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Endangered Species Act: Weaponizing law to crush industry, property rights

Endangered Species Act

Free Ranch Report

June 26, 2017

Jonathon Wood

Investor’s Business Daily

Protect Workers, Property Owners From Endangered Species Act Abuses

President Trump campaigned on a promise to repeal 70% of federal regulations, eliminating red tape to promote job growth and economic development. Any regulatory reform effort should initially focus on the low-hanging fruit — those regulations which are needlessly costly and counterproductive. Based on that, regulatory abuses under the Endangered Species Act should be the first scrutinized.

The Endangered Species Act, thanks to its crippling “take” prohibition, has been incredibly disruptive to rural communities, including many of those that supported Trump. For decades, that statute has encouraged environmental special interests to push for ever more species to be listed, to shut down economic activity they dislike. And, although countless jobs have been lost as a result, the statute has reaped only mediocre benefits, including a less than 2% recovery rate for listed species.

The Endangered Species Act is a powerful weapon for environmental groups because it forbids the “take” of any listed species, which prohibits essentially any activity that adversely affects a single member of a species or its habitat. This prohibition deprives owners of private property of the rights that most of us take for granted in owning land.

Consider, for instance, the people of southwestern Utah who cannot build homes, start businesses or protect the airport and cemetery from a local rodent because the rodent in question, the Utah prairie dog, is listed as threatened under the Endangered Species Act.

Representing those residents — who formed the organization People for the Ethical Treatment of Property Owners — Pacific Legal Foundation is challenging the constitutionality of this regulation as exceeding the federal government’s power under the Commerce Clause.

In 2015, a federal court agreed that this constitutional power does not permit the federal government to forbid noneconomic activity affecting a species with no connection to interstate commerce. That decision is now on appeal to the 10th Circuit Court. As the case continues, the Trump administration will have to decide whether to defend this unconstitutional and burdensome regulation.

The incoming administration’s regulatory reform effort should also focus on empowering states to protect the environment in ways more sensitive to the adverse impacts on their residents.

The Utah prairie dog case provides a good blueprint. After the federal regulation was struck down as unconstitutional, the state stepped in and protected the species while accommodating property owners’ concerns, chiefly by moving prairie dogs from backyards, airports and cemeteries to public lands where they could be permanently protected.

The groundwork has already been laid for the Trump administration to reduce the Endangered Species Act’s unnecessary burdens. Last year, Pacific Legal Foundation, representing the National Federation of Independent Business and Washington Cattlemen’s Association, petitioned to repeal a federal regulation that illegally extends the statute’s broad take prohibition to “threatened” species — those facing the least threat.

The president’s appointees can immediately repeal the regulation, which would benefit both property owners and species. In addition to the myriad policy problems, the regulation is illegal. Congress consciously chose to limit this burdensome prohibition to those species facing the greatest threats.

As then Sen. John Tunney put it when advocating for the statute’s adoption, this “stringent prohibition” should “be absolutely enforced only for those species on the brink of extinction.”

Repealing this illegal regulation would also benefit property owners and the economy. Many of the most significant impacts of the Endangered Species Act have been a result of this regulation. For instance, when the northern spotted owl was listed as threatened, the regulation decimated the timber industry in the northeast. Many other rural communities have similar war stories.

Businesses and property owners are not the only ones who would benefit from repealing this regulation. Endangered and threatened species will also benefit. This regulation is counterproductive. By treating species the same, regardless of the seriousness of their threats, it undermines incentives for conservation. Repealing it would encourage conservation through the promise that successful efforts to recover endangered species would be rewarded with the lifting of burdensome regulations.

Although any effort to reduce overregulation will be met with howls from those special interests who benefit from it. By focusing the initial reform efforts on burdensome and counterproductive regulations like this, the Trump administration can blunt the inevitable criticism by claiming the environmental high ground. It should.

Endangered Species Act: Weaponizing law to crush industry, property rights

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

 

1 Comment

1 Comment

  1. Pearl Rains Hewett  •  Jul 1, 2017 @9:13 am

    The 1973 Endangered Species Act, which protects the salmon, dictates that species must be protected at all costs.

    Federal Judge Oliver W. Wanger (1991-2011)

    “Federal judges don’t make the law or set policies. We simply apply what legislators decide,” Wanger said. “It’s up to Congress to change the law if people don’t like it.”

    The Endangered Species Act of 1973 (ESA) was signed on December 28, 1973, and provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend.

    —————————————————
    Indeed, 1973-2017

    “Federal judges don’t make the law or set policies. We simply apply what legislators decide,” Wanger said. “It’s up to Congress to change the law if people don’t like it.”

    ————————————————————–
    JAN 27, 2017 (Trump has been president for one week)

    “It’s up to Congress to change the law if people don’t like it.”

    H.R.717 – 115th Congress (2017-2018): Listing Reform Act | Congress …
    https://www.congress.gov/bill/115th-congress/house-bill/717
    Shown Here: Introduced in House (01/27/2017). Listing Reform Act. This bill amends the Endangered Species Act of 1973 to allow the Department of the Interior …

    I support H.R 717 and President Trump.
    ———-

    MEANWHILE IN WA DC…

    The Trump budget cuts the Cooperative Endangered Species Conservation Fund, which allows state and federal partners to recover currently listed species, by $34 million, a 64 percent reduction. The budget also reduces funding for foreign endangered species like elephants, rhinoceros and tigers by 19 percent, and reduces the funding for the listing program by 17 percent.
    ———————————————————————-

    “Over the course of the last two decades, (1991-2011) no one has had a greater influence on California water than Judge Wanger

    full unedited text….

    Federal judge who ruled in water cases steps down
    • The Signal
    • 25 Sep 2011

    FRESNO (AP) — A federal judge whose rulings in highprofile California water cases have had far-reaching impact on protections of threatened fish species and on how much water flows from the SacramentoJoaquin Delta to farms and cities is stepping down after two decades on the bench.

    The decisions of judge Oliver W. Wanger — who leaves the courthouse on Sept. 30 — have at times angered farmers, environmentalists and federal government officials. Despite this, Wanger, 70, is recognized by all sides for his historic role and his strict adherence to the law.
    “Over the course of the last two decades, no one has had a greater influence on California water than Judge Wanger,” said Tom Birmingham, general manager of the Westlands Water District, the largest agricultural water district in the nation, which has participated in numerous cases before the judge. “There isn’t a judge for whom I have greater respect.”
    Bill Jennings of the California Sportfishing Protection Alliance, which has often opposed Westlands in court, echoed the sentiment: “We have found him to be a fair judge who addresses what is before him.”
    Despite his departure, Wanger continues to wield considerable power. Those critical of the judge were unwilling to say so openly and others did not want to comment due to pending litigation. Several federal agencies as well as environmental groups Earthjustice and the Natural Resources Defense Council would not comment about the judge’s legacy.
    Wanger said he was stepping down due to family obligations as well as a crushing caseload. The judges in the Eastern District of California, which stretches from the Oregon border to the Tehachapis, have an average of 1,200 active cases each, he said, one of the highest caseloads in the nation. The remaining two Fresno judges will divide up Wanger’s cases, including water cases.
    “The work to be done and the ability without the resources to do it is inexplicable,” Wanger said.
    The judge puts in 75 to 80 hours per week, often spending weekends doing research. Wanger has four sons, one stepson and seven grandchildren.
    Hobbies? The law, he says. But he also likes cars, has an aquarium with tropical fish in his chambers and does take occasional fishing trips with his children.
    Wanger is best known for his mastery of arcane state and federal water rules and for the technical detail of his oft-several hundred pages long rulings.
    “I think those cases have been an incredible challenge,” said Holly Doremus, a law professor at the University of California, Berkeley. “Judge Wanger took very seriously the task of sorting through the facts in these extremely complex, scientific cases.”
    Wanger has made more than 90 decisions concerning water. In recent years, as the health of the delta deteriorated and fish populations collapsed, his rulings aimed at protecting the threatened smelt, salmon and other fish have restricted water deliveries. Those cutbacks, as well as restrictions tied to a three-year drought, upset water users, spelling losses for more than 25 million urban Californians and for growers in the state’s farm belt.
    But the judge later upset environmentalists when he temporarily lifted the restrictions to speed more water to fields. And several times the judge chastised federal agencies for using sloppy science and ordered them to rewrite their plans to protect the smelt and salmon while assessing the impacts on cities and farmers.
    Some legal experts have criticized Wanger for requiring very high levels of proof, including an environmental analysis, from federal agencies as part of their fish protection plans.
    Wanger acknowledges that his rulings upset people, but he cautioned that the public sometimes expected solutions not in the purview of a judge, especially when it comes to balancing the needs of fish and humans. The Endangered Species Act, which protects the salmon, dictates that species must be protected at all costs.
    “Federal judges don’t make the law or set policies. We simply apply what legislators decide,” Wanger said. “It’s up to Congress to change the law if people don’t like it.”
    The judge said he expected the water cases to drag on for years.
    “I think the legacy of these cases,” Wanger said, “is that they have focused on the very substantial problem that faces California in its water supply, how the state should prioritize it, develop it, store it and use it.”
    Wanger, who was born in Los Angeles, was nominated to the bench in 1991 by then-President George W. Bush. He got his degree from the Boalt Hall School of Law at UC Berkeley.
    He first came to Fresno in 1967 as a deputy district attorney and later went into private practice. Five years ago, he assumed senior status, but instead of going into semiretirement he kept his entire caseload.
    He is returning to private practice at the newly created firm of Wanger Jones Helsley PC. He has already started teaching at the Clovis-based San Joaquin College of Law, which he helped found in 1969.
    —————————————————————-

    People don’t like the ESA, it’s up to Congress to change the law.

    I support H.R 717 and President Trump

    H.R.717 – 115th Congress (2017-2018): Listing Reform Act | Congress …
    https://www.congress.gov/bill/115th-congress/house-bill/717

    Shown Here: Introduced in House (01/27/2017). Listing Reform Act. This bill amends the Endangered Species Act of 1973 to allow the Department of the Interior …

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