Let me say right off the top in order that some may not want to waste their time seeking truth, that I believe very strongly that the Endangered Species Act of 1973 (ESA)(Act) is unconstitutional. It is such because it does not stand up against the authority of the Constitution in which a statute cannot, in and of itself, be a violation of the Constitution. It also does not mean that I oppose species protection. The majority of people in this country don’t care nor are they free to undertake independent thought to learn about the truth. Most every, if not all, laws on our books are nothing more than tools to extract power from the people and put it into the hands of government. I pray for your epiphany for truth.

However, simply because I believe the Act is criminal, doesn’t dismiss me from exposing the further fraud behind the ESA and now the attempts by Congress and the Obama Administration to “fix” it.

As I have written about recently, the U.S. House Committee on Natural Resources has begun a series of hearings to examine the Endangered Species Act, (ESA) in hopes of determining: “How litigation is costing jobs and impeding true recovery efforts.” With the Committee using that description of the intent of their hearings, should we hold out any hope that any efforts will be directed at amending or, as some are asking, repealing of the ESA? Not likely.

But this has not stopped the Obama Administration of getting into the ESA fray. After all, we do have an election coming up and doing and saying anything to steal a vote is chichi these days in Washington. The “Services”, collectively the Department of Interior, the Fish and Wildlife Service, Department of Commerce and the National Oceanic and Atmospheric Administration, have gone all out to help Americans define the simple phrase, “significant portion of its range”.

That phrase is used extremely sparingly in the ESA and it pertains, at least in my mind and after reading Obama’s proposal I question if the “Services” have any mind, to criteria used to determine when and if a species might be considered for federal protection under the ESA.

Either I’m not fully enlightened or am too honest, but I happen to think that “significant portion” would mean a big or perhaps as much as a majority or more of something, especially when used in the context of a word that describes size, i.e. “portion”. Evidently I’m wrong, according to the “Services” Draft Policy to define “significant portion of its range”.

There is a reason that Congress and the President, beyond the usual politics, are taking a look, finally, at the ESA. It’s badly broken. In its day, it was intended, we were told, to provide a means in which government regulation could prevent the needless destruction of plant and animal species. Perhaps because the bill was signed into law by President Richard Nixon, who was embroiled in the Watergate scandal, set the stage for a bill designed to fail. And fail it has.

The Act has done little to save species and a lot to put a lot of money into the bank accounts of environmentalists, stifling job growth and stripping Americans of their rights to life, liberty and the pursuit of happiness.

If you and I can get beyond arguing whether the ESA is worth anything and discover that it’s not, then surely we can begin to see the efforts of Congress to examine portions of the ESA and President Obama’s administration to define words in the Act as laughable.

Regardless of whether President Obama thinks he can define “significant”, it is NOT going to do anything to change the problems with the ESA. Among the massive issues that makes the ESA look like a falling down old barn, is the lack of specific information in the administration of this bill. This leaves the door open to giving the Secretary of Interior too much discretion, flexibility and deference as it pertains to interpretive policy, and it has led to a myriad of court rulings in which judges have taken it upon themselves to interpret the ESA in any fashion they can.

One of the downsides to the judicial branches of our government is that every time there is a court ruling the words created in that ruling become case law and at least to some degree becomes precedent in future court cases, regardless of the truth or accuracy of what is written.

So what I can say right from the beginning that what the “Services” are attempting to do in defining “significant portion of its range”, is to hand select from existing statutes, case histories and case law, some or all which are seriously flawed, combined with their own interpretations of what they think the intention of the legislators were in writing the Endangered Species Act.

What on earth could go wrong?

Remember back in 1998?, when then President Bill Clinton was answering questions before a grand jury about his involvement with Monica Lewinsky? He was asked if there was anything going on between him and Miss Lewinsky. Bill Clinton responded to the jury:

“It depends on what the meaning of the word ‘is’ is. If the–if he–if ‘is’ means is and never has been, that is not–that is one thing. If it means there is none, that was a completely true statement….Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.”

This kind of jibber-jabber spin is endemic among politicians and governmental agencies. That’s why we all hate them so. Obama’s “Services” people don’t go quite to that extreme in their attempts to define “significant portion of its range”, but read what they did say.

