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The tyranny of the ESA and the threat of Kelo 2

By Tom DeWeese
web posted September 12, 2005

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 their 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 v New London ruling, 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 per cent of all species listed) have recovered sufficiently to be de-listed. A less than 1 per cent 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 per cent has been taken. Many small landowners can't afford a 25 per cent loss of their farmlands, homes, ranches and investment property, much less 49.9 per cent. And even those who hit the magic 50 per cent 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.

Tom DeWeese is president of the American Policy Center, a grassroots think tank located in Warrenton, VA. The Center maintains a website at www.americanpolicy.org.

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