property rights

Private Property Rights vs Environmental Feudalism

We have seen, especially over the last 40 years, a determined assault on private property rights. It is not coincidental that the passing of the Endangered Species Act marks the beginning of this period. Preservationist groups have accomplished through government coercion what they could not get people to do voluntarily. Increasingly, the cost of perceived societal goals are not borne by society as a whole, but by individual property owners. This situation is nothing more than legal plunder, or as Frederic Bastiat put it, “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”

The U.S. Constitution states that “..nor shall private property be taken for public use without just compensation.” The problem of late, is that the definition of “taking” has been subject to debate in the courts. If government condemns private land for a public project, the issue is straight forward and the owner is usually compensated. But it has been less clear in the courts for the situations where a property owner has been denied beneficial use of all or part of a property through zoning ordinances, “growing smarter” schemes, conservation easements, habitat plans, ecosystem management districts, or for the alleged protection of endangered species, wetlands, historic districts, heritage areas, conservation areas, wilderness areas, wildlife preserves, buffer zones to the foregoing, or for the many other excuses government uses to restrict land use.

So what is the big deal about property rights anyway? Karl Marx: “The theory of Communists may be summed up in the single sentence: Abolition of private property.” The big deal is that private property rights are essential to a free society. These rights confer upon the owner the fruits of his labor, the right to the benefit from his work, his investments, and his ideas. Notice that places without private property rights are generally totalitarian regimes where the citizens are slaves to the government.

The concept of private property rights has a long history in western thought. Our founding fathers, particularly Madison and Jefferson, equated property rights with individual rights. In the Declaration of Independence, Jefferson wrote of the inalienable right to life, liberty and the pursuit of happiness. The later part of this trinity refers to property rights and seems to have been taken from philosopher John Locke’s “life, liberty and estate.” Jefferson goes on to write, “a right to property is founded in our natural wants, in the means by which we are endowed to satisfy those wants, and the right to what we acquire by those means without violating the equal rights of other sensible beings.”

Other western philosophers and statesmen reinforce these principles. For Jeremy Bentham, there were four inalienable rights: liberty, property, security (in the sense of the 4th Amendment) and the right of self-defense. Georg Hegel: “Right is in the first place the immediate embodiment which freedom gives itself in an immediate way, i.e., possession, which is property ownership.” Pope Pius XII: “Private property is a natural fruit of labor, a product of intense activity of man, acquired through his energetic determination to ensure and develop with his own strength his own existence and that of his family, and to create for himself and his own an existence of just freedom.” Friedrich von Hayek: “The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.” U.S. Supreme Court (Lynch vs Household Finance, 1972): “The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a ‘personal’ right…a fundamental interdependence exists between personal right to liberty and the personal right to property. Neither could have meaning without the other.”

Individual and property rights have long been under assault by governments. A warning by George Washington applies as well today as it did when he wrote, “The time is now near at hand which must probably determine whether Americans are to be freemen or slaves; whether they are to have any property they can call their own…”

The current great assault on our rights derives from environmental laws and their unconstitutional application. We have entered a state of Environmental Feudalism. As Karol Ceplo writes in Land Rights: “The ever-increasing use of regulation to restrict private property rights represents a profound change in the politics of land use. This movement has been described as a ‘new feudalism of regulation.’ The management of environmental resources has shifted from the private owner to a centralized bureaucracy, much as land use in medieval times was controlled by centralized royal or ecclesiastical powers, rather than by the people who lived on and worked the land.”

Local manifestations of environmental feudalism came in the form of draconian rules concerning the pygmy owl, in county interim regulations requiring set aside of 80% of land as mitigation to build on the remaining 20%, and in the scheme called the Sonoran Desert Conservation Plan.

These changes did not happen over night, but evolved incrementally, just as James Madison warned, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” The road back may also be in small steps. The U.S. Supreme Court seems to have rediscovered the Constitution in many recent decisions, but so far, these decisions deal only with individual circumstances and form no overarching return to Constitutional government.

