- The Washington Times - Thursday, July 13, 2000

If John Taylor were trying to build the new Wilson Bridge across the Potomac River, there would be 535 federal lawmakers, the U.S. Department of Transportation, two governors and countless state officials working to clear the regulatory underbrush ahead of him. After all, their commutes and those of their employees are at stake. Unfortunately for the 82-year-old Fairfax County man, all he wants to do is build a house on his own land where he and his ailing 75-year-old wife can retire. Not only is the federal government not helping him it is planting one obstacle after another to stop him.Mr. Taylor's problems, as noted previously in this space, began when he decided four years ago to develop property, some 500 yards off the Potomac, that he had owned for the better part of three decades. His wife, who suffers from Parkinson's disease and who is confined to a wheelchair because of other problems, could no longer use the second floor of their existing house, and Mr. Taylor wanted to put a one-story house on the disputed site that would better serve both of them.All seemed to be going well until the U.S. Fish & Wildlife Service (USFWS) just happened to discover an eagle's nest about 40 feet away from the Taylors' property line and some 90 feet away from the proposed site of the house. The agency expressed concern that the elderly couple's habitat might somehow harm the bird's. Because the eagle remains on the list of "threatened" species, such building might be a violation of federal law punishable by substantial fines.What Mr. Taylor needed to go forward was a permit from, naturally, USFWS, and what he needed to do to get the permit, aside from sorting through a few hundred pages of government forms and regulations, was to hand over $3,500 or so to cover the cost of a bald eagle ecology exhibit or fish restoration program. Concerned that the government was shaking them down for the right to build on their own property, the Taylors declined. Despite the aid of the D.C.-based Defenders of Property Rights and pro bono regulatory experts, despite the passage of four years and numerous trips to court, however, the Taylors are no closer to their dream house today than they were before. Regulators don't seem to be in any hurry to resolve the case. They have time and money that the Taylors do not.At a June 30 court hearing, a U.S. Justice Department lawyer representing USFWS, Marc Smith, tried to explain to a bemused federal judge that even though the Taylors weren't directly endangering the eagle or even the tree in which it nests indeed, they have pledged not to do so they posed a more subtle, sinister threat: Cutting down trees at the back of the property to put in a septic system required by Fairfax County health officials would harm the eagle's vista. What the trees do, Mr. Smith argued, "is they create a buffer zone between the nest and the house so that the eagle is not looking down onto a house but still sees some trees there, still thinks that it's in the woods, so to speak."

Exactly what would happen to an eagle that glances down and sees a house rather than a tree isn't clear: depression, hair loss, loss of appetite? But one can hazard a guess in this case because it's not as though the Taylors suddenly decided to clear-cut pristine, uninterrupted forest land on which to put their house. Their property, and the eagle's nest, is in the midst of a subdivision of more than 100 houses. Indeed, when the USFWS originally established a 750-foot buffer zone around the nest, the agency discovered to its chagrin that there were already 12 houses in the "buffer zone". Maybe the eagle got counseling to help it deal with the emotional turmoil associated with the marred scenery. Or maybe it took no notice at all. Whatever the explanation, it has returned from its migrations for the last four years and might easily continue to do so even if there were 101 houses where there were only 100 before, says Roger Marzulla, who is helping to represent the Taylors through their legal tribulations.

Why not rearrange the house and drainfield and leave the trees standing, as the government is requesting? Because for health reasons, Fairfax County requires minimum distances between housing, drainfields, water wells and so on that make the federal blueprint for the property questionable at best and an expensive, time-consuming and ultimately useless exercise at worst.

That's not the federal government's problem, Mr. Smith argued. "It should not be the United States' burden to draw development plans for all property owners that come forth in the court," he said. He believes that burden falls on people like the Taylors, who must come and ask the federal government for permission to build the house the way they wish. The premise of that argument is that the government, not the Taylors, really owns the property.

The irony of this controversy is that USFWS itself has proposed to remove the eagle from the list of threatened species. If so, it would mean no one would have to worry about which way an eagle glances or what its taste in architecture is. Until then, it seems, an elderly couple's retirement plans must wait.

E-mail: smithk@twtmail.com

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