Friday, June 4, 2010

Let My Species Go

“Let my people go!” uttered Charleton Heston in Cecille B. Demille’s classic, The Ten Commandments. It is one of his most famous lines. Today, the Endangered Species Act—a well-intentioned law hijacked by environmentalists—has many fish and wildlife professionals crying out, “Let my species go!”

Recalling the Biblical account from Genesis and Exodus, the Israelites went to Egypt because a severe drought in the Promised Land threatened the very survival of God’s chosen people. Joseph, the son of Jacob who was sold into slavery in Egypt by his jealous brothers, had interpreted Pharaoh’s dream that foretold the drought and so Egypt had set aside grain for the seven years of famine. Thus, Joseph was able to save his father, brothers, and all the rest of the Israelites from extinction.

But all did not end well for the Israelites who sought refuge in Egypt. Oh, they prospered in the Land of Goshen and in time they numbered in the hundreds of thousands. But, subsequent Pharaohs were not as benevolent as the one for whom Joseph worked. The Israelites were put into slavery making the bricks for Pharaoh’s pyramids and elaborate tombs. God sent Moses to lead the Israelites out of Egypt. Pharaoh was hard hearted, and even after Moses performed nine miracles, he would not release the Israelites until the tenth miracle took the life of Pharaoh’s own first-born son. Finally, the Israelites, who fled to Egypt to prevent their own extinction 400 years earlier, were free to leave.

We have set up a new kind of Egypt right here in the United States which is supposed to prevent the extinction of species that are threatened or endangered. Species that are in peril because of types of drought or famine are sent to a kind of Land of Goshen for recovery only to later find that they are being held captive by Pharaoh-like environmentalists who want to enslave the species to do their bidding.

Passed by Congress in 1973, the Endangered Species Act is supposed to identify species that are faced with extinction in the foreseeable future because of loss of habitat, excessive harvesting, disease or predation, inadequate regulations, or other manmade factors. Species added to one of two possible lists, threatened or endangered, receive federal protection until such time as the species is considered to be recovered and no longer warrants protection.

The goals of the Endangered Species Act are laudable enough. Humans should—indeed we are the only species that can—take steps to ensure that our actions do not unnecessarily or inadvertently cause the extinction of other species. The problem is that we have successfully identified and listed nearly 1,400 species of animals and plants in United States, but we have removed fewer than 50 species from the same list. Only 21 of those species removed from the list are identified as recovered, nine of the species are extinct, and the rest were removed because they were originally listed because of a data error.

Suppose you operate a hospital and 1,400 people have walked through the doors since you started taking patients 37 years ago. During same that time period, about 20 checked out because they were there by mistake, nine died, and 21 were cured and sent home. The rest—a staggering 1,350 people—are still in that hospital. No matter how well they feel, no matter how cured they are, and without regard to the doctors saying they should be released, these 1,350 patients are being held captive in that hospital.

There are a number of reasons why the Endangered Species Act has so struggled in achieving its fundamental purposes of protecting and recovering species.

For one thing, environmental groups have learned that the Endangered Species Act can be used to stop virtually any kind of project or activity that they do not like. The law has become a de facto form of federal control of land use that can significantly impact the use and development of private land as well as lawful private sector activities and uses of public lands and resources. It works like this. There is a proposed development in your community that a group of people do not like. They hire a biologist to find an existing threatened or endangered species on that land, or absent the presence of a listed species, find a new sub-species that is so unique as to warrant listing, and petition to have that new species listed as threatened or endangered. Suddenly, what was once a private sector decision, regulated only by local city or county land use planning, is elevated and becomes a proverbial federal case.

Another problem is the law is written in such a way that environmental lawyers can easily sue the government and win in court. For instance, a petition to list a species as threatened or endangered must be reviewed and determined whether it warrants further analysis within 90 days. If the agency is one day late, they have violated the law and any judge will likely rule against the government. A final decision on a listing petition is due within 12 months, and again, one-day late is a violation of the law. Another matter of law equally well understood by environmental lawyers is that if you sue the federal government and win, the government must pay all reasonable attorney fees and costs. The end result is many environmental groups are nothing more than environmental law shops that are self funded by taxpayer dollars. The environmentalists flood the pipeline with petitions to list species, the government gets further behind, there are more lawsuits, more money going to environmental groups, and the cycle continues. Most importantly, the agencies are overwhelmed which results in courts and judges making decisions about species recovery instead of science-based management being conducted by fish and wildlife professionals. Another outcome is limited federal resources, which could be used for species conservation and recovery, are wasted on litigation.

Adding to the challenges, certain threatened or endangered species are considered to be charismatic mega-fauna. These are the grizzly bears, wolves, whales, bald eagles, etc. that environmentalists exploit as pawns in their fundraising juggernauts. Who would not want to protect polar bears, or penguins, or sea otters? Especially with Hollywood helping out with movies such as Free Willy, or Happy Feet, or An Arctic Tale. The reality is that the bulk of the protected species are plants and among the animals on these lists are a number of spiders and insects.

The science is not conclusive either. Biologists are nearly equally split into two camps—the lumpers and the splitters. Splitters believe that the slightest morphological difference between a species justifies designating it as a sub-species. These sub-species are immediately classified as rare because they have limited geographic distribution and smaller populations and they, therefore, become instant candidates for listing. If you applied the same standard of morphological differences to human beings, one could easily imagine every single person out there as a distinct sub-species because of observed differences in the size of heads, shapes of noses, colors of skin, differences in ear configurations, hair color, etc. The biologists in the lumpers’ camp would say most humans have two eyes, one nose, one mouth and two ears and are therefore part of the broader human race.

The Endangered Species Act has become a sacred cow. Much like the Social Security system, even though it is broken, no one dares to try to fix it. This is indeed unfortunate because the current law is not achieving the desired outcome and instead results in species being keep in a bureaucratic bondage much like the Israelites were enslaved in Egypt. What we need is Moses-like Senators and Representatives who will emphatically demand that the Pharaoh-like environmental groups, “Let my species go!”

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