Abuse of the Endangered Species Act

The Endangered Species Act (ESA) was passed with good intentions, but in practice it has many problems. The ESA actually encourages private property owners to rid their properties of endangered species and their habitats because of the restrictions in beneficial use the Act imposes on property owners. The ESA is very expensive to taxpayers (regulatory costs exceed $1.2 billion per year). Besides trampling on property rights, the ESA destroys industries (remember the timber industry in the northwest?).

The ESA is easy to “game,” a characteristic that radical environmental groups take full advantage of through their “sue and settle” tactics. According to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days. Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.” The act of responding to lawsuits causes government biologists to spend much less time on conservation work.

An example of this tactic was published last Monday by ADI in their article: “Absurd Sue And Settle Lawsuit Launched To Protect Borderlands Moth.” (Link) “Serial litigators, Defenders of Wildlife, Center for Biological Diversity, and Patagonia Area Resource Alliance filed a notice of intent to sue the U.S. Fish and Wildlife Service to protect the Patagonia eyed silkmoth under the Endangered Species Act.”

In my opinion, while these enviros are gaming the system for money, their main purpose is to stop development of new mines in the Patagonia Mountains of Southern Arizona. These properties have the potential to become a major source of lead, zinc, and silver, and the only U.S. source of manganese.

See related stories:

New Zinc-lead-silver mineral deposit discovered in SE Arizona

Silver project may become only US source of manganese

The other major problem with the Endangered Species Act is that, through bureaucratic bungling and bad science, the ESA is particularly poor at recovering endangered species.

The Heritage Foundation has recently published an assessment of the Endangered Species Act entitled: Correcting Falsely “Recovered” and Wrongly Listed Species and Increasing Accountability and Transparency in the Endangered Species Program by Robert Gordon (Read full report)

Abstract

Numerous administrative actions should be taken to correct the record of species that are falsely claimed to have “recovered” and that have been declared endangered under the Endangered Species Act (ESA) using erroneous data. It is crucial to improve implementation, accountability, and transparency in the administration of the ESA. The recommendations and information here will help correct the record, provide guidance as to some of the species that may be suitable for delisting on the grounds of data error or extinction, improve the likelihood that future delistings are appropriately categorized, eliminate unnecessary regulations and further waste, and ensure scarce conservation dollars are better spent.

In five years the Endangered Species Act will reach the half-century milestone—and yet only 40 U.S. species have graduated from the program as “recovered,” slightly less than one species per year. If not one more bird, beetle, or bear were added to the list of federally endangered animals and plants and somehow species recovered at 10 times that rate, it would take well over a century and-a-half to work through the current list.

There is, however, no indication that the list of regulated species will stop growing. Even worse, almost half of the “recovered” species—18 of 40— are federally funded fiction. They were never really endangered; like many species that remain on the endangered list, they were mistakes. With all the ESA’s costs and burdens, it should perhaps come as no surprise that the U.S. Fish and Wildlife Service is fabricating success stories to cover up this unsustainable mess and substituting fluff for statutorily required reporting regarding the recovery program.

 

My opinion: It is time to consider repealing the ESA and replacing it with a more effective system that encourages conservation with positive incentives.

 

Related:

Endangered Species paperwork to cost $206,098,920

Endangered species act could halt American energy boom

Endangered Species Act administration changes bode ill for property rights

Endangered species listings based on questionable science and lack of independent review

Repeal the Endangered Species Act

Rosemont and the Cuckoo scam

Arizona Game & Fish Department against critical habitat for jaguar

Pygmy owls and property rights

Endangered species listings based on questionable science and lack of independent review

A report published December 15 by the U.S. House Committee on Natural Resources finds that Endangered Species listings of 13 species since July, 2013, were based on questionable science, lack of transparency, conflict of interest, and withholding information for public comment.

By law, the Endangered Species Act (ESA) requires that decisions on whether to list a species as threatened or endangered must be based on the “best scientific and commercial data available.” That has not been the case in many recent listings.

Here are the conclusions from the study:

The Fish & Wildlife Service (FWS) claims that the science used to justify ESA listing decisions is the best available science in large part because it has undergone peer review.

Committee Majority oversight staff found numerous documented examples that call into question the independence, transparency, and accountability of the FWS’ peer review process in recent ESA listing decisions. These findings include:

The FWS does not have clear or consistent policies and procedures in place across all Regions to ensure that peer reviewers with potential conflicts of interest are identified and screened.

