PLF Liberty Blog

The Endangered Species Act and The Godfather

To NRDC's Josh Mogerman, the Interior Department's finalizing of the Section 7 regulations "felt a bit like the inevitable scene at the end of every Godfather movie when everyone gets gunned down at once."

Wow.  We've seen a lot of ridiculous commentary on the regs over the past couple of months, but Mogerman's reaction may take the cake.  How he can compare the brutality of Michael Corleone to a rule that will enable the Services to better "focus on protecting endangered species" instead of wasting time in perfunctory and time-consuming consultations is beyond us, not to mention the fact that we live in a democracy and Congress and the incoming administration and can get rid of or amend the new regulations if they so desire.

If there is any comparison to The Godfather to be had, it's that Mogerman's whining and complaining over this change reminds us a bit of Michael's brother, Fredo.

Thanks to The Christian Science Monitor's Bright Green Blog for the link.

Sacramento Bee's delta site

The Sacramento Bee has a new site dedicated to Sacramento-San Joaquin Delta issues, available here.

Press on the McNamee Win

The Orange County Register reports.

More reaction to the new ESA regs

From the LA Times, CNN International, The Washington Post, the Seattle Post-Intelligencer, and the AP.  And, unfortunately but not surprisingly, more hyperbole.  But at least this blog can function as Diogenes among the mainstream media.

[Another point as to why the environmentalist critique of the new regs rings hollow.  Federal agencies have every incentive in the world to consult if agency officials have reason to believe that the proposed project will harm species.  And that is because of the significant civil and criminal penalties attendant upon a "take" of a species.  The only way to avoid that liability is to get an incidental take statement, which can only come from Section 7 consultation.  Who would want to run that kind of risk?  The carping from the other side approaches absurdity.]

New York Times on ESA Regulatory Changes

The New York Times reports on environmental, academic, and property rights groups reactions to the ESA regulatory amendments.  Nothing new from the environmental community: its basic contention is that the regulatory changes undercut the Section 7 prohibition against jeopardizing actions by allowing supposedly inept or corrupted nonwildlife federal agencies to make what would ordinarily amount to the final decision on whether consultation is necessary.  The environmentalist critique rings hollow, for several reasons.

First, if the nonwildlife federal agencies were really that bent on the destruction of species, they would have achieved that end long ago under the old regs, which authorized action agencies to skip Section 7 consultation altogether if they determined that the proposed agency action would have no effect on listed species or their critical habitat.

Second, the ESA's citizen suit provision allows for private parties to sue federal agencies who violate their Section 7 consultation duties.

Third, the ESA authorizes the Services to request action agencies to consult, notwithstanding those agencies' first-cut "no effect" analyses.

Fourth, and perhaps most tellingly, the regulatory changes, by definition, exempt only those actions that have beneficial effects, or no effects, or immeasurably insignificant effects.  Thus, the environmental community should be applauding these changes as a smart way of saving limited widlife budget dollars to focus on the projects that truly do pose risks to protected species.  The fact that the environmental community is instead suing to overturn the regs makes plain the subtext of this months-long controversy---how the Left can use the ESA to frustrate economic progress and development.

More on the Frivolous Libel Suit Against Carla Main and Richard Epstein

by Timothy Sandefur

Jacob Sullum at Reason magazine has a brief post here on the libel suit filed by millionaire developer H. Walker Royall against Carla Main, the author of the excellent book Bulldozed (available from Amazon, B&N, and from the publisher, Encounter books).

Everyone should read Bulldozed, as it is an excellent book on an issue of major public importance. It would make an excellent stocking stuffer for that liberty-minded friend or family member!

Under the First Amendment, a person who is a “public figure” is not allowed to use libel lawsuits to silence criticism. That’s from the famous Supreme Court decision of New York Times v. Sullivan. Even when you say something that isn’t exactly true about a public figure, that person is not allowed to sue, because the First Amendment protects robust, even abusive, public debate. And a “public figure,” as the Court explained in the case of Gertz v. Robert Welch, includes even private citizens who voluntarily inject themselves into matters of public controversy—including people who decide to participate in controversial redevelopment projects that involve using eminent domain to steal other people’s land. For such persons to try to stifle public criticism of their actions by filing libel lawsuits—including lawsuits against people who simply recommend that the public read a book!—is a clear abuse of the court system and a violation of the First Amendment.

McNamees Can Keep Amenities Pending Appeal

The McNamees received good news today.  In the face of strong opposition by the Coastal Commission (read: Peter Douglas), PLF won a stay of the Commission's cease-and-desist order pending final determination of the McNamees' appeal.  The cease-and-desist would have required the McNamees to immediately remove the amenities and restore their site -- a colossal waste of time and money.

Is there a better way for endangered species than the Endangered Species Act?

The AP reports in today's Salt Lake Tribune that "[d]ocumentation of an 'impressive' number of steps being taken to save the sage grouse from extinction may be enough to keep the bird off the U.S. list of protected species despite significant loss of its habitat to wildfires across much of the West in recent years, a top Interior Department official said."

Earlier this week Assistant Interior Secretary Stephen Allred made it clear that the listing of the sage grouse under the Endangered Species Act would not be a clear benefit for the species:

"You lose so much flexibility when you list that the ability to do what I'm going to call sort of 'out of the box' things to improve (habitat) is severely restricted," he said. "So I am hopeful that what we are seeing is that we are dealing with the issue and that will make a difference and it won't be listed."

This news comes on the heels of Fish and Wildlife Service's and Bureau of Land Management's  agreements earlier this week with private interests that will help to protect the lesser prairie chicken and the sand dune lizard.  As the AP reported in yesterday's Jackson Hole Star-Tribune:

Under the conservation agreements, Lea County rancher Chris Brininstool and Marbob Energy Corp. of Artesia will take certain actions to protect the species and their habitat, including modifying fences to reduce collision by prairie chickens and relocating well sites to limit habitat disturbance.

In return, Brininstool and Marbob have assurances they will be able to continue using the land regardless whether the species ever comes under ESA protection.

Federal officials said they are in the process of getting more landowners and businesses to participate.

Sounds like a win-win.  Of course, however, some environmentalists are unhappy:

But some conservation groups say the federal government is being irresponsible by trying to avoid listing the prairie chicken and lizard under the Endangered Species Act.

"We believe it makes absolutely no sense for the Fish and Wildlife Service to be talking about avoiding listing either of these species," said Nicole Rosmarino of WildEarth Guardians.

In other words, it makes no sense to enter into discussions with private property owners before imposing ESA regulations that would drastically affect their ability to make a living.

Commentary on the ESA regs

Andrew Wetzler from the NRDC Switchboard blog has several observations on the new regs.  Wetzler criticizes the administration's position that the ESA cannot be used to regulate greenhouse gas emissions on a "harm to listed species" theory.  Wetzler contends that, although a more precise causal chain may be necessary for establising liability under Section 9 of the ESA (pertaining to take), such cause-and-effect precision is not necessary for triggering Section 7 liability.

But this seems to ignore that Section 7's jeopardy avoidance duty only attaches to federal activities that cause jeopardy or adverse modification of critical habitat.  It seems just plain common sense to apply a traditional "but for" causal analysis to interpret that trigger.  And thus, it doesn't seem unreasonable at all for the administration to conclude that it is impossible to connect any discrete harm to a listed species (which presumably would form the basis of jeopardy finding) to the emissions from a particular project.

ESA Regs finalized

Here.

Rolling Stone on proposed Section 7 regs

Add Rolling Stone to the list of publications that are critical of the proposed adopted Section 7 regulations but at the same time offer no real analysis. It is a sad pattern: grab everyone's attention with empty rhetoric towards the president (in this case, Rolling Stone contends that Bush is "screw[ing] America"), continue the rhetoric by mentioning the Endangered Species Act (Rolling Stone: Bush's proposals "would gut the Endangered Species Act"), and then support the rhetoric merely be asserting that the new rules "effectively doom[] polar bears to death-by-global warming."

If you've only recently heard of the new regulatory proposals amendments, reliance upon such hyperbole is strongly discouraged.  Instead, we recommend taking a look at the regs themselves (as they were proposed; we're still awaiting publication of the finalized rule), or at least consider how the regs will free up the U.S. Fish and Wildlife Service to effectively manage their Endangered Species Act responsibilities (something that Rolling Stone conveniently fails to mention). 

Consider this as well: if these narrow changes really do doom the polar bear to death-by-global warming, doesn't Congress (at the country's legislative branch) have the power with to a) revise the ESA to specifically address global warming or b) enact a new law that specifically addresses global warming?

Sacramento-San Joaquin delta: litigation abounds

Last week we noted the latest lawsuit aimed at limiting the beneficial use of Sacramento-San Joaquin delta water. Since then there have been several developments.

Articles in the Sacramento Bee and at the Environmental Defense Fund's blog, On the Water Front, stress that urgent action is needed to protect the delta smelt. Both analyses leave unclear how their respective solutions will ensure the non-extinction of the delta smelt and at the same time provide an adequate supply of water for Californians.