With the coming change in federal administration, we must insist that environmental laws be tempered with just notice to our rights, and that our representatives and senators return to the principles upon which this nation was founded.

 

See also:

The Flaws in the Endangered Species Act

Endangered Species Act administration changes bode ill for property rights

Environmental Sophistry

 

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Free the Land from the Feds

The federal government owns more than 623 million acres of land, mostly in the western states. The recent defense spending bill included designation of new National Parks, Wild and Scenic Rivers, and National Heritage areas. How much land is enough?

Most federal land is administered by four agencies: the Bureau of Land management, 258.2 million acres; the Forest Service, 193 million acres; the Fish & Wildlife Service, 93 million acres; and the National Park Service, 79 million acres. Other federal land ownership includes military bases and land held in trust for Indian reservations. The map below shows the concentration of federal lands in the west.

Western federa lands

The State of Utah wants 31.2 million acres of its land back. “In an unprecedented challenge to federal dominance of Western state lands, Utah Gov. Gary Herbert in 2012 signed the ‘Transfer of Public Lands Act,’ which demands that Washington relinquish its hold on the land, which represents more than half of the state’s 54.3 million acres, by Dec. 31, 2014.” (Washington Times) We are still awaiting the outcome of this probably quixotic endeavor. But it sets a precedent and more western states should take up the quest.

Besides outright ownership, the feds are wreaking havoc on private property rights through the Endangered Species Act and the Clean Water Act.

In Arizona, for example, the right of Phoenix, the Salt River Project, and the Central Arizona Water Conservation District to divert Colorado River and Salt River water to Phoenix and Tucson is being threatened by the US Fish and Wildlife Service because those diversions allegedly endanger everything from gila topminnows, and chiricahua leopard frogs, as well as willow flycatchers.

The Town of Tombstone was forbidden to fix part of its water supply after it was destroyed in a forest fire because the source is in a wilderness area. (See Tombstone versus the United States)

The EPA and Corps of Engineers are attempting to expand the definitions in the Clean Water Act to include the most tenuous connection to “navigable waters” that would encompass private irrigation ditches, ponds, and puddles in order to gain more control over private property.

Perhaps the new Congress can address some of these abuses of federal regulations and free the land from Big Brother and allow states and private property owners to put the land to productive use.

See also:

Repeal the Endangered Species Act

Endangered Species paperwork to cost $206,098,920

Endangered species act could halt American energy boom

How NEPA crushes productivity

Pygmy owls and property rights

The political history of the Cactus Ferruginous Pygmy Owl plays large in Pima County, Arizona. Once again, radical environmental groups are trying to get the owl listed as an endangered species.

The Defenders of Wildlife and the Tucson-based Center for Biological Diversity are suing the U.S. Fish & Wildlife Service (FWS) to list the owl as endangered (See story in Arizona Capitol Times). They tried the same gambit two years ago (See Arizona Daily Independent story).

The pygmy owl is a natural resident of Mexico with an occasional fringe population in Southern Arizona. I will write more on its natural history in a future article.

Our story begins in the 1990s. The Amphitheater School District purchased land in March, 1994, to build a new high school in northwest Tucson to relieve overcrowding. Groundbreaking was scheduled for October 1997. But, the school district ran into a double whammy from the Endangered Species Act.

A dry wash on the property, which had water two or three days a year, was deemed a “wetland” which required a “404” permit from the Corps of Engineers. The pygmy owl was listed as endangered April, 1997, after a lawsuit brought by the Center for Biological Diversity (then called the Southwest Center for Biological Diversity). The FWS put a hold on the 404 by demanding an impact statement.

In 1997, we saw the following headline in the (now defunct) Tucson Citizen: “Owl habitat expanded across city, virtually every vacant lot affected.” The FWS issued “guidelines” covering the Tucson area which would require private land owners to obtain a biological assessment and a federal permit costing over $3,000 before any land clearing could take place. The FWS guidelines recommend that developers start surveying for owls if their property lies below 4,000 feet and has saguaros, ironwoods, mesquite or palo verde at specified heights and diameters. If a survey finds owls in or near a property, the owner should contact the FWS for mitigation requirements. The government says the guidelines aren’t mandatory, but federal officials warn that those who don’t follow them face lawsuits or prosecution if any owls are harmed.

