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HADZI-ANTICH: Bureaucrats run free, misinterpreting Endangered Species Act

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This year marks the 40th anniversary of the Endangered Species Act. Environmental and animal rights activists are toasting the occasion, but if you're concerned about the health of the economy and property rights, think twice before joining the celebrations.

Around 2,000 species have been listed for protection under the Endangered Species Act over the years. Hundreds of thousands of acres have been designated as "critical habitat" for those species — meaning, federally designated areas that are off-limits to any human activity that could conceivably affect the protected species.

Of all the blunt instruments that the federal government has at its disposal to disrupt human life, designation of critical habitat under the Endangered Species Act is perhaps the most destructive. Here's one example:

The federal government has designated virtually the entire West Coast as critical habitat for a marine species known as the green sturgeon, a type of cartilaginous fish that can reach 7 feet in length and weigh 350 pounds. The habitat includes 1,421 square miles of coastal marine areas, 897 square miles of estuaries, and hundreds of additional miles of freshwater rivers. The critical-habitat designation encompasses the entire western shoreline of the states of Washington and Oregon, as well as most of California's coast. In some areas, the designated critical habitat extends for many miles inland through river systems going deep into the heartland of each state.

In this enormous area, any human activity that could affect the green sturgeon population must undergo detailed federal evaluation, and is subject to regulation. Boating, fishing, hunting, land development, and even the simple pleasures afforded by enjoying Mother Nature, are some of the activities in the states of Washington, Oregon and California that are now regulated by the denizens of the District of Columbia. Highly complex and time-consuming efforts are now required in the designated areas merely to enjoy one's property, one's business and, indeed, one's life.

The extent of government intrusion is exacerbated by the government's misinterpretation of the Endangered Species Act. For example, the act requires that, before critical habitat can be designated, economic impacts must be considered. How did the federal government "consider" economic impacts before designating critical habitat for the green sturgeon? Based on a legal opinion issued by a federal lawyer in Washington, the federal government decided that all it had to do was to "carefully think" about economic impacts, and that it could do so without quantifying those impacts. In other words, staring out the window and musing constitutes a sufficient economic analysis under the act. Could there be a competent economist on Earth who seriously thinks that economic impacts can be analyzed without using numbers?

To add insult to injury, the government recently issued a rule that would apply the "careful thought" methodology used in the green sturgeon case to all future critical-habitat designations. Surprise, surprise: The rule specifically provides that there is no need to use numbers while engaging in "careful thought."

The green sturgeon critical-habitat designation and the rule that it sprouted are but the most recent examples of government overreaching under the Endangered Species Act. Why have the feds taken such an obviously irresponsible approach?

Much of the mischief can be traced back to an early case, in which the U.S. Supreme Court held that species should be protected under the Endangered Species Act "regardless" of the human cost. In other words, the human toll of protecting species is irrelevant. Legally, ethically and morally, that was a bad decision, and it is inconsistent with the actual language of the act. It places species protection above every other consideration, including national security, prosperity and individual freedom. The Endangered Species Act was never meant to do this. Unfortunately, that has become the unrelenting dogma of those in the federal government who are charged with implementing the act. In this 40th anniversary year for the Endangered Species Act, isn't it time to reconsider that dogma?

Theodore Hadzi-Antich, a senior staff attorney with Pacific Legal Foundation, is the lead attorney in a case pending in the 9th U.S. Circuit Court of Appeals challenging the critical-habitat designation for the green sturgeon.

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