The FWS generally seeks peer review of its proposed listing decisions at the same time they are made available for public comment, rather than earlier in the process when the peer reviewers may have more meaningful input.

The FWS regularly recruits the same scientists on whose work a listing decision is based to serve as peer reviewers, rather than truly independent scientists without any obvious connection to the species under review.

The FWS uses scientists as peer reviewers who have received grants or other financial assistance from the Department of the Interior and its bureaus and other agencies and who have known policy positions or affiliations with advocacy groups that support the listing decision.

The FWS routinely withholds from the public the identities of peer reviewers, qualifications of peer reviewers, instructions, and details about their comments.

Notwithstanding the myriad policies and guidance documents that the FWS has in place, the inconsistency across FWS Regions and overall lack of transparency about the FWS’ peer review process make it difficult for the public to assess the independence of those serving as peer reviewers and the merits of their comments or the FWS’ responses. Rather, the peer review process as currently employed by the FWS relies on a network of scientists who, if nothing else, have a professional and academic interest in the outcome of the ESA listing decisions they are being asked to review.
In recruiting peer reviewers, the FWS appears to favor scientists whose views on a species are already well known rather than more independent scientists in other academic or professional fields who would be able to bring a fresh perspective to the science the FWS is citing to support its ESA listing decisions.

Whether this approach to peer review is a result of the time and resource pressures the FWS itself has created because of the multi-species litigation deadlines settlements it has entered into with environmental groups, or other reasons, is murky, much like the details of the individual peer reviews being conducted by the FWS.

The report is entitled, “Under the Microscope: An examination of the questionable science and lack of independent peer review in Endangered Species Act listing decisions”

This finding has implications for the renewed effort to list the (alleged) Cactus Ferruginous Pygmy Owl in southern Arizona.

Rosemont and the Cuckoo scam

The U.S. Fish & Wildlife Service (FWS) is proposing to list the “western distinct population segment” of the Yellow-billed Cuckoo as a threatened species as a result of a “sue and settle” agreement with the Center for Biological Diversity over 757 species nationwide.

According to a story in the Arizona Daily Star, about 20 cuckoos inhabit Pima County’s Cienega Creek Natural Preserve downstream from the proposed Rosemont copper mine. Radical environmentalists are making an issue of this in their failing attempts to stop the mine.  The cuckoo also is being used as an excuse to stir up trouble along the San Pedro River near Sierra Vista (see story here).

Rosemont, anticipating the proposed listing, has already spelled out detailed mitigation plans for the cuckoo in its Environmental Impact Statement to the Forest Service.

In my opinion the proposed listing of the cuckoo is not justified by science; it is purely politics.

Arizona and other western states are at the fringe of the cuckoo’s range. The Yellow-billed Cuckoo is common in the southeastern U.S.  See the range map from the Cornell Lab of Ornithology below:

The Yellow-billed Cuckoo is a neotropical migrant that lives in riparian woodlands.  It is, in fact, declining in the west, perhaps because of drought.  However, whether or not these fringe populations survive will have no impact on the overall species survival.  Species’ occurrence within fringe areas are always ephemeral and subject to change.

The proposed listing itself is not the result of a scientific study, but is the result of litigation abuse by environmentalists and a backroom deal with FWS.  A deal such as this shows why the Endangered Species Act should be repealed and replaced. with a program that respects property rights and provides a positive incentive for conservation.

I found it amusing that in the listing proposal announcement, FWS says the listing proposal “is based on the best scientific data available,”  but the same announcement implores the public to submit more information because, “We need all of the best available scientific information to help us make a final decision that most effectively protects the species.”  By the way, FWS has been studying the cuckoo since at least 2001.

See also:

Regulating behind closed doors, the cozy relationship between the Feds and environmental groups

Repeal the Endangered Species Act

Endangered Species paperwork to cost $206,098,920

According to the Budd-Falen law offices:

On July 12, 2011, the Justice Department and the U.S. Fish and Wildlife Service (“FWS”) announced “an historic agreement” which will require the American taxpayers to pay $206,098,920 to just process the paperwork deciding whether to include over 1000 plants, bugs, worms, and other assorted creatures on the Endangered Species list. None of this money goes to on-the-ground conservation; this taxpayer funding is just to process petitions filed by only two, out of dozens, of radical environmental groups who think newts and moths are more important than the elderly or our children.

