The Many Facets of
The Endangered Species Act (updated version 09-13-05)
September 6, 2005
Original version published in May
2002
By Julie Kay Smithson propertyrights@earthlink.net
https://www.propertyrightsresearch.org/articles6/many_facets_of_the_endangered_sp
.htm
While we are familiar with the
enforcement of the ESA in America, the Act and its enforcement have
expanded to include species found anywhere on the planet. By specific
exclusion as a species, human populations have become victims of the
ESA.
Treaties,
International Agreements and the Origins of the ESA
Congress passed the
Endangered Species Preservation Act (ESPA) in 1966. This law allowed
listing of only native animal species as endangered and provided limited
means for the protection of species so listed. The Departments of
Interior, Agriculture, and Defense were to seek to protect listed
species, and insofar as consistent with their primary purposes,
preserve (protect) the habitats of such species. Land
acquisition for protection of endangered species was also
authorized.
The Endangered Species
Conservation Act of 1969 (ESCA) was passed to provide additional
protection to species in danger of "worldwide extinction". Import of
such species was prohibited, as was their subsequent sale within the
U.S. This Act called for an international ministerial meeting to adopt a
convention on the conservation of endangered species.
A 1973 United Nations
conference in Washington D.C. led to the signing of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), which restricted international commerce in plant and animal
species believed to be actually or potentially harmed by trade.
Later that year, the
Endangered Species Act of 1973 (ESA) was passed, which combined and
considerably strengthened the provisions of its predecessors.
The ESA is arguably one
of the most recognized acronyms in rural America. First written in 1973
using its current title, it has undergone numerous revisions. This "law
of the land" contains more facets than the Hope Diamond and may have its
purported curse as well. Mere mention of a landowner having "possible
habitat" for a protected, threatened, or endangered species wreaks
immediate havoc, both emotionally and economically.
The ESA was amended in
1976-1982, 1984 and 1988, and actually expired in the early 1990s, but
has been kept alive through Congressional funding on an annual
basis.
The United States' international commitment of
America's resources under treaties and "other international
agreements" has its roots in 16 U.S.C. 1351. An
Executive "international agreement" is not ratified by the Senate.
The ESA began with the Migratory Bird Treaty Act of
1918* between the United States, Great Britain and Canada. This
treaty usurped powers reserved to the States. The Migratory Bird
Treaty has even been expanded several times.
Some treaties, such as the Western Hemisphere Treaty (Treaty of
Tordesillas), have no enforcement clause and are merely good faith
treaties that impose no obligation or burden upon anyone.
U.S. v. Pink 315 US 203 (1942), which used treaties to undermine
constitutional safeguards, should raise significant,
related issues.
If international matters are raised and held to, the
matter of which treaty or International Agreement is being applied,
comes into play. Legal arguments can and should arise from the
implementation and enforcement of the ESA against private property
owners.
The Ute Mountain Ute Nation did an excellent job of challenging and
defeating the ESA. The Ute Mountain Ute Nation did not sign any of
treaties or international agreements -- thus, the ESA does not
apply to their lands in the southwest quarter of Colorado.
Many definitions
contained in the ESA come directly from UN and IUCN (International Union
for the Conservation of Nature) glossaries, including but not limited to
CITES definitions.
A few definitions from
the ESA are necessary in order to understand the complexities of the Act
itself:
The ESA definition of an
endangered species is "Any species which is in danger of extinction
within the foreseeable future throughout all or a significant portion of
its range."
The terms ''conserve'',
''conserving'', and ''conservation'' mean to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this chapter are no longer necessary. Such methods
and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
The term ''critical
habitat'' for a threatened or endangered species means -
(i) The specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 1533 of this title,
on which are found those physical or biological features
(I) Essential to the
conservation of the species and
(II) Which may require
special management considerations or protection; and
(ii) Specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 1533 of this title,
upon a determination by the Secretary that such areas are essential for
the conservation of the species.
A "threatened"
classification is provided to those animals and plants likely to become
endangered within the foreseeable future throughout all or a significant
portion of their ranges [Section 3].
A "species" includes any
species or subspecies of fish, wildlife, or plant; any variety of plant;
and any distinct population segment of any vertebrate species that
interbreeds when mature. Excluded is any species of the Class Insecta
determined by the Secretary to constitute a pest whose protection under
the provisions of the Act would present an overwhelming and overriding
risk to man [Section 3].
The term ''fish or
wildlife'' means any member of the animal kingdom, including without
limitation any mammal, fish, bird (including any migratory,
nonmigratory, or endangered bird for which protection is also afforded
by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or parts
thereof. ["any mammal" could this be expanded to include humans?]
The term ''take'' means
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. [This definition
is especially meaningful from the context of those human species who
have been "harassed, harmed, pursued, wounded, etc." by the
implementation of the ESA.]
While we are familiar
with the enforcement of the ESA in America, the Act and its enforcement
have expanded to include species found anywhere on the planet. By
specific exclusion as a species, human populations have become victims
of the ESA.
