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The Tyranny of the = ESA and the=20 Threat of Kelo 2

September 7,=20 2005

By = Tom = DeWeese

The = Endangered Species=20 Act (ESA) is the worst, most destructive, and most powerful = law ever=20 to come out of Congress (with the possible exception of the = federal=20 income tax law). For thirty two years the ESA has robbed = property=20 owners of their land; killed jobs; destroyed whole = industries, and=20 created a government tyranny that would have had our = founding=20 fathers in the trenches, locked and loaded.

Americans = have clearly=20 seen, through the recent Supreme Court ruling in Kelo Vs New = London,=20 that local governments can now take private property for any = scheme=20 they can devise. However, the precedent for such cavalier = disregard=20 for property rights comes directly from the ESA.

Since it=92s = enactment in=20 1973, the ESA has penalized landowners for their stewardship = of=20 their property. Farmers, ranchers, tree farmers, homeowners = and=20 other landowners who harbor endangered species on their = property or=20 merely have wildlife habitat are subjected to severe = land-use=20 restrictions that often lead to economic ruin. In much of = rural=20 America the ESA has turned landowners and endangered species = into=20 mortal enemies.

To keep their = property=20 from falling under ESA=92s severely punitive land use = controls,=20 desperate landowners have learned to preemptively sterilize = their=20 land, making it inhospitable to the species the ESA is = supposed to=20 protect. The practice is known as "shoot, shovel and shut = up."=20

Incredible as = it may=20 sound to the average American, in the 32 years the ESA has = been on=20 the books, just 34 of the nearly 1,300 U.S. species given = special=20 protection have made their way off the "endangered" or = "threatened"=20 lists. Of this number, nine species are now extinct, = fourteen appear=20 to have been improperly listed in the first place, and just = nine=20 (.6% of all species listed) have recovered sufficiently to = be=20 de-listed. A less than 1% recovery rate isn=92t good =96 = especially=20 considering the human suffering and devastation caused in = the=20 process. The end result is that the ESA does nothing to = protect=20 endangered species =96 it just makes the federal government = more=20 powerful.

These are the = reasons=20 why property rights advocates have been trying for years to = get some=20 type of reform (if not outright repeal) of the ESA in order = to=20 provide property owners with some relief. These Americans = need=20 language that would respect property rights, provide real=20 compensation for land taken and bring the ESA into = compliance with=20 the United States Constitution. Yet, the radical = environmental=20 movement simply won=92t agree to change even a single comma = in a law=20 they consider to be their holy grail.

Now comes = Congressman=20 Richard Pombo, chairman of the U.S House Resources Committee = and=20 self-proclaimed property rights advocate. With great fanfare = earlier=20 this year, Pombo announced that, in this Congress he was = going to=20 introduce new legislation to fix the ESA and get the = landowners the=20 relief they need. Early in June, Pombo=92s staff began = circulating a=20 draft of the bill he intends to introduce, entitled, "The = Threatened=20 and Endangered Species Recovery Act" (TESRA).

It was with = great=20 disappointment and pain that, in reading the draft, property = rights=20 advocates found that TESRA fails to live up to Pombo=92s = promise in=20 two very specific ways. First, the bill calls for = compensation of=20 taken property only after a full 50% has been taken. Many = small=20 landowners can=92t afford a 25% loss of their farmlands, = homes,=20 ranches and investment property, much less 49.9%. And even = those who=20 hit the magic 50% trigger many never see any money, as = property=20 owners would still be required to jump through costly and=20 time-consuming bureaucratic hoops that can make it = impossible to=20 file a claim.

Worse, = Pombo=92s TESRA=20 includes a provision that would create regulation of = so-called=20 "invasive species" under the ESA for the very first time. = Under an=20 Executive Order signed by former President Bill Clinton, = invasive=20 species are defined as "any species, including seeds, eggs, = spores,=20 or other biological material capable of propagating that = species,=20 that is not native to that ecosystem."

By this = definition,=20 almost any living thing could be considered an invasive = species,=20 thereby giving federal regulators broad new powers to = regulate human=20 activity =96 where we live, what we plant in our yards and = where and=20 how we vacation. Specifically, invasive species can be = interpreted=20 to mean the Kentucky Blue Grass used in most yards; the pear = tree=20 planted in the back yard; the family dog; or cattle grazing = in the=20 fields =96 all regulated under the power of the Endangered = Species=20 Act.

It is = difficult to go=20 on the offensive against people who have been considered = friends,=20 such as Congressman Richard Pombo. Certainly property rights = advocates have few friends in Congress. However, Congressman = Pombo=92s=20 version of the Endangered Species Act is no friend to = property=20 owners. Indeed it=92s a greater threat than the current ESA = law. The=20 "Threatened and Endangered Species Recovery Act" will give = the=20 federal government even greater power to take private = property and=20 should be renamed Kelo 2. The bill is expected to be = introduced=20 sometime in September, and must be opposed by every American = who=20 believes in the Constitutional right to own and control = private=20 property. Supporting a bad law helps no one.