REFORMING THE ENDANGERED SPECIES ACT
Re-form (re-form'), n. 1.the improvement or amendment of what is wrong, corrupt, etc.
It began in 1966 with passage of the Endangered Species Preservation Act of
1966. That Act was followed by the somewhat expanded Endangered Species
Conservation Act of 1969. Each of these Acts recognized the historic and
Constitutional authority of State governments over all domestic plants and
animals except for those specifically named in ratified international
treaties. Neither of these Acts implied or suggested that private property,
economic activities, recreational activities, energy development, roads, or
other such domestic activities came under Federal authority wherever the
Federal government said a Listed plant or animal existed or could exist near
such things. What these two Acts did do is give the Federal government
authority to prohibit importation of fish and wildlife "threatened with
worldwide extinction". This latter is the primary role of the Federal
government in such matters as defined in our Constitution.
Federal bureaucrats (mainly in the Departments of the Interior and State)
then began (in the late 1960's) working very closely and furtively with
United Nations bureaucrats to convene an international ministerial meeting
to propose a Convention on Threatened and Endangered Species. Building on
the recently passed model of the Marine Mammal Protection Act and the 50
year-old Migratory Bird Treaty, the goal of the Federal bureaucrats was to
have the United States sign onto an International Treaty and thereby give
the Federal government authority over ALL domestic plants and animals
"Listed" as Threatened or Endangered by the Federal government. In early
1973 the UN Convention (CITES) was signed. Later that year the Endangered
Species Act of 1973 was passed by Congress and signed by President Nixon.
I cannot say that I know that those early schemers (both inside and outside
government) ever envisioned the lengths to which their Endangered Species
Act would be stretched, but they did anticipate an unprecedented surge of
Federal authority over plants and animals. Likewise they anticipated a
reduction of "State interference" in Federal environmental programs and
increased discretionary authority over a host of human activities associated
with the "Listed" species and their "habitats". They knew they would have
increased power to stop dams (remember Tellico?) and reintroduce native
animals like wolves in the Upper Midwest. At this time, the cooperation
between those early bureaucrats and radical international/international
organizations opposed to any use of animals and any management of natural
resources for people became a known fact. This alliance has grown over the
past thirty years as the Endangered Species Act has been bent and
embellished into a grotesque threat to US communities, US citizens, and the
very form of government that has made the United States the envy of the
world.
The 1973 Act alone could not legally, under our Constitution, take
management authority over "Listed" plants and animals from State
governments. Congress and the President are prohibited from modifying the
Constitution. Changing responsible authorities specified in our
Constitution can only be effected by a Constitutional Amendment or a Treaty
signed by the President and ratified by the US Senate. Likewise, an Act of
Congress cannot legally authorize taking of private property in whole or in
part from owners without compensation as required by the Constitution. The
1973 Act has done these things under the guise of implementing the
Convention as a Treaty that has become "the supreme Law of the Land" as
mentioned in Article VI of the Constitution. In addition to these
perversions of our system of government, the Act has been extended to allow
"Listing" of subspecies, races, populations, distinct populations, and even
distinct population segments. Other exaggerations have emerged like the
carte blanche authority for the Federal government to put whatever animal
they want, wherever they want; no matter the harm or danger. This latter is
exemplified by forced wolf introductions over vast areas where their havoc
on livestock, pets, and rural communities is forced with all the sensitivity
of foreign dictatorships. Examples of the elasticity of "science" to allow
Endangered Species Listings to close down logging, stop roads, destroy dams,
stop energy development, etc., etc. have become legion. The Act has, as a
result, enriched Federal bureaucrats and University professors but even more
ominously advanced the agendas of extremist environmental and animal rights
organizations that are ultimately aiming to achieve a centrally controlled,
socialist government that they control.
The 1973 Act was conceived and drafted by Federal bureaucrats, UN
bureaucrats, radical organizations, and University professors. Passage of
the Act was enabled by the tremendously appealing photo opportunities and
political capital for posturing Federal politicians. Since passage, the
same groups have first intimidated and then bought off State bureaucrats and
increasingly State politicians appreciative of Federal funds. State
Constitutional jurisdictions like the Constitutional rights of citizens of
all stripes have steadily flowed to Federal bureaucrats and their
"cooperators". Thirty years of precedents set mainly by these same groups
harmonizing lawsuits and "partnering" (like the Defenders of Wildlife
posturing as a cooperator with the US Fish and Wildlife Service ostensibly
paying ranchers for wolf damage while the wolves spread and get established)
have created a threat to our system of government that must be altered or
repealed before it transforms the United States into a socialist autocracy.
