David Stirling: ESA lacks balance

Author David Stirling’s book on the out-of-whack Endangered Species Act (ESA) of 1973 is politically incorrect and a wake-up call to overhaul the broken law.

Stirling’s Green Gone Wild: Elevating Nature Above Human Rights claims wrongful interpretations of the federal ESA have led to the loss of human lives and thousands of jobs, business shutdowns, and the trampled constitutional rights of property owners.

The ESA one of the most expensive and least effective federal laws in U.S. history, Stirling says. The law has costs American taxpayers multi-billions of dollars to implement and enforce.

“The book is a call for common sense and balance in the policies that govern the relationship between the human species, and plant and wildlife species,” Stirling said. “The book tells the true but politically-incorrect story behind the politicized birth, oppressive tactics, and the harsh impact of modern environmentalism.”

Stirling is Of Counsel with the Pacific Legal Foundation (PLF), Sacramento, Calif. The firm in part represents people “abused by overreaching government at all levels.” The company is legal counsel for clients in ESA-related lawsuits.

Stirling was the wrap-up speaker during the 2009 Western Plant Health Association (WPHA) annual meeting in Palm Desert, Calif., this fall.

Stirling bases his “loss of human life” claim on hurricanes which have battered the Gulf Coast region for decades. Hurricane Betsy hammered the Louisiana coast in 1965 with storm surges which flooded levees resulting in 58 deaths and $1 billion in property damage.

Congress appropriated post-Betsy funding to build large, hydraulic gates to protect vulnerable localized areas from future extensive hurricane-related water damage, Stirling says. An environmental group claimed the gate construction would damage shrimp and shellfish habitat at the mouth of a lake. A court injunction halted the gate construction.

Four decades later Hurricane Katrina slammed the Louisiana coast (2005) with a similar storm surge that killed 1,100 people.

The Delta smelt issue in California is a prime example how an ESA interpretation has resulted in lost jobs and businesses, Stirling says. The smelt population has declined for decades attributed to the diminished quality of Delta water, predation by other fish, invasive species consuming the smelt’s food chain, and pumps that propel Delta water through the Central Valley to Southern California.

The U.S. Fish and Wildlife Service (FWS) issued a biological opinion in 2005 indicating the smelt decline was caused by several factors including the pumps, Stirling explains. A lawsuit by the Natural Resources Defense Council and other preservationist groups challenged the biological opinion. A judge ordered the pumps shutdown when smelt are young and in the pump vicinity.

The pump shutdown reduced 2008 Delta water deliveries via the California aqueduct and caused a 30 percent reduction of pumped water and a $300 million loss to California’s economy, Stirling says. Delta water deliveries in 2009 were reduced by 90 percent in some parts of the Central Valley.

Farmers, water agencies, and communities financially devastated by the water shutdown have filed lawsuits.

“Farmers have fallowed more than 50 percent of the Valley’s agricultural acreage,” Stirling said. “Farmers have abandoned thousands of expensive, productive fruit trees.”

Stirling says Central Valley farmers will lose an estimated $710 million in income due to the pump shutdown. He estimates about 35,000 agricultural jobs have been lost.

On the ESA loss-of-private-property-rights claim, Stirling points to the case of Paul Fisher whose home in Perdido Bay, Fla., was destroyed by Hurricane Ivan in 2004. Before the Fishers could gain local permits to rebuild, FWS declared Fisher’s private property as a critical habitat for the Perdido Key beach mouse.

“The federal government has virtually taken their (Fisher’s) property as a nature preserve for the mouse in effect,” Stirling said, “but refuses to pay them just compensation under the Constitution’s 5th Amendment.” PLF is representing Fisher in a lawsuit.

Stirling points the blame finger at environmentalism gone awry. Modern environmentalism discards real science, he says. Instead a group’s policy objective is developed and science is sought to support and justify it.

The ESA was passed by Congress and signed by President Richard Nixon with only 16 opposing votes in the U.S. House and Senate. The reason for so little opposition, Stirling believes, is the groups that could have been negatively impacted by the ESA never expected the law to be enforced so broadly.

In the U.S. Supreme Court’s first opinion (snail darter case) interpreting the ESA, Stirling says the divided court held that Congress’ intention of the law was for preserving listed species no matter the costs.

“As a result lower federal courts view the ESA as the ‘super statute’ under which they must elevate species preservation above all other socially-beneficial public interests,” Stirling maintains.

Of the 1,355 plant and wildlife species listed as endangered or threatened since the ESA became law, only five species, less than 1 percent have been recovered due to the ESA, Stirling told the WPHA crowd.

In a 2003-2004 ESA progress report, FWS said the status of 42 percent of the remaining species was uncertain, 22 percent were declining, 27 percent were stable, and 6 percent were improving, he said.

The terms conservationist and preservationist have different meanings today. Some “green” organizations are now perceived as conservationists. True conservationists, Stirling says, take a balanced approach to preserve nature and provide for human needs.

“A (real) conservationist is one who believes that the nation’s natural resources – including land, water, minerals including oil and natural gas, the forests, and wildlife – should be available for people’s use and consumption as long as they are conserved by prudent and non-wasteful management practices,” Stirling said.

“We all want clean water and a full, diverse natural world,” Stirling says. “We also need jobs and places to live and work, transportation, energy sources, agricultural products, manufacturing, and technology.”

In his book Stirling suggests 15 ideas to improve the ESA law including:

• Elevate human beings to an at least equal position with species in question.

• Preclude private land in a “critical habitat” if public lands are sufficient for specie preservation.

•The ESA should require a formal, independent peer review of scientific and economic information on a species. The data should be made available to the public.

• Critical habitat should be designated after a recovery plan has been developed.

Stirling was asked about the chances for ESA reform by the Obama administration and Congress.

“I don’t think that’s likely to happen,” Stirling said. “PLF and other groups will continue to challenge environmental cases brought by the environmental groups. (In addition) we have to change people’s hearts and minds and this will take time.”

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