Marita Noon

If you find oil or natural gas on your property, the value goes up. If you find an endangered species, your land becomes virtually worthless because the critter prevents productive use.

Most people would be excited to have a Jed-Clampet moment when, while hunting for dinner, the shot resulted in bubbling crude coming up from the ground. Like the Clampet family, your life would change dramatically. Your land would suddenly be worth more than you’d ever dreamed!

If, while hunting for dinner, you instead find an endangered species—the half-jest, half-serious advice would be “shoot, shovel and shut up.” Kent Holsinger, a Colorado attorney whose work centers around endangered species issues, told me that he has seen many landowners lose significant value due to a listed species being found on their property.

The Endangered Species Act (ESA) was signed into law in 1973 by President Richard Nixon to preserve, protect and recover key domestic species. Though well intentioned at the start, the ESA has since been used as a tool to hinder or block economic activity from logging and farming to mining and oil-and-gas development—often to protect species that don’t truly need it.

In my book, Energy Freedom, I feature an entire chapter on the spotted owl because it gives us a beginning-to-end case history on the ESA. The spotted owl was listed as an endangered species on June 26, 1990, and has since shut down a substantial part of federal timber harvest and threatens logging on private lands. I start the chapter with these words: “It is hard to imagine a bigger failure—or a greater success—depending upon which side of the issue you stand. If you strive for open and honest government policy that is straightforward about its goals, this twenty-year experiment has failed. If you believe the end justifies the means, regardless of the cost in life or livelihood, then the spotted owl represents a great success.” I sum it up this way: “the spotted owl threatens private property rights, kills jobs, and puts the health of the forest in peril.” All that, and the owls have not “recovered.”

I’ve been very active in the fight to prevent the listing of the sand dune lizard in the oil patch of West Texas and New Mexico’s Permian Basin—which produces about 15 percent of U.S. oil. (Thanks to conservation agreements with private industry, the lizard was not listed.) I emceed the Roswell, New Mexico, rally to draw attention to the five-state lesser prairie chicken listing threat—which would, again, impact oil-and-gas development. (The Western Governors Association has been working with the Western Association of Fish and Wildlife Agencies to develop a similar range-wide plan to protect the chicken while allowing for economic development. The listing decision is due by March 30, 2014.)

Coming up is the greater sage grouse—“a chicken-sized bird that has been in decline across large portions of its 11-state Western range. A final decision on whether to protect sage grouse is due next year and could result in wide-ranging restrictions on oil and gas development, agriculture and other economic activity,” reports the Associated Press (AP).

The delta smelt—that most of us first heard of in 2009—is, once again, back in the news.

California is facing a severe drought that Governor Jerry Brown has called “an emergency.” A recent Wall Street Journal (WSJ) article examines “How green politics has exacerbated the state’s growing shortages.” It lists water rationing, forbidden sprinkler use, and restaurants serving water by-request-only as some of the ramifications of California’s historic drought. But, the WSJ states: “Suffering the most are farmers south of the delta whose water allocations have plunged over the last two decades due to endangered-species protections.” It continues: “California's biggest water hog is the three-inch smelt, which can divert up to one million acre-feet in a wet year. In 2008, federal regulators at the prodding of green groups restricted water exports south to protect the smelt.”

The Bakersfield Californian cites Larry Starrah, a local farmer, whose family has been “forced to let 1,000 acres of productive almond trees die this year for lack of water.” The January 22 article faults the “delta smelt and other fish protected under the Endangered Species Act.” (Note: if your property has lost value due to an endangered species finding or if the federal government suddenly decides it is a protected wetland in violation of the National Wetlands Act—which can happen even though it has never been wet—have the property reassessed. In such cases, others have successfully had their property taxes dramatically lowered due to the fact it can never developed and is therefore less valuable. Imagine how the attitude about ESA and restrictions on wetlands would change if county governments’ property tax collections and revenues plummeted due to such punitive designations.)

To help alleviate the California water crisis, House Speaker John Boehner was in Bakersfield, with lawmakers from California, to tout legislation that would, according to Reuters: “roll back environmental rules limiting how much water agencies can pump out of the fragile San Joaquin-Sacramento River delta in dry years.” At a press conference Boehner said: “It’s nonsense that a bureaucracy would favor fish over people.” But, that is what the ESA requires.

The WSJ reports: Senator Dianne Feinstein “and her fellow California Senator Barbara Boxer and Rep. Jim Costa of Fresno urged federal agencies to ‘exercise their discretion in regulatory decision-making within the confines of the law to deliver more water to those whose health and livelihoods depend on it’”—which indicates that even the most radical of liberal politicians realize the problems they have created.