Pima County supervisors refused to issue building permits for private land in the area, until their lawyer told them that the ban was illegal.

By the way, no owls were observed on the school land, but it was “potential habitat” requiring all the expensive surveys. USFWS admitted in the Federal Register that “he total number of pygmy-owls and their distribution in Arizona are unknown. Survey and monitoring work in Arizona resulted in documenting 41 adult pygmy-owls in 1999, 34 in 2000, 36 in 2001, and, most recently, 18 in 2002.”

USFWS maintained that the endangerment finding was warranted because the Arizona population of pygmy owls was a “discrete population” which ignored the main population in Mexico. Lawsuits by the National Association of Home Builders and the Southern Arizona Home Builder Association sued FWS. The court found that the listing rule did not articulate a rational basis for finding that the discrete population was significant to the whole subspecies. The Cactus Ferruginous Pygmy Owl was removed from the Endangered Species List in 2006.

The Amphitheater high school was eventually built after two years of litigation costing about $1 million in taxpayer money.

That’s only half the story.

In 1998, Pima County used the endangerment listing of the owl as an excuse to institute its very ambitious, but scientifically flawed, Sonoran Desert Conservation Plan. The legal idea behind SDCP was to obtain dispensation from FWS in the form of an Incidental Take Permit under section 10 of the Endangered Species Act. This allow county public works to proceed even if they would incidentally harm some endangered species. To do that the County had to specify which species it was going to protect and how it would do so. SDCP would allow private land owners to opt into the plan and come under its umbrella, but there were strict requirements for land use.

Pima County has yet to obtain a Section 10 permit, but they have incorporated many of the Plan’s land use restrictions into County Code. Property owners are left with the restrictions, but none of the alleged benefits. The County has spend millions of dollars acquiring private land to use as “mitigation” areas. As far as I can tell, there is no action by FWS or Pima County to proceed with the formal Conservation plan.

See Also:

Whatever happened to Pima County’s Sonoran Desert Conservation Plan?

The Flaws in the Endangered Species Act

Sagebrush Rebellion Redivivus

The following is adapted from a speech delivered by William Perry Pendley on April 23, 2014, at a Hillsdale College event in Colorado Springs, Colorado. It is a good review of the “war on the west” by the federal government and the results of extreme environmentalism. This is a long article, but well worth reading.

For many or maybe even most Americans, reports that a rancher in Clark County, Nevada, was at odds with federal land bureaucrats, that scores of federal lawyers were litigating against him, and that SWAT-garbed and heavily armed federal law-enforcement officers had surrounded his place might have come as a surprise. They might have been even more surprised, in the wake of this standoff—which ended short of deadly escalation thanks in part to negotiations by a local sheriff—to hear that over 50 elected officials from nine Western states had gathered in Utah to discuss a state takeover of a significant portion of federally owned land in the American West. But Westerners—especially rural Westerners who make a living on the federal lands that predominate beyond the hundredth meridian, by logging, mining, ranching, or developing energy resources—were not surprised at all.

What has been most lacking in the reporting on these stories is the background of the disputes. And it should be stated up front, in all fairness, that the Obama administration is not unique in pursuing policies anathema to Westerners. On that score, it has simply followed the examples of the Carter and Clinton administrations.

In the late 1970s, President Carter’s “War on the West” spawned what came to be known as the Sagebrush Rebellion, which Ronald Reagan embraced during his campaign for president in 1980: “I happen to be one who cheers and supports the Sagebrush Rebellion,” candidate Reagan proclaimed in a speech in Salt Lake City. “Count me in as a rebel.” The uprising was spurred by the fact that, more than any other region, the American West had been victimized by the environmental policies implemented—utterly regardless of their destructive economic and human consequences—during the previous two decades. Reagan had seen firsthand the transformation of the environmental movement from one of conservation and stewardship, in which the part played by human beings and technology was vital, to a movement in which humans and technology were understood to be enemies of nature. As articulated by Reagan, opposition to extreme environmentalism represented a return to true environmentalism. America’s “environmental heritage” will not be jeopardized, he promised, while at the same time insisting that “we are going to reaffirm that the economic prosperity of our people is a fundamental part of our environment.”

In terms of the public land issue, Reagan blamed “a tiny minority opposed to economic growth” for locking up federal lands that hold “probably 70 percent of the potential oil in the United States,” and he vowed to support the use of federal lands to meet America’s energy, economic, and foreign policy needs. As former governor of California, he knew all too well that the federal government owns a third of the land that makes up the United States, the vast majority of this being in the West. Federal holdings include nearly a third of Colorado, Montana, New Mexico, and Washington; roughly half of Arizona, California, Oregon, and Wyoming; and two-thirds or more of Alaska, Idaho, Nevada, and Utah. By comparison, the three non-Western states with the most federal land are New Hampshire at 14 percent, Florida at 13 percent, and Michigan at ten percent.

Some portion of this federally owned land, of course, consists of parks, which are preserved for public recreation. Other parts are wilderness areas, where motorized activity is barred. But most of the land controlled by the Bureau of Land Management and the U.S. Forest Service is open, by law, to “multiple use” activities, including cattle grazing, recreation, and energy and mineral development. This is the land where disputes arise over use—and it is in these disputes where the Obama administration has picked up where the Carter and Clinton administrations left off, adopting the no-use policies promoted by environmental groups who view all federal lands as off limits to productive human activity.

A typical way these policies get implemented is for environmental interest groups to sue a government agency under either the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA), and for the agency then to settle the lawsuit in the interest group’s favor. Sometimes—as in a 2008 lawsuit filed against the U.S. Forest Service by three environmental groups to prevent oil, gas, and mineral extraction in Pennsylvania—the government not only settles the lawsuit but also pays the interest groups for their complaints (in that case paying out nearly $20,000). Just last month, Oklahoma Attorney General Scott Pruitt filed a lawsuit against the Interior Department and the U.S. Fish and Wildlife Service over such “sue and settle” tactics following an ESA lawsuit by a group called Wild Earth Guardians that sought to restrict land use for agriculture, oil and gas drilling, wind farms, and other activities in a five-state area—Oklahoma, Texas, Colorado, New Mexico, and Kansas—inhabited by the lesser prairie chicken. “These settlements,” Pruitt said in a statement, “impose tougher regulations and shorter timelines than those imposed by Congress,” and thus violate the rule of law. “Oklahoma has indicated its willingness to protect the lesser prairie chicken,” he added, “but it seems increasingly clear this issue isn’t about sound science or saving endangered species.”

Following a recent report by the Government Accountability Office on how NEPA is being used to delay projects on federal lands, Dan Kish of the Institute for Energy Research characterized NEPA’s effect as “paralysis by analysis,” pointing out that “environmental impact statements, which were expected to take no more than 12 months 30 years ago, now take an estimated 4.6 years to complete.” NEPA’s consequences are wide-ranging: Since its passage in 1969, not a single new oil refinery has been built. Following forest fires in the West, as reported by the National Forest Association, “[NEPA] regulations . . . [delay] harvests of diseased or burned timber indefinitely. As such, usable salvage timber wastefully rots away, resulting in lost government income . . . and economic privation for local communities.” And after Hurricane Katrina devastated New Orleans, it was too little noted that twice—in 1977 and in 1996—plans to build a hurricane barrier and to raise and strengthen the levees were halted by environmentalist NEPA lawsuits.

