World Heritage treaty and the ESA problem

United Nations Control Over American Historical Landmarks

1972 United Nations Treaty Allows Foreign Control of American Assets

National Policy Analysis Paper #341 published in July 2001 by The National Center for Public Policy Research, 777 North Capitol Street NE #803, Washington, D.C. 20002, 202/371-1400, Fax 202/408- 7773, E-Mail info@nationalcenter.org, Web http://www.nationalcenter.org. Reprints permitted provided source is credited.

When our Founding Fathers sparked the American Revolution and signed the Declaration of Independence in 1776, they sought self-government for the American colonies and an escape from the dominance of England.

The Founding Fathers would be shocked to learn that some of their successors have given control of key American sovereign territory to other nations.

Through an international treaty, the United States is allowing the United Nations and its member countries access to and control of American soil – in particular, our historic buildings and treasured wilderness.

In 1972, our government signed the United Nations’ World Heritage Treaty, a treaty that creates “World Heritage Sites” and Biosphere Reserves.” Selected for their cultural, historical or natural significance, national governments are obligated to protect these landmarks under U.N. mandate.1 Since 1972, 68 percent of all U.S. national parks, monuments and preserves have been designated as World Heritage Sites.2

Twenty important symbols of national pride, along with 51 million acres of our wilderness, are World Heritage Sites or Biosphere Reserves now falling under the control of the U.N. This includes the Statue of Liberty,( occultists would protect masonic lady Illumination) Thomas Jefferson’s home at Monticello, the Washington Monument, (occultists would protect that phallic) the Brooklyn Bridge, Yellowstone National Park, Yosemite, the Florida Everglades and the Grand Canyon – to name just a few.

Most ironic of all is the listing of Philadelphia’s Independence Hall. The birthplace of our Republic is now an official World Heritage Site. The very place where our Founding Fathers signed both the Declaration of Independence and the Constitution – the documents that set America apart from other nations and created the world’s longest-standing democracy – is no longer fully under the control of our government and the American people. Protection of our treasured places is a sound undertaking, but doing so by ceding control of our sovereign territory to a foreign power is wrong and threatens our rights and freedoms.

In 1995, Crown Butte Mines in the New World Mining District in Montana was forced to abandon a mine development project after the U.N. listed Yellowstone National Park as a “World Heritage Site in Danger.”3 Crown Butte proposed to mine a medium-size underground operation on private property three miles from the boundary of Yellowstone. The project would have employed 280 people and generated $230 million in revenue.4

This mining project was not unique. The area had been mined for 150 years before Yellowstone National Park was established. Crown Butte had worked along with the U.S. Forest Service to ensure that all of the necessary precautions were being taken to ensure that the project would be environmentally responsible. Crown Butte had won an award for excellence in 1992 and was considered to be a “showcase operation.”5

None of these factors mattered to the U.N.’s World Heritage Committee. Citing the project as a potential threat, the U.N. exerted its authority to force the abandonment of the project. It did not matter to the U.N. that this violated Crown Butte’s exercise of its private property rights under the U.S. Constitution. Nor did the U.N. care that its action also went against U.S. federal law prohibiting the inclusion of non-federal property within a U.S. World Heritage Site without the consent of the property owner.6

Although it has not happened yet, under the World Heritage Treaty the U.N. has the legal right to someday restrict us, as American citizens, from visiting our national treasures.

Many environmentalists believe that the mere presence of humans disturbs the environment. As such, it is not farfetched to wonder when the politically-correct U.N. will ban the American public from Yellowstone, the Grand Canyon, Yosemite, the Florida Everglades and other precious natural wonders now visited annually by millions of tourists.

Ironically, banning generations of young people from visiting our natural wonders would undermine the public’s appreciation for the spectacular gifts of nature, and undercut support for environmental protection.

Unfortunately, the World Heritage Treaty is just one of a series of government actions that is stripping away the gift of freedom we received from our Founding Fathers.

To stop this erosion of sovereign rights, federal legislation has been introduced to restore the rights of Americans against this threat to freedom. The American Land Sovereignty Protection Act seeks to preserve the sovereignty of the United States over public lands and preserve the private property rights of private citizens. It would require congressional oversight of U.N. land designations within the U.S.7

We should not turn our backs on the Founding Fathers by surrendering the precious gift of sovereignty. We should treasure and protect it.

Footnotes:

1 “World Heritage Sites and Biosphere Reserves Fact Sheet,” United States House or Representatives Committee on Resources.
2 “American Land Should Be Controlled By Americans,” press release, The National Center for Public Policy Research, Washington, DC, February 24, 1999.
3 Kathleen Benedetto, testimony before the United States Senate Committee on Energy and Natural Resources, Washington, DC, May 26, 1999.
4 Ibid.
5 Ibid.
6 Ibid.
7 “American Land Should Be Controlled By Americans.” # # #
Melissa Wiedbrauk is a research associate with The National Center for Public Policy Research, a a Washington, D.C. think tank. Comments may be sent to Mwiedbrauk@nationalcenter.org.

TECHNICAL REVIEW OF THE

UNITED NATIONS ENVIRONMENTAL,

SCIENTIFIC & CULTURAL ORGANIZATION
CONVENTION ON WORLD HERITAGE

The World Heritage Convention was signed by the United States and adopted by the General Conference of the United Nations Environmental, Scientific and Cultural Organization on November 16, 1972. The purpose of the convention is to establish “an effective system of collective protection of the cultural and natural heritage of outstanding universal value” currently referred to as “global commons.” In 1995 there were 469 cultural and natural sites designated in 105 countries around the world, of which 20 are found in the United States.

The Convention embodies the important concept of linking together the conservation of nature and that of culture. To quote UNESCO, “[f]or a long time, nature and culture were perceived as opposing elements in that man was supposed to conquer a hostile nature, while culture symbolized spiritual values. However, nature and culture are of course complementary; the cultural identity of different peoples has been forged in the environment in which they live and frequently, the most beautiful man-made works owe part of their beauty to their natural surrounding.” UNESCO then goes on to say, “The Convention thus assumes and affirms the existence of a World Heritage which belongs to all mankind” or global commons.

Under Article 1, the Convention can be used to protect cultural heritage which currently includes the Statue of Liberty, Independence Hall in Philadelphia and the Taj Mahal. Under Article 2, the convention can be used to protect areas of “natural heritage, such as Yellowstone National Park, the Everglades, and most recently the Carlsbad Caverns in New Mexico and Glacier National Park. These areas were designated World Heritage sites on December 5, 1995. Article 2 also extends protection to areas which constitute the habitat of threatened or endangered species of plants and animals.

Articles 4-6 of the convention are key. While nations recognize the duty of ensuring the identification, protection and conservation of World Heritage sites belongs primarily to them, the nation state signing the treaty also agrees to do “all it can” to protect these sites. Article 6 clarifies this statement even further by stating,

“Whilst fully respecting the sovereignty of the State [nation]…State Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate.”

Article 4 goes on to state that a nation signing the treaty is “to the utmost of its own resources, and where appropriate, with any international assistance and co-operation” protect these sites.

Article 5 outlines the responsibilities of the nation state. “Every State Party to the Convention shall endeavor, in so far as possible” to: 1) integrate the protection of that heritage into comprehensive planning programmes; 2) set up one or more agencies to protect the heritage; 3) conduct studies that counteract “dangers” to the heritage; and, 4) take appropriate legal, scientific, technical, administrative and financial measures necessary for protection of the heritage.

Article 8 of the Convention established the World Heritage Committee as a Bureau within the United Nations Education, Scientific and Cultural Organization. The World Heritage Committee is made up of 21 representatives elected from among the 142 nations that signed the Convention on World Heritage since 1972. Three other representatives can also take seats on the committee. These include a representative from the International Union for Conservation of Nature (IUCN), a representative from the International Centre for the Study of the Preservation and Restoration of Cultural Properties (Rome Centre), and one representative from the International Council of Monuments and Sites (ICOMOS). In addition to having the capacity of holding seats on the World Heritage Committee itself, it is also important to note that the Director-General of the United Nations Educational, Scientific and Cultural Organization is directed under Article 14 of the Convention to utilize “to the fullest extent possible the services” of these three organizations.

The World Heritage Committee is headquartered in Paris, France, and has two major functions. The first function is to administer the World Heritage Fund and to determine how financial resources are to be allocated to the countries and organizations which request assistance. Monies coming into the fund come from: 1) obligatory contributions from the State Parties to the Convention which are fixed at one percent of their contribution to the budget of UNESCO; 2) from voluntary contributions from State Parties; and, 3) donations from institutions or private individuals or from promotional activities. The IUCN reports that the annual budget of the World Heritage Fund is $2.5 million annually. The U.S. Department of State from 1972 to 1993 contributed $18.3 million in U.S. taxpayer monies to the World Heritage Fund.