The two environmental groups referred to are Wild Earth Guardians and the Center for Biological Diversity.

Here is the complete text of the memorandum from Budd-Falen:

The headlines question whether Congress and the President can make an agreement on raising the debt ceiling or will America stop paying military servicemen and social security recipients. I have a solution to the dilemma . . . .

 On July 12, 2011, the Justice Department and the U.S. Fish and Wildlife Service (“FWS”) announced “an historic agreement” which will require the American taxpayers to pay $206,098,920 to just process the paperwork deciding whether to include over 1000 plants, bugs, worms, and other assorted creatures on the Endangered Species list. None of this money goes to on-the-ground conservation; this taxpayer funding is just to process petitions filed by only two, out of dozens, of radical environmental groups who think newts and moths are more important than the elderly or our children. The average social security beneficiary makes $21,600 a year and a basic military recruit makes a little over $15,000 per year. Our elected officials are contemplating not paying these Americans while the Justice Department is readily agreeing to spend an average of $100,690 per individual species listing and $345,000 per individual proposed critical habitat designation for over 1053 creatures. And to add insult to injury, the Justice Department has agreed that these two groups “prevailed” in the litigation and will pay their attorney fees in an amount that has not been disclosed. Has America lost its collective mind?

 These two settlement agreements are the culmination of what is known as the Endangered Species Act (“ESA”) multi-district litigation. This case was formed in 2010 by combining 13 federal court cases filed by either the WildEarth Guardians (“WEG”) or the Center for Biological Diversity (“CBD”) regarding 113 species. On May 10, 2011, the FWS announced its settlement agreement with the WEG with the promise that the agreement would help the FWS “prioritize its workload.” That settlement agreement was opposed by the CBD who wanted other species added to the list. The Justice Department obliged the requests of the CBD and on July 12, 2011 filed the second agreement, now pending before the District of Columbia Federal District Court, that would require the FWS to make 1201 decisions on proposed listing and critical habitat designations for 1053 species. The reason that these two number are different is because for some of the species, the FWS is committed to make more than one decision. The total cost to the American public for the FWS completing all this paperwork is $206,098,920, all by FY 2016.

 These settlement agreements are being touted by the FWS as a “catalyst to move past gridlock and acrimony” to enable the FWS to “be more effective in both getting species on the [endangered species] list and working with our partners to recover those species.” Really? How can that be, considering the requirements of the agreements and the state of the American budget? For example:

The settlement agreements only include two of the numerous radical environmental groups that have sued over the Endangered Species Act to force more species listings and critical habitat designations. This agreement does nothing to stop the National Wildlife Federation from filing more federal court litigation over species such as the Northern grey wolf; nor does it include Western Watersheds Project’s litigation related to the sage grouse. The Sierra Club is not bound by this settlement agreement and neither is the Natural Resources Defense Council nor the Environmental Defense Fund. Between 2000 and 2010, 455 lawsuits were filed by environmental groups against the FWS alone. It is hard to move past “gridlock” when only two of the numerous groups causing the gridlock are willing to move out of the way (sort of).

 The settlement agreements require the FWS to work on a very strict time schedule. At least 94 decisions have to be made by FY 2011 and 61 decisions are to be completed by the end of FY 2012. The entire list of 1205 decisions have to be made by FY 2016. According to a FWS Federal Register notice published November 10, 2010, it costs the agency and the taxpayer a median of $39,276 per species just to make a “90 day finding” regarding whether the FWS should even continue with a scientific review; $100,690 per species for the FWS to make a listing decision; $345,000 for each proposed critical habitat designation and an additional $305,000 for the FWS to make a final critical habitat designation. Multiplying the FWS’s own numbers by the actions for each species in the settlement agreements brings the cost of the settlement agreements to the American taxpayer to a grand total of $206,098,920 — just to process the paperwork, that figure excludes the payment of attorney fees to the CBD and WEG. The amount of those payments has not been publically released.

What is even more distressing is that the settlement agreements go far outside the bounds of the original multi-district litigation. The original litigation dealt with 133 species for which the Justice Department agreed that the FWS had failed to follow the procedural ESA requirements. In contrast, the settlement agreements expanded that number to include 1053 species; 940 of which were not part of a federal court complaint. How can the FWS with any conscience agree to this expansion?

Even more unconscionable is the way the FWS press release describes the settlement agreements. According to the FWS announcement, the settlement agreements and work plan “will enable the agency [FWS] to systematically, over a period of six years, review and address the needs of more than 250 candidate species to determine if they should be added” to the ESA list. But look at the list attached to the settlement agreements and read the settlement agreements themselves. The official species list that has to be considered contains 1053 species, which is 76% more than admitted by the FWS. While technically 1053 species is “more than” 250 candidate species, my children would not get away with that kind of creative factual accounting.

The bottom line analysis of the multi-district settlement agreements is this — the Justice Department and FWS agreed to two settlement agreements that represent an 89% increase over the number of species included in the original litigation; that commits the FWS to spend over $206,000,000 over the next six years to do the paperwork on 1053 bugs, worms and grasses that two radical groups think are more important than humans in all 50 states; to add to an ESA list that already includes over 2000 species when only 10 have been removed from the list since it was passed in 1969; and the Justice Department has agreed to pay the attorney fees to the two groups for suing in the first place. I would argue that $206,098,920 plus added attorney fees payments would pay a lot of benefits to deserving Americans including those who are serving this Country. That is where my tax dollars should go.

All of this is just another reason why we should Repeal the Endangered Species Act.

Climate Change and Biodiversity

Climate alarmists have claimed that global warming will cause massive species extinctions. The geologic record shows the opposite. As “climate change” itself loses traction, green extremists are switching to “biodiversity” as the next bogeyman. The U.N. is launching its “International Year of Biodiversity.” But the current wildlife extinction rate is the lowest in 500 years according to the UN’s own World Atlas of Biodiversity. Environmental groups are beginning to use the Endangered Species Act (ESA) as an excuse to control carbon dioxide emissions. Perhaps the first species to be listed by the U.S. Fish & Wildlife Service (FWS) on speculation of the effects of global warming is the polar bear.

On May 14, 2008, FWS listed the polar bear as a “threatened” species under the Endangered Species Act (ESA), based on the supposition that carbon dioxide emissions are melting the bear’s Arctic habitat.

In 2007, just prior to listing, the Arctic sea ice reached the lowest level recorded since 1979 when satellites began tracking the ice. However, that same year, Antarctic sea ice reached the maximum extent ever recorded. Did you hear about that?

The Department of the Interior press release on the polar bear claimed, “The listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten polar bear habitat. This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species.” Really? Environmental groups are suing to force FWS to upgrade the listing to “endangered.”

The FWS listing is based on computer projections and false assumptions. An article in Science Daily claims, “Federal Polar Bear Research Critically Flawed…” People who live in the Arctic know that polar bear populations have been increasing, mainly due to changes in hunting regulations. Native Inuit hunters say that “The growing population has become ‘a real problem,’especially over the last 10 years.”

The polar bear has been around for a very long time and somehow survived conditions that were warmer than now and warmer than computer projections. It is also telling that the Canadian government, which oversees 14 of the 19 polar bear populations, has not listed the bear as “threatened” or “endangered.” The Alaska Department of Fish & Game opposed the listing claiming that FWS did not use the best available science and that FWS cherry-picked models, choosing only those which supported their case. Alaska fish & game says that polar bear populations “are abundant, stable, and unthreatened by direct human activity.”

FWS has a Climate Change Strategic Plan which is based largely on reports from the now discredited Intergovernmental Panel on Climate Change (IPCC). (See my posts The Assumed Authority, and IPCC and Peer Review.)

 Real, on the ground, research into the relationship between global warming, species extinction, and biodiversity paints a picture very different from the speculative computer models. Abundant research shows that warming increases the range for most terrestrial plants and animals, and for most marine creatures. Increased carbon dioxide in the atmosphere makes plants more water efficient and more robust. For an introduction to this research seehttp://www.co2science.org/images/pdf/extinction.pdf “The Specter of Species Extinction, Will Global Warming Decimate Earth’s Biosphere?” That report concludes:

The CO2-induced global warming extinction hypothesis claims that as the world warms in response to the ongoing rise in the air’s CO2 content, many species of plants and animals will not be able to migrate either poleward in latitude or upward in elevation fast enough to avoid extinction as they try to escape the stress imposed by the rising temperature. With respect to plants, however, we have shown that as long as the atmosphere’s CO2 concentration rises in tandem with its temperature, most of them will not “feel the heat,” as their physiology will change in ways that make them better adapted to warmer conditions. Hence, although earth’s plants will likely spread poleward and upward at the cold-limited boundaries of their ranges in response to a warming-induced opportunity to do so, their heat-limited boundaries will probably remain pretty much as they are now or shift only slightly. Consequently, in a world of rising atmospheric CO2 concentration, the ranges of most of earth’s plants will likely expand if the planet continues to warm, making plant extinctions even less likely than they are currently.

