COLUMN ONE : Nature at Risk in a Quiet War : When federal regulations and property rights clash, endangered species can be the losers. Some stealthy landowners kill them off or destroy their habitat before costly preservation laws can be invoked.

Private landowners across the United States are quietly waging an underground war against endangered species, killing them off or destroying their native surroundings to avoid costly government restrictions intended for their protection.

A Florida developer ordered a hunt for a bird in imminent danger of extinction after calculating the considerable cost of complying with the Endangered Species Act.

“Gentlemen,” an employee later quoted him as saying as he held up a gunned-down bird, “this is the enemy.”

Grizzly bears that threaten livestock in Montana and Wyoming sometimes vanish. Wildlife officials find their collars, used by government scientists to follow their movements, but not their bodies.

Ranchers are “shooting, shoveling and shutting up,” lamented one federal wildlife agent.

In California, some farmers in Riverside County have stopped rotating the planting of their fields to ensure that an endangered rodent does not take up residence. If the animal moved onto a fallow field, the farmers could be denied the right to plant it in the future.

In each of these cases, private property rights clash with the Endangered Species Act. Arguably the toughest environmental law in the country, the act prohibits the harming or harassing of wildlife found by the federal government to be nearing extinction.

To cut down a tree or plow a field may be prohibited on land where an endangered species resides unless owners navigate their way through a cumbersome and sometimes costly permit process.

For an untold number of usually law-abiding citizens, the solution is what is known as the “scorched earth” approach--stealthily purging their property of endangered plants, animals and insects or destroying their habitats.

Some owners try to eliminate the creatures before authorities become aware of their presence. Land values could fall if a species hindered development. A homeowner could even be barred from adding onto his house.

The U.S. Fish and Wildlife Service, which enforces the Endangered Species Act, says 53 charges were filed against individuals or corporations for killing endangered species in violation of the act between October, 1988, and September.

Thirty-three were convicted of criminal charges, six of civil. Fines and civil penalties totaled about $60,000 and offenders served 1,347 days in jail. Cases ranged from killing endangered animals or destroying their habitat before developing land to poaching with the intent of selling the specimens to collectors.

But endangered species violations also are prosecuted under other statutes, and many do not make it into any statistics. The numbers of illegal acts could be much higher.

Some rare wildlife and habitats are destroyed legally just before the creature receives federal protection. “As the act gets a higher and higher profile, that will continue to be a problem,” said Michael Brennan, executive assistant to the Fish and Wildlife Service director.

The potential listing of the California gnatcatcher has prodded some Southern California landowners to shave their land of coastal sage scrub, the small bird’s habitat.

Other endangered creatures disappear mysteriously, killed by landowners who are never caught, or are stolen by collectors who covet them for their rarity.

In Florida, Montana and Wyoming, landowners fearing bureaucratic rules have resorted to knocking down bald eagle nests or cutting or bulldozing trees containing them, often under cover of night.

Last summer, a tree with a nesting eagle was surreptitiously chain-sawed in Montana near a river where fishermen and commercial outfitters launch their boats. Rumor had it that the Fish and Wildlife Service planned to close off the area to protect the nest. There were no such plans.

Endangered sea turtles, slashed at the throat, wash up in the Gulf of Mexico. Anger toward the species spread after the federal government required shrimpers to use turtle excluder devices in their nets.

In Washington state, a threatened northern spotted owl was found nailed to a signpost. A barred owl, apparently mistaken for its endangered relative, was shot and hanged by its neck.

State and federal wildlife enforcement agents and federal prosecutors say the vast majority of people obey the law, deterred by penalties including jail sentences and sizable fines.

But they also concede that many, if not most, violations go unprosecuted or undetected.

“An endangered species can’t call 911,” said Gordon Cribbs, regional patrol chief for the California Department of Fish and Game.

To catch violators, Fish and Wildlife agents say they must often rely on informants, and in many cases, there are not any. Often the killings or habitat destruction occur in out-of-the-way places where there are no witnesses.

The agents’ ranks also are thin. The service has 210 enforcement agents for the entire nation, with about 175 of them in the field, and the Endangered Species Act is just one of several laws they must enforce. State agents assist in cases where the states and federal government share jurisdiction for the wildlife.

