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To: Citizens' Alliance for Property Rights

Sent: Tuesday, September 06, 2005 9:19 AM

Subject: [Capr-discussion] FW: A Must-Read
for all Elected Officials andAll: The Many Facets of
The Endangered Species Act (updated version)

From: Julie Smithson

Sent: Tuesday, September 06, 2005 8:52 AM

Subject: A Must-Read for all Elected Officials and All: The Many Facets
of The Endangered Species Act (updated version)

The Many Facets of The Endangered Species Act (updated version)

August 27, 2005

Original version published in May
2002

By Julie Kay Smithson

http://www.propertyrightsresearch.org/articles6/many_facets_of_the_endangered_sp.htm

Origins of the ESA

Congress passed the Endangered
Species Preservation Act (ESPA) in 1966. This law allowed listing of only
native animal species as endangered and provided limited means for the
protection of species so listed. The Departments of Interior, Agriculture, and
Defense were to seek to protect listed species, and insofar as consistent with
their primary purposes, preserve the habitats of such species. Land acquisition
for protection of endangered species was also authorized.

The Endangered Species Conservation
Act of 1969 (ESCA) was passed to provide additional protection to species in
danger of "worldwide extinction". Import of such species was
prohibited, as was their subsequent sale within the U.S. This Act called for an
international ministerial meeting to adopt a convention on the conservation of
endangered species.

A 1973 United Nations conference in
Washington D.C. led to the signing of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), which restricted
international commerce in plant and animal species believed to be actually or
potentially harmed by trade.

Later that year, the Endangered
Species Act of 1973 (ESA) was passed, which combined and considerably
strengthened the provisions of its predecessors. Many definitions contained in
the ESA come directly from UN and IUCN (International Union for the
Conservation of Nature) glossaries, including but not limited to CITES definitions.

The ESA is arguably one of the most
recognized acronyms in rural America. First written in 1973, it has undergone
numerous revisions. This law of the land contains more facets than
the Hope Diamond and may have its purported curse as well. Mere mention of a
landowner having possible habitat for a protected, threatened, or
endangered species wreaks immediate havoc, both emotionally and economically.
The ESA was amended in 1976-1982, 1984 and 1988, and actually expired in the
early 1990s, but has been kept alive through Congressional funding
on an annual basis.

A few definitions from the ESA are
necessary in order to understand the complexities of the Act itself:

The ESA definition of an endangered
species is Any species which is in danger of extinction
within the foreseeable future throughout all or a significant portion of its
range.

The terms ''conserve'',
''conserving'', and ''conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this chapter
are no longer necessary. Such methods and procedures include, but are not
limited to, all activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the extraordinary case
where population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.

The term ''critical habitat'' for a
threatened or endangered species means -

(i) The
specific areas within the geographical area occupied by the species, at the
time it is listed in accordance with the provisions of section 1533 of this title,
on which are found those physical or biological features

(I) Essential to the conservation of
the species and

(II) Which may require special
management considerations or protection; and

(ii) Specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 1533 of this title, upon a
determination by the Secretary that such areas are essential for the
conservation of the species.

A "threatened"
classification is provided to those animals and plants likely to become
endangered within the foreseeable future throughout all or a significant
portion of their ranges [Section 3].

A "species" includes any
species or subspecies of fish, wildlife, or plant; any variety of plant; and
any distinct population segment of any vertebrate species that interbreeds when
mature. Excluded is any species of the Class Insecta
determined by the Secretary to constitute a pest whose protection under the
provisions of the Act would present an overwhelming and overriding risk to man
[Section 3].

The term ''fish or wildlife'' means
any member of the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty or other
international agreement), amphibian, reptile, mollusk, crustacean, arthropod or
other invertebrate, and includes any part, product, egg, or offspring thereof,
or the dead body or parts thereof. [any
mammal could this not be expanded to include humans?]

The term ''take''
means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. [This definition is
especially meaningful from the context of those human species who have been harassed, harmed, pursued, wounded,
etc. by the implementation of the ESA.]

While we are familiar with the
enforcement of the ESA in America, the Act and its enforcement have expanded to
include species found anywhere on the planet. By specific exclusion as a
species, human populations have become victims of the ESA.

