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Endangered: Property Rights

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The rights of hundreds of thousands of Americans have been shredded by federal proclamations of the sanctity of species such as the Soccorro isopod, the Texas wild-rice plant, the fringe-toed lizard, the kanab ambersnail, and fairy shrimp. At the time the Endangered Species Act (ESA) was enacted in 1973, most congressmen and most Americans believed that the act would apply only to high-profile cases such as that of bald eagles. During most of the 1970s, the Interior Department was restrained in its enforcement, with the only major controversy involving the snail darter around a large dam in Tennessee. Yet, beginning in the mid-to-late 1980s, environmental organizations and federal bureaucrats vastly broadened the sweep of the law.

In Austin, Texas, 3,000 farmers and other Texans marched in 1994 to denounce the Fish and Wildlife Service (FWS) for its proposal to quarantine 800,000 acres of land across 33 Texas counties to protect the golden-cheeked warbler. Property values dived by over $300 million in Travis County alone after the FWS designated much of the county as “protected habitat” for endangered species.

The FWS designated a quarter of a million acres of land as protected habitat for the California gnatcatcher in 1991. The Building Industry Association of Southern California estimated that that designation could destroy as many as 200,000 jobs. The FWS’s action was struck down in 1994 by a federal judge who ruled that the agency violated federal law by refusing to publicly disclose the information that it used to justify its seizure of control over the private land.

More than 1,000 species are now on the endangered list and thousands more could be added in the next few years. It requires almost no evidence for the U.S. Interior Department to proclaim a species endangered or threatened. And once government bureaucrats have unilaterally made that decision, they can seize dictatorial control over the use of property in any area in which the threatened species resides — or might reside. For instance, in New Jersey, 77-year-old Grace Heck was prohibited from building a home on land she had bought for her retirement because the FWS ruled that there was a federally protected plant species “within five miles of the proposed project site.”

The essence of the ESA is that every type of insect and animal must have absolute rights superior to those of human beings. As a Wall Street Journal editorial noted, “Enforcement of the act is being effectively steered by the BANANA: Build Absolutely Nothing Anywhere Near Anything.” Each endangered species that the government adds to its list increases the arbitrary power of FWS agents to confiscate and control property belonging to individual Americans. As former Interior Department chief economist Richard Stroup observes, “The Fish and Wildlife Service faces no budget constraint on the number of acres it can control in the name of endangered species, so it always wants more.”

The FWS’s listing process for endangered species makes a mockery of any concept of due process. In 1995, the FWS proposed to add seven mussels found in Alabama to the list of ESA-protected species. Sen. Richard Shelby of Alabama protested:

“Scientific deception on the part of the FWS has gone on long enough. Under current law, the FWS is the investigator, author, decision maker, enforcer and appeals court for all endangered species. That is very similar to hiring one person to serve your county as the police officer, prosecutor, defense lawyer, judge, jury and appeals court.”

Shelby also complained: “I firmly believe that the FWS has little valid scientific information about the location, history, population status, life cycle needs and host fish requirements of these mussels, as well as the activities which adversely affect them.”

While federal bureaucrats claim to carefully weigh the evidence before slapping on the endangered label on a species, the soaring number of such designations in recent years is actually the result of a court order and a political deal. In late 1992, after George Bush had blown the presidential election, lame-duck Republicans settled a lawsuit by an environmental group by imposing a “critter quota” — promising that the Interior Department would designate almost 400 additional species in the following four years. In February 1995, the Wall Street Journal reported:

“The Bush administration pledged that the Fish and Wildlife Service would, by September 30, 1996, propose listing all species “for which substantial information exists to warrant listing them as either endangered or threatened.” The service had a list of these species — 382 to be exact. Substitutions could be made, with proper reasoning, and certain species could be dropped from the backlog list, but only with voluminous scientific justification that in most cases would be hard to come by.”

Thus, according to the terms of the settlement, it now requires far more scientific evidence not to list a species than is required to list it. This is a fascinating inversion of due process and common sense, creating an overwhelming bias against private property rights.