The second major function of the committee is to define the World Heritage, which entails selecting the cultural and natural wonders that are to form part of the World’s Heritage. The Committee is helped in this function by the International Council on Monuments (ICOMOS) and the IUCN which examine the proposals of different countries and draw up evaluation reports on each proposal.

The World Heritage Committee draws its authority to work with “international and national government and non-government organizations having objectives similar to those of this Convention” from Article 13, Paragraph 7 of the treaty. In regards to non-governmental organizations (NGO’s), paragraph 7 says “for the implementation of its programmes and projects, the Committee may call on such organizations… as well as on public and private bodies of individuals.” Under this provision, it was therefore possible for NGO groups like the Greater Yellowstone Coalition, American Rivers and the National Parks and Conservation Organization to have worked directly with UNESCO on the designation of Yellowstone National Park as “World Heritage in Danger” in 1995.

In fact, there may be some financial incentive for environmental groups to work directly with UNESCO on World Heritage programs. Under Articles 19-26 of the Convention, assistance in programs and projects may be made available to non-government organizations in the form of grants, low-interest or interest free loans, staff training and the provision of experts, technicians and skilled labor once a nation party has made a request for international assistance. It appears, however, most of the resources provided to American NGO’s for the preparation of nominations for World Heritage sites come through the United States Committee of the International Council on Monuments and Sites (US/ICOMOS).

In the United States, the Convention on World Heritage is administered by the U.S. Department of State’s Office of International Organization and the Department of the Interior’s National Park Service, with financial assistance sometimes provided by the U.S. Agency for International Development. These federal agencies support and often direct work conducted by the United States Committee of the International Council on Monuments and Sites (US/ICOMOS) which is made up of non-governmental historic preservation organizations. The US/ICOMOS presently has 500 members and is headquartered in Washington D.C. These private NGO organizations not only prepare the nominations of cultural sites for addition to the World Heritage list, but are also involved in creating public awareness, developing educational programs, and occasionally in the actual administration of World Heritage projects.

The Department of the Interior draws its authority to implement the Convention on World Heritage and to work with NGO groups from Title IV of the National Historic Preservation Act Amendments of 1980 (Pub. L. 96-515; 16 U.S.C. 470a-1,a-2). It is also under Title IV where the regulations for U.S. federal implementation of the Convention for World Heritage can be found. A Federal Interagency Panel for World Heritage was formed to make recommendations on U.S. World Heritage policies, procedures and nominations. This panel is chaired by the Assistant Secretary for Fish and Wildlife and Parks, and includes representatives from the National Park Service, the U.S. Fish and Wildlife Service, the State Department, the President’s Council on Environmental Quality, the Smithsonian Institute and the Council on Historic Preservation.

The procedures for listing of cultural and natural properties begin at Paragraph 17 of the UNESCO Operational Guidelines for Implementing the World Heritage Convention. Procedures for cultural sites are specifically found starting at Paragraph 23, while those dealing with natural heritage sites begin at Paragraph 43. In relationship to the nomination of a site for listing, Paragraph 14 of the guidelines states that areas are to be nominated without “undue publicity” and with the participation of local people, only so far as they don’t “prejudice future decision-making by the Committee.”

Paragraph 17 states, “that whenever necessary for the proper conservation of a cultural or natural property nominated, an adequate ‘buffer zone’ around a property should be provided and should be afforded the necessary protection. A buffer zone can be defined as an area surrounding the property which has restrictions placed on its use to give an added layer of protection.”

According to Paragraph 44(a), natural heritage properties, like United Nations biosphere reserves, are to be “sufficient” in size, and demonstrate key aspects of long-term conservation of the ecosystems and the biodiversity they contain. Paragraph 44(a)(vii) goes onto say that “Sites described in paragraph 44(a) should be the most important sites for the conservation of biological diversity. Biological diversity, according to the new global Convention on Biological Diversity, means the variability among living organisms in terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part…” Paragraph 44(b)(vi) then recommends the establishment of buffer zones around these natural heritage sites “in order to protect the site’s heritage values from direct effects of human encroachment and impacts of resource use outside of the nominated area.” Even if the lands within the buffer zone do not meet the criteria of World Heritage, the guidelines recommends implementation of a buffer zones and uses the case of the biosphere reserve as an example why these buffered areas are important.

Article 11, Paragraph 4 of the Convention and paragraph 56 of the Operational Guidelines for the Implementation of the World Heritage Convention outline how a World Heritage site can be listed as in danger. Sites can be listed if they are threatened by natural disasters such as floods and volcanos, they can be listed because of man caused disasters such as changing land ownership, urbanization, tourism, and armed conflict. UNESCO is “particularly concerned that all possible measures should be taken to prevent the deletion of any property from the List…”

Under paragraph 69, the nation “state” may request assistance from UNESCO if the state feels a designated heritage area is in danger. If a request is received, UNESCO is to establish a committee to work in consultation with the state party (in the case of Yellowstone and the Everglades National Parks, the consulting party was the Department of the Interior’s National Park Service) to adopt a program for corrective measures.

What weight, in terms of authority and influence, does the Convention on World Heritage carry over domestic environmental law? On September 9, 1995, the Casper Star Tribune quoted Yellowstone Park Superintendent Mike Finley as saying that in his opinion the park service could use the convention as legal authority for its actions:

“As a prime sponsor of the treaty and its first signatory, the U.S. has a statutory responsibility to ensure that Yellowstone, a designated World Heritage site, is preserved and protected, Finley said. As ratified by Congress, the provisions of the World Heritage Treaty have the force and statutory authority of federal law, he said. By inviting the committee to visit the park and assess the mine’s potential impacts, the Interior Department acted as it was legally required to do, he added.”

In recent years, the questions of authority are also being raised by UNESCO and the World Heritage Committee. In an article entitled “The World Heritage Convention: 20 Years Later,” [UNESCO Sources, July-Aug., 1992], the article states that UNESCO respects the sovereignty of nation states by not intervening in the management of a World Heritage site unless assistance is requested by that nation. But the article goes on to raise the question “how far can the Convention force state parties to protect sites on the list?” It appears the Department of the Interior, UNESCO and the environmental community are now putting this question to test.”

At the nineteenth session of the World Heritage Committee, held on December 4-9, 1995 in Berlin, Germany, the committee began referring to itself and to the Convention as “an emergent tool to assist all State Parties in conservation.” This statement indicates that regardless of jurisdictional claims of non-interference in sovereignty, the World Heritage Committee is now willing to allowed itself to be used as a tool by which domestic policy can be influenced.

According to the minutes of the Berlin meeting, there were some individuals on the World Heritage Committee who appeared already willing to take the authoritive role of Committee one step further. After assurances from the U.S. representative “that the State Party does not consider action by the Committee to be an intervention in domestic law or policy”, the minutes note that “even if the State Party did not request action, the Committee still had an independent responsibility to take action based on the information it had gathered.”

The question of how far the World Heritage Committee can extend its authority is still unanswered, but it is certain that this question will move into the national and international court systems in the near future.

AND THE ESA !!

In the spring of 2001 fourteen hundred farmers, their families and a host of support businesses in the Klamath Falls Oregon area awoke to the realization that their lives were not as important to the federal government as two species of bottom-feeding sucker fish. Citing the U.S. Endangered Species Act (ESA), Oregon U.S. District Judge Ann Aiken ruled in Federal Court on April 6, 2001, to allow the U.S. Fish and Wildlife Service (USFWS) to implement their recovery plan to give all the water of the Klamath Lake to the endangered species. Aiken’s ruling gave first rights to the water to the fish. The farmers got nothing — even though they and community businesses faced immediate economic and personal bankruptcy. What is worse, the National Academy of Sciences would later rule that the recovery plan was based on false science. Thousands of people were hurt or ruined financially because of bureaucratic zealousness and the knowing application of false science.

Attack on Property Rights

In writing her ruling Judge Aiken claimed, “Given the high priority the law places on species threatened with extinction, I cannot find that the balance of hardship [to the farmers and residents in the county] tips sharply in the [farmers] favor.”[i]  The farmers were stunned. Just what does it take to constitute economic hardship, they asked? Without water, over 200,000 acres of farmland and 50,000 acres of the Klamath Wildlife Refuge dried up during the summer of 2001. Farmland plummeted from over $1000 per acre to less than $50. The property value of the farm represents the life savings of most of these farmers. It was as if Aiken’s decision wiped out $950,000 of a $1,000,000 life-savings account and then proclaimed it would not create sufficient hardship to prevent her from enforcing the reclamation plan for two species that had lived in harmony with the farmers for a hundred years.