The full 49-page text of the Act may
be found at http://www.house.gov/resources/105cong/reports/105_c/esa73_pdf

Listing

The listing process was originally
planned to protect both species and their habitat. U.S. and foreign species
lists were combined, with uniform provisions applied to both (Section 4).

Categories of "endangered"
and "threatened" were defined (Section 3).

Broad taking prohibitions were
applied to all endangered animal species, which could apply to threatened
animals by special regulation [Section 9].

Authority was provided to acquire
land for listed animals and for plants listed under CITES [Section 5]; and U.S.
implementation of CITES was provided [Section 8].

All Federal agencies were required to
undertake programs for the conservation of endangered and threatened species,
and were prohibited from authorizing, funding, or carrying out any action that
would jeopardize a listed species or destroy or modify its "critical
habitat" [Section 7].

Significant amendments were enacted
in 1978, 1982, and 1988 although the overall framework of the 1973 Act remained
basically unchanged.

As with most other Federal
regulations, a species is proposed for addition to the lists (50 CFR Part 17)
in the Federal Register. The public is offered an opportunity to comment, and
the rule is finalized (or withdrawn). Species are selected by the United States
Fish & Wildlife Service (FWS) for proposed rules from a list of
'candidates.' To become a candidate, FWS relies largely upon petitions, FWS and
other agencies' surveys, and other substantiated reports on field studies. The
Act provides very specific procedures on how species are to be placed on the
list (e.g., listing criteria, public comment periods, hearings, notifications,
time limit for final action) and may be found at 50 CFR Part 424. Selection
from the list of candidates for a proposed rule is based upon a priority system
(September 23, 1983, Federal Register).

Species may be active candidates
from a number of sources. FWS has its own biologists who are monitoring the
status of some species. Other agencies [Nature Conservancy, Center for
Biological Diversity and others] have similar staffs that can report when a
species seems to be at some risk to its continued existence. Informal letters
and various reports are also submitted to FWS from the States and private
groups and individuals. There is also a formal petition process available under
the Act.

Anyone can petition to have any species
-- as defined in the ESA -- listed.

In the years since its inception,
this process has expanded to include possible habitat and has often
used the critical habitat designation to halt human use of large
blocks of land. In a 1998 memo, Donna Darm, the
acting regional administrator of the National Marine Fisheries Service (NMFS /
NOAA agency) wrote: When we make critical habitat designations, we just
designate everything as critical without analysis of how much habitat a
(population) needs, what areas might be key, etc. We just say we need it
all."

"This has been our assumption
of their attitude all along," said Chuck Garner, manager of the Kennewick
Irrigation District in the mid-Columbia Basin of Washington State. He gave
district directors copies of the comments at a board meeting. "They just
go in without showing any scientific evidence of what habitat is critical; they
just list everything," Garner said.

Some species have been
emergency listed in order to stop road improvements. For example, the
bull trout near South Canyon Road at Jarbidge,
Nevada, was the sacrificial lamb used to close the only road for
miles in a remote part of northeast Nevada. Concerned citizens reopened the
road on the fourth of July in 2000 in the face of threats of lawsuits and jail
time.

Plant species are the special
province of the Smithsonian Institution, as directed by the Secretary of
Agriculture. The Smithsonian is to review plant species that are or may become
threatened or endangered, and recommend methods adequate to conserve the
species.

Methodology

Much of what has given the ESA its
black eye with those impacted by it is the methodology involved.

Federal environmental policy
surrounding this law is often seen to pit one species against others, or speciesism.

Lake Koocanusa
is in northwestern Montana and straddles the American-Canadian border. A
manmade lake built in the 1970s by the Army Corps of Engineers,
Koocanusa was promoted to increase fishing and
tourism. A protected species of salmon listed in 1992 has put another
protected species, the White Sturgeon, at risk.