Some Interior Department officials believe that the Endangered Species Act requires human beings to act like sacrificial animals. John Shuler, a Montana rancher was fined $4,000 by the Interior Department for shooting a grizzly bear that was heading to attack him. Grizzly bears had been mauling Shuler’s sheep for months. When he heard a disturbance late one night, he grabbed his gun and went outside. He saw three grizzlies attacking his sheep — and a fourth one heading towards him. The man shot the bear that was charging him and then retreated to the safety of his home.

The Interior Department sued Shuler and the case was heard before one of the agency’s administrative law judges. As Ike Sugg of the Competitive Enterprise Institute, the most effective critic of the ESA in the nation, observed:

“In an unprecedented application of human criminal law standards of self-defense to wild animals, the judge held that Mr. Shuler ‘was blameworthy to some degree in bringing about the occasion for the need to use deadly force.’ In other words, it was Mr. Shuler’s fault: He ‘purposefully placed himself in the zone of imminent danger of bear attack.’”

(It is only because of the unrealistic assumptions of the ESA that the grizzly is considered endangered in Montana and other areas of the Northwest. There are plenty of grizzly bears in Canada — but the U.S. law pretends that they don’t exist for purposes of declaring them endangered in Idaho and Montana.)

On October 26, 1993, dozens of homes and tens of thousands of acres in Riverside County were burned as a direct result of policies imposed by the Fish and Wildlife Service. The FWS designated 77,000 acres in Riverside County as a “rat preserve” for the kangaroo rat. Homeowners in that area knew that the buildup of brush posed a grave fire danger and sought to lightly plow their land in order to create firebreaks. But the Fish and Wildlife Service repeatedly threatened prison sentences and fines of up to $100,000 against homeowners who sought to protect their homes against fire hazards in the area of “protected” rat habitat. Sugg wrote shortly after the fire:

The designation of brush as protected habitat — and restrictions on controlled burns and other methods to keep brush down — fueled the destructiveness of the fires. To protect the kangaroo rat from people, the Fish and Wildlife Service prevented people from protecting themselves and their property from fire.

One homeowner saved his home by disobeying the FWS threats and using a tractor to create firebreaks on his land shortly after the fire broke out.

Federal agents can seize the assets of landowners, farmers, and others on the basis of a mere suspicion of violating the Endangered Species Act. Property rights advocates bitterly complain that the Interior Department’s asset-forfeiture operations have been completely arbitrary and unjust. The Interior Department was unable to provide any estimate of the total amount of property it had confiscated, in response to my phone calls and press inquires.

The Fish and Wildlife Service announced in May 1997 that it expected to soon have 18 million acres of private land locked up under so-called habititat conservation plans restricting owners’ use. In addition, more than 10 million other acres of private and public land have come under either temporary or quasi-permanent control of federal environmental dictates as a result of the Endangered Species Act. The total amount of land that has been affected by the ESA is equivalent to cordoning off the entire states of Massachusetts, Vermont, New Hampshire, and Connecticut.

Republicans captured the Congress in 1994 in part because of widespread anger by property owners and business owners about rampages by environmental agents. However, Speaker Gingrich made Rep. Sherwood Boehlert (R-N.Y.) co-chairman of an environmental task force he set up. Boehlert ranks almost dead last of all Republican congressmen in his support of free-market policies. After being named co-chairman, Boehlert participated in a Sierra Club-organized demonstration that demonized Republican environmental reform efforts.

In the Senate, the leading bill to “reform” the ESA, sponsored by Sen. Dirk Kempthorne (R-Idaho), could actually increase the power of federal agents over landowners and does little or nothing to fix the law’s basic defects. Appallingly, the Kempthorne bill does not require the government to provide any compensation to citizens whose property is deep-frozen by federal edicts. Perhaps Kempthorne believed that keeping compensation for victims out of the bill would help him avoid an “extremist” label. But, perhaps even more surprisingly, Kempthorne and his cosponsors also believe that the government has a right to blindfold the citizens it robs. His bill would sharply reduce the amount of information that citizens could get regarding ESA listing processes and underlying data under the Freedom of Information Act. This provision is one more illustration of the naivetŽ of citizens expecting politicians to protect their rights against the bureaucracy.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.