To most American citizens the Endangered Species Act (ESA) and many other environ­mental laws are a noble effort to save species from extinction, and to protect the environment from reckless destruction by man. Tragically, what happened to the Klamath Basin farmers is not unique. The media rarely reports on the human tragedy caused by the ESA and other environmental. Consequently, most Americans do not realize that potentially hundreds of thousands of their mostly rural fellow citizens are needlessly being stripped of their livelihoods and decimated economically by these laws as our government uses them to nationalize their property. Klamath Basin farmer Rick Rodgers asserts:

This is out and out thievery. This is a land grab, a water grab, a theft of private property. They want to steal the whole thing and shove us out of here and make it a ‘preserve.’…Upper Klamath has 837,000 acre/feet of storage and by contract, agriculture is supposed to get 437,000 acre/feet of water. But they didn’t give us any. The people here have homestead deeds from the government promising — guaranteeing — them, and their heirs, water ‘forever.’ That’s why many of them settled here after World Wars I and II.”

Indeed, the farmers do hold the original land grant deeds and water rights, signed by President Roosevelt in 1940, which read in part:

KNOW NOW YE, that the UNITED STATES OF AMERICA, in consideration of the premises, and in conformity with the several Acts of Congress in such case made and provided, HAS GIVEN AND GRANTED, and by these deeds DOES GIVE AND GRANT, unto said           name           and    his    heirs, the tract described above, together with his right to use the water from the reclamation project in which the tract is situated, as an appurtenance [legal right] to the irrigable lands in said tract; TO HAVE AND TO HOLD to same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature… used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts…all in the manner prescribed by the Act of Congress approved August 30, 1890 (26 Stat., 391).[ii] (Italics added)

The ESA and the court ruling trumped a 100-year old property right, seemingly guaranteed by the government of the United States. But the same United States trashed its promise which threatened to destroy hundreds of millions of dollars of the farmer’s property value and ability to earn a living – all without one dime of compensation. To add insult to injury, the farmers still had to pay their ‘water tax’, an operation and maintenance fee that pays for the irrigation system.

How could the federal government have so flippantly destroyed these families? Jim Hainline, a biologist of the Lower Klamath National Wildlife Refuge provides a clue:

Once the government urged man to risk his all in the Klamath Basin. That was then, this is now. It was the social values of the time — man over nature. It worked for the purposes for which it was intended. Now we have a real change in the social values of the country. People are more urban, and they want to see the countryside more natural.[iii]

How could Hainline say this knowing that his government was destroying thousands of his fellow men, women and children? Is it possible that he is so cold-blooded that he really doesn’t care? Just what makes him think that urbanites should even have the right to enforce their will upon rural minorities — destroying them in the process? Tragically, Hainline does represent millions of urbanites who believe just like him, but often do not really understand it. They really do not think of themselves as being cold-blooded. They think they are merely doing what is necessary to protect nature based on their education and personal belief system — even though their actions are diametrically opposed to the Bill of Rights — the Constitutional foundation that guarantees the individual freedoms of every American. For with Hainline’s reasoning, no person anywhere in America would be protected against the whims of the politically correct majority.

No Understanding of Constitutional Principles

What has happened to bring us to this condition? Americans no longer have the opportunity to learn the foundations of freedom and to understand what it really means to have the God-given right to “life, liberty and the pursuit of happiness” as Thomas Jefferson penned in the Declaration of Independ­ence. Since the 1970s, we are increasingly following another system of governance that wholly opposes the principles of the Declaration of Independence and the Constitution. In doing so, we are systematically destroying the very foundation that has made America the greatest nation in the history of the world.

America is in a war of world views between the principles of freedom laid down by John Locke  (1632-1704) in his Two Treatises on Government (1689) and Jean Jacques Rousseau in his Social Contract (1762) and Discourse on the Origin of Inequality (1754). Private property is anything to which a person or group owns exclusive rights — including money. Without legal protection, the government becomes all-powerful and no land, no investment, no bank account is safe from whoever happens to be the biggest bully in town.[1]

The govern­ment’s purpose then, accord­ing to Locke, is to join with others to “unite, for the mutual preservation of their lives, liberties and estate, which I call by the general name, property.” According to Locke, the primary reason for government “is the preservation of their property.” (Italics added) This fundamental principle became the cornerstone of the Declaration of Independ­ence and the United States Constitution because the King of England was usurping these rights from the colonialists.

Rousseau attacked Locke’s model, arguing that individuality and property rights divide man by focusing on self-interest and greed rather than the good of society. He claims that property rights bind the poor thereby giving “new powers to the rich” that destroys “natural liberty” and equality and converts “usurpation into unalter­able right.” He argues for the creation of the common good as embod­ied through an abstract, public will he called the ‘general will’. In his model, the enlightened state deter­mines the general will of the people through the force of law, including how they use property.

Rousseau’s model of forced compliance has formed the basis of social and environmental laws in America since the 1970s — especially the ESA. This is causing a hemorrhage in individual liberties once taken for granted by all Americans, especially property rights. Without private property, individuals are powerless to oppose the government’s attempt to infringe on their rights or control the fruit of their labor. The old Soviet Union, where all property belonged to the state, provides the clearest example of this principle. No one could speak out against the government for fear of their family’s eviction or their job taken away by the local communist commissar.

Using top-dollar Madison Avenue packaging, the Rousseau-oriented environmental message finds willing listeners in urban America. While we do need to protect the environment, these slick, but distorted or false messages have easily manipulated the largely uninformed urban voters and politicians into believing all kinds of terrible things are happening that only big government can solve. In response, Con­gress has created an interlocking web of Rousseau-based laws and regulat­ions, including the ESA, which usurp local and state juris­dict­ions and bestow enorm­ous powers on federal bureau­crats who have little to no account­ability to those they gov­ern.

Over the past three decades, the ESA has given special protected status to hundreds of species of wildlife and plants. The federal government has used the ESA to take land-use control over hundreds of thousands of privately owned acres.[iv] The law, however, has an even more sinister side: each protected species has been listed without any consideration of the resulting social or economic impact on the people living and working in their habitat area — most of which is based on bad to nonexistent science.

Bad Science + Zealous Bureaucrats = Corruption

The Klamath Tribe of Native Americans originally petitioned to list the two suckerfish because the fish had religious significance and were allegedly declining in their numbers during the 1980s. Klamath citizens had maintained from the beginning of their problems with the ESA that the science used to justify the listing of the two suckerfish and the Coho salmon was corrupt. After the fish were listed in 1988, poor water quality led to algae blooms and massive fish kills in 1995 through 1997. The USFWS reported at least 80 percent of adult suckers died in those years, leading to a narrow age class today and lessening suckers’ ability to reproduce, the service said. Likewise, the National Marine Fisheries Service (NMFS) maintained that the reduced water levels and pollution threatened the endangered Coho salmon below the Klamath Lake dam.

Gross Distortion of Science

Not all is what it seems, however, and the Klamath River debacle continued its odyssey into the twilight zone – this time in the arena of science. Or, more appropriately, pseudoscience. During the June 16, 2001, House Committee on Resources Oversight Field Hearing on “Water Manage­ment and Endangered Species Issues in the Klamath Basin” fisheries biologist David A. Vogel testified that the Klamath farm situation is an:

artificially created regulatory crisis that has been imposed on the Upper Klamath basin.… In my entire professional career,” he said, “I have never been involved in a decision-making process that was as closed, segregated, and poor as we now have in the Klamath basin. The constructive science-based processes I have been involved in elsewhere have involved an honest and open dialogue among people having scientific expertise. Hypotheses are developed, then rigorously tested against empirical evidence. None of those elements of good science characterize the decision-making process for the Klamath Project.[i]

Vogel had been a fisheries scientist for 26 years and worked 15 of those years for the USFWS and the National Marine Fisheries Service (NMFS). During his tenure with the federal government, he received numerous superior and outstanding achievement awards and commend­ations, including Fisheries Management Biologist of the Year Award for six western states. During the hearing, Vogel indirectly accused the USFWS and NMFS of distorting the data to arrive at a predetermined conclusion, ignoring all contradictory evidence that would negate their recommendations.

It is not that there was no justification for some kind of remedial work. A serious pollution problem did exist. But Vogel had worked with Dr. Alex Horne and others to develop a plan that would provide good water for both the farmers and the aquatic ecosystem.[ii] In his testimony before Congress, Vogel sharply criticized the USFWS for its grossly unacceptable census of the sucker fish to justify its listing as an endangered species. He claimed that, “three years after the sucker listing, it also became apparent that the assumptions concerning the status of shortnose suckers and Lost River suckers in the Lost River/Clear Lake watershed were in error.”[iii] The more complete census in 1991 showed tens of thousands of these fish. Had that information been made public, the suckerfish may not have even been listed.

The reason, Vogel continued, that the service recommended imposing high reservoir levels was to “allow sucker spawning access to one small lakeshore spring” and to dilute the lake’s pollution by keeping so much water in it that it would theoretically improve the water quality and improve the habitat for the endangered fish. Vogel stated just the opposite was true. “All the empirical evidence and material demonstrate that huge fish kills have occurred when Upper Klamath Lake was near average or above average elevations, but not at low elevations,” asserted Vogel.[iv] He even said he warned the USFWS that there would be huge fish kills if the Upper Klamath Lake elevations were maintained at higher than historical levels. That’s exactly what happened in 1971, 1986, 1995, 1996, and 1997.

