Guest commentary: Government hurts many by ESA violations

By STEVEN GEOFFREY GIESLER, Special to the Naples Daily News
November 26, 2005

One of the foundations of America's system of justice is that nobody is above the rule of law. All citizens and institutions are held to uniform standards established by our Constitution and governing statutes.

Since its enactment in 1973, the Endangered Species Act (ESA) largely has been an illustration of this ideal. Owing to judicial decisions and strict bureaucratic enforcement, property owners who don't comply with the ESA's requirements are rarer than many of the species the act purports to protect.

But this strict application has one notable exception: the federal government has violated a crucial provision of the ESA from the day it became law.

In drafting the ESA, Congress recognized a potential problem. Since each listed species increases the chances the ESA's restrictions will affect a property owner, Congress wanted to ensure that only those species in imminent danger were listed.

To this end, Congress required the U.S. Fish and Wildlife Service — the agency charged with administering the ESA — to review the status of each listed species every five years.

This requirement is mandatory. The ESA provides Fish and Wildlife no opt-out provision, and no excuses.

This is because the five-year reviews are an essential part of the ESA. Their primary purpose is to further the aims of the Act by protecting truly vulnerable species.

If a review finds that a "threatened" species has decreased in numbers, it can be uplisted to endangered status and receive the extra protections this designation affords. Even more importantly, the reviews are intended to guarantee that tax dollars that fund the ESA are spent on species that need protection, not those that have recovered and no longer need to be listed.

Despite this congressional mandate, the Fish and Wildlife Service has been woefully derelict in carrying out its duty.

Nearly 100 species listed in Florida alone currently are in need of review. Incred ibly, some of these species have never been reviewed, languishing unchecked on the endangered list since the day Congress passed the ESA. That's over 30 years with no way to tell whether a species is flourishing or floundering. And it's against the law.

The protection of species does not occur in a vacuum. If a species is listed, it carries with it costs and burdens borne by the public.

The building of homes, the opening of small businesses, and even essential military training exercises are restricted — and sometimes prevented — in areas considered habitats of listed plants and animals.

Property owners must endure a lengthy and expensive permit process to use their land. If the government deems the threat to a species too great, all use will be prohibited. In short, a citizen can be prevented from even setting foot on his own property.

The Fish and Wildlife Service and environmental activists will claim the ESA budget should not be "wasted" on mandatory reviews. This contention ignores that the reviews will benefit species that really need protection. It also exhibits a great deal of arrogance.

Governments do not get to enforce laws they like and break those they don't.

Congress established explicit requirements in the text of the ESA. Fish and Wildlife cannot disregard one of them to suit its own needs. Property owners across America feel their hard-earned money should not be "wasted" on years of wrangling over ESA-related permits just to use their own land. But the law is the law, and must be obeyed. The government must hold itself to the same standard.

Clearly, the Fish and Wildlife Service has demonstrated it will not follow the law on its own. So citizens must remain vigilant to ensure it does.

That's why Pacific Legal Foundation, on behalf of the Florida Home Builders Association, filed a lawsuit in Florida to compel the required five-year reviews. The rule of law must apply to everyone. In the realm of the Endangered Species Act, it's time for that principle to be put into action.

Steven Geoffrey Gieseler is an attorney with Pacific Legal Foundation's Atlantic Center in Coral Gables. The Foundation says it is the nation's oldest and largest nonprofit legal organization dedicated to defending property rights and reforming the Endangered Species Act.