Today the Keystone XL Pipeline—a decision about which has again been delayed, until late this year at the earliest—is only the most publicized of the promising projects, in terms of both economic prosperity and national defense, which are being delayed and/or prevented by NEPA requirements. For example, rare earth elements are critical to today’s high-tech and transportation industries, telecommunications, military uses, and clean energy technology, and China currently has 95 percent of the world’s supply of these elements—“The Middle East has oil, China has rare earths,” said former Chinese Premier Deng Xiaoping. Despite this, rare earth mines in both Wyoming and California seem to have been put on permanent hold. One company that submitted its operations plan in 2012 has been told that the NEPA process will not be completed, at best, until late 2015.

Executive agencies can also simply implement the extremist environmental agenda on their own. This is how the Obama administration’s “war on coal” is being waged following the failure to pass the president’s “cap and trade” legislation even in the Democrat-controlled Senate. This January, the Environmental Protection Agency (EPA) set limits on how much carbon dioxide new coal-fired power plants are allowed to produce—limits that will require expensive and unproven technology, severely limiting the likelihood of new plants being built. This follows past regulation that will force the retirement of more than 30,000 megawatts of power capacity by the end of 2016. Later this year, the EPA plans to establish limits for already existing power plants, with devastating implications for coal-rich Western states such as Wyoming, which generates more coal annually than the next six coal-producing states combined. Senator Lisa Murkowski of Alaska points out that “89 percent of the coal electricity capacity that is due to go offline [due to regulation] was utilized as backup” to meet demand for energy during the harsh winter that just ended. Not only she and Senator Joe Manchin of West Virginia, but also liberal Democratic Senator Al Franken of Minnesota, have worried that these EPA regulations will threaten the ability of America’s power grid to meet future demand.

According to the Congressional Research Service, from 2009 through 2013, oil and natural gas production on private land was up 61 percent and 33 percent, respectively; on federal lands, by contrast, oil production was down eleven percent and gas production was down 28 percent. This is no mere coincidence. The Monterey/Santos oil field in California is estimated to hold more than twice the oil of the Bakken oil field in North Dakota and the Eagle Ford oil field in west Texas combined, but its development is on hold because federal lands are involved.

Apparently wishing to slow production even further, former Secretary of the Interior Ken Salazar—ignoring that hydraulic fracturing has been regulated successfully by states for 60 years—proposed new fracking regulations that will add $345 million in annual costs to Western energy development. Regulatory costs as a whole, it should be noted, are at a record high: Wayne Crews of the Competitive Enterprise Institute places the total costs of federal regulations in the U.S. in 2013 as greater than the GDPs of either Canada or Mexico.

Salazar’s successor, Sally Jewell, is not only pressing forward with redundant hydraulic fracturing rules, but is threatening the West with the use of President Obama’s power, under the Antiquities Act of 1906, to prevent economic activity with massive national-monument designations. This was a tactic of the War on the West that President Clinton raised to an art form—most famously announcing, in a speech set against the backdrop of the Grand Canyon in Arizona, the closure of 1.8 million acres to economic activity, including what might have become the world’s largest high-quality, low-sulfur coal mine in economically hard-pressed southern Utah.

In her most egregious move yet, Jewell signed off on a decision by the EPA to put a million acres of Wyoming land—including the entire town of Riverton, Wyoming, with a population of over 10,000—into the Wind River Indian Reservation, despite the indisputable historical fact that this land was ceded to the U.S. in a 1904 agreement between the United States and the Tribes, and in opposition to a unanimous 1998 U.S. Supreme Court ruling regarding a comparable situation in South Dakota.

It is difficult to exaggerate the quasi-religious zeal with which the War on the West is waged. Two years ago, a video surfaced of a training lecture on regulatory enforcement by the head of the EPA’s Region Six office, which oversees Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. This senior administrator, who was appointed by President Obama in 2009, cited the Roman Empire as the inspiration for his mode of operation: “The Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw, and they’d crucify them. And then you know that town was really easy to manage for the next few years.” The same year he gave this talk, his office charged in an emergency order that a Fort Worth-based drilling company had contaminated groundwater in Texas’s Parker County through hydraulic fracturing. A year-and-a-half later the emergency order was withdrawn and the case was dismissed in a federal court, but only after a judge criticized the agency for seeking penalties without first investigating the truth of the charges. A commissioner on the Texas Railroad Commission, which regulates oil and gas drilling in the state, accused EPA’s Region Six office of “fear mongering [and] gross negligence.”