The United States Fish &
Wildlife Service working with the National Marine Fisheries Service,
is conducting a 50-year experiment, using the lake levels to discover
if decreased lake levels in the spring will help the salmon in the Columbia
River, 800 miles downstream. This effectively puts the spawning grounds of the
sturgeon in eminent danger by reducing lake levels at a time when the sturgeon
most needs higher levels. What we have here is a prime example of the
Endangered Species Act violating the Endangered Species Act. Unfortunately, it
is not an isolated example.

In other highly publicized stories,
lynx fur and grizzly bear hair have been used to falsify the boundaries of
critical habitat for both species, leading to the question: How many
other science-based statistics have been invented in order to
create critical habitat?

The Endangered Species Act has been
selectively used to protect species other than human and domestic. Many rural
producers are descendants of war veterans who settled and improved their lands
after government promises of land and water. Indeed, many veterans had deeds --
signed by various U.S. presidents -- granting them and their heirs and
assigns land and water rights in perpetuity.

As prospects for rural economic
survival dwindle, a federal government or environmental group buyout is touted as
the only alternative. Resource providing and resource
extraction -- farming, ranching, logging, mining, and commercial
fishing -- are presented to the general public as hurtful to the
environment and obsolete careers. Tourism and recreation are promoted as
being better for all concerned.

Left out of the equation are the
facts: people, like any other species, need food and shelter for survival. In
order to have both, resource providing and extraction must continue. Sending
both to other countries does not bode well for their economies or their
environment.

Think there's no such thing as
RURAL/CULTURAL terrorism?

A 2000 ESA hearing sponsored
by the Senate Committee on Environment and Public Works actively excluded
testimony from landowners who have seen their property values reduced or zeroed
out by regulations.

Victim stories are legend.
Thousands, perhaps tens of thousands of families and businesses have been
forced to relocate and/or go out of business due to this single statute. Here
are but a few:

*Dave Fisher, third
generation cattle rancher and owner of the Shield F Ranch near
Barstow, California

Dave Fisher has become both the
endangered species and the victim. His story is the tip of the iceberg, as
there are 1,400 ranch families who fell victim to the
ESA along with him.

In late 2001 the Bureau of Land
Management (BLM) sent Dave a notice that if his 307 head of cattle were not
removed from the 154,848-acre Ord Mountain allotment
in the California Desert within 5 days, they would be impounded by the BLM. The
BLM declared its lands and those under private ownership in the affected area
to be "critical habitat" for the desert tortoise. It did not notify
the 1,400 affected families in the area of its intent until after the ink was
dry.

Dave and his neighbors tried to
cooperate with the BLM. They appealed the original BLM May 15, 2001 decision to
the Office of Hearings and Appeals (OHA) and won. That original decision was
remanded back to the BLM because it had failed to consult, cooperate and
coordinate (CCC) with the permittees as required by
Section 8 of the Public Rangelands Improvement Act and as required by the BLM's
own regulations.

Dozens of appeals were filed
protesting the BLM's September 7, 2001 decision.

The BLM did not respond to even
one of those appeals.

The desert tortoise protections
arose from a negotiated California Desert Conservation Area (CDCA) lawsuit
settlement between the BLM, The Center for Biological Diversity (CBD), Public Employees
for Environmental Responsibility (PEER) and the Sierra Club. This agreement
empowered the BLM to partially implement the U.S. Fish & Wildlife Service's
1994 Desert Tortoise Recovery Plan recommendations for livestock reduction and
removal from critical habitat. Proven help for the desert tortoise from cattle
droppings (providing moisture and shade) were not factors included in this
decision. Dave suggested to the California state BLM director that the director
exchange Fishers ranch for another ranch. That offered solution was never
acted upon.

Ironically, it was rancher
stewardship of the land that attracted the desert tortoise. Not until the
Fisher family drilled water wells on its own land did the desert tortoise
became prevalent in the California Desert Conservation Area. The tortoise, in
moving into a new habitat provided by ranchers grazing cattle, attracted the
attention of the environmental groups. It was used it to pressure federal
officials to push Fisher and his 1,400 ranching neighbors off the land.

This is an example of ranchers who
stayed within the system, cooperated fully with all agencies involved and still
-- without court order or decision -- have become the victim. Threats of
lawsuits against the DOI by three powerful environmental groups seem to have
provided the directives for DOI/BLM actions.

