Senator Whitsett: Abuses of the Endangered Species Act

by Senator Doug Whitsett (R-Klamath Falls)

“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.”

“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.”

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.

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Posted by at 05:00 | Posted in Government Regulation, Natural Resources | 11 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Rupert in Springfield

    I am fairly familiar with the endangered species act, as well as those who sue under it. I did know prevailing plaintiffs could recover attorney fees was unaware the reverse did not attend.

    This is outrageous and really has no place in our legal system. It is time to understand that environmentalism is big business, and this act is one of the reasons why. There may have been a time when environmental groups consisted of three hippies, a golden lab with a red bandana around its neck and a yurt but those days are gone.

    The environmental lobby is one of the most powerful in Washington. Anyone who doesn’t believe that can take a look at how they are able to manipulate this president. The Keystone pipeline, is a shovel ready project that would have meant 20,000 jobs in the middle of a horrible recession. Yet the environmentalist mega lobbies shut it down, for now.

    There can be a case made for loser pays in civil suits. However to have it be one sided, and to hinge on procedural matters rather than if a species is actually endangered, is absurd.

    Enviromentalists once made a great deal of noise that logging companies were not paying their fair share of the cost of logging roads to the Forest Service. Its time for the same to attend to the environmental lobby. They should pay the costs of their activity just as they demand everyone else should do. That would include living under the same rules under the endangered species act as everyone else.

    • valley person

      “I am fairly familiar with the endangered species act, as well as those who sue under it.”

      You made that same claim the other day and then you showed you know almost nothing about this. Can you name 3 lawsuits filed under the ESA in the past 5 years and explain why they have no merit?

      “Enviromentalists once made a great deal of noise that logging companies
      were not paying their fair share of the cost of logging roads to the
      Forest Service.”

      And  as a taxpayer who complains about crony capitalism, you supported them right?

      • Rupert in Springfield

        >You made that same claim the other day and then you showed you know almost nothing about this.

        Wrong, I have not discussed the endangered species act in some time on this blog.

        I discussed the Northwest Forest Plan, which developed due to the endangered species act and the Northern Spotted Owl, but is not the Endangered Species act itself.

        You are confusing what you said with that I said. You are the one who brought up endangered species, saying environmentalists only sued on the basis of the Endangered Species act.

        Things would be easier if you didn’t confuse what you said with what I said.

        My wife is involved with the endangered species act on a daily basis. Believe me, I have some familiarity with it.

        >And  as a taxpayer who complains about crony capitalism, you supported them right?

        I sure did, the forest service should charge the actual cost for building the roads and whatever other costs are involved. I see no reason for the government to be subsidizing roads for logging companies.

        Since you generally defend crony capitalism, you supported the logging companies right?

        • valley person

          But you can’t name 3 lawsuits? Ask your wife for heaven’s sake.

          The problem wasn’t the logging companies. It was the FS accounting system and Congress, which was determined to give away our trees to bidders at below cost. So I neither supported nor castigated the companies. 

  • Bob Clark

    Maybe add a court of frivilous law suits, which would have a jury composed of private property owners, random citzens in the affected areas, etc.  If a law suit is found by such court to be frivilous or largely for enriching the plantiff or plantiff attorneys and abusing the ineptness of government; then, the ill gotten gains can be taxed away up to entirety and the revenue from such special levied tax returned for general governmental purposes.

    The court(s) of frivilous law suits would be just below the U.S Supreme Court in power so as to over ride the 9th Circus Court of Appeals.

    Also, make sure Trees and etc. don’t get rights.  It’s insane to think we humanoids should be able to separate ourselves from ourselves in determining what such life is communicating.  Admittedly, there is goofy City of Portland Commissioner Saltzman who says effectively he has separated himself from being human and is actually a tree in human clothing (at least some of the times).  But outside of the warped world of Portland city hall, such claims are largely thought by the mainstream to be very much insane.

    Maybe more fodder for Far Side and Dilbert Cartoons at the very least.  Miss that Far Side.

  • valley person

    On its face, this post by Senator Whitset displays all that is wrong with the Republican party with respect to the issue of conservation. Or put another way, it shows the unbridgable gap between conservatives and conservation.

    The ESA is a last resort. It kicks in only when a given species is on the brink, or very near the brink of disappearing. When a species blinks out, its forever. Since for the most part it is economic use of land that drives species to extinction, why in the world would we want to take economics into account when listing a species? Only to justify continuing to destroy its habitat.

    And complaining that the ESA is failing because more species have not been delisted is Orwellian logic. Republicans like Doc Hastings have done everything they can to prevent the Fish and Wildlife Service from taking steps to recover species, namely protecting and restoring habitat.

    Republicans, as usual, are on the wrong side of history the public, the wrong side of human progress, and on the wrong side of history.

  • Curious

    I only have one question. Will the ESA apply to gainfully employed people in Oregon who are actually supporting themselves without government help?

    • valley person

      Are we a separate species?

    • Sol668

      Government help? Like say making your living off the public lands we all share?

  • Whitsett is simply repeating what he has heard from the anti-environmental right which is every bit as litigious as anyone. Can’t this guy think for himself?

    If you look at the data it becomes clear that most of the species currently listed are on the path to recovery – see this link for the details:

    The ESA listed species did not become endangered overnight and they won’t be fully recovered and removed from the list overnight. The ESA is working remarkably well.

    Where the ESA is not working it is because of obstruction and interference by politicians like Whitsett or because responsible federal bureaucrats refuse to do their duty. The Klamath Basin is a case in point. Quaddo and Tshuam (Shortnose and Lost River suckers) have been listed for decades. They are not recovering because of politics. The former responsible federal official is now on the Board of Directors of the Klamath Water Users Association. Is that why the Lost River Basin has remained a sacrifice zone where the banks have no riparian vegetation and the water is foul with agricultural wastewater?  

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