Animals should react much the same way. In response to concurrent increases in atmospheric temperature and CO2 concentration, they will likely migrate poleward and upward, where cold temperatures prevented them from going in the past, as they follow earth’s plants. Also as with earth’s plants, the heat-limited boundaries of their ranges should in many cases be little affected, as has been observed in several of the real-world studies that have been wrongly cited as providing evidence for impending species extinctions, or their entire ranges may simply shift with the rising temperature, as has been observed in many real-world studies of marine ecosystems.

To summarize, both theory and observation paint the same picture. A goodly portion of earth’s plants and animals should actually expand their ranges and gain a stronger foothold on the planet as the atmosphere’s temperature and CO2 concentration continue to rise. If the air’s CO2 content were suddenly to stop increasing, however, the biosphere could find itself facing a significant challenge, as the world’s plants would cease acquiring the extra physiological protection against heat stress that is afforded them by rising atmospheric CO2 concentrations. Consequently, the end result of curtailing anthropogenic CO2 emissions might well be just the opposite of what many people are hoping to accomplish by encouraging that policy, i.e., many species might actually be driven to extinction, rather than being saved from such a fate.

For even more information, go to www.CO2Science.org and look in their subject index under “extinction.” There you will find reviews of the scientific literature based on real world observations. This research, as well as geologic history, show that a warmer world increases biodiversity. Habitat destruction from other causes is a separate issue.

Looking at the greater geologic record, we see that major extinctions are associated with ice ages and other cooling events. After each ice age, as the planet warmed, life rebounded with more speciation and greater biodiversity. The geologic record also shows that the “normal” temperature of this planet (when we are not in an ice age, or an interglacial period of an ice age) is about 18 degrees F warmer than now (see chart in this post). Even in our current interglacial period, warm cycles have been up to 10 degrees F warmer than now and we have not seen massive extinctions. (The megafauna extinction of about 10,000 years ago was associated with a rapid cooling period, the Younger Dryas.) The hot and steamy Cretaceous Period saw the development of flowering plants and a great increase in biodiversity.

It seems that the Fish & Wildlife Service is following a political agenda based on junk science.

(For another example of FWS junk science see, Jaguar Listing and Habitat Designation Based on Junk Science)

Jaguar Listing and Habitat Designation Based on Junk Science

A Freedom of Information Act inquiry has revealed that the U.S. Fish & Wildlife Service (USFWS) decision to declare portions of Arizona and New Mexico as “Critical Habitat” for the jaguar has no basis in fact. USFWS based its decision on unsubstantiated anecdotal stories that did not meet the Endangered Species Act definition of minimum scientific standards. The inquiry also found possible collusion between an employee of the Arizona Fish and Game Department and the Center for Biological Diversity. The report of the inquiry was written by Biologist/Attorney Dennis Parker. Here is the press release:

 

“GROUPS CHARGE CORRUPTION, JUNK SCIENCE BEHIND EXPANDED JAGUAR PROTECTIONS IN ARIZONA & NEW MEXICO.”

In a recent letter to the US Fish and Wildlife Service (USFWS) the Southern Arizona Cattlemen’s Protective Association (SACPA), the Coalition of Arizona/New Mexico Counties, the Pima Natural Resources Conservation District (NRCD), the Whitewater Draw NRCD, and People for the West strongly urged the agency to reverse its decision that critical habitat is “prudent” for jaguars in Arizona and New Mexico. The letter shows that under the ESA, and based solely on the best science available, habitat “essential” to the jaguar’s existence does not exist in the United States. Furthermore, studies have proven that well managed livestock grazing poses no threat to jaguars or their habitat.

“The Department of Interior just announced a new policy favoring sound science over political misconduct,” said SACPA president Cindy Coping. “To honor their own policy the USFWS must reverse their unsound but politically fashionable decision that won’t help the jaguar and does threaten to destroy hundreds of rural jobs in two states.”

A Freedom of Information Act (FOIA) inquiry revealed that the agency’s decision relied heavily on a 2005 conference presentation that lacked supporting data and fails to meet the ESA definition of minimum scientific standards.

