The Endangered Species Act (ESA) was recently changed, with positive reactions by the livestock industry and negative reactions by environmental groups (see the Aug. 19, 2019 WLJ). The changes dealt with definitions in the ESA, consideration of economic impacts of ESA listings, and standards for delisting species and designating critical habitat.
The changes were made by the Secretary of the Interior (not Congress) indicting how executive branch agencies can “legislate” by manipulating laws. I will leave it to lawyers to explain how this works.
You may wonder how we got here, with a federal law that controls our agriculture, timber, oil and gas, and mining industries. After all, there is nothing in the Constitution that authorizes the government to regulate wildlife. The history of the ESA is complicated, but I will summarize the gradual increase of the government’s involvement with wildlife.*
• In the U.S.’ colonial period, there were some seasonal restrictions on hunting.
• State and territorial governments made laws regulating hunting in the 1800s, based on the determination that wildlife was commonly owned by all citizens of a state.
• The federal government had no role in wildlife until the Lacey Act, passed in 1900, which regulated interstate commerce of wildlife and protection of birds.
• The first federal wildlife refuge was established in 1903 and others followed.
• The Migratory Bird Treaty Act was passed in 1918 and ratified a treaty with Canada to manage migratory birds. This recognized that birds crossing state lines were not owned by individual states.
The Migratory Bird Hunting Stamp Act was passed in 1934, requiring waterfowl hunters to buy a “duck stamp.” The revenues were used for acquiring habitat and management.
• The Pittman-Robertson Act was passed in 1937 and included a tax on fishing and hunting equipment. The revenues were shared with states and used for wildlife research and management.
• The Land and Water Conservation Fund Act was passed in 1964 and included land acquisition for preservation of wildlife. Also in 1964, biologists with the Bureau of Sport Fisheries and Wildlife (now the U.S. Fish and Wildlife Service, USFWS) created a “Redbook” listing 63 endangered species.
• In 1966, the Endangered Species Preservation Act was passed and directed the Secretary of the Interior to protect endangered species, purchase habitat, create a list of species endangered with extinction, prohibited taking endangered species on wildlife refuges, and required agencies to consider effects of their programs on endangered wildlife “to the extent practicable.”
• In 1969, the Endangered Species Conservation Act expanded the 1966 Act to include international endangered species, and amphibians, reptiles, and invertebrates.
• The ESA was passed in 1973 and gave the federal government a major role in wildlife management, taking jurisdiction from states. The Secretary of the Interior was directed to make a list of threatened and endangered species with important expansions of government authority. First, the species definition included subspecies and populations which greatly expanded the scope beyond preserving species. Second, any citizen could propose an ESA listing, sue the government to ensure compliance, and be awarded court costs. Third, taking an ESA species was prohibited on public or private land. Fourth, “taking” was defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” Fifth, “critical habitat” was established.
• Subsequent court decisions, such as the snail darter case in 1978, solidified the ESA’s absolute power over public and private land. This included a Supreme Court decision in 1978 that species extinction must be prevented “whatever the cost.”
• The ESA was amended in 1978, 1982, and 1988, and included protection of the ecosystems of ESA species, established exemptions, allowed incidental takes (requiring a habitat conservation plan), prohibited consideration of economic factors, and increased civil and criminal penalties for violations.
• The 1988 authorization of the ESA expired, but it remained in effect by annual congressional appropriations. In the 1990s, Congress and USFWS added policies such as “safe harbor” and “no surprises” that made the ESA less oppressive to landowners.
What you can do?
Tell your elected officials and government agency folks that the changes to the ESA recently made by Secretary David Bernhardt are good. However, in my opinion, they do not address the most basic problem with the ESA: its application on private property (without compensation) that is unconstitutional and violates Americans’ property rights. — Dr. Matthew Cronin
(Matthew Cronin was a research professor at the University of Alaska and is now at Northwest Biology Company LLC and an affiliate professor at Montana State University. He can be reached at firstname.lastname@example.org.)