This Draft Policy took approximately 20 or more pages to conclude using the various resources and criteria I have already described above to determine that “significant portion of its range” in its entirely, together, as a whole, means:

provides an independent basis for listing and protecting the entire species

In other words, this is pretty much what we have all become subjected to over the past near 40 years. Some too highly paid, well indoctrinated person(s) at the U.S. Fish and Wildlife Service (USFWS) made a determination that a particular species was in trouble and was in trouble over a “significant portion of its range” and therefore was declared “endangered” and the “range” essentially became critical habitat.

But the “Services” have determined that it depends on what the meaning of significant is as to whether or not significant actually becomes significant.

This draft policy includes the following definition of “significant” as it relates to SPR [significant portion of its range]: a portion is “significant” in the context of the Act’s “significant portion of its range” phrase if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.

Significant, used as an adjective, which if my English 101 is correct, is defined in most dictionaries as:

1. important; of consequence.
2. having or expressing a meaning; indicative; suggestive: a significant wink.
3. Statistics . of or pertaining to observations that are unlikely to occur by chance and that therefore indicate a systematic cause.

If “significant” is used as an adjective to describe portion, and portion in this context relates to a physical area or size of land, i.e. range, then wouldn’t significant portion suggest what is being talked about here is geographical scope of the range of a species?

The “Services” concluded that the choice of definition for “significant” is “important”. Therefore, it’s not the size of the portion of the range but the importance of the portion of the range they have decided to use.

I could go on with such foolishness but it’s more important to provide focus on what’s the bottom line. The bottom line here is that not only will Obama’s Draft Policy not only not help anything as it pertains to the ESA but will in fact make matters even worse.

Nothing in this policy limits the discretion and authority of the “Secretary” to implement and make definitions and rulings as he/she deems “scientific” and necessary for the administration of the ESA. Not only that, but this policy seriously places into the hands of the government, greater authority to not only create “portions of its range”, in other words, the Secretary can declare a species endangered and establish all the “critical habitat” he wants. He will still have power to create Distinct Population Segments. However, this new policy will allow the Secretary, through a series of predetermined “thresholds”; a measure of how important it is to protect one small area where a certain species may exist in order to save the entire species globally, create millions of tiny DPSs that the “Services” have said they don’t want to do.

Try to paint a picture in your mind of what this might look like. Haul out a map of the U.S. and it is peppered with 6,537,129 little dots where the Secretary has created a “significant” “significant portion of its range”. And that “significant” range happens to be the 350-acre ranch your trying to eke out a living on. I think this is significant.

Oh, that won’t happen! You all say. Won’t it? If not, then why is this included in the Draft Policy?

Therefore, if a species is determined to be endangered in an SPR, under this draft policy, the
species would be listed as endangered throughout all of its range, even in situations where the facts simultaneously support a determination that the species is threatened throughout all of its range. However, we recognize that this approach may raise concerns that the Services will be applying a higher level of protection where a lesser level of protection might arguably fit if viewed across a species’ range. The Services are particularly interested in public comments on this issue.

I am sure that how I see this Draft Policy and how others may see it will be worlds apart. For those who have faith and confidence in government and believe the ESA is a viable statute that actually protects species, while preserving the rights of Americans, you may think this attempt at defining “significant portion of its range” is a good thing. I do not!

I see it as further pushing the ESA bus over the cliff. It defines nothing. It only serves to foist even more autocratic power into the hands of government, particularly that of the Secretary of Interior. And, gives authority to the Secretary to amass hundreds upon thousands of SRPs (Significan Range Portions) and DPSs (Distinct Population Segments) all over the country.

One can think of instances where this authority and application may be practical but you shouldn’t think it actually will. One example might be the instance in Wyoming, where the state, in working with the Feds, has come up with a SRP of sorts that provides protections for the gray wolf in one zone, while at the same time the rest of the state isn’t burdened under the same ball and chain of ESA protection. But when you consider the amount of abuse that will come from this authority, it becomes a more effective fire starter than an extinguisher. There are so many catch words and phrases in this Draft that one would be foolish to think it’s intended for anything of value to the people.

While I am not expecting anything productive to come out of the Committee hearings in Washington, I will write them and tell them that they need to derail this Draft Policy and actually get down to meat and potato changes or consider complete repeal of the ESA.

If you would like to take the time to read Obama’s Draft Policy, you can read it at this link. In addition, at the end of the Policy proposal, you’ll find specific questions the “Services” are seeking comments on and how you can submit comments about this policy. Comments will be opened for 60 days after the official posting of the Draft to the Federal Register.

Tom Remington

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