Today there is much talk about "reforming the ESA". I would observe that
the ESA was conceived and marketed by persons with narrow agendas that
either disregard or actually despise our unique Constitutional form of
government. Thirty years of radical environmental Federal employees
representing the US at the UN, writing and enforcing regulations, and
working with all manner of surreptitious alliances here at home and abroad
to establish US case law that justifies further expansion cannot be
"reformed" by changing a few adverbs or insisting on "sound science". CITES
does NOT require all of these radical domestic changes in our government.
The Act implementing CITES (the Endangered Species Act of 1973) CAN be
rewritten to implement CITES WITHIN our unique form of Constitutional
government.
Who should (or can) do this? NOT the Federal bureaucracies that made the
mess. NOT the University professors who profit from the mess. Not the
radical organization staff (either openly or clandestinely) that have been
manipulating the bureaucrats (both State and Federal) to accomplish
extremist agendas. NOT State bureaucrats who have grown so submissive that
they follow the Federal budget process more than the budget processes of
their own State. All of these profit from the current system and have
personal stakes in preserving the status quo.
The ones we must look to for reforms are the State and Federal ELECTED
OFFICIALS that draft and pass our laws. The President (and his appointees),
the US Representatives and US Senators (and their staffs), and the Governors
and State Legislators are the one we must look to. Hopefully, we are
electing politicians with the will to both implement CITES and preserve the
very aspects of our government (private property, States Rights, and defined
Federal responsibilities) that have made this nation great. These elected
officials (not a scientist or a bureaucrat or some radical activist) are the
ones WE charge with drafting and passing the laws that the courts enforce.
It is their role to get us out of this mess just as they played the ultimate
role in getting us into this mess.
So if there is interest among our elected officials for both Endangered
Species conservation AND the preservation of our Constitutional framework;
here are a few suggestions for consideration when "reforms" are discussed.
- A revised Endangered Species Act might look like this:
"The conservation and preservation of all domestic and foreign species of
wild plants and animals is a goal of the government of the United States.
Foreign species of wild plants and animals shall be treated in accordance
with international Treaties and Conventions signed and ratifies by the
government of the United States. Domestic species of wild plants and
animals shall likewise be preserved and managed in accordance with the
authorities for such plants and animals specified in the Constitution or as
specifically named in international Treaties and Conventions signed and
ratified by the government of the United States."
Domestic species of plants and animals not specified in Treaties or
Conventions are, and shall remain under the jurisdiction of State
governments as specified in the Constitution with the following exceptions:
1.) Whenever a species of wild plant or wild animal naturally occurring
in and indigenous to the United States (hereinafter referred to as
"domestic" for the purposes of this Act) is documented to be below eight
percent (8%) of its' average national population level or average national
range size over the past 100 years throughout the United States it may be
declared "Threatened". The Federal government may then encourage management proposals intended to increase such species to levels above the 8%
threshold. Financial incentives and cooperative schemes with willing States
and private landowners to encourage such conservation may be submitted to
Congress for annual Appropriation considerations. Declaration of such
status shall NOT affect the primary authority of State governments over such
species. Such authority shall remain with State governments where such
species occur or may occur. Federal lands should, wherever and whenever
feasible be utilized first for such species before private property is
considered or included in national habitat designations or national areas
important for recovering such species.
2.) Whenever a species of wild plant or wild animal declared
"Threatened" exceeds 8% of its' average national population level or
average national range size over the past 100 years throughout the United
States, that species shall be removed from any concerns under this Act
immediately.
3.) Whenever a species of wild plant or wild animal naturally occurring
in and indigenous to the United States is documented to be below four
percent (4%) of its' average national population level or average national
range size over the past 100 years, it may be declared "Endangered". Where
such species occur in two or more other nations at levels above 4% of their
average population levels or average range over the past 100 years, the
threshold for declaring them "Endangered" in the United States shall be 2%
of their national population levels or national average range of the past
100 years. The Secretary of the Interior then becomes the primary
management authority over such species until it is recovered to "Threatened"
status or becomes extinct. The Secretary shall utilize Federal lands first
and foremost to recover such species and other means as Congress allows or
Appropriates funding to accomplish. Mandatory Federal authority and actions
cease immediately regarding such species when their population or occupied
range reaches either 4% or 2% throughout the United States including all 50
States and Territories.
