May 16, 2015

Endangered Species Day is for protecting species, not federal control

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

May 15 was Endangered Species Day. For some farmers, ranchers, and other property owners who can’t develop or use their land in a productive manner because of federal dictates, every day is devoted, unwillingly or not, to endangered species.

Kretschmarr Cave Mold Beetle

As Brian Seasholes explains here, concern for endangered species is inconsistent with reverence for the Endangered Species Act (ESA). The ESA’s focus on criminal threats, fines, and national control that unreasonably lock up land without compensation is counterproductive to protecting threatened species. If the ESA were reformed, states and private parties would be willing and able to do a lot more to protect species. As Seasholes but it: “America’s landowners have a strong conservation ethic, are patriotic, and would be willing and proud to conserve their country’s most vulnerable species so long as they are not punished for doing so, their property values and livelihoods are not jeopardized, and if they receive some compensation.”

Endangered Rock Gnome Lichen

One of the many problems with the ESA is that the national government applies its punitive policies even for species that exist solely in one state and are not sold in interstate commerce—thus purporting to preempt state efforts and experimentation to protect them. Of the approximately 2000 listed species, most are not cuddly mammals that roam the plains and ply the seas. Several exist in one region of one state. There are hundreds of listed plants, many of which are found in only one state; two are lichen that cling to rocks; and some are bugs that live in caves in one Texas county.

In PLF’s challenge to this federal overreach, it won an important victory on behalf of the People for the Ethical Treatment of Property Owners (PETPO) relating to the Utah prairie dog. The rodent that numbers in the tens of thousands is causing mayhem on private and city property in one town. It might do even better if some animals could be relocated to state lands, but the feds won’t allow that if it wins an appeal. As Jonathan Wood has explained, PLF’s district court victory was the first time a federal court struck down an endangered species regulation as exceeding the federal government’s constitutional powers. The case is on appeal in the U.S. Tenth Circuit. PLF files its brief on May 18.

Senator Mike Lee (R-UT) agrees with PLF and has introduced the Native Species Protection Act (S. 1142) that would clarify that the ESA does not regulate non-commercial species found entirely within a single State.

At noon on June 2, PLF and the Competitive Enterprise Institute will co-sponsor an event on Capitol Hill with Senator Lee, House Committee on National Resources Chair Rob Bishop (R-UT) and a panel of scholars, including Jonathan Wood, conservationist Rob Gordon, and a senior lawyer for Defenders of Wildlife, Jason Rylander, who disagrees with us. The event will focus on the following questions:

  • What limits does the Constitution place on federal regulations under the ESA?
  • Should Congress resolve that issue instead of the courts?
  • Would endangered species be better protected or worse off if PETPO prevails in court or S. 1142 is enacted?

This flyer provides the event details. If you want to attend, please RSVP by contacting Kate Pomeroy at KAP@pacificlegal.org or (202) 465-8733.

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