“It’s a harder crime to investigate than the killing of a human,” said U.S. wildlife special agent Richard McDonald, who investigates crimes involving the spotted owl. “Unlike with a human, you can’t go to the owl’s wife and find out who he was drinking with and who was mad at the owl.”

A single landowner’s violation generally will not wipe out a species, though those that survive in only one place are vulnerable. A shimmering blue butterfly disappeared several years ago after the city of Rancho Palos Verdes bulldozed a lot for a baseball diamond.

In most cases, however, it is the accumulation of many violations that hinder recovery. And when an endangered species interferes with an individual’s use of his property, the owners may go to great lengths to protect themselves.

In Florida, a jittery landowner tried a legal ploy to deter endangered red-cockaded woodpeckers from moving onto his land. He hung owl decoys from his pine trees. Owls eat woodpeckers. The woodpeckers, however, were not fooled.

Some Florida landowners purge their property of threatened gopher tortoises before seeking building permits. It is widely suspected that some western landowners may be ejecting threatened desert tortoises.

“The problem is they don’t have the turtles long enough to be caught most of the time,” said Lt. John Moran of the Florida Game and Fresh Water Fish Commission. “It doesn’t take them a day and a half to go around a large piece of property and clear it.”

Though destruction of habitat can be a criminal offense, getting a conviction is often tough without a dead animal. To prove a so-called “taking,” it must be shown that endangered species lived on the property.

Prosecutors then must prove that the destruction inevitably would have injured or killed a species or caused a significant disruption of normal behavioral patterns, creating a likelihood of injury.

“You are out there discing your field and a law enforcement officer drives by, and on its face, nothing is going on,” said Assistant U.S. Atty. Daniel Linhardt. “I don’t think anybody has a clue about how much habitat is being destroyed or how many endangered species are being killed intentionally.”

The Fish and Wildlife Service usually can ensure that large-scale developments comply because they are highly visible and threaten substantial habitat.

A developer has to obtain a permit that requires the loss of wildlife to be mitigated, usually by setting aside land solely for the species.

But proving that a small landowner’s action disrupted a species’ behavioral pattern to the point of likely injury is far more difficult. In the absence of a carcass, who can say that the endangered bird that lived on the property did not just fly onto someone else’s tree?

“What constitutes a taking can be very fuzzy,” said Michael Bean, senior attorney with the Environmental Defense Fund, “and the Fish and Wildlife Service’s limited resources are such that they can’t necessarily be on top of what every landowner is doing on his land.”

At times, conflicts between landowners and endangered species appear almost irreconcilable.

Sheep ranchers in Montana and Wyoming have poisoned bald eagles and golden eagles to protect young lambs. The birds swoop onto a lamb, break its neck with a single talon and devour it.

To protect their flocks, some ranchers lure the birds with a carcass laced with a lethal pesticide. A so-called “circle of death” ensues: dead skunks, badgers, crows and magpies as well as poisoned eagles litter the pasture.

What’s the alternative for the rancher?

“There really is none,” said Joel Scrafford, U.S. senior resident wildlife agent for Montana and Wyoming. “I come from a family of ranchers, and eagles do kill a lot of lambs and (goats). The Fish and Wildlife Service has tried hazing them out with airplanes, and it’s been ineffective.”

For livestock killed by grizzlies, owners often can be compensated. But Scrafford said ranchers tend to shoot in the heat of the moment.

“You see one animal killing and eating on another, and the sheep are bawling and bleating,” Scrafford said. “Emotion takes over.”

Until recently, some grizzly bears could be hunted in Montana under a rule intended to reduce conflicts with landowners. But the rule was withdrawn in response to a lawsuit by an animal rights group.

Critics of the law contend that the motivation to kill endangered species or destroy their habitat will persist as long as they cause people to lose money.

As more species are added to the endangered list, the discord will rise. Under a recent settlement with environmental groups and an animal rights organization, the service agreed to propose listing another 400 species over the next few years, potentially increasing by more than 50% the 740 U.S. plants and animals protected by the law.

To reduce conflicts, the U.S. Chamber of Commerce advocates reimbursing property owners for conserving species. Stuart Hardy, the chamber’s manager for food, energy and natural resources, notes that the Department of Agriculture pays farmers for taking measures to conserve and protect soil.