4.) Whenever a wild domestic species has been declared "Endangered" for
12 or more years, the Secretary of the Interior shall report to Congress on
the status and likely future of management efforts with recommendations to
recover or maintain or abandon such species recovery efforts in the United
States.
5.) Whenever a wild domestic species qualifies to be "listed" as
"Threatened" but is in a relatively stable situation that is not reasonably
expected to worsen in the next five or more years, official declaration of
its' status as "Threatened" may be delayed for up to five years in order to
permit limited funding and efforts to be applied to those species with less
stable outlooks to receive priority from Congress and the Secretary.
Some admonitions that should be included in any reform package:
- No plant or animal grouping or classification beneath the level of
a true SPECIES can be "Listed".
The practice of "Listing" bighorn sheep in California mountains for instance, (where they are in trouble because
Californians refuse to keep their cougars at reasonable levels) when bighorn
sheep are abundant throughout the West should not be allowed.
- Any "taking" of private property, in whole or in part, for the
benefit of a wild plant or animal plant listed as "Threatened" or
Endangered" SHALL be paid for in full by either the State (in the case of a
"Threatened" species) or by the Federal government (in the case of and
"Endangered" species.) If recovering such species is an important national
priority, then like a road or dam or fort or other such "public use" as
mentioned in the Constitution, "just compensation" is ipso facto due the
owner.
- National populations and national ranges should be the only
concern of the Federal government regarding recovery of relict or declining
species. The practice of the Federal government "listing" wolves when they
are abundant in Alaska, much less Canada and throughout northern Asia should
not be allowed. Further, that "listing" the wolf gives the federal
government the authority to stick wolves anywhere and everywhere despite the
objections of citizens, citizen groups, and State governments is repugnant
to a free people.
- Local populations like black bears in southern States or the
Florida panther (a cougar or mountain lion) are and should remain State
responsibilities unless and until black bears or mountain lions are below
the thresholds set in this Federal Act. While healthy grizzly bears prosper
in Alaska, the notion of a Federal concern overriding State Constitutional
responsibilities to force grizzly bears into the Upper Rocky Mountain States
is a travesty.
- When State governments are managing "Threatened" species or the
Federal government is managing "Endangered" species; damage and/or
depredations caused by such protected species like wolves, bears, panthers,
etc. to livestock, pets, working dogs, crops, etc. should be paid for by the
responsible level of government. A plan approved by the Secretary of the
Interior to assure payment for at least 80% of such damage caused by such
"Listed" species must be in place and functioning no longer than 1 year from
the "Listing" of such species.
- Carefully managed utilization of and active management of species
either "Listed" or being considered for "listing" should be considered as
ways to give value to such species beyond an academic appreciation.
Interested citizens plus a cadre of concerned utilizers of a species are
worthwhile adjuncts to State and Federal biologists and academic experts.
- Congressional authorization should be mandatory for any
reintroduction of a wild plant or animal species that is officially objected
to by an affected State. Unlike the way that a Federal agency was denied
Federal funding to reintroduce wolves in the Upper Rockies and then the
agency merely used money it had no right to, to introduce the wolves over
the objections of the affected States, Congress should have an enforceable
veto over any such future action.
- Encouragement of proactive management programs for wild plants and
animals should be stressed at every opportunity in any reform effort.
Preservation of species and biodiversity has become a mask for a total
"hands-off" approach that jeopardizes the species further and creates
ancillary problems of firefighting, reduced management funding, and a
government workforce dedicated to depopulating the rural US countryside of
residents like some Asiatic horde sweeping across Europe 1600 years ago.
Endangered Species can be cared for best under the same system of government
that is responsible for our premiere position in the world. We can and
should strengthen both our system of government AND the diversity of our
environment. This compendium is intended to foster that discussion and
perhaps suggest a point or points that may be useful to this effort. This
is not all inconclusive, for instance the responsible Federal officials
might be several Secretaries and I ignored grant administration entirely.
While the percentages I suggest are merely my best guess as where to start,
the principle they represent are what I believe our elected representatives
should represent to us and the rest of the world as the American way to
provide for our environment and our citizens simultaneously.
Jim Beers
24 December 2004