|
 Senator
Doug Whitsett
R- Klamath Falls, District 28 E-Newsletter 12/12/11
phone: 503-986-1728
900 Court St. NE, S-303, Salem, Oregon 97301
Email:
sen.dougwhitsett@state.or.us
Website:
http://www.leg.state.or.us/whitsett
The
Endangered Species Act Fundamental Flaws
The Endangered
Species Act was intended to identify animal and plant life
that is determined to be in peril of extinction and to
recover those species. This original purpose was and remains
a laudable goal. However, the Act has two fundamental flaws.
The first is that
no economic considerations are permitted to be included as
part of the determination in listing the species. The second
provides that prevailing plaintiffs are entitled to recover
their attorney fees and costs but they are not required to
pay the costs if the government prevails. These provisions
have allowed the intent, implementation and outcomes of the
Act to be hijacked to serve the greed and exploitation of
preservationist factions both inside and outside of
government agencies.
A total of 1065
American species, 590 foreign species and 250 candidate
species have been listed since the law was enacted in 1979.
To date, only 51 species have been removed from that list.
Twenty three of those species were recovered, 10 were
determined to be extinct, and 18 were originally listed
erroneously. In spite of the expenditure of billions of tax
dollars, the species recovery rate is less than 1.5 percent.
Extreme
preservationist groups are routinely using the provisions of
the Act to enrich their own coffers while forcing the
exclusion of human activity and destroying private property
rights. All of these groups employ the same basic methods.
They repeatedly petition the Fish and Wildlife Services and
the National Oceanic and Atmospheric Administration to list
multiple little known species as threatened or endangered.
The organizations then sue the agency when it fails to meet
the strict timeline for determination of threatened or
endangered status. The group that files the suit almost
always prevails because the agency has in fact failed to
meet the timeline requiring it to take action.
Under the Act,
the prevailing plaintiff is legally entitled to recover its
attorney fees and costs. The plaintiff routinely claims
inflated fees and costs. The agencies generally do not
contest those claimed costs in the court ordered stipulated
agreement. This method is regularly used to siphon huge
amounts of taxpayer dollars from the agencies to be used to
fund the operations and to promote the philosophies of the
plaintiff factions.
For example, the
Western Watersheds Project filed with the Fish and Wildlife
Service to list the Slickspot Peppergrass which grows, or
has the potential to grow, on certain Idaho rangeland. The
grass has no known agricultural, economic or other human
uses. Further, there is no known consumption of the grass by
either domestic or wild ungulates, according to the Natural
Resources Conservation Service.
Fish and Wildlife
Services decided against listing the species; however, the
agency missed the deadline for that determination. Western
Watersheds Project sued repeatedly. In spite of the fact
that in 2009 Slickspot Peppergrass had the highest
population ever recorded in the area, the court finally
forced Fish and Wildlife Services to list the species and to
prepare a draft critical habitat designation for the plant.
To date, the agency has paid Western Watershed Project
nearly $240 thousand in attorney fees and costs. The costs
of the legal fees for the agency, and for intervener
ranching interests, are in addition to that amount
To date, the
litigation has accomplished little more than to force the
Agency to spend vast sums of taxpayer dollars on legal fees
and paperwork. However, it has created an apparent cash
bonanza for the Western Watershed Project. Ultimately, the
losers will be the taxpayers, the ranchers’ and most likely
the Slickspot Peppergrass.
The Act’s
provisions prohibiting damaging or “taking” of the species
or its habitat also apply to private property after a
species has been listed. Any take of the species must be
mitigated according to rules developed by the agency. As a
practical matter, mitigation means either privately funding
programs supporting the listed species or excluding the land
from use where the listed species is found.
The peppergrass
species is very vulnerable to fire. Once cattle are excluded
from the range, there will be no reason, or financial means,
for the ranchers to control the frequent range fires in the
area. This series of actions may actually result in the
species becoming endangered.
Perhaps
emboldened by these and similar specious lawsuits, the
WildEarth Guardians and the Center for Biological Diversity
filed multiple petitions to list species 113 additional
species in 13 federal court cases. The Justice Department
and the Fish and Wildlife Service have agreed a sort of
class action Endangered Species Act multi-district
litigation. This agreement will require the agency to make
1,201 decisions regarding proposed determinations for 1,053
newly identified threatened or endangered species during the
next four years. The agreement does not explain how the
number of candidate species grew from 113 to 1,053!
This new figure
is nearly equal to the total number of American species
listed during the entire 33 year history of the Endangered
Species Act. The agreement will require the American
taxpayers to pay more than $200 million just to process the
paperwork to decide whether or not to list the 1,053
species.
Moreover, the
WildEarth Guardians and the Center for Biological Diversity
have already been designated as “prevailing parties” by the
Justice Department. It is virtually certain that the two
plaintiff factions will be reimbursed for whatever they
claim their attorney fees and costs to be. The amount of
fees and costs that they will receive is yet to be agreed
upon. The expectation is the cost to taxpayers will be
substantial.
Unfortunately,
nothing in the multi-district litigation agreement prevents
any other factions from filing additional petitions or
lawsuits claiming even more endangered species. National
Wildlife Federation, Western Watersheds Project, Sierra
Club, Humane Society of the U.S. or any number of other
groups may want in on the cash bonanza. They have to be
aware that there is no way that the Fish and Wildlife
Services can complete their existing work load. The groups
can be virtually certain that the federal government will
violate the timeline for determination on any future
petitions they may file. Their cash rewards will be
virtually automatic.
The U.S. Fish and
Wildlife Services are already facing a backlog of more than
180 Endangered Species Act related lawsuits. These legal
actions are routinely filed to block or delay important
infrastructure projects, stifle economic activity and
prevent private sector job creation. The agency has spent
more than $15 million this year taking substantive actions
required by various litigation and court orders. That is
more than three fourths of their entire 2011 resource
management budget for listings and critical habitat
designation.
The good news is
that Congress is finally attempting to take action. As Chair
of the powerful Committee on Natural Resources, Washington
Congressman “Doc” Hastings has scheduled a series of
hearings on these Endangered Species Act issues. In fact,
much of the material in this article is derived from
testimony from the first Congressional hearing held December
6th.
We should all
applaud and support the Congressman’s efforts. Working
toward the revision of the Endangered Species Act is a major
priority for the Klamath County Republican Central
committee. We believe that it is past time to amend the ESA.
Please join us in asking Congress to eliminate the
provisions that special interest groups are routinely using
to enrich themselves, at the expense of the taxpayer and the
public interest.
Please remember,
if we do not stand up for rural Oregon no one will.
Best Regards,
Doug |
