Liberty
Matters News Service
July 8, 2005
Draft ESA Bill Leaked
California Republican Congressman Richard Pombo's draft ESA bill has been leaked out to select media sources. The draft is entitled "Threatened and Endangered Species Recovery Act of 2005." This bill could be filed within the next two weeks and it doesn't look good for property rights. Two items causing concern are: (1) A 50% trigger for Compensation. You have to prove the act has taken over 50% of your land before you can pursue compensation, yet the draft doesn't adequately fix the issue of ripeness. People will still be in limbo for years before agencies issue final decisions, all the while not able to use their land. With a trigger in place, if you do get into court, it becomes an argument amongst experts over percentages; and, (2) Invasive Species Protection. Some have called this the ESA on steroids. Broadening the ESA to include invasive species will allow government to regulate every piece of land, every yard and every garden. For instance, tall fescue, a grass commonly used by homeowners for their lawns, could qualify as an invasive species and be regulated by the federal government. The bill, which has the potential of being more damaging than the current act, is being tightly guarded by House Resource Committee staffers. Rumors are that the bill will not be filed or released to landowners until some time next week or the following week where secretive festivities are being planned to bring selected property rights groups to Washington to discuss political strategy.
Property Rights Groups Organize
Late last year, Pombo informed a group of natural resource users that he would be pushing to reauthorize the ESA while strengthening it to achieve meaningful recovery of species. The property rights advocates were admonished not to inject the term "property rights" into the effort because he said it would kill any opportunity they had to get meaningful reform. That is when a handful of national property rights organizations mobilized and began working together to make sure property rights were not left out of the debate. These core groups include the American Land Foundation, American Policy Center, Competitive Enterprise Institute, Liberty Matters, National Center for Public Policy Research, and Stewards of the Range. Liberty Matters collected hundreds of "Property Rights First" letters and forwarded them to Pombo and other key legislators. Then, a letter organized by the National Center for Public Policy Research was sent to the Congressman originally signed by 53 major organizations (now up to 64), which reiterated the many reasons property rights must be protected in any ESA legislation. As a result, Congressman Pombo held a meeting with several of the signers of this letter where, for the first time in this debate, a strong property rights message was delivered personally to Congressman Pombo. "Property Rights First!" has become the adopted name of the campaign by these organizations.
Pombo's Options
There is no debate that the ESA has been a miserable failure at recovering endangered species. However, it has accomplished one great thing - the regulation of humans and their private property. In fact, it has done it so well that it has replaced the Fifth Amendment with a concept known as mitigation that requires landowners to pay the government to use their own land. Landowners have to give up a portion or all of their land so species can live unencumbered. Species (even cave bugs) have more protection than humans as decided by the U.S. Supreme Court in GDF Realty v. Gale Norton. The Act was misnamed. It should have been called "The Regulation of Humans and Private Property for the Protection of Endangered Species." At least that would have been an honest approach. So, if the Act is a failure and has not saved any species in a meaningful way, but it has taken and destroyed thousands of human's lives, businesses, families and private property, then why not consider a few legitimate options. The first, and most obvious is "Repeal." The environmentalists have had 30+ years to prove their way works. It has failed. So now it is our turn and we say, "Get off our Land!" The second option is to exempt private property from the Act. There are other ways to preserve species while upholding the rights of millions of American's and their property. By exempting private property, you take away the heavy-handed government approach to protecting species and provide landowners with the security our U.S. Supreme Court has just destroyed in Kelo v. City of New London. Let Pombo have his warm and fuzzy reform programs, give industry groups their improved permit system and peer reviewed science, and let environmentalists have their way with the land they have already taken off the tax roles. However, leave private property out of the Act's regulatory control, unless express permission is given by the individual landowner, and common sense incentives are used such as a lease. The third option is to dust off the Shadegg bill, where the details of a voluntary, incentive-based approach had been ironed out and was widely supported by landowners, while providing a way for meaningful species recovery. After the decision on Kelo, Mr. Pombo said: "If your investment in private property is not protected from the whims of government, how much individual liberty do you really have?" Shouldn't we hold that same standard to the Endangered Species Act? Pombo has other options than his current draft bill that could achieve a win, win situation for species, private property rights, and liberty.Whither the Endangered Species Act