The year Therese graduated from high school she and Sara accompanied Alberta and me to Alaska. On a major river we visited a Gold Dredge. It was virtually identical to the one in Sumpter which I had visited often, I chose to stay on the main deck while the group toured the barge. On the deck with me was a lone gentleman and the two of us began to visit. He told me that he was from New Jersey and had headed an accounting firm for many years. He inquired about my occupation and when I told him, he asked what kind of work I was doing at the time. I told him that I was then deeply involved in litigation pertaining to the Endangered Specie Act. He asked what were the occupations of my clients and I told him that they were a group of some fifty or so cattle ranchers within two irrigation districts with reservoirs as the source of water inhabited by two species of fish protected by the Act. I suggested that it was an area of activity with which he was probably unfamiliar. He grew very quiet as he looked through the window cut-outs at the scenery. They he turned to me and said, “Let me tell you about the Endangered Specie Act”, and he proceeded to do so. This was his story.
For many years his firm provided all of the outside accounting service for a mid-size assembly company within a major city in New Jersey. (I’ve forgotten the name). He was the Secretary of the company that brought a variety of components by rail and truck from various places on the Eastern Seaboard under numerous transportation contracts. The company was changing its production model with the building of a large warehouse within which it would be able to store components and be less dependent upon transportation exigencies while limiting transportation costs which were substantially higher for fixed-time deliveries. He said this project was developing as he was preparing to retire. And that the project had reached an advanced stage.
The company had purchased a very expensive 80 acres, developed design and architectural renderings, and had received pre-approval from the Planning and Zoning agency of the City. The company had also given notice to all of the transporters that their contracts would terminate on a day certain, about eight months hence, the anticipated date for the completion of construction. Although the company had architectural estimates as to cost of construction, what was left to do was to put the construction out for bid and then to obtain the final approval from the City with the committed contract and be the clerk of the works.
At one of the last Board meetings before his scheduled retirement he was “overwhelmed to tears”, as he put it, with the generosity and good will of the Board,, when the Board announced that because of his long service to the company, the company decided to pay him $200,000 and provide an outside office with one secretary, as compensation for his moving the project through the bidding and final approval process, activities that were expected to take less than sixty days, and audit the construction.
The call for bids were published and at the contractors’ meeting they were expressing some disapproval of the six months turn-key and the substantial penalty (as I recall, $1500 per day) for over limit. The contractors eventually expressed an agreement with the term provided that the company would agree to the identical penalty for any start-up delay because of the need for the contractors to place on- site substantial rented construction equipment. So the agreement was made, the start date was fixed, the contractors thereafter submitted their bids, one was selected, and the Board signed the contract which was then to be taken to the City for the final construction approval. The signing event was attended by the successful contractor and a very late night party ensued to the great delight of everyone concerned.
The following morning, he said he taxied down to City Hall, presented the Contract and the preliminary approval, and expected the immediate issuance of the final one. At that point, the issuing Clerk inquired as to whether the accountant had ever heard of the Audubon Society. Of course, he said, “it published pretty drawings of birds”. But other than that, they both agreed, “Nobody in New Jersey would know any more about it.” “Well” said the Clerk, “the City just received a letter from the Society stating that it had inventoried the construction site and located two nests of birds on the 80 acres and the birds were on the list of endangered species.” I asked him what that was all about and learned about some federal act that intended to protect against extinctions. “Dinosaurs, I asked? I thought he was kidding”, he said.
“He showed me the letter and it concluded with the advice that if the City issued any construction permit, it would be sued.” The Clerk did not express much concern, but said that the City would require a hold harmless agreement if the permit was to be immediately issued. The accountant took the letter to the Board that was incredulous and, because the supply chain had a termination date, it authorized the hold harmless agreement . The Board’s lawyer had no experience with the Act and declined to give an opinion, but concurred with the action because of the certain financial disaster to the Company if the supply chain would terminate. “So” the accountant said, “I took the hold harmless agreement to the City, received the final approval, and was confronted almost immediately with a preliminary injunction.”
“For the next two years”, he said, “I spent my life in various Courts, depositions, and offices of lawyers and consultants.” The Board was kind, he said, and paid the costs, but suggested that my time and expense was a package deal and it was critical that I keep the project moving and the components coming. I spend weeks negotiating with the truck and rail lines to reestablish delivery contacts, but at substantially higher rates than what the Company had previously paid , and other weeks with the contractor’s lawyers endeavoring to reduce the start date penalty.
Eventually, the injunction was denied and I estimated the return on my time at about fifty cents per hour. The Company cost was enormous, given the reconstituted transportation contract, the interest on their land purchase price, the start date penalty, and the renegotiated material costs associated with the delay. “Finally, I retired”, he said . I wondered whether the entire value of all of my clients would have possibly been larger than the cost incurred by this New Jersey company.
He said, the cost did not include the sleepless nights of worry, even time he said he spent in desperation-walking over the entire 80 acres in the dark with a flashlight trying to find those “damn nests”, as he put it. He added that the lawyers told him that his anecdotal evidence would not prevail over the documentation accumulated by ornithologists in the employ of the Society as to their personal observations of two nests that he could never find.
Obviously, the accountant had acquired a very high level of expertise and I inquired about whether he had considered consulting on the subject, even by correspondence. He opined that the Endangered Specie Act was an abomination that he intended never to meet again. And he stomped away. He didn’t wish me good luck.
Therese, Sara and Alberta returned to the main deck and the travel continued.
