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ESA debate heats up

By Henry Lamb
web posted July 25, 2005

The U.S. Constitution prohibits the federal government from forcing a citizen to "quarter" a soldier in time of peace. The Endangered Species Act, however, forces any citizen to "quarter" wolves, panthers, bears, or any of more than 1200 other species the government declares to be "endangered."

The U.S. Constitution prohibits the government from "taking" private property for public use, without just compensation. The Endangered Species Act, however, takes away the use of private property from citizens, without paying any compensation at all.

Clearly, the Endangered Species Act ignores the private property rights specifically protected by the U.S. Constitution.

This contentious 1973 law is, once again, the subject of heated debate in Washington.

Environmental organizations have launched a campaign claiming that the Bush administration is trying to "gut" the nation's most important environmental law. Property rights advocates contend that proposed revisions do not adequately protect the rights of private land owners. Congress has to decide.

Until 1973, there was little doubt in American law, that the human species was at the top of the food chain, and had dominion over "all the creatures of the earth." This world view was not shared by the people who advanced the notion of using government to "protect" certain species. The ESA itself, identifies five international treaties the law is designed to satisfy. These five treaties illustrate the evolution of a world view that sees all species - including humans - to be of equal intrinsic value.

During the 1990s, the predominant world view that influenced public policy, clearly valued non-human species higher than people. Dr. Reed Noss, author of the 1992 Wildlands Project, says:

"...the native ecosystem and the collective needs of non-human species must take precedence over the needs and desires of humans...."

This world view underlies the Convention on Biological Diversity, and the Clinton-era Ecosystem Management Policy which still guides federal land management policy implemented by the Department of Interior, the Department of Agriculture, and the Environmental Protection Agency.

It is highly unlikely that the Congressmen who voted for the Endangered Species Act in 1973, intended to place a higher value on cave bugs and fairy shrimp, than on human beings. Nevertheless, this is the result of the 32-year old law. Congress will now either affirm this biocentric world view, or, it will correct this abuse of governmental power by respecting and restoring the private property rights of human beings on whose land these species live.

Environmentalists like to say that respect for private property rights forces government to pay developers not to develop their land. But even environmentalists who own property used by others, are entitled to collect rent from those who use the property.

If all these so-called endangered species truly need to be protected for the benefit of the public, then it is only right for the public to pay for this benefit, not the individual land owners who are being forced to "quarter" these species. There are many provisions of the ESA that need to be revised, but none as fundamental as restoring the protection of private property rights, as required by the Constitution.

One proposed measure to correct the ESA is to require the government to pay compensation only if 51% of the land owner's property is taken. If this measure were adopted, then, to be fair, endangered species should be able to use only 51% of an owner's land. Of course, this is ridiculous.

If the government insists on forcing private landowners to "quarter" endangered species, then the government must rent the land that is to be preserved for their use. There is adequate precedent for this concept. The Department of Agriculture promotes its Conservation Reserve Program, which pays farmers to leave land idle, rather than cultivate it. The government has decided that the public benefit of leaving private land for wildlife is worth the cost. Surely, land that is deemed to be critical habitat for endangered species is worth no less.

Farmers, however, have the option of putting their land in the Reserve Program - or not. Owners of critical habitat should have the same option. If there is a conflict between what the government wants, and what the land owner wants, the land owner should have the final say.

This position is at odds with Reed Noss, who says non-human species must be given priority. Congress will decide whether to continue elevating non-human species above the needs and desires of humans, or to restore the rights of humans, as set forth by the Creator, and enshrined in the U.S. Constitution.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.

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