Amending the Endangered Species Act

 
By Jim Beers



As the Lame Duck session of Congress convenes and the rare departing
incumbent Congressman bids adieu to colleagues, thoughts of other endangered and threatened things come to mind.  This coming week and again in winter there are meetings being held to discuss reforming the Endangered Species Act.  As you would expect, the environmental and animal rights organizations will accuse all that discuss reforms of hastening the demise of the planet and lining the pockets of rich and sinister forces up to the moment of such demise.

Reformers for their part will be of two sorts.  There will be the "bomb throwers" that will represent those harmed by the Act and therefore advocates of burying the Act with nuclear waste in concrete deep in some subterranean mountain foundation.  Then there will be the enlightened and "practical" folks that will toy with marginal aspects of the Act.  Terms
such as "making the Act work" and "simplifying the process" will be mixed with "sound science" and "peer review" to make the whole affair appear well-thought-out by knowledgeable and wise persons.  Some initial observations and a few simple suggestions at this point might be worthwhile.

The current situation, more than any other period in the past decade, gives us a ray of hope that the Endangered Species Act (ESA) might be changed significantly to reverse the widespread harm that it has caused and continues to generate.  A practical President with proven common sense has been reelected and therefore has no need to calculate about how an action may affect him in four years.  The current political appointees in the Departments of the Interior and Agriculture are known entities.  The green appointees who will oppose and undercut reforms are known to the radical organizations and the bureaucrats that will work with them to resist any changes other than "more" of everything.  Those appointees that will support reforms, the majority at the moment, are likewise known to the reformers.

In Congress a similar picture has emerged.  The House and the Senate can only be said to have increased the membership of Representatives and Senators open to reforms.  The two key Committees have bold and knowledgeable Chairmen known to be supportive of reforms.  Senator Inhofe, Chairman of the Senate Environment and Public Works Committee, has long championed the combination of our American form of government with an effective provision for a diverse and productive environment.

Representative Pombo, Chairman of the House Resources Committee, has a proven record of trying to eliminate the growing abuses that the Endangered Species Act generates.  His current efforts to assure that hundreds of millions of dollars in excise taxes are both collected and then disbursed to State fish and wildlife agencies are evidence of his commitment.  For his efforts in this arena, powerful business interests, Washington bureaucrats, and self-serving Washington lobby groups plan to either bypass him or cause him political trouble next year as they scheme to undo the reforms initiated five years ago.  Today, Washington bureaucrats and their "partners" scheme to keep more of the money in Washington for their use rather than disbursing it to the State agencies as the law states for on-the-ground improvements for hunters, fishermen, trappers, and other outdoor recreationists and rural citizens.

As reform proposals come up, I suggest you wave your hand in front of your face.  Like a smoky campfire, you can't see the fire and what you must do to stop the smoke unless you move the smoke away so you can see the fire.  THE problem with the ESA isn't the "process" or the "science", those are only symptoms; THE problem is that it is a socialist process superimposed on a republican form of government.  Like the imposition of the Zimbabwe form of property ownership or the Chinese form of business, the imposition of an open-ended form of nature worship that trumps all other considerations and is administered by central government bureaucrats can only lead to disaster in a society like ours based on Constitutional rights and State jurisdictions over daily life.

Accepting the fact that we signed a UN "Convention" concerning endangered species does not mean that we "had" to or "should" change our form of government or incrementally eliminate property rights or state rights regarding not only plants and animals but also public land management, energy development, or a whole host of other important aspects of our national life.  This UN "Convention" should be implemented in the US within the framework of our system of government that has proven to be the best yet-devised by man.  The ESA is currently eroding our system of government.

This poisonous model is spreading and, if not checked, may destroy our form of government for good.  Current international efforts to create a similar UN "Convention" on small arms is intended to eliminate the 2nd Amendment and make gun rights, like property rights where an Endangered Species occurs, a gift or loss at the whim of government .  Likewise, Washington bureaucrats and their extremist "partners" are using this model to obtain Federal Invasive Species authority to initiate a Federal mandate of unlimited proportions to "restore Native Ecosystems."   For these and many other reasons, the ESA must be made to conform with our governmental system. Additionally, successful reforms will provide applicable models to similarly-necessary reforms of other such laws like the Animal Welfare Act and the Marine Mammal Protection Act.

Whenever the topic of ESA reform comes up, here are a few things to keep in mind.

1.)    Federal proclamations of "Endangered" or "Threatened" should be absolutely limited to Species (not subspecies or any smaller subdivision) that are in trouble worldwide. A Distinct Population Segment of mice or local lynx populations when worldwide populations are numerous and widespread should never be of concern above the level of State governments and the voters of each individual State.

2.)    Federal or national interest in any plant or animal, whether based on the UN "Convention" requirements or simply an interest of national interests, should recognize State jurisdiction except where a species is named on a genuine and enforceable treaty between the US and a sovereign nation.  This means that where the Federal government wants to protect ground squirrels or sage grouse or some plant they should REQUEST that the State do certain things that the Federal government is willing to PAY for.  The decision to do so or not remains with the State. The ESA should not be a vehicle for powerful groups or bureaucrats to blithely rob States of their authority any more than it should be a vehicle for Iowans (who benefit from the absence of free-ranging buffalo) to tell Idahoans that they must tolerate wolves.

3.)    When State jurisdiction is restored, issues such as Taking Without Compensation and Taking (by government) Not For a "Public Use" become moot.  If they were to reassert themselves, it would have to be at the State level where it is far more amenable to judicial erasure or voter response than where it is currently conducted at the Federal level.

Restoring State Constitutional authority over plants and animals (not named on international treaties) and making Endangered and Threatened species actions voluntary and PAID for by listing entities does several things.  It puts a brake on the egregious misuse of the listing authority by limiting it to SPECIES in trouble worldwide and requiring that all necessary actions (agreed to by the concerned State) are PAID for by either the Federal government or national organizations.  Such a straightforward (and American) approach would minimize the perversion of academic "science" and the influence of extremist organizations by narrowing the loose money (reduced listing "targets") and eliminating the potential harms from the listing of any and every plant stand or animal flock located where the latest development, road, or activity is targeted for closure.

If there is any complaint from "international" quarters, let them explain why we, more than any other nation, list jumping mice and willows with abandon and others only grudgingly accept such international designations and then ignore them without consequence.

Competing with others economically is a tough business in the modern world.  Changing challenges whether from Chinese or Indian businesses or European subsidies requires hard work and minimal waste on the part of all Americans. When something makes us keep much-needed oil and gas in the ground; when it makes us waste billions of board feet of timber, wood products, and wood energy; when it makes us close public lands and roads; when it destroys our rural communities and raises the prices of commodities like beef and grain; when it destroys hunting and fishing industries by diminishing the fish and game; and when it provides a model to destroy the very fabric of the freedoms and liberties that have made this country great: it is time to either change it or get rid of it.

More than at any other time in the history of man, we have the knowledge and experience to manage our environment and live free and productive lives as we develop energy and build homes and raise families.  If we cannot do this regarding plant and animal SPECIES in need of help now, we never can.  If we cannot do this within the State/Federal system of government that has made us the envy of the world, it cannot be done.  Dictators, Kings, Chairmen, and Tin-Pot "Presidents" and their mandates always wind up in the dustbin of history.  What sensible person believes that this ESA-mandate system isn't doing the same to us?  The time for reform is now and only if it is "real" is there any reason to expect that it will both help plants and animals and preserve the American way of life.

Jim Beers
14 November 2004