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The Tyranny of the ESA and the
Threat of Kelo 2

September 7,
2005

By Tom DeWeese

The Endangered Species
Act (ESA) is the worst, most destructive, and most powerful law ever
to come out of Congress (with the possible exception of the federal
income tax law). For thirty two years the ESA has robbed property
owners of their land; killed jobs; destroyed whole industries, and
created a government tyranny that would have had our founding
fathers in the trenches, locked and loaded.

Americans have clearly
seen, through the recent Supreme Court ruling in Kelo Vs New London,
that local governments can now take private property for any scheme
they can devise. However, the precedent for such cavalier disregard
for property rights comes directly from the ESA.

Since it’s enactment in
1973, the ESA has penalized landowners for their stewardship of
their property. Farmers, ranchers, tree farmers, homeowners and
other landowners who harbor endangered species on their property or
merely have wildlife habitat are subjected to severe land-use
restrictions that often lead to economic ruin. In much of rural
America the ESA has turned landowners and endangered species into
mortal enemies.

To keep their property
from falling under ESA’s severely punitive land use controls,
desperate landowners have learned to preemptively sterilize their
land, making it inhospitable to the species the ESA is supposed to
protect. The practice is known as "shoot, shovel and shut up."

Incredible as it may
sound to the average American, in the 32 years the ESA has been on
the books, just 34 of the nearly 1,300 U.S. species given special
protection have made their way off the "endangered" or "threatened"
lists. Of this number, nine species are now extinct, fourteen appear
to have been improperly listed in the first place, and just nine
(.6% of all species listed) have recovered sufficiently to be
de-listed. A less than 1% recovery rate isn’t good – especially
considering the human suffering and devastation caused in the
process. The end result is that the ESA does nothing to protect
endangered species – it just makes the federal government more
powerful.

These are the reasons
why property rights advocates have been trying for years to get some
type of reform (if not outright repeal) of the ESA in order to
provide property owners with some relief. These Americans need
language that would respect property rights, provide real
compensation for land taken and bring the ESA into compliance with
the United States Constitution. Yet, the radical environmental
movement simply won’t agree to change even a single comma in a law
they consider to be their holy grail.

Now comes Congressman
Richard Pombo, chairman of the U.S House Resources Committee and
self-proclaimed property rights advocate. With great fanfare earlier
this year, Pombo announced that, in this Congress he was going to
introduce new legislation to fix the ESA and get the landowners the
relief they need. Early in June, Pombo’s staff began circulating a
draft of the bill he intends to introduce, entitled, "The Threatened
and Endangered Species Recovery Act" (TESRA).

It was with great
disappointment and pain that, in reading the draft, property rights
advocates found that TESRA fails to live up to Pombo’s promise in
two very specific ways. First, the bill calls for compensation of
taken property only after a full 50% has been taken. Many small
landowners can’t afford a 25% loss of their farmlands, homes,
ranches and investment property, much less 49.9%. And even those who
hit the magic 50% trigger many never see any money, as property
owners would still be required to jump through costly and
time-consuming bureaucratic hoops that can make it impossible to
file a claim.

Worse, Pombo’s TESRA
includes a provision that would create regulation of so-called
"invasive species" under the ESA for the very first time. Under an
Executive Order signed by former President Bill Clinton, invasive
species are defined as "any species, including seeds, eggs, spores,
or other biological material capable of propagating that species,
that is not native to that ecosystem."

By this definition,
almost any living thing could be considered an invasive species,
thereby giving federal regulators broad new powers to regulate human
activity – where we live, what we plant in our yards and where and
how we vacation. Specifically, invasive species can be interpreted
to mean the Kentucky Blue Grass used in most yards; the pear tree
planted in the back yard; the family dog; or cattle grazing in the
fields – all regulated under the power of the Endangered Species
Act.

It is difficult to go
on the offensive against people who have been considered friends,
such as Congressman Richard Pombo. Certainly property rights
advocates have few friends in Congress. However, Congressman Pombo’s
version of the Endangered Species Act is no friend to property
owners. Indeed it’s a greater threat than the current ESA law. The
"Threatened and Endangered Species Recovery Act" will give the
federal government even greater power to take private property and
should be renamed Kelo 2. The bill is expected to be introduced
sometime in September, and must be opposed by every American who
believes in the Constitutional right to own and control private
property. Supporting a bad law helps no one.

© 2008
American Policy Center

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