In spite of this overwhelming scientific evidence, the NMFS recommend high lake levels to Judge Akin by “selectively reporting only information to support the agency’s concept of higher lake levels.”[v] Concerning the Coho salmon, Vogel again sharply criticized the NMFS for its misuse of science. “Coho salmon, as a species, prefer smaller tributary habitats, as compared to larger mainstream river habitats [such as the Klamath]. This extremely important biological fact was not incorporated into the rationale NMFS used to assess Klamath Project effects on Coho,” he stated. In other words, more water in the Klamath River would not help the salmon because the problem was in the tributaries, not in the main river. Yet, the NMFS continued to promote this fraudulent recovery plan knowing it was wrong!

Given the contentious nature of this battle and the charges that the U.S. Fish and Wildlife used junk science to justify their decisions, Interior Secretary Norton asked the National Academy of Sciences (NAS) to give an opinion of the science used by the service. The committee of NAS scientists that reviewed the data essentially agreed with Vogel:

Incidents of adult mortality (fish kill), for example, have not been associated with years of low water level, and the highest recorded recruitment of new individuals into the adult population occurred through reproduction in a year of low water level.… Thus the committee finds no substantial scientific evidence supporting changes to the operating practices that have produced observed levels in Upper Klamath Lake and observed stream flows over the past 10 years.[vi]

Thus the scientists of the USFWS recommended a recovery program that had no scientific merit whatsoever. In fact, the recovery plan actually placed the two species of sucker fish at even greater risk because high lake levels were associated with fish kills while low lake levels yielded fish gains. The recovery plan did serve, however, to destroy a one-hundred year-old property right and would lead to the elimination of farming and therefore farmers in the Klamath basin.

But that is not all the USFWS and NMFS did in this recovery plan. The plan also hinged on more reservoir water being released in the Klamath River to provide more water to the endangered Coho salmon during low water years. While this makes sense on the surface, the NAS report also found that: “water added as necessary to sustain higher flows in the main stem during dry years would need to come from reservoirs, and this water could equal or exceed the lethal temperatures for Coho salmon during the warmest months.”[vii] In other words, excessive release of the warm reservoir water could actually kill the salmon, not help them. Again, the recovery plan demanded action that is exactly the opposite of what the scientists knew to be true, and their actions actually put the salmon at much higher risk! The recovery plan did serve, however, to destroy property rights and people’s lives.

This is not the only example of such abuse. The ESA and other federal regulations have destroyed the lives of thousands of families, closed entire communities, and confiscated hundreds of millions (if not billions) of dollars of private property — all in the name of protecting the environment. Why? Michael Kelley of the Washington Post Writers Group provides a clue in the July 11, 2001, issue of MSNBC. He found “The Endangered Species Act…has been exploited by environmental groups who have forged from it a weapon in their agenda to force humans out of lands they wish to see returned to a pre-human state. Never has this been made more nakedly, brutally clear than in the battle of Klamath Falls.”[viii]

Charles Bridges agrees. A retired soft drink bottler who lives in the town of Klamath Falls Bridges claims: “This isn’t about saving endangered species or the environment. It’s about control, taking the land away from the people, ‘re-wilding the land,’ going back to 1492. It’s all part of that UN Earth Summit, the Biodiversity Treaty, the Wildlands Project, etc. These green extremists don’t want us here.”[ix]

The Wildlands Project is a plan for creating huge wilderness reserves interconnected with wilderness corridors usually along streams, rivers or mountain ranges where no human activity can take place. It would occupy up to 50 percent of the U.S. landscape resulting in road closures and relocation of entire communities to re-wild America.[x] It is no wild-eyed pipe dream. The Wildlands Project was to provide the backbone of biodiversity recovery in the United Nations Convention on Biological Diversity, which was within one hour of ratification on September 30, 1994, when the plan was exposed on the U.S. Senate floor and stopped.[xi]

The Never-Never Land of ESA Science

On March 20, 2002, Rob Gordon, Executive Director of the National Wilderness Institute testified before the House Resources Committee on H.R. 2829 and H.R. 3705, both bills to amend the Endangered Species Act of 1973. In addressing the issues of quality and type of research used, Gordon said:

Under the current program the evidentiary standards for listing are, in a word, bad. I use the word bad because it is an apt acronym for “best available data.” The problem with best available data, or BAD, is that best is a comparative word. Thus the data need not be verified, reliable, conclusive, adequate, verifiable, accurate or even good. The best available data standard hampers the effectiveness of the program.[xii]

Because of the lack of scientific accountability, mistakes — big mistakes — are common. In one example, the USFWS considered the Indian flapshell turtle endangered because it is listed in Appendix I of the U.N.’s Convention on the International Trade of Endangered Species (CITES), It was not until after the turtle was listed that the USFWS conducted a literature review to see if supporting evidence justified its current endangered status. No such supporting data could be found. Desperate for justification, the USFWS then contacted turtle experts such as Dr. E. O. Moll, who was conducting research in India at that time. Moll stated that it was “seemingly the most common and widespread turtle in all of India. How it ever made Appendix I is a big mystery.”[xiii]

This is just one of dozens, if not hundreds, of examples of an overzealous agency shooting from the hip before having proper information. There are presently 984 species listed as endangered by the USFWS, 976 of which have recovery plans.[xiv] The National Wilderness Institute conducted a study in which they found that over 306 of these recovery plans had “little to no hard information about the status of listed species.” Gordon continues, “Few recovery plans state that we reliably know how many of a particular federally regulated species exist.” For instance, the plan for the endangered Cave Crayfish cites “Sufficient data to estimate population size or trends is lacking.”[xv] If there is not sufficient data to even estimate the population size, let alone trends, then how could the USFWS even know it was endangered in the first place? How could it write a recovery plan? The agency could not have. But it did anyway.

In another case, the Palau dove, Palau owl and Palau flycatcher, native to a small island nation of Palau about 400 miles east of the Philippines, were considered recoveries by the USFWS. While USFWS calls them ‘recoveries,’ a GAO report states that “officially designated as recovered, the three Palau species owe their recovery more to the discovery of additional birds than to successful recovery efforts.” Similarly, John Turner, former USFWS director, revealed during a Senate hearing that the Rydberg milk-vetch, a plant which is one of the few other supposed recoveries was de-listed because “further surveys turned up sufficient healthy populations.”[xvi]

Outright Fraud and Religious Zealousness

Government scientists are not above actually planting evidence to support their anti-human beliefs. In the fall of 2001 the U.S. Forest Service found that seven federal and state wildlife biologists planted false evidence of a rare and threatened Canadian lynx in the Wenatchee and Gifford Pinchot National Forests in the state of Washington. The three U.S. Forest Service, two U.S. Fish and Wildlife Service, and two Washington State Department of Fish and Wildlife employees planted lynx fur on rubbing posts. The posts were installed to identify existence of the creatures in the two national forests as part of a lynx habitat study started in 1999. DNA testing of two of the samples matched that of a lynx living inside an animal preserve. The third DNA sample matched that of an escaped pet lynx being held in a federal office until its owner retrieved it.[xvii]

Had the fraud gone undetected it would have closed roads to vehicles. They would have banned off-road vehicles, snowmobiles, skis and snowshoes, along with livestock grazing and tree thinning. Representatives Richard Pombo (R-California) and John Peterson (R-Pennsylvania), the chair communications chairman, respectively, of the House Western Caucus, were especially critical of the incident in a jointly released statement:

As Americans, we should have been astounded by the recent findings that federal officials intentionally planted hair from the threatened Canadian lynx in our national forests in order to impose sweeping land regulations. But in truth, many of us who come from rural America have grown accustomed to environmental activism prevailing over the rule of law and over the best interests of families and communities.[xviii]

The guilty employees claimed they were not really trying to manipulate or expand the lynx habitat, but instead were merely testing the lab’s ability to identify the cat species through DNA analysis. They did not come forward, however, until after a fellow Forest Service colleague had exposed them. “That would be like bank robbers taking money from a bank and saying they were just testing the security of a bank, they weren’t really stealing the money,” said Rob Gordon, executive director of the National Wilderness Institute.[xix] Nonetheless, the story given by the seven guilty biologists prevailed, and the guilty parties received no discipline — thereby encouraging more fraud in the future.[xx] Representatives Pombo and Peterson were aghast: “This lackadaisical approach to willful, unethical conduct is unacceptable, and we see no credible alternative other than to terminate the parties if there is convincing evidence that they knowingly and willingly planted unauthorized samples.”[xxi]

Retired Fish and Wildlife Service biologist James M. Beers called the false sampling amazing but not very surprising. “I’m convinced that there is a lot of that going on for so-called higher pur­poses,”[xxii] he said. The higher purpose to which Beers referred is known as “conservation biology.” Untested, conservation biology rests on the unproven pantheistic assumption that nature knows best and that all human use and activity should follow natural patterns within relatively homogenous soil-vegetation-hydrology landscapes called ecosystems.[xxiii] Such belief holds that the government should not permit unnatural human develop­ment like roads, and activities snowmobiling, livestock grazing and harvesting. Furthermore, ecosystems cross unnatural property lines. Since conservation biology ostensibly calls for holistic manage­ment of entire ecosystems to protect its perceived fragile web of life, the rights of nature must be superior to the rights of people, including their property rights.