Recently the EPA issued new regulations to redefine “wetlands,” the term of art by which the agency determines the reach of the Clean Water Act. Under these regulations, a Wyoming man named Andy Johnson—a welder who owns an eight-acre farm—has been targeted because he and his wife built a stock pond on their property and brought in brook and brown trout, ducks, and geese. The EPA is threatening civil and criminal penalties—including a $75,000-a-day fine—because Johnson failed to receive permission for his pond from the Army Corps of Engineers. (His permit from the Wyoming State Engineer’s office is irrelevant, according to the EPA.) So far Johnson has defied an EPA order to hire a consultant to assess the environmental impact of his stock pond and to propose a restoration project to be completed within 60 days of EPA approval. “This goes a lot further than a pond,” he is quoted as saying. “It’s about a person’s rights. I have three little kids. I am not going to roll over and let [the EPA] tell me what I can do on my land.”

It is little wonder that there is talk of another Sagebrush Rebellion like that embraced by Ronald Reagan in the late 1970s. Westerners know they deserve better, and that they and their states can be better stewards of their land than federal bureaucrats.

This article is reprinted by permission from Imprimis, a publication of Hillsdale College.
http://imprimis.hillsdale.edu/current

Property Rights and Freedom

Individual rights are inseparable from property rights. The United States of America is the most prosperous nation on the planet because the land contains abundant natural resources and the people have been free to use those resources to create wealth.

Those rights have been increasingly diminished by the environmental movement and their fellow travelers in the Federal government by laws restricting access to land and by bans or moratoria on where one could explore for and produce natural resources which are the engines of our economy.

The principle that an individual be free to reap the fruits of his labor, or suffer loss from imprudent action, is fundamental, and provides economic incentive for a property owner to use his property wisely. But to use property wisely, the owner must be confidant that the government, or judicial system, will protect his rights.

The U.S. Constitution was written to restrict the government’s ability to infringe upon our rights. The U.S. Supreme Court (Lynch vs Household Finance, 1972) affirms the relationship between freedom and property rights: “The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a ‘personal’ right…a fundamental interdependence exists between personal right to liberty and the personal right to property. Neither could have meaning without the other.”

There have been too many cases where one’s ability to use private property has been restricted because the land may, for example, harbor some “endangered” species or contain a very loosely defined wetland. We’ve also seen government interfere in the market place through crony capitalism to the detriment of private business.

Although property rights are fundamental, they have never been absolute. There are three kinds of restrictions.

The first restriction is similar to the “Golden Rule.” Use of property must not harm the property of another.

Second, governments have the power of eminent domain under which they can take property for some public use; but they must provide just compensation. A trouble here is the increasingly fuzzy definition of “public use.” There is an emerging trend to condemn private property and small businesses, and turn the property over to larger businesses.

Third, private property rights are infringed through “lawful” actions such as local zoning and other regulations, and, increasingly through environmental restrictions.

Environmentalism should be about conservation, making the best use of our resources. Unfortunately, environmentalism is not about the environment anymore. It has become the religion of control freaks; control of land use, control of where we can live, control of what kind of homes we build, control of what method of transportation we use, and control of where businesses buy their supplies. Environmental regulations, more than anything else, are infringing upon our property rights, stifling our businesses, threatening our food supplies, and even endangering our national security.

As George Washington warned, under other circumstances, “The time is now near at hand which must probably determine whether Americans are to be freemen or slaves; whether they are to have any property they can call their own…”

The incremental encroachment of regulations on our property will, if left unchecked, continue the erosion of our freedoms and our ability to enjoy the fruits of our labor.

See also:

Beware of Sustainable Development

Red Tape Rising – Federal Regulations Choke Economy

Tombstone versus the United States

EPA Admits CO2 Regulation Ineffective

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.