ESA lacks key ingredient

Capital Press Editorial

March 11, 2010

The most frustrating thing about the Endangered Species Act is that it precludes bureaucrats and judges from taking into account hardships that efforts to protect species can impose on humans.

But don't take our word for it.

U.S. District Judge Oliver Wanger probably knows as much or more than anyone about the limits the Endangered Species Act places on those charged with enforcing it. It is by his orders upholding biological opinions that water deliveries from the Sacramento-San Joaquin Delta have been restricted to protect the threatened Delta smelt and endangered salmon.

It would be too easy to label Wanger an extremist jurist who puts the welfare of fish above the welfare of his fellow Californians. That would be wrong. Wanger is a judge who is taking pains to follow the law as written and not to legislate from the bench.

Wanger provided unusual insight into his thoughts about the Endangered Species Act during a recent address at the Madera County Farm Bureau Water Conference. His remarks were extensively reported by Ag Alert, the newspaper of the California Farm Bureau.

In reading that report it becomes obvious that Wanger appreciates the impact his rulings have had on Central Valley farmers, and sympathizes with their position.

"If this is your lifeblood, if this is your existence, how can a fish or an environmental interest receive higher priority than human health, safety or your economic interests?" he asked.

Because that's how Congress wrote the law. Courts following the law are not allowed to balance any interest against the interest of the protected species. There is no middle ground. The winner is always the protected species, and it takes all that the best science says is required.

That's a point that clearly seems to bother Wanger, who believes that in order to be fair he should consider the interests of all parties. That's the very thing he and other judges are prohibited from doing under the act.

"As a citizen, I ask the rhetorical question: If there isn't a way to apply balance under the ESA, would it be appropriate to find a way to balance?"

Yes. Congress must change the act to provide that balance. The law should recognize that human interests can be at least as important as protecting endangered species. Human endeavors and the survival of threatened or endangered species are not mutually exclusive propositions. But everyone has to have the chance to get at least a little of what they want as circumstances warrant.

Unfortunately, even suggesting changes in the ESA can have negative consequences for legislators. When California Sen. Dianne Feinstein suggested recently that she would offer a temporary legislative fix impacting Delta water deliveries, she was taken to task by environmentalists and fellow Democrats for putting people above the fish. Suburban Republican congressmen, anxious about their own green credibility, were reluctant to support any tinkering with the act when their party held power.

Most Americans, ourselves included, believe endangered species should be protected. But unlike many farmers and ranchers, most people don't have to bear the direct consequences of the extreme measures sometimes taken in the name of preservation.

The need for a bit of balance should be obvious to those who believe the law should treat all parties fairly. Balance is essential for those at risk of losing their livelihood or the use of their property without their arguments being considered.