The religious zealousness driving the ESA has gotten so bad that David Stirling, Vice-president of the Pacific Legal Foundation, a conservative legal foundation taking cases that have Constitutional merit, notes:

For three decades, environmental purists have actively promoted the pantheistic notion that plant and animal life rank higher on the species hierarchy than people. Their “return-to-the-wild” agenda argues that human life activities are the enemy of plant and animal species, and only through their efforts to halt growth and shut down people’s normal and necessary life endeavors will Mother Earth smile again. From as far away as the paved-over streams and erstwhile species habitat of Manhattan, a recent New York Times editorial called for farmers in the Klamath Basin to turn their land back to nature.[xxiv]

David Graber, Research Biologist with the National Park Service, graphically expresses this radical view:

Human happiness, and certainly human fecundity, are not as important as a wild and healthy planet. I know social scientists who remind me that people are part of nature, but that isn’t true. Somewhere along the line — at about a million years ago, maybe half of that — we quit the contract and became a cancer. We have become a plague upon ourselves and upon the Earth…. Until such time as Homo Sapiens should decide to rejoin nature, some of us can only hope for the right virus to come along.[xxv]

Conservation biology is little more than earth worship, seasoned with a little science.[xxvi] Although more religion than science, conservation biology now dominates the scientific basis and thinking of our federal agencies. Further, our federal land management and environmental agencies are now riddled with employees holding these conservation degrees. It doesn’t take a rocket scientist to realize that those government bureaucrats holding such extremist views are quite hostile to all people using either private or government lands for any purpose.

This contempt of humanity was brazenly declared in a 1994 United States Bureau of Land Management internal working document on Ecosystem Management: “All ecosystem management activities should consider human beings as a biological resource…”[xxvii] Americans are no longer considered the employees of our federal agencies, they are merely biological resources to be managed along with endangered species. Worse, these “biological resources” are forced to pay enlightened bureaucrats to tell them what they can and cannot do on their own land.

This is why federal bureaucrats in these agencies can arbitrarily destroy the lives of thousands of people and still sleep at night. They have been taught to believe they, as retired USFWS biologist James Beers said, are serving a “higher purpose” in saving nature at all costs, even to the point people suffer horribly. After all, people are merely biological resources for those who are wise to manage.

Origins and Problems of the Endangered Species

The Endangered Species Act of 1973, is the quintessence of all anti-human, anti-property rights laws. It derives its authority and power from five principle international treaties administered by the UN, the most prominent being the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere. Section 2, paragraph (4) of the Endangered Species Act of 1973 states; “the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to:

A.    migratory bird treaties with Canada and Mexico;

B.    the Migratory and Endangered Bird Treaty with Japan;

C.    the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere  (Western Convention);

D.    the International Convention for the Northwest Atlantic Fisheries;

E.    the International Convention for the High Seas Fisheries of the North Pacific Ocean;

F.   the Convention on International Trade in Endangered Species of Wild Fauna and Flora;

G.   other international agreements

The ESA even extols the fact that it cedes sovereignty to the international community by saying its purpose is to “develop and maintain conservation programs which meet national and international standards.” In turn, these programs are “key to meeting the Nation’s international commitments.”[1] In a very real way, U.S. citizens are going to prison, paying thousands of dollars in fines and, in some cases, losing their life savings because of international treaties that are not in the best interests of the American people.

The Western Convention and the ESA

Even if they do not know of the existence of the Western Convention, most Americans who live in rural America will recognize with alarm some of the key language of the treaty because they have witnessed its application in their area through the ESA. The Western Convention requires the United States to pass “suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves.”[2] Consequently, the treaty requires the U.S. to protect endangered species over all private as well as public land.

The goal of Western Convention is to: “protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna…in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man’s control….” (Italics added) Section 4 of the ESA, designed to meet this requirement, states: “Secretary [of Interior],” upon determining “that a species is an endangered species or a threatened species, to the maximum extent prudent and determinable shall…designate any habitat of such species which is then considered to be critical habitat.”[3] Both the treaty and the ESA require that the appropriate natural habitat be identified and protected for the species — regardless of who owns the land.

Section 4 also defines the requirements of “whether any species is an endangered species or a threatened species” by any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms;

(E) other natural or manmade factors affecting its continued existence.

These rather nebulous criteria for listing are only limited by Section 4(b)(1)(A), which calls for the Secretary’s decision to be made “solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species.” Of course, the USFWS uses conservation biology to justify their need to list the species and eventually to establish a recovery plan. Land use restrictions on private property are the inevitable result. And, according to Section 4(b)(3)(A) of the Endangered Species Act and Title 5, Section 553e of the U.S. Code, any person can petition for a listing and the Secretary of Interior has to respond within “90 days after receiving the petition.”[4] If the Secretary of Interior fails to respond within that time, the citizen can file a lawsuit charging the Secretary with non-compliance of a federal law.

The ESA is the perfect tool for environmental groups to stop the use of any private land that they want by simply finding a species that is declining or is relatively rare, and petition the Secretary of the Interior. The petition costs the environmentalist or environmental group almost nothing. The private landowner and USFWS, on the other hand, have to spend hundreds of thousands, if not millions of dollars proving the species is not endangered. This is often impossible because the species may truly be in decline for reasons totally unrelated to the use of the private land, but the Klamath River example, the USFWS will nonetheless impose a recovery plan to affect it.

Many citizens have experienced the ESA horror as it has dramatically restricted or even stripped them personally of their right to use their own land, without a dime of compensation. Under Section 4 of the ESA, the federal government can condemn private property to create the needed habitat, or possibly could be needed at some future date,[5] by an endangered fly, sucker fish or beetle, as well as more glamorous species like the bald eagle.

According to Article VIII of the Western Convention, all endangered species “shall be protected as completely as possible, and their hunting, killing, capturing, or taking, shall be allowed only with the permission of the appropriate government authorities in the country.” (Italics added) Not surprisingly, the concept of full protection and takings is also found in Section 9 the ESA where it is unlawful to “take any” endangered “species within the United States or the territorial sea of States,” or “take any such species upon the high seas.” Since this includes the species’ habitat, the rights of the landowner are usurped by the endangered species.

Some Examples

There are thousands of examples that illustrate the extent to which the USFWS will go to stop any land use they deem as a taking within the ESA. Consider:

•         “In 1979, Barbara and Dick Mossman mortgaged their farm to buy a new International log truck to start their own logging business in the Pacific Northwest. In June 1990, the United States Fish and Wildlife Service (USFWS) declared the Northern Spotted Owl an endangered species. Since the owl was found virtually anywhere there was logging, nearly all forests were declared part of the recovery area and the timber industry collapsed. The Mossmans’ business was no exception. By October of 1991, less than 18 months after the USFWS ruling, the Mossmans went out of business.

“Because they were self-employed, they could not apply for unemployment benefits. As a result, the Mossmans had to sell their boat, trailer, welder, tools and motorcycles to get the cash they needed just to make ends meet. That was not enough, though. In the spring of 1992, they received a foreclosure notice on their farm. The electricity was turned off, leaving the couple without heat, lights and water. The Mossmans were unable to respond to collection notices and deputies began knocking on the door with lawsuits in hand. However, Barbara says the most degrading thing of all ‘was being forced to walk into a public assistance agency, after 13 years as independent truckers, and ask for a voucher for food, because we were hungry.’”[6]

•         “Taung Ming-Lin, a Chinese immigrant, bought land in Kern County, California…to grow Chinese vegetables for sale to the southern California’s Asian Community. Lin [Taung] claims to have been told by the county the land was already zoned for farming and that no permit was needed. When Lin [Taung] began farming, his tractor allegedly disturbed the habitat of the endangered Tipton Kangaroo rat…[and] ran over some of the rats. Lin was charged with federal civil and criminal violations of the Endangered Species Act…. The criminal charges carry penalties of up to a year in jail and $100,000 fine.”[7] Taung was later released, but not after suffering the jack-boot of federal bureaucrats.

•         “In 1973 Margaret Rector bought 15 acres of land on a busy highway west of Austin, Texas. In 1990 the golden-checkered warbler was listed as endangered, and the United States Fish and Wildlife Service says her property is suitable habitat. The land, in the fastest-growing part of the county, is now unusable. Its assessed value falls from $831,000 in 1991 to $30,000 in 1992. USFWS says she might be able to get a permit to develop, but this would require her to finance extensive studies and to mitigate any impact on the warbler.”[8]

•         “North Carolina farmer Richard Mann thought he was shooting a large dog that was threatening his cattle. But when he came back the next day to bury the animal, he was confronted by federal wildlife officials who charged him with killing a red wolf – a federally-protected species. Mann was fined $2,000 and required to perform community service by building “wolf houses” and feeding the wolves. Afterwards, he filed suit against the U.S. Fish and Wildlife Service (FWS) claiming that the federal government had no constitutional authority to prevent residents from protecting themselves and their property.