*Anita Cragg, Florida builder

In 1992, Anita Cragg,
president of Space Coast Management Services, bought a housing subdivision in
Country Cove, Florida with the goal of building new homes next to existing
ones. She had the necessary building permits and interested buyers lined up
when FWS ordered her to stop all development because it allegedly posed a
hazard to the Florida scrub-jay, a bird which is listed as threatened under the
Endangered Species Act.

What Cragg
didn't understand was how her planned development threatened the scrub jay when
there were no scrub-jay nests on the property.

Both the FWS and an independent
environmental engineer hired by Cragg could not find
any nests on her land.

However, when FWS officials were
surveying her land in 1993, they saw two scrub jays fly onto her lots. Because Cragg's property had the potential to be suitable scrub-jay
habitat, the agency suspended construction for 18 months.

To get construction resumed, FWS
forced Cragg to purchase four acres of land off-site
to compensate for the loss of every acre of potential habitat on her property.
That cost her $100,000. Cragg says her deal with the
government "didn't really help the scrub-jay because we weren't hurting it
in the first place."

*A Sovereign Nations
border

The U.S. Border Patrol's aggressive
efforts to stem illegal immigration and cut crime along the Texas-Mexican
border have been a resounding success. In just two years, Operation Rio Grande,
the agency's high-tech interdiction effort, cut the number of illegal aliens
attempting to cross the border from 216,000 in 1996 to less than 160,000 in
1999 along a 200-mile stretch of the Rio Grande River. If it weren't for the
operation, Border Patrol officials estimate that there would have been 350,000
illegal aliens attempting to cross the border in 1999. In addition, in just one
year, crime in Brownsville dropped 45 percent.

However, if environmentalists have
their way, all of these gains will be negated.

The Sierra Club, Defenders of
Wildlife and the Audubon Society plan to file a lawsuit to put a halt to the
Border Patrol's use of critical interdiction technology the groups claim pose a
threat to endangered species. These groups argue that the agency's use of
high-powered lights, which prevent border crossings under the cover of night,
also disrupts the habits of the ocelot and jaguarondi, two nocturnal-oriented
wildcats on the endangered species list.

"We feel the Immigration and
Naturalization Service can accomplish its job without the floodlight and fences
and with far less intrusive technologies that have no impact on wildlife,"
says Jim Chapman of the Sierra Club.

Not so, says the Border Patrol.
Border Patrol assistant chief Rey Garza says that, "Taking away the lights
will negate everything." The Rio Grande River is pitch
black, making it an obvious haven for illegal aliens and drug criminals. Garza
says that Border Patrol officers have been stabbed and shot trying to do their
job on its murky banks. By installing permanent and mobile light fixtures along
targeted sections of the river, the Border Patrol's ability to catch criminals
and illegal aliens has increased dramatically. Says officer Garza, "the lights have proven to be a powerful deterrent."

The environmentalists' planned
lawsuit especially frustrates Border Patrol officials. They had already agreed
to not place their high-tech equipment in U.S. Fish and Wildlife sanctuaries in
an attempt to address environmental concerns -- even though those sanctuaries
have become refuges for illegal aliens.

*Jay Monfort,
New York businessman with 300-year family history

Jay Monfort
of Fishkill, New York, began the permitting process in 1990 of trying to expand
a gravel mine on his own land. Jay owns a company that manufactures concrete
block. He also owns property that could largely supply the gravel needed for
his business. Fishkill, New York judged Jay to be in compliance with its zoning
regulations and approved the expansion of his Sour Mountain gravel company.

After filing his permit application
with the state Department of Environmental Conservation (DEC) Jay became
ensnared in a process that continues today. His Draft Environmental Impact
Statement (EIS) was rejected as incomplete in April 1993, almost six
months after the state was required by law to issue its opinion. After
resubmitting his EIS, the DEC finally approved it in 1995.

Then the DEC, in collusion with
local environmental groups, devised new and costly reasons to further delay the
project. At what should have been the end of the process, Jay was told that he
would have to start over again because a den of rattlesnakes had been
discovered on an adjoining property owned by --
surprise! -- a conservation group. The protected
species of snakes were not even on Mr. Monforts
property, and his previous EISs had already addressed potential impacts on the
snakes by his mine.

