Endangered Species Act,

Many Celebrated the Endangered Species Act's 40th year, yet, the clear minded are looking more closely at the results.   While it is true that many species are more abundant than they were when the Act was passed in 1973, it is also true that the costs and unintended consequences of the law have burdened private property owners, our food producers,  and the economy of the United States.  Some of this is examined in the links below.  While digesting the work of others collected below will be somewhat time consuming, an understanding of the Endangered Species Act and the events and effects it has brought about will be worth while. This paper http://www.defendruralamerica.com/files/ESA%27sFall.pdf  examines the history of the Supreme Courts' rulings, and Tennessee Valley Authority v. Hill http://www.invispress.com/law/environmental/tennessee.html  .  Two statements of the court from that case are that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost”, and that "In our Constitutional system the commitment to the separation of powers is too fundamental for us to preempt congressional action by judicially decreeing what accords with 'common sense and the public weal.  Our constitution vests such responsibilities in the political branches."  While this statement is true, it certainly depends on a system which has not been corrupted. An excerpt from the introduction of this paper outlines what is being looked at in the paper.

This Article is the first to examine the ESA’s remarkable fall from grace in the Court. It does so not only as a measure of where the ESA has traveled in the Court, but also more broadly to examine where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law.  Part I provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill
decisions in their jurisprudential contexts. The body of the Article then moves through three lessons that Hill’s suc-
cessors have to offer. Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the natural environment as a jurisprudential context. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while the Court has at times seemed apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the
history of the ESA in the Court about the design of environmental laws, particularly those aimed at ecosystem protection and biodiversity conservation.
 
In another look at the Act, Brian Seasholes, in an article from Reason Foundation explains the ESA and the Eagle, and how the Eagle came to proliferate, in spite of the ESA.
Brian Seasholes

http://reason.org/news/show/endangered-species-act-profiles.html and here Brian again separates fact from fiction. http://reason.org/news/show/falcon-facts-falcon-follies Here Brian Seasholes explains how Federal Law Pits Landowners against Eagles. http://reason.org/files/5b1a53503729a50cbca6d5047efce846.pdf   This article by Karen Budd Falen, Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, explains the enormous costs to taxpayers.  "The ESA was signed into law in 1978 with the best of intentions. However, over the years it has become the battle cry to eliminate private property rights and property use, shut down agriculture and other industries and fund radical environmental groups and their attorneys."  The author enlightens us about the millions of dollars wasted. http://evergreenmagazine.com/web/The_Crippling_Cost_of_the_Federal_Endangered_Species_Act.html   Garkane Energy Cooperative CEO Carl Albrecht testifies about the strong-arm tactics used by the National Wildlife Defense Fund, and the extraordinary costs caused by the ESA. http://www.richfieldreaper.com/news/local/article_99697530-725f-11e3-9b37-001a4bcf887a.html Here you can review the testimony of others in the recent House Natural Resources Committee  oversight hearing entitled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” http://naturalresources.house.gov/news/documentsingle.aspx?DocumentID=364253   In this excerpt from a USFW page, it it clear that state governments adopt plans for proposed endangered species even before they are listed, in order to comply with possible future plans...does this make sense?...Recent Actions: The U.S. Fish and Wildlife Service is making available a draft Environmental Assessment (EA) and a draft umbrella conservation agreement to augment ongoing efforts to enhance the abundance and distribution of the greater sage-grouse throughout its historical range in Wyoming. The purpose of the umbrella conservation agreement, known as a Candidate Conservation Agreement with Assurances (CCAA), is to encourage landowners to voluntarily implement conservation measures to conserve, restore, or enhance habitat for the greater sage-grouse on non-Federal lands in Wyoming. In return, participating landowners and land managers would receive regulatory assurances concerning land use restrictions that might otherwise apply to them should the greater sage-grouse become protected under the ESA. here is the page:  http://www.fws.gov/mountain-prairie/species/birds/sagegrouse/ This article from a Montanan decries the successes and stresses of the ESA, and calls for common sense amendments to the ESA to correct the "at all costs" implementation of the ESA resulting in extreme economic hardships. http://www.dailyinterlake.com/opinion/editorials/article_55779820-74fd-11e3-866c-001a4bcf887a.html And from another Montana article: http://www.flatheadnewsgroup.com/hungryhorsenews/article_25fde9bc-7707-11e3-97e7-001a4bcf887a.html   In a disastrous set of events related to a different species listing, the Delta Smelt, begin with the USFW page describing the Delta Smelt. http://www.fws.gov/sfbaydelta/species/delta_smelt.cfm Here are two article describing the effects of the listing: The devastation of farmland, http://www.defendruralamerica.com/DRA/San_Joaquin_Valley.html and the detrimental effect on water supply to cities. http://www.kpbs.org/news/2013/feb/12/delta-smelt-deaths-means-less-water-central-and-so/ And here is an organization dedicated to solving the problems created by the listing. http://www.familywateralliance.com/ In this New York Times article, a judge is quoted in his decision to  send an Interior Department plan for water distribution that is intended to help protect the endangered delta smelt back for reworking. “The court finds that Dr. Norris’s testimony, as it has been presented in this courtroom and now in her subsequent declarations, she may be a very reasonable person and she may be a good scientist, she may be honest, but she has not been honest with this court. I find her incredible as a witness. I find her testimony to be that of a zealot. I’m not overstating the case, I’m not being histrionic, I’m not being dramatic. I’ve never seen anything like it. And I’ve seen a few witnesses testify.” http://green.blogs.nytimes.com/2011/09/21/more-interior-scientists-are-taking-heat/?_r=0   In a series of articles about the ESA,  Range Magazine explains the results, pitfalls, and fallacies of exploiting the ESA.  This series is most informative, with a range of experts, and though dated will provide a good look at the history of the problems arising from the ESA. http://www.rangemagazine.com/pdf/fall02_endangered4.pdf   This 10 page paper, Does the Endangered Species Act Preempt State Water Law? by Robin Kundis Craig examines 15 cases where Federal ESA protections preempt state water law, including state water rights. This paper presents cases and the ways that preemptions occur, and is well footnoted.  However, the author makes no judgements of the consequences of these preemptions which have been in some cases catastrophic to farming and other industry we depend upon, not to mention the wide-ranging damage to Property Rights. http://www.law.ku.edu/sites/law.ku.edu/files/docs/law_review/symposium/craig-materials.pdf   It is clear in the article below the extreme costs of ESA restoration projects,  and attitudes disregarding our farms in the battle for water rights is ongoing and wasteful.  Unfortunately those with high ideals for habitat are willing to forgo the farms which feed us all for undetermined benefits to species, including human beings. "Environmental groups including Water Watch and Oregon Wild have suggested downsizing the amount of irrigated agriculture in the basin and ending farm leases in the Klamath Basin Wildlife Refuges" http://earthfix.opb.org/communities/article/wyden-klamath-basin-restoration-agreement-costs-to/   Here is a recent example of a posting by the Center for Biological Diversity, explaining yet another petition for yet another Endangered Species Act filing. http://www.biologicaldiversity.org/news/press_releases/2014/wingtail-crayfish-01-06-2014.html The discussions and examples above suggest we all keep a close eye on legislation regarding the Endangered Species Act, and support, and in many cases point out to, those in government who wish to bring a close to the absurdities which have occurred over the years.  The implementation of the ESA, and the abuses of law which have evolved from the corruption of the system of government, NGO's, and those entities wishing control and federal monies most certainly must be reigned in if what we as a nation truly want is a fruitful economy and plentiful, healthy resources.            

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January 7, 2014

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