The full 49-page text of
the Act may be found at https://www.house.gov/resources/105cong/reports/105_c/esa73_pdf
Listing
The listing process was
originally planned to protect both species and their habitat. U.S. and
foreign species lists were combined, with uniform provisions applied to
both (Section 4).
Categories of
"endangered" and "threatened" were defined (Section 3).
Broad taking prohibitions
were applied to all endangered animal species, which could apply to
threatened animals by special regulation [Section 9].
Authority was provided to
acquire land for listed animals and for plants listed under CITES
[Section 5]; and U.S. implementation of CITES was provided [Section
8].
All Federal agencies were
required to undertake programs for the conservation of endangered and
threatened species, and were prohibited from authorizing, funding, or
carrying out any action that would jeopardize a listed species or
destroy or modify its "critical habitat" [Section 7].
Significant amendments
were enacted in 1978, 1982, and 1988 although the overall framework of
the 1973 Act remained basically unchanged.
As with most other
Federal regulations, a species is proposed for addition to the lists (50
CFR Part 17) in the Federal Register. The public is offered an
opportunity to comment, and the rule is finalized (or withdrawn).
Species are selected by the United States Fish & Wildlife Service
(FWS) for proposed rules from a list of 'candidates.'
To become a candidate,
FWS relies largely upon petitions, FWS and other agencies' surveys, and
other substantiated reports on field studies.
The Act provides very
specific procedures on how species are to be placed on the list (e.g.,
listing criteria, public comment periods, hearings, notifications, time
limit for final action) and may be found at 50 CFR Part 424. Selection
from the list of candidates for a proposed rule is based upon a priority
system (September 23, 1983, Federal Register).
Species may be active
candidates from a number of sources. FWS has its own biologists who are
monitoring the status of some species. Other agencies [The Nature
Conservancy, The Center for Biological Diversity -- formerly known as
the Southwest Center for Biological Diversity -- and others] have
similar staffs that can report when a species seems to be at some risk
to its continued existence. Informal letters and various reports are
also submitted to FWS from the States and private groups and
individuals. There is also a formal petition process available under the
Act.
Anyone can petition to
have any species -- as defined in the ESA -- listed.
In the years since its
inception, this process has expanded to include "possible habitat?" and
has often used the "critical habitat" designation to halt human use of
large blocks of land. In a 1998 memo, Donna Darm, the acting regional
administrator of the National Marine Fisheries Service (NMFS / NOAA
agency) wrote: "When we make critical habitat designations, we
just designate everything as critical without analysis of how much
habitat a (population) needs, what areas might be key, etc. We just say
we need it all."
"This has been our
assumption of their attitude all along," said Chuck Garner, manager of
the Kennewick Irrigation District in the mid-Columbia Basin of
Washington State. He gave district directors copies of the comments at a
board meeting. "They just go in without showing any scientific evidence
of what habitat is critical; they just list everything," Garner
said.
Some species have been
"emergency listed" in order to stop road improvements. For example, the
bull trout near South Canyon Road at Jarbidge, Nevada, was the
"sacrificial lamb" used to close the only road for miles in a remote
part of northeast Nevada. The bull trout was "emergency listed" for this
reason alone: to close a road. Concerned citizens reopened the road on
the fourth of July in 2000 in the face of threats of lawsuits and jail
time.
Plant species are the
special province of the Smithsonian Institution, as directed by the
Secretary of Agriculture. The Smithsonian is to review plant species
that are or may become threatened or endangered, and recommend methods
adequate to conserve the species.
Methodology
Much of what has given
the ESA its "black eye" with those impacted by it is the methodology
involved.
Federal environmental
policy surrounding this law is often seen to pit one species against
others, or speciesism.
Lake Koocanusa is in
northwestern Montana and straddles the American-Canadian border. A
manmade lake built in the 1970s by the Army Corps of Engineers,
Koocanusa was promoted to increase fishing and tourism. A "protected
species" of salmon listed in 1992 has put another protected species, the
White Sturgeon, at risk.
The United States Fish
& Wildlife Service working with the National Marine Fisheries
Service, is conducting a "50-year experiment," using the lake levels to
discover if decreased lake levels in the spring will help the salmon in
the Columbia River, 800 miles downstream. This effectively puts the
spawning grounds of the sturgeon in eminent danger by reducing lake
levels at a time when the sturgeon most needs higher levels. This
is a prime, but far from isolated, example of the
Endangered Species Act violating the Endangered Species Act.
In other highly
publicized stories, lynx fur and grizzly bear hair have been used to
falsify the boundaries of "critical habitat" for both species, leading
to the question: How many other "science-based statistics" have been
invented in order to "create" critical habitat?
