The Perversion of the Endangered Species Act
No good deed goes unpunished. Similarly, it seems no well-intentioned piece of legislation is ever used as intended. This could not be more true than when it comes to the Endangered Species Act of 1973 (“ESA”). In 1972, then-President Nixon charged Congress with establishing a “stronger law to protect endangered species of wildlife.” President Nixon wanted the federal government to be able to step in earlier to aid in the recovery of endangered species and, for the first time, to make “shooting, trapping, or other taking of endangered species,” a federal offense.
Congress responded to the president with the ESA — mission accomplished, or so they thought. It is clear from the President Nixon’s message, the statements made by members of Congress, and the language of the ESA itself, that the ESA’s well-intentioned goal was to allow the federal government to step in and aid in the recovery of an endangered or threatened species, and then to return management of the species back to the state, which properly has jurisdiction over the affairs within its borders. Neither President Nixon nor Congress could have predicted what the ESA has become today.
Today, as many of you know, the ESA allows the federal government to lock up large swaths of federal and private lands — often removing them from any recreational or productive use. This alone should concern every private citizen, but the perversion of the ESA doesn’t end there.
Even when a species is successfully recovered, the federal government often won’t, or maybe worse, can’t relinquish management of the species. No species is a better example than the grizzly bear. In 2007, based on 10 years of extensive research and population monitoring, the U.S. Fish and Wildlife Service (under the Obama Administration, mind you), found that the Yellowstone grizzly bear was recovered, and attempted to delist the species. Fish and Wildlife was almost immediately sued. The result? The court agreed with the environmental activists that the decline of whitebark pine may have an impact on the grizzly population. It didn’t matter that the grizzly bear population had rebounded, or that it met and exceeded its population and habitat goals, Fish and Wildlife was ordered to go back and study the effect of the decline of whitebark pine.
Fish and Wildlife did just that. Another 10 years of research. And in 2017, Fish and Wildlife tried again and delisted the Yellowstone grizzly. And again, environmental activists sued Fish and Wildlife. This time, their reason was that Fish and Wildlife allegedly failed to consider the effect that delisting the Yellowstone grizzly would have on other grizzly populations in the US and what effect the loss of its historic range would have on the bear. Ironically, the historic range of the grizzly bear includes the California coast, so unless there is a plan to start relocating grizzly bears to Candlestick Park in San Francisco or Dodger Stadium in LA, that habitat is likely no longer suitable for the bear. The result? You guessed it, the court ordered Fish and Wildlife to examine the effect of delisting the Yellowstone grizzly on the other grizzly populations in the US, despite all of those populations remaining listed as endangered species.
The lesson here? Apparently, success equals failure. Despite the Yellowstone grizzly meeting its population goals for nearly 20 years, the bear remains listed as an endangered species. Not because it is actually endangered anymore, but because of the decline in whitebark pine (which scientists confirmed did not present a credible threat to the bear) and because of entirely different populations of grizzly bears (which have been treated as separate populations since at least 1982 and all of which remain listed). Until we can return to the original intent of the ESA, this will continue to be the pattern. Once the federal government has control, it is immensely difficult to return any power to the states — even when the federal government wants to. If only we understood this as well as the Framers did.
Cody J. Wisniewski (@TheWizardofLawz) is an attorney with Mountain States Legal Foundation. He primarily focuses on ESA and Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.