No wonder, many people believe it is time for the ESA to be overhauled.

In a letter to the WSJ, Greg Schildwachter applauds environmentalist Timothy Male for acknowledging that the ESA has flaws, as he did in his January 16 op-ed: “A green olive branch on endangered species.” Schildwachter sums up the problem: “The ESA leaves rights to property and species up to anyone’s guess and, therefore, to no one’s satisfaction.” He also offers a solution: “Before ESA, starting in the 1930s, wildlife conservation produced results. Sportsmen and sporting-equipment industries joined with government to restore deer, elk and other then-depleted wildlife. This worked politically because it added—instead of taking—value. It worked in policy because money improved field work instead of sharpening legal briefs. Something like it can work today.” Within his letter, Schildwachter points out: “The Interior Department inspector general concluded that lawsuits ‘are driving nearly everything [FWS] does in the ESA arena.’”

In a second letter published in the January 31 WSJ, Kyle Donovan called the lawsuits brought by environmental groups: “nuisance litigation.”

In his op-ed, Male says: The “mixed record on wildlife restoration—and the real and perceived impact it has on business—has turned the ESA into a partisan playing field.”

The aforementioned AP piece states: “Throughout its history, the law has faced criticism from business interests, Republicans and others.” And continues: “Those complaints grew louder in recent months after federal wildlife officials agreed to consider protections for more than 250 additional species under settlement terms in lawsuits brought by environmental groups”—an arrangement frequently referred to as “sue and settle.” If federal officials can add hundreds more “endangered species” to their protected list, development can be easily halted almost everywhere in the country.

The ESA has few friends outside of environmental lobbyists and attorneys. It was last updated in 1988. Holsinger explained it to me this way: “When the ESA was last amended, the Soviet Union was a superpower and Def Leppard was on the pop charts. It is high time that Congress modernized and improved this law to reflect what we now know.”

As we’ve seen with the sand dune lizard—and hope to see with the lesser prairie chicken—there are ways to successfully assist species that are truly in danger without putting species in conflict with people.

This is the goal of a brand-new report released on February 4 by the ESA Congressional Working Group led by Representatives Doc Hastings (R-WA) and Cynthia Lummis (R-WY) and eleven others. Formed on May 19, 2013, The Working Group, according to the mission and purpose statement, “sought to examine the ESA from a variety of viewpoints and angles; receive input on how the ESA was working and being implemented and how and whether it could be updated to be more effective for both people and species.”

The report reflects hundreds of comments from outside individuals and testimony from nearly 70 witnesses who appeared before a Working Group forum and House Natural Resources Committee hearings. It concludes: “After more than 40 years, sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.”

Rep. Lummis points out the tremendous conservation advances that have been made since the ESA became law:

“The American people have grown by leaps and bounds in their understanding of conservation, their willingness to conserve species, and their ability to conserve species —the ESA needs to grow with them. The ESA is stuck in a litigation driven model. This outdated model hinders the boots on the ground conservation we should be harnessing to actually recover endangered species, not just spout flowery rhetoric about the law in courtrooms. Our report is an exciting opportunity to bring the ESA into the next millennia.”

The report recommends constructive changes to the ESA in the following four categories:

    ·Ensuring greater transparency and prioritization of ESA with a focus on species recovery and delisting;

    ·Reducing ESA litigation and encouraging settlement reform;

    ·Empowering states, tribes, local governments and private landowners on ESA decisions affecting them and their property; and

    ·Requiring more transparency and accountability of ESA data and science.

Regarding the proposed changes, the AP states: “experts say broad changes to one of the nation's cornerstone environmental laws are unlikely given the pervasive partisan divide in Washington, DC.” And: “Given the current level of rancor between Democrats and Republicans, academics who track the law were skeptical that the latest calls for change would succeed.”

Such statements highlight the importance of supporting the representatives behind the new report, encouragement of all other representatives and senators to sign on to the proposed reforms—and the importance of the 2014 election. As the AP points out: the ESA “enjoys fervent support among many environmentalists, whose Democratic allies on Capitol Hill have thwarted past proposals for change.”

Instead of shoot, shovel and shut up, key domestic species that should be preserved, protected and recovered would be better served by targeted legislative changes that can truly benefit species and people.


Marita Noon

Marita Noon is Executive Director of Energy Makes America Great.