The DEC informed Jay that he would
have to spend several additional years studying the snakes before a decision
could be rendered on his proposed mine expansion.

Monfort declares The
motivation for such abusive tactics appears to be a desire of the state
and the local conservation group, Scenic Hudson, to acquire his property for a
land trust.

Jay has not given up. In January
1998 he filed a lawsuit demanding that the state issue a final decision based
on his original permit application. The permit process alone has cost him more
than $3 million.

A better way to protect wildlife

Federal management of both
endangered species and other wildlife has led to a delicate balancing act. A
major reason for this, according to Howard Hutchinson, executive director for
the Coalition of Arizona/New Mexico Counties, is that critical-habitat
designations for endangered species are often determined by "citizen"
lawsuits rather than being formulated by people who understand the needs of the
species. As a result, he says, decisions are made by Justice Department lawyers
based on agreements reflecting political purposes.

Hutchinson cites an example. As the
result of a much-publicized "citizen" ESA lawsuit filed by some of
the same environmental groups involved in the Klamath Basin crisis, protection
of the Mexican spotted owl virtually eliminated the timber industry in Arizona
and New Mexico several years ago.

Hutchinson, who serves on the
spotted-owl recovery team, says the "resulting growth of underbrush in the
forests has not only led to this summer's devastating wildfires, but has also
had a negative effect on several other species that have been declared
endangered." And, says Hutchinson, research has shown that because of the
increase in timber density the forests are retaining more water, thus
decreasing the amount of water in Southwestern streams by 30 percent. As a
result, he says, the Gila trout, Apache trout, spiked ace and loach minnow --
all of which live in the streams and also were subjects of "citizen"
ESA lawsuits -- are suffering.

Even more bizarre than this pitting
of one species against another, say critics, is the pitting of a species
against itself. This is happening in the case of the Coho salmon, one of the
allegedly threatened fish that was the subject of several of the lawsuits that
forced the government to turn off the irrigation water in the Klamath Basin.

According to the National Marine
Fisheries Service (NMFS / NOAA agency) the government agency that
administers the ESA for marine and anadromous (fish
that migrate from the ocean to freshwater to spawn) species, the salmon being
protected in the Klamath River do not constitute a species as properly defined.
The NMFS says they are just one of 52 "distinct population segments"
-- DPSs -- or " evolutionarily significant
units" (ESU) of salmon that are found in Oregon, Washington state, Idaho
and California. But one-half of the 52 ESUs are protected under the ESA. The
Klamath River fish belong to an ESU called the Southern Oregon/ Northern California
Coasts Coho salmon. It was listed as threatened under the ESA in 1997.

So what distinguishes one ESU of
salmon from another? A genetic difference? No. A difference in the taste of the fillet on the dining-room table?
Not even that. According to a regulation promulgated in 1996 by Bruce Babbitt,
Clinton's secretary of the interior, a group of vertebrates qualifies as an ESU
if it "is markedly separated from other populations of the same taxon as a consequence of physical, physiological,
ecological or behavioral factors."

According to NMFS spokesman Brian
Gorman, geography is the primary distinguishing factor. Gorman says the
hatchery fish were not counted because, although they have been released into
rivers for at least 100 years, NMFS biologists recently have concluded that the
hatchery fish have different "behaviors" and actually are a threat to
the "wild" fish. He claims the hatchery fish
"diminish the vigor" of the wild fish and make them easier for
fishermen to catch. He also says hatchery salmon reproduce less successfully in
the wild than "wild" salmon.

In 1998, Oregon Department of Fish
and Wildlife personnel were videotaped using baseball bats to kill thousands of
Oregon coastal Coho salmon at a hatchery in the Alsea River basin. "There is
a rationale for killing the salmon," says Gorman. "Each hatchery can
only handle so many fish, so when the hatchery's capacity is reached, the
excess fish must be killed."

