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De Omnibus Dubitandum - Lux Veritas

Thursday, September 18, 2008

ESA Outrages, Part I

By Rich Kozlovich

Last week I told everyone that I would be running a section dealing with ESA outrages. Here is the first installment. I first want to make sure we had some historical background for what is to come.

Between 1962 and 1972 the U.S. Congress got all wrapped up in passing bills that couldn’t help but make the greenie heart beat fast and furious and take their breaths away.

• Wilderness Act, 1964
• Clean Water Act, 1965
• Endangered Species Act, 1966
• Clean Air Act, 1967
• Wild and Scenic Rivers Act, 1968
• Endangered Species Conservation Act, 1969
• Wild Free-Roaming Horses and Burros Act, 1971
• Marine Mammal Protection Act, 1972

Most of us would think that this would satisfy the most jaded greenie. They wanted more, and it was decided that the 1969 ESA was inadequate and in 1972 they “upgraded” ESA with some significant changes. Section 4 and Section 7 contained poisoned pills and no one realized it.

Section 4 required the Secretary of the Interior to list any species that was endangered or threatened and defined species as “fish or wildlife or plants” and further refined that definition as “any mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate.” This would take on greater significance in following weeks.

Section 7 “prohibited the “take” of any listed species. A “take” means to “harass, harm, pursue, hunt, shoot, wound, dill, trap, capture or collect” a listed species. Friends of the Earth stated that the degradation of a listed species habitat would fit the definition of a “take” under the bills.” Everyone seems to have been caught up in the warm and fuzzy feeling because the thinking was clearly fuzzy…no one hardly whispered an objection. One reason is that they were primarily thinking of what is called the “charismatic” species, such as bald eagles, bears, wolves, etc.

Shannon Peterson noted that;

"Few at the time opposed the ESA because no one anticipated how it might
interfere significantly with economic development or personal property
interests. …..The timber industry, other natural resource industries, and
private property groups declined to fight the law in 1973 because they failed to
see how it might affect them."

That lack of insight would come back to haunt every one of these groups, especially the timber industry.

How did the concept of “species first and people last” come into being? The same way that the concept of “whatever the cost” came into being! 

The Supreme Court ruling on TVA vs. Hill. The TVA (which is owned by the Federal government) wanted to build a dam across the Little Tennessee River known as the Tellico Project, unfortunately half way through construction a previously unknown species of perch known as the snail darter was found….a lot of them….10 to 15 thousand of them. Is there only one kind of darter? No! There are a lot of darters. 

There are a lot of varieties of darters. This one happened to like eating snails. It was also inter-bredable with the other darters. It has been noted that the “snail darter may have been a distinct species, but it wasn’t unique and that new species of darter are discovered in Tennessee at a rate of 1 a year. All told, there are some 130 species of darters, 85 to 90 of which are found in Tennessee and 40 to 45 in the Tennessee River system with 11 in the Little Tennessee itself.”

In 1976 Secretary Andrus declared the area a “critical habitat”.

“Under Section 7 of the ESA, “All Federal agencies must take such actions as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area.”

This brought construction to a halt. Eventually this made it to the Supreme Court and the court ruled, to the great pleasure of the greenies and dismay of everyone else that, “the plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” 

Eventually Congress exempted the Tellico Project from ESA and construction resumed and the darter was successfully transplanted, at a cost of two million dollars. However, the damage of this “whatever the cost” decision was to be a specter that would haunt businesses, and property owners from that point on.

We have to understand the significance of all of this. Justice Powell, who dissented from the opinion stated;

“the act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10 percent of them – some 2000,000 – may need to be listed as endangered or threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.”
This concept of what constitutes a species and “takes” will be discussed in future postings and we will see how these were utilized by federal agents and academics in future postings.
The information is based on and quoted from the book “Green Gone Wild” by M. David Stirling.

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