3 Absurd Ways The Endangered Species Act Has Killed Freedom

Forty years after its passage the Endangered Species Act done little to help wildlife but instead has severely limited private property rights and economic freedoms. That’s the conclusion of an op-ed by Damien Schiff of the Pacific Legal Foundation and former Deputy Interior Secretary Julie MacDonald.

“A law intended to conserve species and habitat has brought about the recovery of only a fraction—less than 2%—of the approximately 2,100 species listed as endangered or threatened since 1973,” the two wrote in The Wall Street Journal. Their op-ed was written to coincide with the 40^th anniversary of the act, which was signed into law by President Nixon on Dec. 28, 1973.

The problem is that federal bureaucrats have interpreted the act in ways not originally intended, Schiff and MacDonald said. They assert that not all the species “protected” are actually endangered and that some of the decisions made under the act are not based on science.

What Went Wrong with the Endangered Species Act

The major problem with the act is that federal officials started to use it in attempts to protect species that are not actually endangered, the two say. The act was originally designed to protect species on the verge of disappearing – the definition of endangered.

During the Carter administration in the late 1970s government bureaucrats effectively rewrote the law so that it could be used to protect species that are “threatened.” Threatened means that the species is in trouble but not facing extinction. That means the act could be used to protect any species where there are low numbers – and that property owners would suffer.

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“Originally, it was only when an animal or plant was labelled ‘endangered’—on the verge of disappearing—that landowners were hit with heavy regulations, such as prohibitions on activities that could even indirectly ‘harm’ or ‘harass’ the species,” Schiff and MacDonald wrote. But then regulations changed so that there was no practical distinction between an endangered and threatened animal. “The chilling effect on property owners and economic activity has been profound. Discovering a listed species on your property is no longer cause for pride in the land’s environmental richness and your chance to exercise responsible stewardship. It’s a liability that is to be avoided at all costs.

Instead of using scientific data to determine what is threatened, they wrote, the decisions are based on the “professional judgment” of officials at the National Oceanic and Atmospheric Adminsitration and the US Fish and Wildlife Service. That enables bureaucrats to impose the law even though science says otherwise.

“Unbelievably, most of the data that were supposed to have informed past decisions are unavailable,” Schiff and MacDonald wrote. “In some cases, the information was never even gathered before a ruling was issued. In other cases it unaccountably vanished, e.g., the computer files alleged to hold it were said to be ‘corrupted.’”

Endangered Species Act Endangers Property Rights

There are many examples of property rights being trampled and economic freedoms being restricted under the Endangered Species Act, but here are three of the most absurd:

1. The Utah Prairie Dog which is listed as a threatened species. Unlike other Americans, farmers and residents of Cedar City, Utah, cannot shoot, trap or poison prairie dogs. Farmers are spending hundreds of thousands of dollars to repair damaged equipment when the ground collapses under them — making it impossible if not nearly impossible to continue farming. The city cannot even kill or relocate prairie dogs that are damaging runways at the local airport. Local business owner Bruce Hughes cannot develop a parcel of land he owns because prairie dogs live there. “If I killed even one, it would be a $10,000 fine and five years in federal prison,” Hughes said of prairie dogs and the penalties he would face for killing one. “I could rob a convenience market and get off easier.” Attorneys with the Pacific Legal Foundation filed a lawsuit on behalf of several Cedar City citizens, looking to overturn the federal regulations.
2. The Preble’s meadow jumping mouse. Efforts to protect this “threatened” rodent cost property owners in Colorado and Wyoming an estimated $17 million a year even though there’s no proof that it is a separate species from other mice. DNA research has proven that the mouse isn’t a separate subspecies but the Fish and Wildlife Service lists it as one, according to the WSJ editorial. To make matters worse, the service’s opinion was apparently based on a 1954 study of the skulls of three mice. Even the author of that study now thinks the mouse isn’t a separate species and not endangered but the government won’t change its opinion.
3. The Delta Smelt, a tiny fish that lives in the San Joaquin Valley in California. In 2009 federal bureaucrats issued a “biological opinion” which severely restricted the amount of water delivered to farmers. The decision led to widespread unemployment, even though a federal judge later stated it was arbitrary, capricious and made in bad faith.

Schiff and MacDonald want to see the Endangered Species Act reformed, not abandoned.

“First, reinstate the difference between regulations for threatened and endangered species, so that discovery of the former is welcome news of an opportunity to engage in creative environmental protection but not a threat to a landowner’s livelihood,” they wrote. “Second, require that each biological opinion and listing determination comes with a data chart that scientifically documents the threats and the consequences for the species of not being listed.

“After four decades of this, Washington would do well to update the Endangered Species Act before the public clamors for its extinction.”

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