The Endangered Species Act is Broken

The Founding Fathers had many contentious debates over the powers of the United States versus the States. Their goal was to avoid any suggestion of creating sovereignty. Section 8 of the Constitution of the USA limited the roles and powers of the Federal Congress to International issues, declarations of war, interstate commerce, etc. In Amendment X the powers not specifically delegated to the United States are reserved to the States. The Founding Fathers tried to design a system where power was not concentrated in any aspect of the government. This was the situation until the mid-1860's when the country exploded into a war between the States. The war was fought over an indefensible issue, slavery, between the Federal Government and the slave-holding States. Fortunately, the emancipation States won, but, unfortunately, the Federal Government also won and exerted new controls over the southern States. The Federal Government from that point on has chipped away at States’ rights. In the 1930's President Roosevelt, aided by a packed U.S. Supreme Court, was able to buy many of the States’ rights. Most subsequent Presidents have added to the problem.

The affluent period after the Second World War led to over-exploitation of natural resources, a housing boom, river fires, and a proliferation of litter. In the 1960's environmental organizations started to agitate for change and were supercharged by the publication of Rachel Carson's book, "Silent Spring". By the early 1970's Earth Day was inaugurated, and in 1973 Congress responded with a bipartisan bill, the Endangered Species Act (Act), which was primarily aimed at making the U.S. compliant with International Treaties and Conventions dealing with "various species of fish or wildlife and plants facing extinction". The Act rightfully gave total authority for addressing International issues to the Secretary of the Interior (Secretary) (Sec 8A (a)) but it also opened the door for federal management of resident State wildlife species. The Act appears to give the States major roles in managing resident listed species (i.e. Sec. 6) but in practice the Federal Government has assumed total control. This contradicts the U.S. Constitution.

The Act has not lived up to the initial euphoria and has resulted in considerable hardships, especially to landowners and developers. Non-government organizations (NGOs) proliferated, seeing the Act as a 'cash cow'. Their cow had two money spigots. The first was an appeal to the public for monetary support to save a species. The second spigot was to sue the Federal Government to list the species, and when the Federal agency decided it had recovered enough to delist, they sued again. The NGOs were able to find sympathetic judges that unscientifically ruled in their favor, and by using the Equal Access to Justice Act, they have been able to milk the Federal Government out of millions of taxpayer dollars. The Act is broken, and it needs fixing.

Prior to this Act, except for migratory birds (mainly ducks and geese) and eagles, management of resident fish and wildlife was handled by the States' Fish and Wildlife agencies. These agencies were formed in response to the homesteader westward invasion that was wiping out the resident wildlife. The over-harvest was controlled by enforcing quotas and seasons. These agencies also have proven track records of bringing resident species back from the brink of extinction. They accomplished this by relocating animals the same way wolves are being reintroduced today. They did not use, and the wolves do not need, the Act with all its bureaucratic mandates! We need to return to the Founding Fathers' intended mandate to separate the powers between the individual States and the United States. The Secretary should maintain control of the actions of the International Treaties and Conventions and manage listing of migratory bird species. The States should have total control over the listing of resident fish and wildlife species.

An endangered species is defined as, "any species which is in danger of extinction throughout all or a significant portion of its range…" and a threatened species is defined as, "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." The first thing the State agency would have to determine is whether a resident species will become extinct in the foreseeable future in their State. They would have to study all the available scientific evidence and, if this is deficient, then fund more data collection studies. Many species get dropped from listing when additional studies find they are more abundant then first thought. Each State should make the final decision of whether a resident fish or wildlife species should be listed in that State.

Once a resident species is listed, the State agency should try to discover why the species’ population is declining (or disappeared) in that State. The agency would then suggest actions that would remove the supposed barriers to population recovery. These programs would have to be vetted to be sure they will achieve the desired result and that they do not negatively impact the economy of the residents. After a reasonable length of time, the actions should be evaluated as to whether they worked. If they didn't, they should be dropped and a different approach taken. Once the species has recovered, it should be delisted largely based on the advice of the agency experts and on common sense.

Ron Stoneberg

Hinsdale, MT