MediaNews and the San Diego Union-Tribune are skeptical of the attempt to use the public trust doctrine to shut down the water pumps.  The message is that a court of law is the wrong forum to address the delta situation.  From the Union-Tribune:

The public trust doctrine exists also to see that future generations can freely and safely navigate rivers, swim in oceans and enjoy wildlife in the Delta. But there won't be future generations if the court agrees with the activists that when it comes to water, the public trust doctrine means wildlife trump humans. Not that all competing needs should be considered and assigned their proper weight, but that humans don't even make the scale.

For months now, state and federal officials and citizen boards have considered ways to accommodate the Delta's need to heal and state residents' need for its water. A distribution system that skirts rather than transits the Delta will doubtless be part of any reasonable solution. An effort to dry up the population dependent on its water should be thrown out of any court.

Finally, the Stockton Record notes the newest lawsuit concerning the delta.  Several water districts have challenged future California Fish and Game Commission pumping restrictions on the basis that the restrictions do little to aid the longfin smelt species, the subject of the restrictions:

As few as 50 tiny longfin smelt would be protected by Delta pumping restrictions that could further crimp the water supply for 25 million Californians, water users said Tuesday in a trio of lawsuits filed against the state.

Districts that supply water to cities and farms from the Bay Area to San Diego say the restrictions, approved last month by the California Fish and Game Commission, are disproportionate and do not reflect the best science.

The water districts' petition for writ of mandate is available here.  The Water Education Foundation's blog, Aquafornia, has more coverage here and here.  In fact, Aquafornia is a good place to stay abreast of all the water developments discussed above.

 

Bonnie Neely Wins Commission Chairmanship; Loss for Bill Burke

The L.A. Times reports the Commission's vote today to make Commissioner Neely its new chairperson. 

L.A. Times Story on McNamee Case

The Los Angeles Times's Susannah Rosenblatt has a story in today's paper about the McNamee's fight against the Commission, entitled "Orange County couple wonder:  Whose beach is it, anyway?"  The title really does get to the heart of the matter.  In the story, a Sierra Club representative succinctly states the Commission's perverse attitude about the McNamees' amenities, which is located entirely on their private beach:  "[The amenities] create an atmosphere of a private beach on the sand."  Of course, there is a private beach on the sand! 

In the next week or so, we should know whether the Court of Appeal has issued a stay of the Commission's cease-and-desist order pending the outcome of the McNamees' suit.  Remarkably, the Commission refused to cooperate with the McNamees and stipulate voluntarily to a stay until the proceedings are over.  Instead, the California Attorney General, who represents the Commission, filed an opposition to our request for a stay. 

Our taxes hard at work.

Missouri Should Put A Stop to “Drive-By Blight”

by Timothy Sandefur

This week, the Pacific Legal Foundation joined forces with the Show-Me Institute and the Missouri Ombudsman for Property Rights to argue that the Missouri Supreme Court should reject the use of so-called “windshield surveys” to decide when to take people’s property through eminent domain. “Windshield surveys,” as the name suggests, are prepared by consultants who drive through the neighborhood, and then go back to their offices and write up a superficial analysis supporting local officials’ decision to seize people’s property and give it to private developers.

These “windshield surveys” have been repeatedly criticized by courts in California already, but they’re used in many different states. In the Missouri case, Cortex West Redevelopment Corporation v. Station Investments #10 Redevelopment Corporation, officials in St. Louis decided to take a privately owned warehouse and give the property to a development company to build an industrial park. Missouri law, of course, only allows this kind of Kelo-style taking if the property is “blighted,” so, needing to rationalize the condemnation, the city hired a consultant to drive through the neighborhood and write up a report which would cover the necessary bases.

The resulting report contains only a single page purporting to show that the buildings in the neighborhood are blighted and need to be replaced. And that page is made up of a wholly subjective “analysis,” which categorizes buildings as “good” or “poor” or whathaveyou based on the author’s observations from the street or the sidewalk.

The superficial and subjecvtive nature of these drive-by blight determinations has led several California appellate courts to reject reliance on them, noting that they cannot provide the kind of real evaluation necessary to prove that the use of eminent domain is necessary. In our brief, we urge the Missouri Supreme Court to reject their use, also. Given the fact that Missouri courts have refused for so long to enforce the “public use” requirement in the state Constitution, the only hope Missouri home and business owners have is that courts will at least require government to meet high standards when the determination of “blight” is concerned.

If they do not, and local bureaucrats can not only take property whenever it’s “blighted” but also determine without judicial oversight what property counts as blighted, then those officials will have limitless power to redistribute property at will.

You can read the amicus brief online here.