Midge Erskine and friend ROBERT BRYCE dense growth of mesquite, pecan, pilion, cactus and mulberry. THE FIGHT BETWEEN the Bakers and the Erskines has divided this prosperous city of eighty-nine thou sand people. Located in the middle of some of America’s most productive oilfields, 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 Texas 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. “It’s a very strong Republican city,” says Midland mayor Bobby Burns, who like the rest of the city council, is a member of the GOP. 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,” Burns says. “It’s just a land use issue. Her neighbors want her to live by the rules that everybody else lives by.” But Ike Sugg, a wildlife and land use analyst at the Competitive Enterprise Institute, a conservative 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 believes Midland’s zoning laws appear to be more concerned with aesthetics than public health. “Private landowners should not be burdened with providing aesthetic benefits to the community,” he said. Marshall Kuykendall, the leader of the property rights group Take Back Texas, who helped push a property rights bill through the Texas Legislature, refused to comment on the Erskine case. “Midland is probably trying to tell these people that they have a nuisance,” he said. “And nuisance cases are immune to the private property rights situation.” When asked about the precedent, he said, “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 says it exempts zoning. But by past actions, Midland has exempted the Erskine’s property from the zoning that it now wants to enforce. SB 14 also exempts any actions taken by a governmental entity to restrict a condition or use which “constitutes a public or private nuisance.” In any case, 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 because the trees and shrubs growing there do not “offer a food supply for those animals.” If SB 14 is designed to protect property rights, the Erskines could argue that cutting down their habitat will reduce the market value of their property because it would remove 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. 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,” said Egan. “I don’t think it’s a proper place to house or rehab animals.” On February 14, the Midland city coun cil refused to exempt the Erskine property from the weedy-lot ordinance and it ordered the Erskines to cease their wildlife rehabilitation work and gave them a month to clear their land. Two weeks later, the Erskines filed suit in federal court. The Erskines do have numerous allies. Rob Lee, a special agent with the U.S. Fish and Wildlife Service, strongly supports the Erskines’ work. Pointing to the hundreds of educational programs Mrs. Erskine has done in Midland’s schools, Lee says, “It’s clear the citizens of Midland want and need her.” Lee also credits Mrs. Erskine with forcing him and other federal officials to deal with a deadly killer: open oil pits. Erskine first saw the problem in November of 1976, when she and Woody were birdwatching in an area north of Midland. The couple saw eight waterfowl trapped on an oilfouled lake. A year later, she saw a hundred and twenty ducks killed by the oil pits in one day. For thirteen 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 Erskine, the problem of open oil pits in Texas has been largely eliminated. 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 Erskine, the problem might not have been fixed. “She committed her life to this issue of birds dying in oil pits and tanks,” Lee 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.” THE TEXAS OBSERVER 9
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