The Endangered Species Act, and how the Act is being used, should be a priority both in the States and in Washington, D.C.
The Endangered Species Act (“ESA”) in its current form has been around since 1973. Supposed environmental legislation from the early 70’s (the ESA, Clean Air Act, Clean Water Act, and the EPA itself) was pushed and passed by the Nixon administration and has been the foundation for environmental activism ever since. In 1973 there were 137 species listed under the Act and by August, 2014 the number had grown to 1,560 with over 757 additional species under consideration by 2018.
Lately the ESA has been used to limit energy development, or at least make it more expensive. But it is far more than energy development that is affected. Agriculture and personal property rights are targets as well. The overreach by the federal government reaches across the country.
The ESA and the other Acts mentioned above come with impressive titles, but the results are not very impressive. The federal government has gained control of more and more private property, and worked with environmentalists to slow and stop economic development in vast areas of our country costing taxpayers millions of dollars. And after all of that, the record of saving “endangered species” is incredibly poor.
For a good background on the ESA see “It’s time to Endanger the Endangered Species Act” by Taylor Smith of the Heartland Institute.
In North Dakota, the US Fish & Wildlife Service (“USFWS”) has placed the Dakota Skipper and the Poweshiek Skipperling on the protected list of the ESA. USFWS is looking at adding the Rufa Red Knot, Sprague’s Pipit, Greater Sage Grouse, Monarch Butterfly, Sturgeon Chub and Sicklefin Chub to the protected list as well.
Based on history, protection of any of these species under the ESA will not result in actual benefits for the species, but it will increase federal government control over private property and limit authorized uses of that private property.
Once a species is protected under the ESA the federal government exerts full control over the “habitat” including a large buffer zone in which economic activity is effectively stopped. In addition, landowners face fines of $100,000.00 and jail time if they violate the USFWS rules. And, after all of that there is no evidence that the ESA actually benefits the listed species. In fact, the only evidence available shows it actually harms the species it is supposed to protect.
Sue and Settle
The ESA and the other Acts mentioned have been a financial windfall for extreme environmental groups. These groups work closely with allies in the federal government to file friendly lawsuits that the federal government promptly settles without giving property owners the opportunity to challenge the allegations. This ‘Sue & Settle’ scam works because the people directly affected by the “lawsuit” are usually unaware it is happening. By the time the case is settled it is too late. But there’s more. Because the federal agency agrees to settle these “lawsuits”, we the taxpayer get to pay the attorney fees for both sides. The extreme environmental groups are financing their efforts with our money. And their goal is not the protection of “endangered species” or the betterment of the people of the United States.
Action in ND
Many states are taking action to address legitimate endangered species issues. North Dakota has a strong history of stewardship of our natural resources and has programs in place that actually achieve the goal of species preservation. Going forward the States should work individually and regionally to develop locally based programs that work with our farmers, ranchers and businesses, not against them.
North Dakota is blessed in many ways and one significant blessing is low proportion of federal owned land in the state. Federal agencies are working to change that fact by using the ESA to “claim” private property. The situation is worse in many western states where over 50% of land is owned or controlled by the federal government.
Still, the federal government’s appetite for more land continues to grow. The ‘Cromnibus’ Bill passed by Congress last December included a provision in the National Defense Authorization Act giving wilderness designation to an additional 250,000 acres and removing 400,000 acres from commercial use.
The North Dakota Legislature just passed HB 1432 that provides the framework and resources to fight these federal land grabs. The Statute establishes a Committee headed by North Dakota’s Commissioner of Agriculture to review the actions and administrative rules from Federal agencies which have, or may have, a detrimental impact on the State’s agriculture, coal and oil & gas industries. The Legislature also appropriated funds to cover costs from “sue & settle” actions and other litigation. This legislation also allows for private donations to this fund to defray costs and assist in the cause.
All the States should stand together on the issues of state sovereignty and federalism.
Action in Washington D.C.
Congress should also take a hard look at how the executive branch is implementing the ESA and the other Acts mentioned earlier. Congress created these Acts and passed the laws that the Federal agencies are now using against State and private property interests. To the extent that agency rule making exceeds the legislative intent Congress must regain its authority.
In North Dakota, the Legislature reviews and approves the rules that agencies adopt to carry out legislative intent. Agency rules and procedures must be directly related to legislative intent and the executive branch is not authorized to make new laws by interpreting or modifying statutes.
Federal agencies are not authorized to make law, but that would come as a surprise to many farmers and ranchers. Federal agencies were intended to implement and enforce legislation passed by Congress. However, through the rule making process Federal agencies have “interpreted” and expanded legislative acts to the point that original legislative intent is unrecognizable. Whether driven by ideology, the quest for power, or both, Federal agencies have far more power and authority than was intended. Congress is the branch with the ultimate authority and it is time to reclaim that constitutional role.
If Congress wants to have an immediate and lasting impact on the economy, environmental stewardship, jobs and basic property rights it should take its role as the legislative branch seriously. It should revise or repeal the ESA, and the other Acts mentioned, develop stronger oversight of agency rules and return authority over environment and land issues to the states.
Endanger species – and endangered industries – are counting on you.