Bette Grande: Time To Move On From The Endangered Species Act


Pictured above, President Richard Nixon signs the Endangered Species Act into law on December 28, 1973

The Keystone Pipeline continues to get the attention but there are other issues with a larger impact on our state.  The Endangered Species Act, and how the Act is being used, should be a priority both in Bismarck and Washington, D.C.

The Endangered Species Act (“ESA”) in its current form has been around since 1973.  Supposed environmental legislation from the early 70’s (the ESA, Clean Air Act, Clean Water Act and the EPA itself) was pushed and passed by the Nixon administration and has been the foundation for environmental activism ever since.  In 1973 there were 137 species listed under the Act and by August, 2014 the number had grown to 1,560 with over 757 additional species under consideration by 2018.

Lately the ESA has been used to limit energy development, or at least make it more expensive.  But it is far more than energy development that is affected.   Agriculture and personal property rights are targets as well.   The overreach by the federal government reaches across the country.

The ESA and the other Acts mentioned above come with impressive titles, but the results are not very impressive.  The federal government has gained control of more and more private property, and worked with environmentalists to slow and stop economic development in vast areas of our country costing taxpayers millions of dollars.  And after all of that, the record of saving “endangered species” is incredibly poor.

For a good background on the ESA see It’s time to Endanger the Endangered Species Act  by Taylor Smith of the Heartland Institute.

North Dakota

In North Dakota the US Fish & Wildlife Service (“USFWS”) has placed the Dakota Skipper and the Poweshiek Skipperling on the protected list of the ESA.  USFWS is looking at adding the Rufa Red Knot, Sprague’s Pipit, Greater Sage Grouse, Monarch Butterfly, Sturgeon Chub and Sicklefin Chub to the protected list as well.  And, based on an article in The Forum (May 14, 2014) the Rusty Patched Bumble Bee is also being considered.

Based on history, protection of any of these species under the ESA will not result in actual benefits for the species, but it will increase federal government control over private property and limit authorized uses of that private property.

Once a species is protected under the ESA the federal government exerts full control over the “habitat” including a large buffer zone in which economic activity is effectively stopped.  In addition, landowners face fines of $100,000.00 and jail time if they violate the USFWS rules.  And after all of that there is no evidence that the ESA benefits the listed species, the only evidence available shows it actually harms the species it is supposed to protect.

Sue and Settle

The ESA and the other Acts mentioned have been a financial windfall for extreme environmental groups.  These groups work closely with allies in the federal government to file friendly lawsuits that the federal government promptly settles without the opportunity to challenge the allegations.  This ‘Sue & Settle’ scam works because the people directly affected by the “lawsuit” are usually unaware it is happening.  By the time the case is settled it is too late.  But there’s more.  Because the federal agency agrees to settle these “lawsuits”, we the taxpayer get to pay the attorney fees for both sides.  The extreme environmental groups are financing their efforts with our money.  And their goal is not the betterment of the people of North Dakota.

Action in ND

Many states are taking action to address legitimate endangered species issues.   North Dakota has a strong history of stewardship of our natural resources and should develop and implement a program that actually achieves the goal of species preservation.  North Dakota should work with other similar states to develop locally based programs that work with our farmers, ranchers and businesses, not against them.

North Dakota is blessed in many ways and one significant blessing is low proportion of federal owned land in the state.  In many western states over 50% of land is owned or controlled by the federal government.  And the federal government’s appetite for more land continues to grow.  The ‘Cromnibus’ Bill passed by Congress last December included a provision in the National Defense Authorization Act giving wilderness designation to an additional 250,000 acres and removing 400,000 acres from commercial use.

North Dakota should stand together with other western states on the issues of state sovereignty and federalism.

Action in Washington D.C.

For the new Republican Congress a priority is the Keystone Pipeline (authorizing, not building).  Congress should also take a hard look at how the executive branch is implementing the ESA and the other Acts mentioned earlier.

In North Dakota the Legislature reviews and approves the rules that agencies adopt to carry out legislative intent.  Agency rules and procedures must be directly related to legislative intent and the executive branch is not authorized to make new laws by interpreting or modifying statutes.

If Congress wants to have an immediate and lasting impact on the economy, environmental stewardship, jobs and basic property rights it should take its role as the legislative branch seriously.  It should revise or repeal the ESA, develop stronger oversight of agency rules and return authority over environment and land issues to the states.