“The red wolf, which is not even native to the state, was introduced by the FWS to the area in 1984 as part of an experiment to see how well the animals adapt to the environment. There is considerable scientific debate about whether the red wolf is a distinct “species” that merits special protection. In fact, many wildlife experts believe that it is a cross between a gray wolf and a coyote. Whatever the red wolf is, federal officials assured farmers [prior to listing] that the wolves would stay in the boundaries of the wildlife refuge and if by some chance the wolves would wander, the government would retrieve them. But just in case, the North Carolina legislature passed a law specifically allowing residents to kill the red wolves if they believed the animals posed a threat to their lives or livestock. Mann claims the state law allowed him to shoot the animal. But “federal lawyers argue that FWS regulations protecting red wolves take precedence over the state’s legislation protecting landowners.”[9]

•         “[T]he Central Valley of California, Kern County produces huge crops of vegetables, nuts, fruit, and cotton with water that is brought southward from Sacramento-San Joaquin Delta through a series of natural and man-made structures known as the California Water Project. This multi-billion-dollar water project is financed by assessments upon all of those who use the water; in turn, state law allocates the right to receive and use specified quantities of water to farmers, …cities, and industrial users. These water rights are recognized as a property right under California State law.

“Beginning in 1992, the federal government started limiting the amounts of water which could be sent south to Kern County and other parts of California to maintain in-stream flows to protect the habitat of two endangered fish — the delta smelt and the winter run of Chinook salmon. As much as two million acre-feet of water — enough to cover two million acres to a depth of one foot — have been held back annually from municipal and agricultural use in order to maintain certain levels in streams and lakes which constitute the habitat of these fish. Farmers and ranchers have suffered many millions of dollars in lost crops and, in some instances, have lost their property as it has become unproductive.”[10]

“The farmers took the case to U.S. Court of Federal Claims and the court ruled in favor of the farmers on April 30, 2001. ‘The federal government is certainly free to preserve the fish,’ the court said. ‘It must simply pay for the water it takes to do so.’[11] Attorney Peter Fraley said, ‘The court found these actions are more than a regulation of a water right, they are an actual physical taking of a property right, and they have to pay you for it.’”[12]

•         In Southern California an endangered fly in Riverside County held up the building of a hospital…. It’s a flower-loving desert sand fly, a bit larger than a common housefly, but it was an endangered fly, and they found eight of them. The cost to set aside this habitat for the fly: about $400,000 per fly.”[13]

•         “In August 1997, U.S. District Judge Michael Hogan issued a moratorium on logging on 94 acres of privately held land near Eugene, Oregon. The two spotted owls actually make their nest about one mile away from the privately held parcel of land that is managed by the federal government. But because the land may be part of the owls’ ‘home range,’ the judge determined that logging should be stopped…without knowing if the owls in fact even used it.”[14] (Italics added)

•         The USFWS “threatened to fine a Utah man $15,000 for farming his land and allegedly posing a risk to the prairie dog, a protected species…. [T]he USFWS told the man that he should hire an outside expert to determine if there are prairie dogs on his land. The expert prepared a report, which indicated that there were no prairie dogs. The farmer proceeded to work his land. However, the USFWS has told him that they will fine him anyway.”[15]

The Usurpation of the US Constitution

The UN-administered Western Convention and its ESA progeny have provided the hammer for denying landowners their property rights in the U.S. by trumping the Fifth Amendment of the U.S. Constitution:

….No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Italics added)

David Stirling, Vice President of Pacific Legal Foundation, notes that, “Because the ESA makes no mention of ‘people,’ the plants’ and animals’ protected status is always assured, while the resulting harm done to people is always ignored.”[16] Until recently, the U.S. District Courts have ruled against the rights of the landowner to receive just compensation under the Fifth Amendment. This has led to some disastrous consequences, such as happened to the Klamath Basin farmers in 2001 and many of the people in the examples above.

According to the U.S. Constitution, Congress has no power to legislate anything other than the eighteen enumerated powers granted in Article One Section Eight. None of those eighteen powers allow Congress to pass environmental law, except number 18, which is further defined in Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As it was originally written, the Constitution was the supreme law of the land. The laws of the United States had to be “in pursuance thereof,” or subservient to the Constitution. Likewise, treaties could only be made “under the Authority of the United States.” Since the authority of the United States comes from the sovereign people who delegated it to the U.S. Constitution, treaties also had to be subservient to it.

Although the founders thought it obvious and therefore did not include it in the original U.S. Constitution, the sovereignty of the people was eventually spelled out in the first ten amendments to the Constitution. For instance, Amendment IX states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, neither the Congress, nor the executive, nor the judicial branches of the federal government had any powers other than those clearly spelled out in the U.S. Constitution. Those that were in doubt or not spelled out belonged to the people. Just to make sure future courts understood this, Amendment X states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Italics added) It was the people’s ironclad contract that they would never become serfs to the federal government.

The Constitution began to be reinterpreted in the case Missouri vs. Holland 252 U.S. 416, 40 S. Ct. 3822, 64 L.Ed 641 (1920). In that decision the U.S. Supreme Court held the federal government may preempt state control over wildlife under federal legislation implementing the Migratory Bird Treaty. By putting liberal and corrupt judges into lower courts and the Supreme Court, Article 6.2 of the Constitution was gradually reinterpreted to mean:

…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…

By redefining Article 6 of the U.S. Constitution, environmentalists merely have to promote international treaties that, in total, subvert the Constitution in a way that puts all power into the hands of federal bureaucrats who work in concert with environmentalists. As a consequence, Americans are systematically coming under the control of international law and the United Nations where flies and suckerfish have more legal rights than people.

Section 3(18) of the ESA defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or col­lect, or to attempt to engage in any such con­duct.” Nowhere does this include taking private property. For decades, however, federal agencies arbitrarily extended the definition to take private property to protect the species habitat. The U.S. Supreme Court legitimized this convoluted interpretation on June 29, 1995 in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. Section IX of the ESA provides the legal basis for the FWS to implement a recovery plan to protect an endangered species from “harm.” The Court ruled that “harm” to a species included the modification of suitable habitat for a species.[17] The Supreme Court also upheld the Interior Department’s regulatory right to “take” private property in instances in which a landowner makes “significant habitat modification or degradation.”[18] By doing so, the ruling allowed the government to take private land for an endangered species without paying for it.

The Sweet Home decision was devastating to the entire concept of property rights. Justice Scalia, Chief Justice Rehnquist, and Justice Thomas dissented. Scalia wrote:

I think it unmistakably clear that the legislation at issue here (1) forbade the hunting and killing of endangered animals, and (2) provided federal lands and federal funds for the acquisition of private lands, to preserve the habitat of endangered animals. The Court’s holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin – not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use. I respectfully dissent.

Scalia, Rehnquist and Thomas were correct. The ESA has imposed “unfairness to the point of financial ruin – not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.” Writing for the Heritage Foundation, Alexander Annett notes that: “Because of the Supreme Court ruling, the ESA empowers the federal government to regulate any land that is thought to provide “suitable habitat” for an endangered species — without proof of death or injury to an identifiable animal that was caused by the landowners.”[19] The real tragedy of the ESA is that it harms people through a law that depends on bad science at best, and at worst, no science at all.

The Failure of the ESA

The purpose of the ESA is to prevent species from becoming extinct and then to help them recover to the point where they no longer need protection. During the first 25 years of the ESA only 27 species have been de-listed. As reported by the Heritage Foundation:

According to the National Wilderness Institute, the reasons for delisting these species had little to do with the ESA’s efforts to recover them:

•         7 species were delisted because they are extinct – the Tecupa pupfish, the longjaw cisco, the blue pike, the Santa Barbara song sparrow, Sampson’s pearly mussel, the Amistad gambusia, and the dusky seaside sparrow;

•         16 species were delisted due to data errors – the Mexican duck, the Pine Barrens tree frog, the Indian flap-shelled turtle, the Bahama swallowtail butterfly, the purple-spined hedgehog cactus, the Tumamoc globeberry, the spineless hedgehog cactus, the Mckittrick pennyroyal, the cuneate bidens, the Eastern brown pelican, the Palau fantail, the Palau dove, the Palau owl, the American alligator, the Rydberg milk-vetch, and the gray whale; …and

•         The Eastern gray kangaroo, the Red kangaroo, and the Western gray kangaroo were delisted as a “response to Australian policies.”[20]

Environmental International editor Alan Moghissi of observes in summarizing the National Wilderness Institute report:

…a disheartening part of the [NWI report] is their conclusive evidence that the deletion of essentially every species from the endangered species list was not caused by implementation of the ESA…. [It provides] a picture in which the USFWS [U.S. Fish and Wildlife Service] lists a species and either removes it or reduces its severity of endangerment, solely because afterwards it finds that it made an error.[21]

It gets worse. The politicalization of the Endangered Species Act reached its zenith on May 5, 1998 when Interior Secretary Bruce Babbitt announced that he would recommend delisting thirty-three endangered or threatened species on the endangered species list. He touted this action as proof that the ESA is working. But his claim subsequently was disputed, most notably by the director of his own department’s Fish and Wildlife Service. Of the species Babbitt planned to de-list, several were already extinct or were taxonomically invalid. Many other species never were actually endangered; they had been undercounted or the threat to them had been overestimated. Some others on Babbitt’s list had actually improved but did so primarily because of events unrelated to the Endangered Species Act such as the Clean Water Act or management by state agencies or private conservation efforts:

Common Name

Reason

Guam broadbill

Extinct

Oahu tree snail

Extinct

Oahu tree snail

Extinct

Oahu tree snail

Extinct

Mariana mallard

Extinct

Truckee barberry

Taxonomic Error

Virginia roundleaf birch

Taxonomic Error

Lloyde’s hedgehog cactus

Taxonomic Error

Ewa Palains ‘akoko

Taxonomic Error

Dismal swamp southeastern shrew

Data Error

Virginia northern flying squirrel

Data Error

running buffalo clover

Data Error

Tinian monarch

Data Error

Hawiaian hawk

Data Error

Island night lizard

Data Error

Hoover’s wooley star

Data Error

Missouri bladderpod

Data Error

tidewater goby

Data Error & Non – ESA Factors

Aleutin Canada goose

Data Error & non – ESA Management

bald eagle

Non – ESA Factors

peregrine falcon

Non – ESA Factors

Columbian white-tail deer

Non – ESA Management

brown pelican

Non – ESA Factors

Eureka Valley evening primrose

Pre-ESA /Management

Eureka Valley dune grass

Pre-ESA /Management

Columbia white tail deer

Pre-ESA, Est. Refuge & Hunting Restriction

Robbin’s cinquefoil

Non-ESA Management Activities

Loch lomond coyote thistle

Non-ESA Management Activities

Heliotrope milk vetch

Non-ESA Management Activities

parhump poolfish

Non-ESA Management Activities

heliotrpoe milkvetch

Non-ESA Management Activities

spring-loving centaury

Established Refuge

Ash Meadows sunray

Established Refuge

Ash Meadows gumplant

Established Refuge

Ash Meadows amargosa pupfish

Established Refuge

gray wolf

Hunting Restriction[xxii]

Notice that five of these de-listed species were extinct. Yet, Babbitt included these in with those that showed how the ESA supposedly worked! Fourteen of the rest were removed from the list because of taxonomic or data errors! The remaining species were removed because of factors outside of ESA requirements! Three months after Secretary Babbitt announced plans to remove these thirty-three species from the endangered species list, the director of the Department of the Interior’s Fish and Wildlife Service, Jamie Clark, wrote to Representative Richard Pombo (R-CA), chairman of the Endangered Species Task Force, that she was “personally embarrassed by this unfortunate error.” She noted that Secretary Babbitt’s list of successful recoveries “included species which we believe to be extinct and those for which we have new scientific information concerning their taxonomy or abundance.”[xxiii]

Arbitrary and Capricious

One of the surest signs of whether a law has been created or corrupted for a specific special-interest purpose is whether it is administered fairly for all people. Although it has seriously harmed tens of thousands of rural Americans, rarely is the ESA applied within the city limits of large cities in the U.S. — especially not in our nation’s capital where its pain would be inflicted on the lawmakers themselves. That is changing, however, but not by environmentalists who have been responsible for almost all the listings under the ESA to date.

The National Wilderness Institute[xxiv] filed a lawsuit against federal regulatory agencies in early 2002, charging that the expansion of the new Woodrow Wilson Bridge over the Potomac River and the permitting of discharges into the Potomac violated the ESA. The federally owned bridge is a main commuter gateway from Maryland into the Capital. When the expansion is completed it would ease the gnarled traffic into and out of the city. Because of its undeniably critical need, the U.S.F.WS, which usually delights in using the ESA as a club to stop any kind of development in rural America, quickly waved through the project even though its construction could imperil several endangered species, including the bald eagle.[xxv]

Of the studies done by federal agencies that claimed that there would be no harm, Rep. George Radanovich of California said, “…the reports are less a search for the truth than an attempt to circumvent the protection of the Endangered Species Act.”[xxvi] “We in the West have seen project after project stopped in its tracks over the very statutes that are at issue in this case,” Rep. Radanovich said.[xxvii] “Rural and Western communities have long noticed that laws such as the Endangered Species Act have been zealously enforced against them, often with devastating effects on their communities, while the act never seems to be applied in the urban East.”[xxviii]

The lawsuit by the National Wilderness Institute was long overdue. “It seems that Washington politicians and commuters are shocked — shocked — that an ESA lawsuit is being used so blatantly to halt human activity” notes the Wall Street Journal. “…environmental groups have hijacked the act, turning it into a bludgeon by which they can enforce their vision of a development-free America. Its rural parts of the country, where small landowners lack deep pockets and political clout, that bear the brunt,” continues the Journal. But now it is at the doorstep and inconveniencing the very political body that created this anti-human law. Shortly after the NWI sued, then-Virginia Attorney General Mark Earley said that it was “disturbing to anyone who has ever had to sit in a traffic jam on the old bridge.” [xxix] He makes an excellent point. The same point that Western and rural landowners have been making for decades.

Economics

The cost of implementing the ESA is very difficult to calculate. For instance, in addition to the public resources that go to its efforts to protect endangered species, there are other costs associated with foregone opportunities from restrictions on the use of the property. The Heritage Foundation cites data that in 1995 the U.S. General Accounting Office reported on fifty-seven approved recovery plans. The total estimated cost to implement thirty-four of the plans was about $700 million, and the estimate for the initial three years of recovery for twenty-three plans was $350 million.[xxx] These amounts, however,

do not include the millions of dollars that would be lost from restricted or altered development projects; in agriculture production, timber harvesting, mining extraction, and recreation activities; the lost wages of displaced workers who went unemployed or became re-employed at lower wages; or the lower consumer surplus resulting from higher prices and lower capital asset value.[xxxi]

The Heritage Foundation notes, “The government estimates that recovering all currently known endangered species would cost more than $4.6 billion.”[xxxii] Again, however, the National Center for Policy Analysis asserts this estimate is misleading because it includes solely recovery costs. It does “not include the $2.26 spent on consulting with scientists and stakeholders for every $1.00 spent on recovery; or the lost jobs, foregone wages, and social costs of the recovery effort.”[xxxiii] Just how much are these intangible regulatory costs? No one knows. They are huge, however.

Regardless, the ESA’s economic costs beg the issue. Under the ESA as it currently stands, the government is entitled to take control of all or part of a landowner’s property without regard to the financial burden placed on the landowner if the government believes the property is needed to protect an endangered species. Consequently, regulators can set aside large amounts of land at no cost to their agency or to the urban taxpayer. This formula inevitably will lead them to take control of private property even when its contribution to efforts to save an endangered species is low and the cost to the landowner is high.[xxxiv] Hence, the government’s power is absolute, destroying the Locke model of protecting property rights and enforcing the Rousseau model of socialism where the state has absolute authority to enforce the “general will” upon hapless property owners.

The top-down bludgeon approach of the ESA sends exactly the wrong message to land­owners. If they want to protect their land and their family investment, they dare not allow an endangered species on their land — or their neighbor’s land. To do so invites the federal government to condemn their land for the benefit of the endangered species. If their life savings is invested in the land they stand to lose everything. This has led to what is called the three S’s: “shoot, shovel and shut-up — destroying and disposing of an endangered species before it can be found by federal bureaucrats or environmentalists. Consequently, the ESA has every incentive to fail. And, as noted above, it has failed miserably. Not a single species that has been taken off the endangered or threatened species list is the result of government efforts of the ESA. Not one.

The only solution to this nightmare called the ESA is to give just compensation to landowners when the value of the land is lessened because of habitat recovery plans. After all, a species becomes endangered because of previous development or activities by human society as a whole. Why should the landowners of the last remaining habitat shoulder the entire costs created by all citizens? It is neither fair nor just. The federal government must be compelled by law to pay just compensation as required by the Fifth Amendment. Paying for the huge costs of implementing the law would expose  the real cost to the taxpayers footing the bill, forcing the USFWS and other agencies to prioritize what species must receive protection to allow for their recovery, while putting less emphasis on those species that are not in real jeopardy.

Just imagine! The solution to finding the balance between protecting species and the landowners of America is in following the intent of the U.S. Constitution!