A similar parallel could be drawn
between bovine excreta and that of wild elk or antelope. The head of the
Tucson, Arizona-based Southwest Center for Biological Diversity, Kieran
Suckling, rages about domestic cattle defecating in streams -- yet
patently refuses to acknowledge that all wild animals produce and drop skat on land and in streams.

Wildlife has been
existing, mostly in harmony, with private citizens for many years. The
partnership has benefited both: deer and many other avian and animal species
forage on the edges of land planted in grain. Species that are of different
successions -- early, mid and late -- are needed by wildlife in order to
flourish. Driving a species such as the American Bison almost to extinction was
a profound learning experience. The passenger pigeons demise was another.
The twentieth century found stewardship and land/water use progressing wisely
in private hands.

It is certainly possible for most
species to have possible habitat in many areas where they are not
found. That theory holds true for both endangered and healthy populations of
humans, flora and fauna. The ability to adapt -- stronger in some species
than in others -- has perhaps encouraged diversity more than hindered it, since
it dictates progression or extinction.

The continuing educational process
that humans are undergoing to better care for and harvest renewable
resources -- including timber, sustainable harvest of game birds and
animals as well as domestic -- points the way toward a far different
scenario than environmental extremists have painted. Freedom of choice made
possible by private ownership is a viable alternative to todays ESA
restrictions. Truly free enterprise offers healthy, threatened and endangered
species ways to partner that over-regulation and the locking up of
multimillions of acres can never accomplish.

Envisioning the future of the ESA

Non-governmental organizations and
unelected bureaucrats are using the ESA as a leverage tool to end resource
providing in America. This arbitrary and capricious agenda is a self-fulfilling
prophecy. If all grazing permits are purchased by such as the Nature
Conservancy -- thus ending grazing on all Federally
owned lands -- families will feel the loss in their pocketbooks and on their
dinner tables. A much larger percentage of disposable income will go for food
as prices go up and availability goes down.

With the remainder of arable land
and its water resources being placed off-limits to resource production and
extraction -- and human habitation -- food and water will soon achieve a
place in the American psyche that they have not held for two hundred years. The
standard of living that we take for granted will evaporate.

Protection of some species at the
expense of others is an artificial scenario, neither practicable nor
scientific. Past precedent shows beyond reasonable doubt that the future of the
ESA as currently structured and enforced is bleak.

Conclusion

This Act is a property rights
destroying monster. It has wreaked havoc throughout America and beyond,
and cannot honestly claim even one success story. What the Endangered
Species Act can claim is the demise of thousands of rural communities and
billions of taxpayer dollars. It can claim many shattered lives, whether
through the stoppage of logging, farming, mining, ranching, or commercial
fishing in many areas, or the many recreational pursuits (including hunting and
fishing) that have been placed off-limits. It has been the secondary reason
for many destroyed families -- through stress, divorce, suicide, ruined
health or nerves, and even early death. Rural and urban people alike
must put this law where it belongs: in the wastebasket. Not only has the ESA
failed species miserably; it has also failed the American people.

As an economic and cultural change
agent, it has no parallel.

Landowners who once provided
abundant species habitat have been and are being forced off their land in
record numbers. One need look no further than the
Klamath Basin of Oregon and California for proof. Property values are gutted,
families are wrecked, and once-thriving communities are turned into rural
ghettos. Species have not recovered anywhere. The ESA has failed
to "protect" any species, and has, in fact, been a substantial
contributing factor to actually making some species become endangered that once
enjoyed healthy populations.

There is currently a move afoot to
"reform" and "strengthen" the ESA. Far from needing reform
or strengthening -- either of which further decimates
property rights -- this expired 'piece of work' that has Draconian and unconstitutional
roots must be uprooted and finished off, to never again make victims of honest
folk.

Author

Julie Kay Smithson lives in rural
Ohio. She has become a property rights researcher, author and speaker by default,
due to the assault on prime farmland in her part of Ohio by an agency of the
Department of Interior, United States Fish & Wildlife Service. Please visit
http://www.PropertyRightsResearch.org
to learn more about property rights, resource providers, consumers, and
recapturing freedom.

4,669
words.

http://www.propertyrightsresearch.org/articles6/many_facets_of_the_endangered_sp.htm

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