The Endangered Species
Act has been selectively used to protect species other than human and
domestic. Many rural producers are descendants of war veterans who
settled and improved their lands after government promises of land and
water. Indeed, many veterans had deeds -- signed by various U.S.
presidents -- granting them and their "heirs and assigns" land and water
rights in perpetuity.
As prospects for rural
economic survival dwindle, a federal government or environmental group
buyout is touted as the only alternative. Resource providing and
resource extraction -- farming, ranching, logging, mining, and
commercial fishing -- are presented to the general public as
hurtful "to the environment" and obsolete careers. Tourism and
recreation are promoted as being better for all concerned.
Left out of the equation
are the facts: people, like any other species, need food and shelter for
survival. In order to have both, resource providing and extraction must
continue. Sending both to other countries does not bode well for their
economies or their environment.
Think
there's no such thing as RURAL/CULTURAL terrorism?
A 2000 ESA
hearing, sponsored by the Senate Committee on Environment and
Public Works, actively excluded testimony from
landowners that have seen their property values reduced
or completely negated by regulations.
Victim stories are
legend. Thousands -- perhaps tens of thousands of families and
businesses -- have been forced to relocate and/or go out of
business due to this single statute. Here are but a few:
*Dave Fisher, third generation
cattle rancher and owner of the Shield "F" Ranch near Barstow,
California
Dave Fisher has become
both the endangered species and the victim. His story is the tip of the
iceberg, as there are 1,400 ranch families who fell victim to the ESA
along with him.
In late 2001 the Bureau
of Land Management (BLM) sent Dave a notice that if his 307 head of
cattle were not removed from the 154,848-acre Ord Mountain allotment in
the California Desert within 5 days, they would be impounded by the BLM.
The BLM declared its lands and those under private ownership in the
affected area to be "critical habitat" for the desert tortoise. It did
not notify the 1,400 affected families in the area of its intent until
after the ink was dry.
Dave and his neighbors
tried to cooperate with the BLM. They appealed the original BLM May 15,
2001 decision to the Office of Hearings and Appeals (OHA) and won. That
original decision was remanded back to the BLM because it had failed to
consult, cooperate and coordinate (CCC) with the permittees as required
by Section 8 of the Public Rangelands Improvement Act and as required by
the BLM's own regulations.
Dozens of appeals were
filed, protesting the BLM's September 7, 2001, decision.
The BLM did not
respond to even one of those appeals.
The desert tortoise
"protections" arose from a negotiated California Desert Conservation
Area (CDCA) lawsuit settlement between the BLM, The Center for
Biological Diversity (CBD), Public Employees for Environmental
Responsibility (PEER) and the Sierra Club. This agreement empowered the
BLM to partially implement the U.S. Fish & Wildlife Service's 1994
Desert Tortoise Recovery Plan recommendations for livestock reduction
and removal from critical habitat. Proven help for the desert tortoise
from cattle droppings (providing moisture and shade) were not factors
included in this decision. Dave suggested to the California state BLM
director that the director exchange Fisher's ranch for another ranch.
That offered solution was never acted upon.
Ironically, it was
rancher stewardship of the land that attracted the desert tortoise in
the first place.
Not until the Fisher
family drilled water wells on its own land did the desert tortoise
became prevalent in the California Desert Conservation Area. The
tortoise, in moving into a new habitat provided by ranchers grazing
cattle, attracted the attention of the environmental groups. It was used
it to pressure federal officials to push Fisher and his 1,400 ranching
neighbors off the land.
This is an example of
ranchers who stayed within the system, cooperated fully with all
agencies involved and still -- without court order or decision --
became its victims. Threats of lawsuits against the Department of
Interior (DOI) by three powerful environmental groups seem to have
provided the directives for DOI/BLM actions.
*Anita Cragg, Florida builder
In 1992, Anita Cragg,
president of Space Coast Management Services, bought a housing
subdivision in Country Cove, Florida with the goal of building new homes
next to existing ones. She had the necessary building permits and
interested buyers lined up when FWS ordered her to stop all development
because it allegedly posed a hazard to the Florida scrub-jay, a bird
which is listed as threatened under the Endangered Species Act.
What Cragg didn't
understand was how her planned development threatened the scrub jay when
there were no scrub-jay nests on the property.
Both the FWS and an
independent environmental engineer hired by Cragg could not find any
nests on her land.
However, when FWS
officials were surveying her land in 1993, they saw two scrub jays fly
onto her lots. Because Cragg's property had the potential to be suitable
scrub-jay habitat, the agency suspended construction for 18 months.
To get construction
resumed, FWS forced Cragg to purchase four acres of land off-site to
compensate for the loss of every acre of potential habitat on her
property. That cost her $100,000. Cragg says her deal with the
government "didn't really help the scrub-jay because we weren't hurting
it in the first place."
*A Sovereign Nation's border
The U.S. Border Patrol's
aggressive efforts to stem illegal immigration and cut crime along the
Texas-Mexican border have been a resounding success. In just two years,
Operation Rio Grande, the agency's high-tech interdiction effort, cut
the number of illegal aliens attempting to cross the border from 216,000
in 1996 to less than 160,000 in 1999 along a 200-mile stretch of the Rio
Grande River. If it weren't for the operation, Border Patrol officials
estimate that there would have been 350,000 illegal aliens attempting to
cross the border in 1999. In addition, in just one year, crime in
Brownsville dropped 45 percent.
If "environmentalists"
have their way, all these gains will be negated.
The Sierra Club,
Defenders of Wildlife and the Audubon Society plan to file a lawsuit to
put a halt to the Border Patrol's use of critical interdiction
technology, which the groups claim pose a "threat" to "endangered
species." These groups argue that the agency's use of high-powered
lights, which prevent border crossings under the cover of night, also
disrupts the habits of the ocelot and jaguarondi, two nocturnal-oriented
wildcats on the endangered species list.
"We feel the Immigration
and Naturalization Service can accomplish its job without the floodlight
and fences and with far less intrusive technologies that have no impact
on wildlife," says Jim Chapman of the Sierra Club.
Not so, Border Patrol.
Border Patrol assistant chief Rey Garza says. "Taking away the lights
will negate everything."
The Rio Grande River is
pitch-black, making it an obvious haven for illegal aliens and drug
criminals. Garza says that Border Patrol officers have been stabbed and
shot trying to do their job on its murky banks.
By installing permanent
and mobile light fixtures along targeted sections of the river, the
Border Patrol's ability to catch criminals and illegal aliens has
increased dramatically. Says officer Garza, "The lights have proven to
be a powerful deterrent."
The environmentalists'
planned lawsuit especially frustrates Border Patrol officials. They had
already agreed to not place their high-tech equipment in U.S. Fish and
Wildlife sanctuaries in an attempt to address environmental concerns --
even though those sanctuaries have become refuges for illegal
aliens.
*Jay Monfort, New York businessman with 300-year
family history
Jay Monfort of Fishkill,
New York, began the permitting process in 1990 of trying to expand a
gravel mine on his own land. Jay owns a company that manufactures
concrete block. He also owns property that could largely supply the
gravel needed for his business. Fishkill, New York judged Jay to be in
compliance with its zoning regulations and approved the expansion of his
Sour Mountain gravel company.
After filing his permit
application with the state Department of Environmental Conservation
(DEC) Jay became ensnared in a process that continues today. His Draft
Environmental Impact Statement (EIS) was rejected as "incomplete" in
April 1993, almost six months after the state was required by law to
issue its opinion. After resubmitting his EIS, the DEC finally approved
it in 1995.
Then the DEC, in
collusion with local environmental groups, devised new and costly
reasons to further delay the project. At what should have been the end
of the process, Jay was told that he would have to start over again
because a den of rattlesnakes had been "discovered" on an adjoining
property owned by -- surprise! -- a conservation group. The
protected species of snakes were not even on Mr. Monfort's property, and
his previous EISs had already addressed potential impacts on the snakes
by his mine.
The DEC informed Jay that
he would have to spend several additional years studying the snakes
before a decision could be rendered on his proposed mine expansion.
Monfort declares, "The
motivation for such abusive tactics appears to be a desire of the state"
and the local conservation group, Scenic Hudson, to acquire his property
for a land trust.
Jay has not given up. In
January 1998 he filed a lawsuit demanding that the state issue a final
decision based on his original permit application. The permit process
alone has cost him more than $3 million.
A better way
to protect wildlife
Federal "management" of
both endangered species and other wildlife has led to a delicate
balancing act. A major reason for this, according to Howard Hutchinson,
executive director for the Coalition of Arizona/New Mexico Counties, is
that critical-habitat designations for endangered species are often
determined by "citizen" lawsuits rather than being formulated by people
who understand the needs of the species. As a result, he says
that decisions are made by Justice Department lawyers based on
agreements reflecting political purposes.
Hutchinson cites an
example. As the result of a much-publicized "citizen" ESA lawsuit filed
by some of the same environmental groups involved in the Klamath Basin
crisis, protection of the Mexican spotted owl virtually eliminated the
timber industry in Arizona and New Mexico several years ago.
Hutchinson, who serves on
the spotted-owl recovery team, says the "resulting growth of underbrush
in the forests has not only led to this summer's devastating wildfires,
but has also had a negative effect on several other species that have
been declared endangered." And, says Hutchinson, research has shown that
because of the increase in timber density the forests are retaining more
water, thus decreasing the amount of water in Southwestern streams by 30
percent. As a result, he says, the Gila trout, Apache trout, spiked ace
and loach minnow -- all of which live in the streams and also were
subjects of "citizen" ESA lawsuits -- are suffering.
Even more bizarre than
this pitting of one species against another, say critics, is the pitting
of a species against itself. This is happening in the case of the Coho
salmon, one of the allegedly threatened fish that was the subject of
several of the lawsuits that forced the government to turn off the
irrigation water in the Klamath Basin.