Another public records search revealed that an employee of the Arizona Game and Fish Department (AGFD) authorized a $999.99 payment to the Center for Biological Diversity (CBD) to create a jaguar habitat model for New Mexico. The CBD’s model was a substitute for, and produced conclusions far different from, the sound scientific conclusions already published by the New Mexico Department of Game and Fish. The CBD had a then recent history of publishing maliciously false information about endangered species and livestock grazing. That charge, proven in court, was already a matter of widespread public knowledge when the AGFD employee engaged the CBD to produce a substitute habitat model for New Mexico.

“The payment itself, one cent below the level we understand requires Commission approval, raises serious questions about the AGFD employee’s intentions,” Coping said. “These issues involve authority and abuse of such, improper bias, conflict of interest, and the unprecedented extraterritorial extension of AGFD authority over the State of New Mexico,” wrote Dennis Parker, the wildlife biologist/attorney who authored the comments.” These facts alone warrant suspension of any critical habitat designation for the jaguar in the United States until this serious situation is fully investigated and explained,” he added. At least two of the supposed “verified” jaguars mentioned in the Arizona habitat models were likely not naturally occurring, but rather, animals of foreign origin captured and imported into the United States for the purpose of “guaranteed” hunting. At least 9 such imported jaguars were introduced into New Mexico in 1972 and 1973 alone, including at least one female that escaped. Recent journal published studies from Brazil prove that both the range and numbers of jaguars expanded where domestic livestock were introduced, due to the more dependable prey base. In fact, Brazilian cattle ranches support the highest densities and numbers of jaguars found anywhere. Moreover, both the historic and the recent record of transient jaguar occurrences in the Southwest indicate that modern, highly controlled livestock grazing poses no threat to the few jaguars that sometimes wander across the Mexican border onto neighboring Arizona and New Mexico ranchlands.

All of the citizen organizations represented in the carefully documented letter sent to the USFWS care deeply about the management of landscapes in Arizona and New Mexico where ranching has been and continues to be the dominant land use keeping habitat largely intact and undeveloped for more than 300 years.

###

For more information, please contact Cindy Coping, SACPA president, at (303) 905-4041.

Read the full 15-page report here.

Some excerpts from the report:

“While one transient male jaguar, Macho B, did roam the borderlands of Arizona and Sonora for more than a decade until last year, his extensive travels prior to his death indicates he was having a difficult time surviving in this dry, rugged region. Moreover, his persistent presence in the borderlands was also artificially induced by the placement of female jaguar scent (in the form of scat of captive females in season) at camera locations on the United States side of the boundary with Mexico.”

“Finally, if Arizona and New Mexico actually qualified as critical habitat, or habitat “essential” to the existence of the jaguar as a species, then both common sense and objective science would necessarily demand that, at a minimum, female jaguars be shown to reside in those States. The facts conclusively show that they do not and that no female jaguar has been shown to occur in Arizona, even on a highly questionable and suspect basis, since 1963. The facts also reveal that no [wild] female jaguar has been verified to have occurred in New Mexico — ever.”

This is just one more example of why we should Repeal the Endangered Species Act.

Repeal the Endangered Species Act

The Endangered Species Act (ESA) should be repealed because it provides no positive incentive for conservation, it tramples on property rights, it destroys industries, it is very expensive, and it is ineffective. The ESA should be replaced with a voluntary, non-regulatory, incentive-based act. Make conservation profitable.

Currently 1,160 animals and 796 plants are listed as threatened or endangered. An additional 248 species are candidates for listing, and 47 more species have been proposed for listing, according to the U.S Fish & Wildlife Service (FWS) (aren’t fish wildlife?). After 37 years and billions of dollars, of all the species that were listed, only 47 have been removed from the list, of which 18 were removed due to erroneous original data, nine became extinct, and the remaining 20 are considered recovered. Those recoveries, however, were due to factors that were either not related to, or predated ESA. For instance, recovery of the American peregrine falcon, arctic peregrine falcon, and brown pelican is attributed to the banning of DDT according to the FWS.

