THE PROBLEM WITH THE ENDANGERED SPECIES ACT

By Dr. Michael S. Coffman Ph. D.
August 2, 2003
NewsWithViews.com

Fourteen hundred farmers owning 200,000 acres in the Klamath River Basin of southern Oregon and Northern California were denied their water rights during the summer of 2001 because of the Endangered Species Act of 1973 (ESA). Nearly $200 million of life savings and hard work were wiped out instantly as the farmers were left with essentially worthless land. They are not alone. This has been the legacy of the ESA from its inception. It has confiscated billions of dollars of private property, harmed or destroyed the lives of hundreds of thousands of Americans and has not saved one endangered species! Not one.

The Klamath River incident reveals a glaring problem of the ESA � the lack of or misuse of science. On March 20, 2002, Rob Gordon, Executive Director of the National Wilderness Institute (NWI), testified before the House Resources Committee on H.R. 2829 and H.R. 3705 that would amend the Endangered Species Act of 1973. In addressing the issues of quality of research used, Gordon testified:

Under the current program the evidentiary standards for listing are, in a word, bad. I use the word bad because it is an apt acronym for �best available data.� The problem with best available data, or BAD, is that best is a comparative word. Thus the data need not be verified, reliable, conclusive, adequate, verifiable, accurate or even good.

The NWI conducted a study in which they found that over 306 of the 976 recovery plans for species listed as endangered had �little to no hard information about the status of listed species.� For instance, the plan for the endangered Cave Crayfish cites �Sufficient data to estimate population size or trends is lacking.� If there is not even sufficient data to estimate the population size, let alone trends, then how could the USFWS even know it was endangered in the first place? How could it write a recover plan? The agency could not have. But it did anyway.

With this type of doubt, Secretary of Interior Gale Norton commissioned The National Academy of Sciences (NAS) to investigate the scientific basis for the recovery plans of the suckerfish in the Klamath River Basin. The NAS reported in March of 2002 that there was no scientific justification for keeping Klamath Lake levels high by withholding its water from the farmers. On the contrary, U.S. Fish and Wildlife Service (USFWS) records reveal that the sucker populations increased when the Klamath Lake was low and decreased when it was high. Consequently, the USFWS recovery plan would actually put the suckerfish in greater danger by maintaining high lake levels! And they knew it!

Worse, government scientists are not above actually planting evidence to support their anti-human beliefs. In the fall of 2001, the U.S. Forest Service found that seven federal and state wildlife biologists planted false evidence of a rare and threatened Canadian lynx in the Wenatchee and Gifford Pinchot National Forests in the state of Washington.

Had the fraud gone undetected, it would have closed roads to vehicles. They would have banned off-road vehicles, snowmobiles, skis and snowshoes, livestock grazing and tree thinning. Representatives Richard Pombo (R-California) and John Peterson (R-Pennsylvania) released a joint statement in which they were especially critical of the incident:

As Americans, we should have been astounded by the recent findings that federal officials intentionally planted hair from the threatened Canadian lynx in our national forests in order to impose sweeping land regulations.

None of the seven scientists received any disciplinary action other than a hand slapping and reassignment to another project. Retired Fish and Wildlife Service biologist James M. Beers called the false sampling amazing but not very surprising. �I'm convinced that there is a lot of that going on for so-called higher purposes.� This higher purpose is the nature-knows-best theology of conservation biology. Untested, conservation biology is rooted in the religion of pantheism where all human use and activity should follow natural patterns within relatively homogenous soil-vegetation-hydrology landscapes called ecosystems.

Such belief holds that the government should not permit unnatural human development like roads, and activities snowmobiling, livestock grazing and harvesting. Furthermore, ecosystems cross unnatural property, county and state lines. Since conservation biology ostensibly calls for holistic management of entire ecosystems to protect the perceived fragile web of life, the rights of nature must be superior to the rights of people, including their property rights.

