The Endangered Species Act (ESA) should be repealed because it provides no positive incentive for conservation, it tramples on property rights, it destroys industries, it is very expensive, and it is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.