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ENDANGERED SPECIES ACT: OUT OF CONTROL AND GETTING WORSE
Folks in the Texas Panhandle and southeastern New Mexico are in an uproar, and with good reason. At the behest of environmental groups, the U.S. Fish and Wildlife Service (FWS) moves inexorably toward a decision to place the sand dune lizard on the federal Endangered Species Act (ESA) list. As similar listings have done elsewhere—the northern spotted owl in the Pacific Northwest, for example—providing the lizard ESA protection will destroy jobs and economic activity. It will destroy something else: energy production! Today Midland, Texas produces 20 percent of the Nation’s crude oil; its reserves are second only to Alaska.
Folks in the Permian Basin, as it is known, fear the type of economic privation visited upon the San Joaquin Valley in California. There, the FWS ordered waters that historically irrigated fertile croplands be dumped into the ocean to “protect” a three-inch fish, the delta smelt. The result: a modern-day dustbowl and thousands of lost jobs; the unemployment rate today ranges upwards to 40 percent. The federal government is unrepentant, neither Governor Schwarzenegger nor Governor Brown stepped in, and the U.S. Court of Appeals for the Ninth Circuit rejected arguments by local citizens that Congress lacks authority under the Commerce Clause to regulate a species that exists only in California.
Meanwhile, Congress finally did take action regarding wolves in Idaho and Montana. In 1994, over protests of westerners, including ranchers, hunters, and landowners, the Clinton Administration brought Canadian wolves into Yellowstone National Park in Wyoming to spread over the tri-state area. With a range of 500 miles, no longer fearful of mankind, and standing atop the food chain, wolves proliferated; in the process, they decimated Montana’s elk herds and adversely affected livestock.
During the Bush Administration, Idaho, Montana, and Wyoming demanded the right to regulate the species, a wish granted as to Idaho and Montana when the FWS delisted the wolf there. (When Wyoming’s regulatory regime was rejected, it sued; a federal district court has ruled against the FWS.) Not surprisingly, environmental groups challenged the delisting in federal court, which, again not surprisingly, struck down the delisting. Congress had enough. It enacted (and President Obama signed) legislation ordering the delisting of wolves in Idaho and Montana. Incredibly, environmental groups sued once again, this time arguing that it is unconstitutional for Congress to restrict a law enacted by Congress.
Further south, along the I-25 corridor, from Casper, Wyoming, to Colorado Springs, Colorado, the Preble’s meadow jumping mouse (PMJM) vexed local governments, businesses, and landowners since the Clinton Administration acceded to demands of environmental groups and put it on the ESA list, despite a lack of science to support the listing and notwithstanding that the PMJM is indistinguishable from other rodents. Finally, the Bush Administration, in response to science-based petitions from Wyoming, delisted the PMJM in Wyoming.
The Bush Administration could delist the PMJM in Wyoming because the Department of the Interior’s Solicitor opined that the ESA permitted the FWS to delist a species in a part of its range. Not surprisingly, environmental groups sued to put the PMJM back on the list and, in the process, challenged the offending Solicitor’s Opinion, which they also contested in the wolf lawsuit. The Obama Administration threw in the towel, withdrew the opinion, and asked the Colorado federal district court to strike the delisting and send the FWS back for rulemaking. That the request is illegal was irrelevant to federal lawyers.
Second only to the Environmental Protection Agency, the FWS is killing jobs today at an unprecedented pace across the country. There may be some hope for the Texas Panhandle and southeastern New Mexico, however; two U.S. Senators have introduced legislation to bar the listing of the lizard, and its lady in waiting, the prairie chicken. Because allegations that these provisions, if enacted and signed into law, are unconstitutional will follow along with federal lawsuits, the ESA cries out for massive rewrite and reform.
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