The 2015 Waters of the U.S. Rule (WOTUS), which was oppressive to American landowners, agriculture, and industry, was replaced with the Navigable Waters Protection Rule (NWPR) in January 2020. As described in an excellent WLJ article (Feb. 3), WOTUS was strongly opposed by the agriculture community, and the NWPR is a substantial improvement in protecting property rights.
The Endangered Species Act (ESA) is another oppressive federal law, and is frequently described in the WLJ for sage-grouse, spotted owls, grizzly bears, wolves, and other species. There have been many attempts to reform the ESA, but it remains a major problem for agriculture and other resource industries (oil and gas, timber, mining).
I described problems with the science and policy used with the ESA, and proposed changes to improve the ESA, in a book published in 2019*, which I summarize here.
Science problems with the ESA
• The ESA species definition includes subspecies and distinct population segments (DPS) which are not scientifically definite;
• The key criterion for ESA listing, the risk of extinction, is not scientifically definite;
• Other important criteria, a significant portion of a species range and the foreseeable future, are not scientifically definite; and
• The federal government makes all of the science determinations for the ESA.
Solutions
• Change the ESA to apply only to full species, not subspecies and DPS;
• Separate the regulation and science functions of the ESA so they are not in one agency;
• The Fish and Wildlife Service can implement the ESA using science determinations made by others; and
• Science can be done under contract to universities and private sector science companies and institutions.
Policy problems with the ESA
• The ESA applies on private property, in violation of the Fifth Amendment to the Constitution;
• The federal government takes fish and wildlife management authority from the states, in violation of the 10th Amendment to the Constitution;
• The ESA causes a burden of extensive litigation on governments, industry and agriculture, and private landowners, and the federal government gets deference in court; and
• The Equal Access to Justice Act allows environmental groups to be paid large amounts of money by suing the government over trivial ESA issues.
The solution
• Change the ESA so it does not apply on private property. Provide incentives for landowners to protect and enhance habitat for wildlife;
• Change the ESA to make explicit that states have exclusive jurisdiction over fish and wildlife;
• Change the ESA so that states and the federal government have equal co-authority on ESA decisions. Provide incentives for states to protect and enhance habitat for wildlife; and
• End the granting of deference to federal agencies in court, and change or repeal the Equal Access to Justice Act.
These proposed changes to the ESA will be strongly opposed by environmental groups and some people in the federal government. I think the strongest opposition to these ESA changes will be to the proposal to have the ESA not apply on private property.
Environmental groups and some federal bureaucrats relish the power over private property that the ESA in its current form gives them. The courage and resolution of those who brought about the repeal of WOTUS can be repeated with changes to the ESA that restore property rights and good wildlife management.
What you can do
Send these proposed ESA changes to your elected officials and agriculture trade groups. Encourage them to take a stand for agriculture and property rights and change the ESA, as they did with WOTUS. — 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 croninm@aol.com.
*Cronin, M.A. 2019. Wildlife, War, and God: Insights on Science and Government. Liberty Hill Press, Maitland, Florida. Available at LibertyHillPublishing.com Amazon.com and BarnesandNoble.com
