Midland Tangles With a Rare Bird Republicans Fowl Property Rights
By Robert Bryce, Fri., June 23, 1995
That was 19 months ago. Today, Erskine, 61, is fighting for her home and her avocation as a wildlife rehabilitator. The city of Midland has decided that her 4.4-acre tract in the center of town is a nuisance, and that she and her husband Woody, 65, must clearcut all of the bird habitat they have created over the past 25 years. Whereas in most property rights cases, landowners are fighting government for the right to destroy habitat, in Midland "it's the city government trying to make me destroy a unique habitat," she says. "I am the opposite of what everybody else is."
The couple claim to have spotted more than 300 species of birds on their property, "a national record for a backyard sanctuary," says Erskine, whose life revolves around birds. Nicknamed "the Bird Lady," she is known by practically everyone in Midland. At any one time, she might be caring for five or 10 dozen birds. At the peak of her rehab work in the early 1990s, she was treating 400 animals per year, releasing many back to the wild.
A few ducks and chickens roost outside the Erskines' house. A golden eagle, too badly injured to be released, squawks in a cage near the fence. Behind the house are several acres of wildness. Over the past 25 years, the Erskines have allowed most of the plants on their property to grow unmolested, much to the delight of visiting wildlife. The mesquite, pecan, piñon, and mulberry trees hum with birds. Mockingbirds, kingbirds, and hummingbirds flit and flutter through the dense growth.
The wilds of the Erskine yard contrast sharply with the surroundings. On a recent June morning, the Erskines took me on a tour. Within three minutes of their back door, we saw a Texas horned lizard, a kingbird, and a half dozen other bird species. A few yards beyond the lizard, a pair of sandhill cranes, who've become semi-permanent residents of the Erskine sanctuary, quietly walked along the fence line. A few yards beyond that on all sides is suburban Midland: stodgy square houses behind square lawns, divided by square driveways and square streets.
For years, the City of Midland supported the Erskines' work. City Animal Control workers brought sick and injured animals to the Erskines, and in 1979 the city council passed an ordinance declaring the entire city a bird sanctuary. The Erskines registered with the National Wildlife Federation and fenced the perimeter, putting put up signs reading "EOS Rehab & Wildlife Sanctuary." The city wrote an exemption into the city code specifically for the Erskines' wildlife facilities. No one can possess wild animals within city limits, says the city code, except for zoos, circuses, educational facilities, and "state and federally licensed rehabilitation agencies." That wording is known among city staff as "the Midge Erskine exception" because she is the only such licensed wildlife rehabilitator in Midland.
But things have changed. The city no longer brings injured wildlife to the Erskines, and it has decided that the Erskines can no longer do wildlife rehabilitation at their home. In addition, Midland has decided that the Erskines' property isn't a sanctuary - it's a code violation, and thus the Erskines must cut down all the trees, grass, and shrubs with trunks less than eight inches in diameter.
The Erskines' troubles began in 1991, when Dennis and Vanessa Baker bought the house next door. Shortly afterward, Dennis Baker, an exterminator, began complaining to the city about the Erskine property. The Bakers also got into a boundary dispute, claiming the Erskines' fence was on their property. The Erskines claimed the land under adverse possession, which says that if a landowner occupies another's land unchallenged for 10 years, then they acquire it. In 1992, the Bakers sued the Erskines in state court over the boundary issue. They later sued over the wildlife facility as well, claiming the wild birds attracted to the Erskines' property caused "a putrid smell and producing a filthy, impure and unwholesome premises." The Bakers said the Erskines' wildlife facility was a health hazard, and that it violated Midland's weedy lot ordinance. The Erskines countersued.
The Bakers have never moved into the house next to the Erskines. And although they keep the property mowed, the inside of the Baker house is visibly littered with dog feces and trash. Several windows are broken. Midge claims the Bakers want to develop the property into a shopping mall or divide it into lots and build more houses. "Our only crime is that we own land that is prime development property," she says. The Bakers did not return phone calls regarding this article.
The fight between the Bakers and the Erskines has divided this prosperous city of 89,000. Located in the middle of some of America's most productive oil fields, Midland has attracted many fortune seekers, including an aspiring oilman named George Bush who arrived here in 1950. Bush's eldest son, George W. Bush, who now occupies the governor's mansion, followed the same path when he arrived here in 1975. It was no accident that the younger Bush launched his political career here: Midland has been a longtime redoubt of the Texas GOP.
"It's a very strong Republican city," says Midland Mayor Bobby Burns, who like the rest of the city council is a GOP member. But Burns sees little relevance between the GOP's support for property rights on the national level and the Erskine case. "I don't see any irony," he says. "It's just a land-use issue. Her neighbors want her to live by the rules that everybody else lives by."
But it's not a typical land-use issue.
Ike Sugg, a wildlife and land-use analyst at the Competitive Enterprise Institute, a Washington-based think tank which promotes free-market solutions in regulatory matters, sees many similarities between the national property rights debate and the Erskine case. "It seems to me that this is an unjust violation of the Erskines' property rights," says Sugg, who comments that Midland's zoning laws appear to be more concerned with aesthetics than with public health. "Private landowners should not be burdened with providing aesthetic benefits to the community," he says.
Marshall Kuykendall, the leader of the property rights group Take Back Texas who helped push a property rights bill through the Texas Legislature, refuses to comment on the Erskine case. "Midland is probably trying to tell these people that they have a nuisance," he says. "And nuisance cases are immune to the private property rights situation." When asked about the precedent, he says, "It's out of my bailiwick. I'm not going to get involved."
SB 14, the property rights bill passed by the Texas Legislature, allows landowners to sue a city if the city's regulations reduce the value of a property. The bill exempts zoning and nuisance controls. But by past actions, Midland has exempted the Erskines' property from the zoning that it now wants to enforce, and the city has not proven that the Erskine property is a nuisance. In a sworn deposition, a city animal control inspector said there are fewer rats and rodents on the Erskines' property than would be found near a typical city home, because the trees and shrubs growing there do not "offer a food supply for those animals."
The Erksines' lawyer, Gregg Owens, says he is looking at the applicability of SB 14 to the Erskine case. If SB 14 is designed to protect property rights, Owens said, the Erskines could argue that cutting down their habitat will reduce the property's value because it will destroy the property's ecological value. Thus, their ability to sell their land to a buyer like the Nature Conservancy or the Trust for Public Land would be diminished.
Nevertheless, on February 14, the Midland City Council refused to exempt the Erskine property from the weedy-lot ordinance, instead ordering the Erskines to cease their wildlife rehabilitation work. The council gave them a month to clear their land. Claudia Egan, a Midland city councilmember who opposes the Erskines, says the case has nothing to do with property rights. "I feel the integrity of the neighborhood is more important than animals," she says. "I don't think it's a proper place to house or rehab animals."
On March 1, rather than close the rehabilitation center and clear cut their property, the Erskines filed a federal lawsuit against the city, arguing that their federal rehabilitation permits supersede local law. They also claim that the city denied them due process under the 14th Amendment. The case goes to trial September 18.
The Erskines have numerous allies. Rob Lee, a special agent with the U.S. Fish and Wildlife Service (FWS), strongly supports Midge Erskine's work. Pointing to the hundreds of educational programs Midge has done in Midland's schools, Lee says, "It's clear the citizens of Midland want and need her."
Lee also credits Midge Erskine with forcing him and other federal officials to deal with a bird-killer problem: open oil pits. In November of 1976, when she and Woody were birdwatching in an area north of Midland, the couple saw eight waterfowl trapped on an oil-fouled lake. A year later, she saw 120 ducks killed by the oil pits in one day. For 13 years, she lobbied state and federal agencies to get them to stop the slaughter. Finally, she got the attention of federal agents like Lee. From 1989 through 1992, the FWS prosecuted dozens of oil companies for violations of the Migratory Bird Treaty Act, which prohibits the unlawful killing of most American bird species.
Today, thanks to Midge, the problem of open oil pits in Texas has been largely eliminated; companies now have either stopped using the pits or have installed protective netting. Her persistence may have saved millions of birds: In the early 1990s, federal officials estimated that up to half a million birds per year were dying in the open oil pits; Lee admits that if not for Midge, the problem might not have been fixed. "She committed her life to this issue of birds dying in oil pits and tanks," he said. "And during the whole time that she has been aware of this situation, she hasn't let up."
While the Bakers complain about the Erskines' land, other neighbors are supportive. Wanda and Thomas Scott have lived next to the Erskine property since 1960. "We have never smelled an odor or seen any rodents coming from her property," says Mrs. Smith. "That's just natural West Texas over there. There's nothing unnatural or bad about that property." Another supporter has close ties to the governor. Jenna Welch, George W. Bush's mother-in-law, has visited the Erskines' property many times to watch birds. "She does good work," says Welch of Midge. "She was there long before the people [the Bakers] bought their property. She should be allowed to stay."
David Haukos, an FWS biologist who also teaches at Texas Tech, assessed the Erskine property on March 9. He concludes that the property is "an important oasis to migratory birds as nesting, migrating and wintering habitat," adding that it also "may serve as a refuge for native plant species." Haukos counted at least six species of perennial grass (the Erskines claim 21). In all, the Erskines say there are 100 species of trees and shrubs on the tract, which sits near the intersection of Midkiff and Golf Course Road.
The Erskines have already spent $25,000 on legal fees. Supporters have paid some of the legal costs, but the Erskines recently mortgaged their property in order to take out a $95,000 loan, all of which will be used to pay their lawyer. The Erskines live on about $14,000 per year, half of which comes from Woody's Social Security. He earns the rest as a part-time instructor at Midland College. The Erskines say that if they lose in court, they will likely go bankrupt and be forced to sell most of their property.
After three years, Midge Erskine tires of the battle. But she vows to continue battling for her land and her way of life. "What harm is there in this?" she asked. "The people in the surrounding area get to see a lot of unique birds due to the spillover from our property. To destroy a unique habitat just doesn't make sense."
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