The religious zealousness driving the ESA has become so prevalent that David Stirling, Vice-president of the Pacific Legal Foundation wrote in 2002 that:

For three decades, environmental purists have actively promoted the pantheistic notion that plant and animal life rank higher on the species hierarchy than people. Their "return-to-the-wild" agenda argues that human life activities are the enemy of plant and animal species, and only through their efforts to halt growth and shut down people�s normal and necessary life endeavors will Mother Earth smile again.

Federal environmental regulations like the ESA have destroyed the lives of tens of thousands of people, closed entire communities, and confiscated hundreds of millions (if not billions) of dollars of private property � all in the name of protecting the environment. Michael Kelley of the Washington Post Writers Group describes the brutality of the ESA in the July 11, 2001, issue of MSNBC:

The Endangered Species Act�has been exploited by environmental groups who have forged from it a weapon in their agenda to force humans out of lands they wish to see returned to a pre-human state. Never has this been made more nakedly, brutally clear than in the battle of Klamath Falls.

Congress could not pass the ESA using the Constitutional powers of Article 1, Section 8. Instead, they used five international treaties and Article VI of the U.S. Constitution. The ESA even extols the fact that it cedes sovereignty to the international community by saying its purpose is to "develop and maintain conservation programs which meet national and international standards." In a very real way, U.S. citizens are going to prison, paying thousands of dollars in fines and, in some cases, stripped of their life savings because of international treaties.

Because the legal basis of the ESA rests in international law, it has trumped the Fifth Amendment to the U.S. Constitution. The Fifth Amendment supposedly protects a landowner from a �taking� by the government for public use without just compensation. While the ESA defines �harm� to mean �harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct,� for decades, federal agencies arbitrarily extended the definition to take private property to protect the species habitat. The U.S. Supreme Court legitimized this convoluted interpretation on June 29, 1995 in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In doing so, the Court ruled that the word �take� included altering the habitat of an endangered species � thereby allowing the government to take private land for an endangered species without paying for it.

Chief Justice Rehnquist, Justice Scalia and Justice Thomas dissented from the majority ruling; Scalia writing:

I think it unmistakably clear that the legislation at issue here (1) forbade the hunting and killing of endangered animals, and (2) provided federal lands and federal funds for the acquisition of private lands, to preserve the habitat of endangered animals. The Court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin � not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.

Tragically, Scalia was correct. Writing for the Heritage Foundation on November 18, 1998, Alexander Annett notes that: �Because of the Supreme Court ruling, the ESA empowers the federal government to regulate any land that is thought to provide �suitable habitat� for an endangered species � without proof of death or injury to an identifiable animal that was caused by the landowners.� As evidenced in Klamath Falls, zealous bureaucrats can impose arbitrary and capricious habitat recovery plans on private property that instantly strips the value � often their life savings � from a landowner.

The purpose of the ESA is to prevent species from becoming extinct and then to help them recover to the point where they no longer need protection. Yet, because landowners face economic ruin if someone finds an endangered species on their land, the landowner is motivated to destroy any habitat or otherwise keep the endangered species off their land before someone finds it. It is a recipe for failure.

Of the sixty species that have been de-listed and supposedly �recovered,� twelve were actually extinct, thirty were incorrectly listed in the first place or had data errors, twelve were recovered due to actions resulting from other laws or private efforts (not the ESA), and the balance were de-listed due to management of U.S. Wildlife Refuges.1 The ESA has not been responsible for recovering even a single species.

The ESA costs multiple billions of dollars annually, but the landowners who happened to have the last critical habitat needed by a species shoulder most of that cost. This is neither fair nor just when the reason the species is endangered results from the actions of society as a whole. The only solution is for federal agencies to pay just compensation to landowners adversely affected � just as the U.S. Constitution supposedly requires.

Paying for the huge costs of implementing the ESA would expose the real cost to the taxpayers footing the bill, forcing the USFWS and other agencies to prioritize what species must receive protection to allow for their recovery, while putting less emphasis on those species that are not in real jeopardy.

Imagine! The solution to finding the balance between protecting species and the landowners of America is in following the intent of the U.S. Constitution!

Posted with permission by propertyrights.org and the American Land Foundation.

Dr. Michael Coffman is president of Environmental Perspectives, Inc. and CEO of Sovereignty International Corporation in Bangor, Maine.