Working for the U.S. Fish and Wildlife Service (FWS), to paraphrase the famous line from the 1970 hit movie Love Story starring Ali MacGraw and Ryan O'Neal, “means never having to say you’re sorry.” It must be so because, despite decades of errors, mistakes, and wrong guesses, the agency and its advocates thump their chests over their enforcement of the Endangered Species Act (ESA). That noise is deafening this week as the infamous statute reaches its fiftieth birthday.
Signed into law on December 28, 1973, by President Richard Nixon, the legislation reached his desk after bi-partisan and nearly unanimous approval by Congress. Little wonder, after all, although the statute promised to save all “threatened” and “endangered” species from extinction, its scope was limited. Only 109 species and subspecies faced extinction domestically, those species were to be found mostly on federal lands, and if habitat were needed to save them, Congress would purchase the land; thus, there would be no impact on private property.
What a difference five decades makes. Today over 1,500 species and subspecies are covered by the statute with more awaiting designation. As Rob Gordon put it years ago, “We have gone from protecting the warm and fuzzies to saving the cold and slimies.”
The listing of hundreds more is assured thanks to the ESA’s authorization of “citizen suits” to enforce the law, which has empowered and enriched radical groups as they extinguish the use of federal and private land for economic and recreational activity.
In short, a law enacted to affect mostly those living amidst federal lands out West, long ago went national, as did designation of habitat critical to the survival of species, including on land never inhabited by the species or capable of sustaining that species.
Supreme Court Justice Byron White of Colorado saw this for what it was in 1989, when he declared that, as to a Montana rancher who raised sheep, the ESA prohibition against him protecting them from grizzly bears was akin, quoting the ESA operative terms, to “a law barring grocery store owners from ‘harassing, harming, or pursuing’ people who wish to take food off grocery shelves without paying for it.”
No wonder the late Congressman Don Young, Alaska’s representative for 50 years lamented his vote to enact the law, “Please beat me with a whip.”
It is not just that the ESA has had a devastating impact on attempts by federal and state agencies, corporations, and private citizens to engage in economic activities, it is that in doing so, the FWS gets it wrong.
Perhaps the best of scores of examples, is that involving the northern spotted owl. In the 1990s, the FWS proclaimed the owl was facing extinction because of logging in the Pacific Northwest.
Therefore, at a cost of tens of thousands of jobs, billions of dollars in economic activity, and incalculable suffering by scores of rural counties in California, Oregon, and Washington, which is still being endured, logging ended.
Today, however, the FWS argues instead that it is the barred owl that threatens the northern spotted owl’s survival, so the FWS is killing thousands of them.
In those days, as I defended timber-producing communities, I challenged the FWS for its failure to use “biological science” to make its decisions; the agency responded that it used “political science” to “balanc[e] competing demands.” Or as one “scientist” answered, when he declined to give a “magic number” of owls to assure survival, that his were “moral decisions” between the needs of owls and the needs of mankind.
Dr. Rob Roy Ramey, who blew the whistle on the mischief that was the so-called Preble’s Meadow Jumping Mouse whose listing threatened economic and public safety activity along the I-25 corridor from Casper to Colorado Spring, declared more authoritatively and expansively that the agency’s greatest deficiency, regarding its enforcement of the ESA, is “conflict of interest.” Simply stated, its work is the product of “species cartels” afflicted with group think, confirmation bias, and a common desire to preserve the prestige, power, and appropriations of the agency that pays or employs them.
No surprise that Rob Gordon recently advised the Congressional Western Caucus, using the FWS’s own data: “At the half century mark, with the listing of 1,667 threatened or endangered species, there are only 62 officially ‘recovered’ species [but 60%] are…attributable to an erroneous original determination that the species was endangered or threatened.”
In short, after 50 years there is little to brag over and much about which to be ashamed.
William Perry Pendley
Mr. Pendley, a Wyoming attorney and Colorado-based, public-interest lawyer for three decades with victories before the Supreme Court of the United States, served in the Reagan administration and led the Bureau of Land Management for President Trump.