The fundamental problem with ESA is that the FWS has no legal requirement nor incentive to consider economic consequences or private property rights. The ESA is administered as an “absolute” law, holding precedence over all other land usage and in the process “taking” private property rights. The law forbids the killing, trapping, harming or harassing of endangered species, and the courts have broadly interpreted those prohibitions. The FWS could regard the entire country as critical habitat for something because there is no incentive not to, and to do so, just increases their power. This lack of accountability is a recipe for abuse by a bureaucracy run amok. The ESA tramples on private property rights more than any other federal statute. Under the ESA, individual Americans have been prevented from building homes, plowing fields, filling ditches, cutting trees, clearing brush, and repairing fences, all on private land. The federal government has even barred private landowners from clearing firebreaks to protect their homes from fire hazards or defending themselves against invasion by wild animals such as grizzly bears.

The result is that property owners regard endangered species as enemies and consciously manage their land, when they can, to eliminate or discourage a species’ presence. The Third Amendment to the Constitution explicitly forbids the federal government, even in the name of national defense, from requiring that a citizen quarter a soldier (that is, provide food and shelter for a soldier). Yet the government can require the same citizen to quarter a grizzly bear, certain plants, or a pygmy owl at the landowner’s expense. This proscription of use without compensation is seen by many to be contrary to the Fifth amendment which says in part “nor shall private property be taken for public use without just compensation.” But that is exactly what ESA does.

The cost of ESA goes beyond dollars. We have witnessed the virtual elimination of timbering on federal lands and the death of communities which depended on logging. Millions of acres have been put off-limits to grazing, mining, farming. The ESA is so powerful that even fraudulent data was sufficient to ruin many Klamath, Oregon, farmers when water was denied them due to an alleged danger to listed species.

More recently, farmers in California’s lush San Joaquin Valley were denied water because the pumps might harm a small fish, the delta smelt. Dams and irrigation projects had turned the area into some of the world’s richest farmland. “But today the San Joaquin Valley is being transformed into a dust bowl. Hundreds of thousands of acres are fallow, while almond and plum trees are being left to die in the scorching sun. Tens of thousands of people have been tossed out of work—the town of Mendota alone has an unemployment rate of about 40%—and the lines for food donations stretch down streets. The reason? There isn’t enough water to go around this year, and the Obama administration is drawing up new reasons to divert more of it from farms and people and into the San Francisco Bay.” (WSJ)

An example closer to home concerns the Southwestern Willow Flycatcher and the Salt River Project (SRP) in Phoenix. It illustrates both the power and lack of common sense in ESA administration. This flycatcher (Empidonax traillii extimus) is a subspecies not recognized in the two major birding books: Roger Tory Peterson’s Field Guide to Western Birds (1990 edition); and The Sibley Guide to Birds, published by the National Audubon Society (2000). The Salt River Project is a series of reservoirs, one of which is Roosevelt Lake, that supply water to and generate electricity for the Phoenix area. When this subspecies of flycatcher was declared endangered in 1995, there were only 55 reported at Roosevelt Lake. However, during several drought years, the lake level dropped and exposed more river bottom habitat use by the flycatchers and more appeared. FWS forbade the Salt River Project from refilling the reservoir since that would destroy habitat. To regain the use of its reservoir, SRP had to spend millions of dollars to acquire about 1,500 acres of suitable habitat elsewhere to offset what filling the reservoir would have taken. That cost about $15 million, about $9million will be to protect endangered species on the Verde River and Horseshoe Lake.

The ESA contributed to the death of fire fighters because Forest Service officials were worried about taking water from a stream that might harbor an “endangered” fish. The sad condition of our national forests and the devastation of raging wildfires are attributable to ESA’s affect on management decisions within federal agencies, and delays caused by hundreds of lawsuits by radical environmentalist. The ESA has even threatened the ability of our military to properly train.

The ESA is a boon to lawyers. According to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days. Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.” The act of responding to lawsuits causes government biologists to spend much less time on conservation work.

Bad science has characterized species listing under ESA. For instance, in southern Arizona, the listing of the pygmy owl ignored its abundance in its core area of Mexico and South America. Arizona riparian areas represent a fringe habitat. The owl’s true riparian habitat has not existed in Tucson for 100 years, and the little critters now seem to favor suburbia. While core habitat may deserve protection, splinter groups in peripheral areas are ephemeral and need not receive special attention to preserve the species.

The bad science is abetted by the definition of “endangered species” in the Act itself: “any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature.” This definition causes certain subspecies, such as the pygmy owl, to be legally listed as “endangered” when in fact, it is not.

Congress should repeal the Endangered Species Act and replace it with a program that respects property rights and provides a positive incentive for conservation. Stop associating conservation with penalties, instead make it profitable.