According to the National
Marine Fisheries Service (NMFS / NOAA agency) the government agency
that administers the ESA for marine and anadromous (fish that migrate
from the ocean to freshwater to spawn) species, the salmon being
protected in the Klamath River do not constitute a species as properly
defined. The NMFS says they are just one of 52 "distinct population
segments" -- DPSs -- or " evolutionarily significant units" (ESU) of
salmon that are found in Oregon, Washington state, Idaho and California.
But one-half of the 52 ESUs are protected under the ESA. The Klamath
River fish belong to an ESU called the Southern Oregon/ Northern
California Coasts Coho salmon. It was listed as threatened under the ESA
in 1997.
So what distinguishes one
ESU of salmon from another? A genetic difference? No. A difference in
the taste of the fillet on the dining-room table? Not even that.
According to a regulation promulgated in 1996 by Bruce Babbitt,
Clinton's secretary of the interior, a group of vertebrates qualifies as
an ESU if it "is markedly separated from other populations of the same
taxon as a consequence of physical, physiological, ecological or
behavioral factors."
According to NMFS
spokesman Brian Gorman, geography is the primary distinguishing
factor.
Gorman says the hatchery
fish were not counted because, although they have been released into
rivers for at least 100 years, NMFS biologists recently have concluded
that the hatchery fish have different "behaviors" and actually are a
threat to the "wild" fish. He claims the hatchery fish "diminish the
vigor" of the wild fish and make them easier for fishermen to catch. He
also says hatchery salmon reproduce less successfully in the wild than
"wild" salmon.
In 1998, Oregon
Department of Fish and Wildlife personnel were videotaped using baseball
bats to kill thousands of Oregon coastal Coho salmon at a hatchery in
the Alsea River basin. "There is a rationale for killing the salmon,"
says Gorman. "Each hatchery can only handle so many fish, so when the
hatchery's capacity is reached, the excess fish must be killed."
A similar parallel could
be drawn between bovine excreta and that of wild elk or antelope. The
head of the Tucson, Arizona-based Center for Biological Diversity,
Kieran Suckling, rages about domestic cattle defecating in streams
-- yet patently refuses to acknowledge that all wild animals
produce and drop scat on land and in streams.
Wildlife has been
existing, mostly in harmony, with private citizens for many years. The
partnership has benefited both: deer and many other avian and animal
species forage on the edges of land planted in grain. Species that are
of different successions -- early, mid and late -- are needed by
wildlife in order to flourish. Driving a species such as the American
Bison almost to extinction was a profound learning experience. The
passenger pigeon's demise was another. The twentieth century found
stewardship and land/water use progressing wisely in private hands.
It is certainly possible
for most species to have "possible habitat" in many areas where they are
not found. That theory holds true for both endangered and healthy
populations of humans, flora and fauna. The ability to adapt --
stronger in some species than in others -- has perhaps encouraged
diversity more than hindered it, since it dictates progression or
extinction.
The continuing
educational process that humans are undergoing to better care for and
harvest renewable resources -- including timber, sustainable
harvest of game birds and animals as well as domestic -- points the
way toward a far different scenario than environmental extremists have
painted. Freedom of choice made possible by private ownership is a
viable alternative to today's ESA restrictions. Truly free enterprise
offers healthy, threatened and endangered species ways to
partner, which over-regulation and the locking up of millions of
acres can never accomplish.
"Envisioning"
the future of the ESA
Non-governmental
organizations and unelected bureaucrats are using the ESA as a leverage
tool to end resource providing in America. This arbitrary and capricious
agenda is a self-fulfilling prophecy. If all grazing permits are
purchased by such as the Nature Conservancy -- thus ending grazing on
all Federally owned lands -- families will feel the loss in their
pocketbooks and on their dinner tables. A much larger percentage of
disposable income will go for food as prices go up and availability goes
down.
With the remainder of
arable land and its water resources being placed off-limits to resource
production and extraction -- and human habitation -- food and water
will soon achieve a place in the American psyche that they have not held
for two hundred years. The standard of living that we take for granted
will evaporate.
Protection of some
species at the expense of others is an artificial scenario, neither
practicable nor scientific. Past precedent shows beyond reasonable doubt
that the future of the ESA as currently structured and enforced is
bleak.
Conclusion
This Act is a
property rights destroying monster. It has wreaked havoc throughout
America and beyond, and cannot honestly claim even one "success story."
What the Endangered Species Act can claim is the demise of
thousands of rural communities and billions of taxpayer dollars. It can
claim many shattered lives, whether through the stoppage of logging,
farming, mining, ranching, or commercial fishing in many areas, or the
many recreational pursuits (including hunting and fishing) that have
been placed off-limits. It has been the secondary reason for many
destroyed families -- through stress, divorce, suicide, ruined
health or nerves, and even early death. Rural and urban people
alike must put this law where it belongs: in the wastebasket. Not only
has the ESA failed species miserably; it has also failed the American
people.
As an economic and
cultural change agent, it has no parallel.
Landowners who once
provided abundant species habitat have been and are being forced off
their land in record numbers. One need look no further than the Klamath
Basin of Oregon and California for proof. Property values are gutted,
families are wrecked, and once-thriving communities are turned into
rural ghettos. Species have not recovered anywhere. The ESA has
failed to "protect" any species, and has, in fact, been a
substantial contributing factor to actually making some species become
endangered that once enjoyed healthy populations.
There is currently a move
afoot to "reform" and "strengthen" the ESA -- even to the point of
codifying "invasive species" by inclusion of language.
Current ESA
draft "reform" legislation even dovetails a version of Kelo v. New
London, Connecticut, by use of a "50 percent clause" -- more than
half of one's property must be removed from use before any compensation
is considered or applicable.
How many people are
content with losing half their property rights before any property
compensation even comes into play?
Far from needing reform
or strengthening -- either of which further decimates property rights --
this expired 'piece of work' that has Draconian
and unconstitutional roots must be uprooted and finished off, to
never again make victims of honest folk.
Author
Julie Kay Smithson lives
in rural Ohio. She has become a property rights researcher, author and
speaker by default, due to the assault on prime farmland in her part of
Ohio by an agency of the Department of Interior, United States Fish
& Wildlife Service. Please visit https://www.PropertyRightsResearch.org to learn more
about property rights, resource providers, consumers, and recapturing
freedom.
Thanks to the National
Center for Public Policy Research for its Victim Directories, which were
of priceless help in the writing of this article. https://www.propertyrightsresearch.org/2005/articles05/victimsdirectoriesfrms.htm
5,065 words.
https://www.propertyrightsresearch.org/articles6/many_facets_of_the_endangered_sp
.htm
The full text of Colonel David Crockett's "Not Yours to Give"
speech before Congress is also pasted herein and I expect it to also be
included as part of my Official Testimony. It clearly explains that such
monies as Congress has been throwing, in part, at such contrived
"crises," are unconstitutional and therefore have no place in America's
economy or her legislative, executive or judicial action.
One day in the House of Representatives a bill was taken up
appropriating money for the benefit of a widow of a distinguished naval
officer. Several beautiful speeches had been made in its support. The
speaker was just about to put the question when Crockett arose:
"Mr. Speaker--I have as much respect for the memory of the deceased,
and as much sympathy for the suffering of the living, if there be, as
any man in this House, but we must not permit our respect for the dead
or our sympathy for part of the living to lead us into an act of
injustice to the balance of the living. I will not go into an argument
to prove that Congress has not the power to appropriate this money as an
act of charity. Every member on this floor knows it.
We have the right as individuals, to give away as much of our own
money as we please in charity; but as members of Congress we have no
right to appropriate a dollar of the public money. Some eloquent appeals
have been made to us upon the ground that it is a debt due the deceased.
Mr. Speaker, the deceased lived long after the close of the war; he was
in office to the day of his death, and I ever heard that the government
was in arrears to him.
"Every man in this House knows it is not a debt. We cannot without
the grossest corruption, appropriate this money as the payment of a
debt. We have not the semblance of authority to appropriate it as
charity. Mr. Speaker, I have said we have the right to give as much
money of our own as we please. I am the poorest man on this floor. I
cannot vote for this bill, but I will give one week's pay to the object,
and if every member of Congress will do the same, it will amount to more
than the bill asks."
He took his seat. Nobody replied. The bill was put upon its passage,
and, instead of passing unanimously, as was generally supposed, and as,
no doubt, it would, but for that speech, it received but few votes, and,
of course, was lost.
Later, when asked by a friend why he had opposed the appropriation,
Crockett gave this explanation:
"Several years ago I was one evening standing on the steps of the
Capitol with some members of Congress, when our attention was attracted
by a great light over in Georgetown. It was evidently a large fire. We
jumped into a hack and drove over as fast as we could. In spite of all
that could be done, many houses were burned and many families made
houseless, and besides, some of them had lost all but the clothes they
had on. The weather was very cold, and when I saw so many children
suffering, I felt that something ought to be done for them. The next
morning a bill was introduced appropriating $20,000 for their relief. We
put aside all other business and rushed it through as soon as it could
be done.
"The next summer, when it began to be time to think about election, I
concluded I would take a scout around among the boys of my district. I
had no opposition there but, as the election was some time off, I did
not know what might turn up. When riding one day in a part of my
district in which I was more of a stranger than any other, I saw a man
in a field plowing and coming toward the road. I gauged my gait so that
we should meet as he came up, I spoke to the man. He replied politely,
but as I thought, rather coldly.
"I began: 'Well friend, I am one of those unfortunate beings called
candidates and---
"Yes I know you; you are Colonel Crockett. I have seen you once
before, and voted for you the last time you were elected. I suppose you
are out electioneering now, but you had better not waste your time or
mine, I shall not vote for you again."
"This was a sockdolger...I begged him tell me what was the matter.
"Well Colonel, it is hardly worthwhile to waste time or words upon
it. I do not see how it can be mended, but you gave a vote last winter
which shows that either you have not capacity to understand the
Constitution, or that you are wanting in the honesty and firmness to be
guided by it. In either case you are not the man to represent me. But I
beg your pardon for expressing it that way. I did not intend to avail
myself of the privilege of the constituent to speak plainly to a
candidate for the purpose of insulting you or wounding you.'
"I intend by it only to say that your understanding of the
constitution is very different from mine; and I will say to you what but
for my rudeness, I should not have said, that I believe you to be
honest.
But an understanding of the constitution different from mine I cannot
overlook, because the Constitution, to be worth anything, must be held
sacred, and rigidly observed in all its provisions. The man who wields
power and misinterprets it is the more dangerous the honest he is.'
" 'I admit the truth of all you say, but there must be some mistake.
Though I live in the backwoods and seldom go from home, I take the
papers from Washington and read very carefully all the proceedings of
Congress. My papers say you voted for a bill to appropriate $20,000 to
some sufferers by fire in Georgetown. Is that true?
"Well my friend; I may as well own up. You have got me there. But
certainly nobody will complain that a great and rich country like ours
should give the insignificant sum of $20,000 to relieve its suffering
women and children, particularly with a full and overflowing treasury,
and I am sure, if you had been there, you would have done just the same
as I did.'
"It is not the amount, Colonel, that I complain of; it is the
principle. In the first place, the government ought to have in the
Treasury no more than enough for its legitimate purposes. But that has
nothing with the question. The power of collecting and disbursing money
at pleasure is the most dangerous power that can be entrusted to man,
particularly under our system of collecting revenue by a tariff, which
reaches every man in the country, no matter how poor he may be, and the
poorer he is the more he pays in proportion to his means.
What is worse, it presses upon him without his knowledge where the
weight centers, for there is not a man in the United States who can ever
guess how much he pays to the government. So you see, that while you are
contributing to relieve one, you are drawing it from thousands who are
even worse off than he.
If you had the right to give anything, the amount was simply a matter
of discretion with you, and you had as much right to give $20,000,000 as
$20,000. If you have the right to give at all; and as the Constitution
neither defines charity nor stipulates the amount, you are at liberty to
give to any and everything which you may believe, or profess to believe,
is a charity and to any amount you may think proper. You will very
easily perceive what a wide door this would open for fraud and
corruption and favoritism, on the one hand, and for robbing the people
on the other. 'No, Colonel, Congress has no right to give charity.'
"'Individual members may give as much of their own money as they
please, but they have no right to touch a dollar of the public money for
that purpose. If twice as many houses had been burned in this country as
in Georgetown, neither you nor any other member of Congress would have
Thought of appropriating a dollar for our relief. There are about two
hundred and forty members of Congress. If they had shown their sympathy
for the sufferers by contributing each one week's pay, it would have
made over $13,000. There are plenty of wealthy men around Washington who
could have given $20,000 without depriving themselves of even a luxury
of life.'
"The congressmen chose to keep their own money, which, if reports be
true, some of them spend not very creditably; and the people about
Washington, no doubt, applauded you for relieving them from necessity of
giving what was not yours to give. The people have delegated to
Congress, by the Constitution, the power to do certain things. To do
these, it is authorized to collect and pay moneys, and for nothing else.
Everything beyond this is usurpation, and a violation of the
Constitution.'
"'So you see, Colonel, you have violated the Constitution in what I
consider a vital point. It is a precedent fraught with danger to the
country, for when Congress once begins to stretch its power beyond the
limits of the Constitution, there is no limit to it, and no security for
the people. I have no doubt you acted honestly, but that does not make
it any better, except as far as you are personally concerned, and you
see that I cannot vote for you.'
"I tell you I felt streaked. I saw if I should have opposition, and
this man should go to talking and in that district I was a gone
fawn-skin. I could not answer him, and the fact is, I was so fully
convinced that he was right, I did not want to. But I must satisfy him,
and I said to him:
"Well, my friend, you hit the nail upon the head when you said I had
not sense enough to understand the Constitution. I intended to be guided
by it, and thought I had studied it fully. I have heard many speeches in
Congress about the powers of Congress, but what you have said here at
your plow has got more hard, sound sense in it than all the fine
speeches I ever heard. If I had ever taken the view of it that you have,
I would have put my head into the fire before I would have given that
vote; and if you will forgive me and vote for me again, if I ever vote
for another unconstitutional law I wish I may be shot.'
"He laughingly replied; 'Yes, Colonel, you have sworn to that once
before, but I will trust you again upon one condition. You are convinced
that your vote was wrong. Your acknowledgment of it will do more good
than beating you for it. If, as you go around the district, you will
tell people about this vote, and that you are satisfied it was wrong, I
will not only vote for you, but will do what I can to keep down
opposition, and perhaps, I may exert some little influence in that way.'
"If I don't, said I, 'I wish I may be shot; and to convince you that
I am in earnest in what I say I will come back this way in a week or ten
days, and if you will get up a gathering of people, I will make a speech
to them. Get up a barbecue, and I will pay for it.'
"No, Colonel, we are not rich people in this section but we have
plenty of provisions to contribute for a barbecue, and some to spare for
those who have none. The push of crops will be over in a few days, and
we can then afford a day for a barbecue. 'This Thursday; I will see to
getting it up on Saturday week. Come to my house on Friday, and we will
go together, and I promise you a very respectable crowd to see and hear
you.
"'Well I will be here. But one thing more before I say good-bye. I
must know your name."
"'My name is Bunce.'
"'Not Horatio Bunce?'
"'Yes
"'Well, Mr. Bunce, I never saw you before, though you say you have
seen me, but I know you very well. I am glad I have met you, and very
proud that I may hope to have you for my friend.'
"It was one of the luckiest hits of my life that I met him. He
mingled but little with the public, but was widely known for his
remarkable intelligence, and for a heart brim-full and running over with
kindness and benevolence, which showed themselves not only in words but
in acts. He was the oracle of the whole country around him, and his fame
had extended far beyond the circle of his immediate acquaintance. Though
I had never met him, before, I had heard much of him, and but for this
meeting it is very likely I should have had opposition, and had been
beaten. One thing is very certain, no man could now stand up in that
district under such a vote.
"At the appointed time I was at his house, having told our
conversation to every crowd I had met, and to every man I stayed all
night with, and I found that it gave the people an interest and
confidence in me stronger than I had ever seen manifested before.
"Though I was considerably fatigued when I reached his house, and,
under ordinary circumstances, should have gone early to bed, I kept him
up until midnight talking about the principles and affairs of
government, and got more real, true knowledge of them than I had got all
my life before."
"I have known and seen much of him since, for I respect him - no,
that is not the word - I reverence and love him more than any living
man, and I go to see him two or three times every year; and I will tell
you, sir, if every one who professes to be a Christian lived and acted
and enjoyed it as he does, the religion of Christ would take the world
by storm.
"But to return to my story. The next morning we went to the barbecue
and, to my surprise, found about a thousand men there. I met a good many
whom I had not known before, and they and my friend introduced me around
until I had got pretty well acquainted - at least, they all knew me.
"In due time notice was given that I would speak to them. They
gathered up around a stand that had been erected. I opened my speech by
saying:
"Fellow-citizens - I present myself before you today feeling like a
new man. My eyes have lately been opened to truths which ignorance or
prejudice or both, had heretofore hidden from my view. I feel that I can
today offer you the ability to render you more valuable service than I
have ever been able to render before. I am here today more for the
purpose of acknowledging my error than to seek your votes. That I should
make this acknowledgment is due to myself as well as to you. Whether you
will vote for me is a matter for your consideration only."
"I went on to tell them about the fire and my vote for the
appropriation and then told them why I was satisfied it was wrong. I
closed by saying:
"And now, fellow-citizens, it remains only for me to tell you that
the most of the speech you have listened to with so much interest was
simply a repetition of the arguments by which your neighbor, Mr. Bunce,
convinced me of my error.
"It is the best speech I ever made in my life, but he is entitled to
the credit for it. And now I hope he is satisfied with his convert and
that he will get up here and tell you so.'
"He came up to the stand and said:
"Fellow-citizens - it affords me great pleasure to comply with the
request of Colonel Crockett. I have always considered him a thoroughly
honest man, and I am satisfied that he will faithfully perform all that
he has promised you today.'
"He went down, and there went up from that crowd such a shout for
Davy Crockett as his name never called forth before.'
"I am not much given to tears, but I was taken with a choking then
and felt some big drops rolling down my cheeks. And I tell you now that
the remembrance of those few words spoken by such a man, and the honest,
hearty shout they produced, is worth more to me than all the honors I
have received and all the reputation I have ever made, or ever shall
make, as a member of Congress.'
"Now, sir," concluded Crockett, "you know why I made that speech
yesterday. "There is one thing which I will call your attention, "you
remember that I proposed to give a week's pay. There are in that House
many very wealthy men - men who think nothing of spending a week's pay,
or a dozen of them, for a dinner or a wine party when they have
something to accomplish by it. Some of those same men made beautiful
speeches upon the great debt of gratitude which the country owed the
deceased--a debt which could not be paid by money--and the
insignificance and worthlessness of money, particularly so insignificant
a sum as $20,000 when weighed against the honor of the nation. Yet not
one of them responded to my proposition. Money with them is nothing but
trash when it is to come out of the people. But it is the one great
thing for which most of them are striving, and many of them sacrifice
honor, integrity, and justice to obtain it."