threatened bird are in Polk and Highlands counties, along the Lake Wales Ridge, where scrub brush growing over 2-million-year-old sand dunes provides shelter for the birds.

Other populations, including one that stretched from Hillsborough south to Collier County, have been squeezed to the brink of extinction by conversion of ancient sand dunes to citrus fields, suburban housing developments and shopping centers. The Supreme Court ruling could stop additional conversion.

"Whenever animals are fragmented into little pockets, they aren't going to survive," said Fuller. "It's not only the Florida scrub jay, it's the Florida panther too. And if it were on the list, I'd include the black bear."

David Guest of the Sierra Club Legal Defense Fund predicted the court ruling would not burden the vast majority of private property owners.

"It means people are going to have to consider the foreseeable consequences of their land uses and activities," Guest said. "Even the parties who sued couldn't point to any harm done to their interests by the Endangered Species Act. They argued that in the abstract the ESA is a bad thing. They view this law as an insult to their private property rights, when in reality is it has a very moderate impact. The hysteria that we're going to stop people from walking around on their land is just that _ hysteria."

The Supreme Court's decision could be overturned if Congress amends the Endangered Species Act in the process of reauthorizing it this year. Sen. Bob Packwood, R-Ore., has already said the high court ruling has renewed his resolve to see the law significantly changed.

"My prediction is that the legislators will be pressed hard on this," said Fitzpatrick. "But I see some reasons for cautious optimism. (House Speaker) Newt Gingrich, of all people, has talked about the need to keep the teeth in the law, so its demise is far from certain."

_ Jean Heller can be reached at (813) 893-8785 or on-line at: