Endangered Species Act…it ain’t what you think it is — Part 1by Hugh Holub on May. 25, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians
Go to any one of the web sites of groups seeking to protect endangered species and you will see pictures of polar bears, wolves, pretty birds and so forth.
But underneath all those pretty pictures and the good idea of saving polar bears and pretty birds the Endangered Species Act (ESA) has a dark side.
The ESA has become a major weapon in a war between litigious environmental groups and virtually everyone attempting to continue existing uses of land for such things as ranching, or do anything new with land such as mining, power plant construction, building new electric or natural gas transmission lines, constructing solar arrays, land development and road construction.
Virtually all human activity is seen at odds with protecting endangered species by litigious environmental groups.
Given a choice between a new land development or a new power plant or potentially threatening a mouse, the mouse must always prevail.
The ESA in tandem with the Equal Access to Justice Act (EAJA) has also become a major revenue source to litigious environmental groups that exploit structural flaws in the Endangered Species Act to generate millions of dollars in legal fees for their organizations.
ENDANGERED SPECIES, SUB-SPECIES AND “DISTINCT POPULATION SEGMENTS”:
The term “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man.
The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.
The Endangered Species Act is not just about protecting “species”. The way the law is worded, protection can also be sought for “subspecies” and for “distinct” populations of species of plants or animals.
Contrary to the belief that a mass extinction of “species” is occurring, of course caused by human activity, new “subspecies” are being discovered almost daily.
It is a sure bet that wherever there is a new project that will disturb the environment being proposed, a species, sub-species or distinct population of a species will be “discovered” to only live at the site of that project.
Virtually every population of a plant or animal that lives in a particular habitat can be claimed as a “subspecies” because it lives where it lives.
The desert tortoises that live in the Mohave Desert are claimed to be a different subspecies than the ones that live in the Sonoran Desert.
The squirrels that live on top of Mount Graham are claimed to be a different subspecies than the squirrels living on adjacent mountains.
The wolves that live in the northern Rocky Mountains are claimed to be a different subspecies than the ones that live in Arizona.
Arguably the tree lizards that live at your house could be claimed to be a new subspcies if they are a different color than the same species of tree lizard that lives across the street.
The “distinct population” argument expands the scope of the Endangered Species Act.
The squirrels that live on one mountain top are “distinct” from the squirrels on the nearby mountain..
The Chiricahua Leopard Frog that lives in a stock pond over by Arivaca is “distinct” from the frogs that live in a stock pond 30 miles away.
The pygmy owls living near Tucson are “distinct” from their kin in Mexico…and anyway…we all know Mexico could care less about protecting endangered species so even though there are lots of pygmy owls in Mexico, we must protect the Tucson owls just in case.
Thus all those “distinct” populations must also be protected.
MASS LISTING PETITIONS
A species is added to the list when it is determined to be endangered or threatened because of any of the following factors:
the present or threatened destruction, modification, or curtailment of its habitat or range;
overutilization for commercial, recreational, scientific, or educational purposes;
disease or predation;
the inadequacy of existing regulatory mechanisms;
the natural or manmade factors affecting its survival
To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, United States Code, to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register. (B) Within 12 months after receiving a petition that is found under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings: (i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register. (ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5). 6 (iii) The petitioned action is warranted, but that— (I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species….
Under the Endangered Species Act a petition to list a species or subspecies gets filed with US Fish and Wildlife.
US Fish and Wildlife has 90 days to respond and act on a listing petition.
So what happens when US Fish and Wildlife doesn’t have the budget to deal with petitions asking for 215 species or subspecies to be listed? They fail to act within the 90 day period.
And here is where the Equal Access to Justice Act (EAJA) jumps in. The petitioning group sues US Fish and Wildlife when it fails to act within the 90 day window…and of course the petitioning outfit is right…and thus entitled to legal fees.
That’s not the first shot at legal fees under EAJA.
If, after the 90 day decision is made US Fish and Wildlife doesn’t meet its 12 month deadline…bingo another lawsuit.
And then if the species is listed and US Fish and Wildlife does not immediately declare a “critical habitat”…here comes the third lawsuit.
So how do you generate a lot of EAJA legal fees…file listing petitions for hundreds of plants and animals and force US Fish and Wildlife into default.
The litigious environmental groups claim mass petitioning for species is necessary because of global warming. Thousands of species will vanish tomorrow if the federal government doesn’t act right now!
Sounds great doesn’t it?
Open up your checkbook as well and save all those thousands of insects and whatever that are included in the mass listings petitions.
It used to be they passed the basket in church and you gave to save your soul.
Now you can give to save the Earth from those Satanic humans who want to build homes and other stuff.
Was that what the Endangered Species Act was all about?
The Endangered Species Act series of articles:
Background info on Endangered Species Act:
News about litigious environment group activities: