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Whose Property Rights? Republican Midland Takes Aim at the “Bird Lady” BY ROBERT BRYCE HE LAST DEMOCRATIC presiden tial candidate to win Midland County was Harry Truman, in 1948. Sixteen years later, native son Lyndon Johnson ran strong, but still lost the county to Barry Goldwater by three thousand, two-hundred-sixty votes. To say Midland is a GOP stronghold is like saying the Permian Basin has a few pumpjacks. Midland is to Texas what Orange County is to California. The entire city council and all the state legislators from Midland are members of the GOP. So you’d assume that property rights in Midland would be sacrosanct, akin to mineral rights and football. Not so. While the GOP staunchly supports property rights on the national stage, Midland is trying to force Midge Erskine, sixty-one, and her husband Woody, sixty-five, to clear their land of all the plants and trees they have grown over the past forty-five years. Most property rights cases involve landowners who want to develop their land. The Erskines are fighting for the right to keep their land in its natural state. “I’m the little land owner who is trying to save the wildlife habitat that I have developed,” says Mrs. Erskine, an energetic woman who looks younger than her age. For more than two decades, the Erskines have allowed the trees and plants on their 4.4-acre tract to grow unmolested, much to the delight of visiting wildlife. The Erskines claim to have seen more than three hundred bird species on their property and have also treated more than five thousand sick and injured animals in their homeat no cost to the public. In February, the city council ordered the Erskines to clear their land and close their wildlife rehabilitation center. The Erskines refused. And on March 1, they filed a federal lawsuit against the city of Midland, arguing that the city had denied them due process under the Fourteenth Amendment. They also contend that their federal wildlife rehabilitation licenses supersede local law. The case goes to trial in Midland on September 18. Mrs. Erskine, whose life revolves around birds, describes the sighting of Robert Bryce is a contributing editor of the Austin Chronicle. three hundred species as “a national record for a backyard sanctuary.” She’s known as “the Bird Lady,” and nearly everyone in Midland knows of her. Every day, she cares for injured or sick birds that people have brought to her home. Over the past two decades, she has turned her north Midland home into a rehabilitation center for injured birds and other wildlife, and at any one time, she might be caring for five or ten dozen birds. In the early.1990’s, at the peak of her rehab work, she was treating four hundred animals per year, releasing many back to the wild. Outside the Erskine home are more birds. A few ducks here, a few chickens there. A golden eagle, too badly injured to be released, squawks in a cage near the fence. Over the years, to attract wildlife, the Ericines have allowed most of the plants on their property to grow unmolested. Until very recently, the city of Midland supported the Erskines’ work. City animalcontrol workers brought sick and injured animals to the Erskines. In 1979, the city council passed an ordinance declaring the entire city a bird sanctuary, and the Erskines later made their backyard into a sanctuary. They registered with the National Wildlife Federation and fenced the perimeter, putting up signs reading “EOS Rehab & Wildlife Sanctuary.” The city even wrote an exemption into the city code specifically for the Erskines’ wildlife facilities. No one can possess wild animals within city limits, according to 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. In fact she’s the only licensed rehabilitator for a hundred miles in any direction. BUT THINGS HAVE CHANGED. City employees no longer bring injured wildlife to the Erskines, since the city council decided the Erskines can no longer do wildlife rehabilitation in their home. In addition, Midland has decided that the Erskines’ property is not a sanctuary but a code violation, and ordered that 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 with the Erskines, claiming that the Erskine fence was on Baker property. The Erskines claimed the disputed land under the law of adverse possession, which provides that if one landowner occupies another’s land unchallenged for ten years, then he acquires 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…a filthy, impure and unwholesome premises.” The Bakers said the Erskine’s wildlife facility was a health hazard and that it violated Midland’s weedy-lot ordinance. The Erskines countersued, alleging that the Bakers have never in fact moved into the neighboring house, although they had purchased it from the Resolution Trust Corporation under the RTC’s “Affordable Housing Disposition Program,” designed primarily for low-income buyers. The Erskines allege that the property was in fact money borrowed from Dennis Baker, then her fianc; but the Erskines say the Bakers never occupied the house. One of the principal provisions of the RTC program is that the buyers will use use the property as their principal residence and live in it for at least twelve months. In June of this year, the Baker property had apparently not been occupied for some time. The yard had been mowed, but from the perimeter of the property it was obvious that several windows were broken, and the inside of the house was littered with dog feces and trash. The Bakers did not return several phone calls. That’s not to say the Erskine home will appear on the cover of Good Housekeeping any time soon. More of a reliquary than an ordinary home, the Erskine residence contains a lifetime of odds and ends crowded into every available space. The speciallybuilt rehabilitation room contains several dozen caged birds in various stages of recovery. Behind the house, the sanctuary hums with wild birds, which thrive in the 8 SEPTEMBER 15, 1995