“Why not extend that to endangered species habitat?” he said. “Not a penny has been spent” to help landowners with endangered species.

Under the current system, the cost of protecting endangered species sometimes falls most heavily on a few: the homeowner who pays a higher price because the developer had to undertake expensive mitigation or the logger who is out of a job because of restrictions to protect a declining bird.

Yet the benefits of the law are shared by many. Nature’s species have yielded important advances in medicine, agriculture and industry. Because species depend upon one another, the loss of one may trigger the demise of others. Plants, pollinated by insects and birds, cleanse the air, protect watersheds and regulate climate.

“The Endangered Species Act does rely very heavily on the stick of punishing bad behavior and doesn’t offer very many carrots for rewarding good behavior,” said environmentalist Bean. “And I think one of the challenges is to design ways to offer those sort of carrots.”

Violating the act is a misdemeanor, punishable by as much as one year in jail and, for each offense, a maximum $100,000 fine for an individual and $250,000 for a corporation.

Those who have been caught say its “stick” is heavy.

Ted Off, 64, a Ventura resident, wanted to sell family-owned land near Tipton. But environmental studies of the property, next to a wildlife refuge, showed that it was habitat for three endangered species and could not be altered without a permit.

Off decided in 1989 to till the land anyway, and, according to a federal law enforcement source, killed some endangered blunt-nosed leopard lizards in the process.

The source indicated that Off destroyed the habitat out of “frustration with the system.” Off, however, was vague about his motivation.

“We figured (the animals) were everywhere,” he said in an interview. “And to be honest, we had disced one of the pieces of that land eight years ago, and nobody said a thing.”

He disputes the government’s contention that lizards were killed. But rather than go to court, he is negotiating a settlement that probably will require him to give the government 116 acres for the endangered species.

The legal way out of such conflicts is a “habitat conservation plan.” To get a permit to “take” an endangered animal, the owner must create and implement a plan that offsets the loss and promotes conservation.

But creating an acceptable plan is not always easy--or cheap. Usually an attorney and a biologist must be hired. Two years may pass before the permit is granted.

In Riverside County, residents within a 79,000-acre “study area” for the endangered Stephens’ kangaroo rat cannot alter their property without petitioning to have their land removed, a difficult and costly process. Part of the study area eventually will be a kangaroo rat reserve--the mitigation offered by the county so habitat elsewhere can be developed.

In the meantime, some residents cannot plow their land for weed control, build additions to their homes or pave driveways.

“Quite honestly, having K-rats move onto your property is the kiss of death,” said Robert Eli Perkins, executive manager of the Riverside County Farm Bureau.

Cindy Domenigoni and her family are among those farmers who have stopped rotating the use of their fields to deter the rats. She said her family has been prevented from farming some fields because the endangered animal moved in.

By regular tilling, owners can legally keep the animals off their property and avoid the restrictions of the law.

“If we did leave it fallow, we might put ourselves in more of a financial crunch,” Domenigoni said.

Not surprisingly, anger toward the animal is extreme.

T-shirts emblazoned with “Kangaroo Rat Wackers Association” are being hawked for $15 each. They have a drawing of a K-rat being smashed under a mallet.

Many Riverside County residents insist that the animal is not endangered at all, a common conviction among unhappy hosts to endangered species. Now that the rat is interfering with their lives, residents see it everywhere--eating the dog kibble, popping out of the sprinkler holes.

Relieved of any qualms by this conviction, some have taken to venting their rage on the animals. Rodenticide has been applied to fields.

Enforcement agents refuse to discuss cases under investigation, but other wildlife and county officials say there have been no prosecutions.

“Until we get one high-profile case, there is no perceived deterrent,” said Brian Loew, executive director of a consortium of local governments created to establish the rat preserve. “It frustrates the law enforcement people, and it frustrates us.”

One self-described law-abiding landowner tries to run over the animals when they appear in the car’s headlights at night.

“Every time I see them, I aim for them,” said the owner, who insists that many others do the same. “You get to a point where it’s the animal or me, and the frustration level is that it is not going to be me.”

Next: Has the Endangered Species Act fulfilled its promise?