Notes and Citations

[1]Endangered Species Act of 1973, Section 2:(5) http://endangered.fws.gov/esa.html#Lnk02

[2]The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere. http://sedac.ciesin.org/entri/texts/wildlife.western.hemisphere.1940.html

[3]Endangered Species Act of 1973, Section 4(b)(2) http://endangered.fws.gov/esa.html#Lnk04

[4]Endangered Species Act of 1973, Section 4(b)(3)(A) of the Endangered Species Act http://endangered.fws.gov/esa.html#Lnk04 and Title 5, Section 553e of the U.S. Code http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=5&sec=553.

[5]Endangered Species Act of 1973, Section 4(b)(2). http://endangered.fws.gov/esa.html#Lnk04

[6]John K. Carlisle, “1998 National Directory of National Environmental and Regulatory Victims,” National Center for Public Policy Research, Washington, D.C., p. 15. http://www.nationalcenter.org/VictimDirectory98.html#B

[7]Ibid, p. 16. http://www.nationalcenter.org/VictimDirectory98.html#B

[8]Ibid.

[9]John K. Carlisle, 2000 National Directory of Environmental and Regulatory Victims,”  National Center for Public Policy Research, Washington, D.C., http://www.nationalcenter.org/VictimDirectory00.html#B

[10]Nancie G. Marzulla and Roger J. Marzulla, Property Rights: Understanding Government Takings and Environmental Regulation (Rockville, MD: The Government Institute, 1997), p. 87.

[11]Lynda V. Mapes. “Court to feds: Pay farmers when water supply goes to fish,” Seattle Times. May 4, 2001. http://seattletimes.nwsource.com/html/nationworld/134291987_water04m.html

[12]Ibid.

[13]Representative Richard W. Pombo, “This Land Is Our Land,” Heritage Foundation Lecture No. 598, July 29, 1997, p. 3. Taken from Alexander Annett, “Reforming the Endangered Species Act to Protect Species and Property Rights,” Heritage Foundation, Backgrounder #1234 November 13, 1998. http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[14]Jon Carlisle, “1998 National Directory of National Environmental and Regulatory Victims,” National Center for Public Policy Research, Washington, D.C., p. 8. http://www.nationalcenter.org/VictimDirectory98.html#B

[15]Ibid, p. 15.

[16]M. David Stirling. “Endangered Species Act Fails the Test,” Pacific Legal Foundation. (No date)  http://www.pacificlegal.org/view_SearchDetail.asp?tid=Commentary&sField=CommentaryID&iID=33

[17]Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 94-859, 115 S. Ct. 2407 (June 29, 1995).  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=515&invol=687

[18]Ibid.

[19]Alexander Annett, “Reforming the Endangered Species Act to Protect Species and Property Rights,” Heritage Foundation, Backgrounder #1234 November 13, 1998. http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[20]Ibid.

[21]Ibid.

[xxii]Rob Gordon. Testimony before the U.S. House of Representatives.  http://www.nwi.org/Testimony/testMar02.html

[xxiii]Alexander Annett. “Reforming the Endangered Species Act to Protect Species and Property Rights.”  http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[xxiv]The National Wilderness Institute is dedicated to bringing balance to the environmental debate. http://www.nwi.org/

[xxv]“Endangering the Beltway,” Wall Street Journal. January 10, 2002.

[xxvi]Rep. George Randovich. “Wilson Bridge Watch,” Washington Times. February 6, 2002.

[xxvii]Christine Hall. “Endangered Species Act Bites Washington, D.C. CNS News. February 6, 2002. http://www.cnsnews.com/Politics/Archive/200102/POL20010206c.html

[xxviii]Rep. George Randovich,  “Wilson Bridge Watch,” Washington Times. February 6, 2002.

[xxix]“Endangering the Beltway,” Wall Street Journal. January 10, 2002.

[xxx]U.S. General Accounting Office, “Correspondence to Representative Don Young on Estimated Recovery Cost of Endangered Species,” B-270461, 1995b, as cited in Brown and Shogren, “Economics of the Endangered Species Act,” p. 14. In: Alexander Annett. “Reforming the Endangered Species Act to Protect Species and Property Rights.”  http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[xxxi]Alexander Annett. “Reforming the Endangered Species Act to Protect Species and Property Rights.” Heritage Foundation, Backgrounder #1234, November 13, 1998. Taken from: Brown and Shogren, “Economics of the Endangered Species Act,” p. 13.

[xxxii]Burnett and Allen, “The Endangered Species Act,” p. 1. In: Alexander Annett.  http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[xxxiii]Ibid.

[xxxiv]Alexander Annett. “Reforming the Endangered Species Act to Protect Species and Property Rights.”   http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm

[i]David A. Vogel, Fisheries Biologist. Testimony before the House Committee on Resources Oversight Field Hearing on: Water Management and Endangered Species Issues in the Klamath BasinJune 16, 2001 http://www.klamathbasincrisis.org/testimony_vogel.htm

[ii]Dr. Alex Horne, et. al.  Protecting the Beneficial Uses of Waters of Upper Klamath Lake: A Plan to Accelerate Recovery of the Lost River and ShortnoseSuckers. March 2001.

[iii]Vogel, p. 3

[iv]Ibid, p. 3

[v]Ibid, p. 4

[vi]National Academy of Sciences. Scientific Evaluation of Biological Opinions on Endangered and Threatened in the Klamath River Basin: Interim Report (2002). pp 21. http://books.nap.edu/books/0309083249/html/4.html

[vii]Ibid.

[viii]Michael Kelly. “This Land Is Your land—or Is It My Land?” MSNBC, July 11, 2001.

[ix]William Jasper. “High and Dry in the Klamath Basin.” The New American, September 10, 2001, 17(19):   Also, http://www.thenewamerican.com/ tna/2001/09_10_2001/vo17no19_klamath.htm

[x]Reed Noss, “The Wildlands Project,” Wild Earth, 1992, p. 10.  http://www.twp.org

[xi]Henry Lamb. “How the Biodiversity Treaty Was Stopped,” Sovereignty International, 1998. http://www.sovereignty.net/p/land/biotreatystop.htm

[xii]Rob Gordon. Testimony before the U.S. House of Representatives, Full Resources Committee, on H.R. 2829 and H.R. 3705 Washington, D.C., March 20, 2002. http://www.nwi.org/Testimony/testMar02.html

[xiii]Ibid.

[xiv]Summary of Listed Species as of August 31, 2002. Threatened and Endangered Species System, U.S. Fish and Wildlife Service. August, 31, 2002. http://ecos.fws.gov/tess/html/boxscore.html

[xv]Rob Gordon. Testimony before the U.S. House of Representatives.  http://www.nwi.org/Testimony/testMar02.html

[xvi]Ibid.

[xvii]Audrey Hudson. “Rare Lynx Hairs Found in Forest Exposed as Hoax.”  Washington Times, December 17, 2001. http://www.nwi.org/EndangeredSpecies/TWT17Dec01.html

[xviii]James Taylor. “Gov’t Researchers Caught Planting False ESA Evidence,” Heartland Institute, March 2002. http://www.heartland.org/environment/mar02/false.htm

[xix]Audrey Hudson. “Rare Lynx Hairs Found in Forests Exposed as Hoax.” Washington Times. December 17, 2001.

[xx]Ibid.

[xxi]James Taylor, “Gov’t Researchers Caught Planting False ESA Evidence.”

[xxii]Ibid.

[xxiii]Michael Coffman. Saviors of the Earth, The Politics and Religion of the Environmental Movement (Chicago: Northfield Publishing, a subsidiary of Moody Publishing, 1994), p. 135.

[xxiv]M. David Stirling. “Endangered Species Act Fails the Test,” Pacific Legal Foundation. (No date)  http://www.pacificlegal.org/view_SearchDetail.asp?tid=Commentary&sField=CommentaryID&iID=33

[xxv]Robert Bidinotto, “Environmentalism: Freedom’s Foe for the ‘90s,” The Freeman, November 1990, 414.

[xxvi]Henry Lamb. “Burn, Baby, Burn!” WorldNetDaily, June 22, 2002.  http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=28059

[xxvii]BLM Internal Working Document, Prepared for BLM Summit on Ecosystem Management March 30, 1994.

[1] A more thorough discussion of this principle can be found in the American Land Foundation’s paper on property rights by going to http://www.propertyrights.org/propertyrights.htm.

[i]Judge Ann Atkins decision, http://www.klamathbasincrisis.org/injunctiondenied.htm

[ii]See actual deed http://www.klamathbasincrisis.org/original_deed.htm

[iii]Michael Kelly. “This Land Is Your land—or Is It My Land?” MSNBC, July 11, 2001.

[iv]M. David Stirling. “Endangered Species Act Fails the Test,” Pacific Legal Foundation. (No date)  http://www.pacificlegal.org/view_SearchDetail.asp?tid=Commentary&sField=CommentaryID&iID=33

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