- The Washington Times - Wednesday, June 27, 2007


In coming weeks, politicians and environmental activists will pat each other on the back to celebrate the recovery of the bald eagle and its removal from the Endangered Species List.

But those people at the same time are pulling a sleight of hand on American citizens — and essentially declaring the Endangered Species Act irrelevant in the process.

The bald eagle deserves to be delisted. Forty years ago, there were fewer than 500 nesting pairs in the Lower 48 states. Today, there are an estimated 9,750 nesting pairs. President Clinton trumpeted the bald eagle’s recovery on July Fourth 1999 and said it would come off the Endangered Species List.

Then the waiting — and excuses — began. Finally, after a lawsuit by a retired Minnesota man and nearly eight years, the Fish and Wildlife Service agreed to delist the bald eagle. But the eagle will not fly free.

The Fish and Wildlife Service, under pressure from environmental groups, is bowing to their demands by extending ESA-like protections to the bald eagle. To accomplish this sleight of hand, Fish and Wildlife had to dust off a 1940 law that prohibited the killing or injury of eagles.

In June, Fish and Wildlife adopted regulations on the 1940 law to extend new protections.

This could be a record — 67 years to adopt regulations for a law and a stunning 10 pages to come up with a convoluted definition of the word “disturb.” For 67 years, Fish and Wildlife was content to not have a definition of disturb.

But now, with the prospect that property owners might be able to use their land, the Service became creative.

The result: a species that is no longer endangered will be treated as if it is. People who happen to own property near empty bald eagle nests will continue to be unable to use their property.

People like Edward Contoski, who wanted to build a handful of small vacation cabins on his land in Minnesota, where an empty eagle’s nest was located.

Mr. Contoski and others waited while the bald eagle was endangered with the promise that, once it recovered, they could use their land. They were told they had to sacrifice because, after all, a species’ future depended on them.

Now, those same people are threatened with imprisonment if they “disturb” land near empty, unoccupied eagle’s nests even after the species is declared not in danger. If you so much as move dirt on your land, you run the risk of “disturbing” eagles — even if they are nowhere to be found.

Sadly, this is not the only way government harms its citizens’ rights to use their property. Americans have voiced their nearly unanimous opposition to government taking property from citizens. Two years ago, a U.S. Supreme Court ruling allowing New London, Conn., to take the homes of local residents to build a private development was greeted with widespread protest and legislation.

In those cases, the government wanted to take people’s homes (although at least they were offered compensation).

Now, the government — without any offer of reimbursement — takes its citizens’ property in order to “protect” a species that is not threatened. What then is the true point of the Endangered Species Act? The point is to limit people’s ability to use their land — regardless of the cost to any one individual.

For decades, politicians and environmental activists justified imposing limits on land use based on the premise that we must help endangered species recover. Now, we learn a recovered species needs the same protections. The premise — and promise — of the Endangered Species Act is no more. And the government’s trampling of the rights of a Minnesota retiree and many others leaves us all worse off.

Rob L. Rivett is president of the nonprofit Pacific Legal Foundation and Damien M. Schiff is an attorney with the organization. The foundation represented Edward Contoski in his case against the government. For more information on the case, please visit www.pacificlegal.org.



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