Most people agree. The Endangered Species Act (Act or ESA) is broken. The concerns and issues originally addressed by the Act were real and its goals were very popular. The intent of the Act was valid but problems have arisen with the implementation. Unfortunately, the Act did not differentiate between federal and state-owned and/or managed lands and vested private property. This omission has given state and federal agencies considerable power to regulate actions and land uses on private lands. They have used this power, goaded on by non-government organizations (NGOs), to inflict much economic hardship on private landowners. Of course, activities on federal land were also fair game. Remember what the spotted owl did to the lumber industry in the Pacific Northwest!
The latest example of this well-meaning Act going awry was the sage grouse travesty. A brief history of this bird includes moderate populations throughout the west in the 1800s with a population explosion in the early to mid-1900s which coincided with very effective predator control. Following cessation of the intense predator control beginning in the mid-1900s, the populations returned to moderate levels. The NGOs petitioned the US Fish and Wildlife Service (FWS) to list the sage grouse under the ESA, citing the population declines over the last half century. This resulted in close to one billion federal and state dollars being spent over the last 20 years on this species. To date, I have not read or heard how much of a population increase resulted from this huge expenditure. Most ranchers would claim the lack of a noticeable increase was because none of the monies were spent on the problem – predation. FWS, however, decided the problem was a lack of “regulatory mechanisms.” They threatened to list the sage grouse under the ESA if the federal land management agencies and the state agencies did not impose restrictive land use regulatory mechanisms. Of course, the agencies fell all over themselves in a rush to comply. Although there was no significant population change, the FWS decided they had reached their intended land use control goal and declared the sage grouse “not warranted for listing.” Does this mean we can relax and forget about the onerous restrictions and regulations? Not a chance! FWS and the other agencies argue that if the restrictive measures are not maintained and enforced, FWS may list the bird at a later date. Notice the decision has nothing to do with how the populations are doing. It is all about land use control!
The Montana Legislature teamed with Gov. Bullock to ensure Montana would not be left out of this sage grouse charade. In 2015, it passed the Sage Grouse Initiative and funded it with one million of our hard-earned dollars. This past session, they amended the bill to spread the spending over several years and earmarked 30 percent to administration. I wondered how administration needed 30 percent ($300,000!) and then I heard about the Sage Grouse Oversight Team (SGOT). Apparently, this appointed body is charged with reviewing all proposals for projects or actions occurring on any state or federally-managed land or using any state or federal funding if they are within the sage grouse occupied (or potential?) range. Ask Fergus County commissioners how this ridiculous oversight works. Here in Valley County, the conservation district is planning to put up a sign where Highway 2 enters Valley County. We breathed a sigh of relief when this oversight team gave their approval! We can thank our republican-controlled legislature for another worthless, burdensome, layer of bureaucratic red tape! Remember, the sage grouse DID NOT get listed! Does this mean we will be spending one million on each of the other grassland birds of concern to prevent them from being listed in the future?
The ESA is broken. So what can we do to fix it? Ideally, privately owned lands should be removed from all applications of the Act. However, this would take an act of Congress. Good luck!
The Constitution of the United States Amendment V stated, “nor shall private property be taken for public use without just compensation.” The questions are what constitutes private property and what is a ‘taking’? Is preventing a landowner from performing a certain act (i.e. plowing, building a fence or road, etc.) on their private property a taking? The drafters of the ESA went to considerable lengths to define the word ‘take’. Section 3(19) says, “[t]he term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Most would agree that shoot, wound, kill, trap, capture, or collect constitutes a taking. However, the terms harass, harm, pursue, or hunt leave a lot to interpretation. Unfortunately, interpretation went wild to the point that any action or activity within a listed species’ range can be considered a “take”. Shouldn’t this liberal definition also apply to the taking of private property uses?
Wayne Hage, that brilliant Nevada rancher, first introduced me to the concept of property rights being like a bundle of sticks, each one representing a specific right. This is the foundation of the conservation easement craze that has been sweeping the west. A conservation easement takes a few sticks from your bundle (e.g. the right to plow native rangeland, subdivide, build a fence, etc.) and pays you for them. They are doing two things. First, they are affirming these actions or rights are your property and secondly, these properties have a value. Therefore, when a state or federal agency prevents you from performing an action on your private property (that does not negatively impact your neighbors) they are committing a ‘taking’. Your recourse is to take your claim to the US Court of Claims and request just compensation. The government can still prevent you from carrying out an activity they determine will be detrimental to a listed species but they have to pay you for taking away your right to use your private property.
Remember, your rights will exist and be defended only if you pursue the proper legal course of action. Maybe if enough of us request just compensation the federal and state agencies will think twice before imposing unnecessary and often meaningless restrictions on our use of our vested private lands.
Read the original article for “Part I” here.
Read the original article for “Part II” here.