Please read “The Crippling and Destructive Power of the Endangered Species Act – Part II“, and Part III, Part IV.

The Endangered Species Act of 1973 is a draconian law that offers no flexibility, ruling out any semblance of common sense; strips states of their sovereign right to manage and care for their own flora and fauna; denies property owners of the right to use their land for the pursuit of life, liberty and happiness; allows for the destruction of the country’s economic well being; and abdicates this nation’s sovereignty to International powers, to name a few.

What began, at least back to the days of Teddy Roosevelt, as attempts by the government of protect specific species, resulted in a culmination of efforts and pressure from the international community and more precisely the United Nations, that ended in the signing of the Endangered Species Act of 1973, by President Nixon. Nixon at the time had been through hell with his Watergate turmoil and many believe he hadn’t the foggiest notion of what he was signing……or did he?

Perhaps the first most formal attempt at protecting species happened in 1966 with the signing of the Endangered Species Preservation Act. This law gave authority to the Secretary of Interior (DOI) to make a list of “endangered” domestic fish and wildlife. It also gave the U.S. Fish and Wildlife Service (USFWS) $15 million to buy up land to protect endangered species habitat.

Over the next few years, the United States made attempts to expand their reach of “protecting” and “conserving”, even reaching out and listing species outside the U.S. and signing agreements with foreign entities in collaboration to “protect” and “conserve”.

Included in the first attempts at saving plants and animals, were such words as “insofar as is practicable and consistent with their primary purpose.” This, according to certain international entities wasn’t strong enough nor specific enough language to accomplish the agendas of “protecting” and “conserving” species.

It was pressure from the International Community that prompted the drafting and signing of the Endangered Species Act of 1973 (ESA). Within the ESA very strong and deliberate language was included that offer effectively no means of any kind of flexibility, that would allow for waivers or exemptions or to accord anyone some leeway of practicality and common sense.

The first real test of the strength of the language incorporated into the ESA of 1973, came when the Tennessee Valley Authority (TVA) began construction of the Tellico Dam. After construction began, a University of Tennessee biologist named David Etnier, discovered what was believed at the time to be a very rare and tiny little fish called persina tanasi (snail darter), and declared that under the ESA the dam construction had to cease to save the fish.

It was during this time that some, including many who had voted for the ESA, began to realize parts of the ESA were impractical. Their thoughts were, “Who would allow for the stoppage of a multi-million dollar dam that was providing jobs and tons of cheap electricity when it was completed”. Their answer came from the Supreme Court.

Tennessee Valley Authority v. Hill et al – 437 U.S. 153 (1978), let Congress, the TVA and the rest of the world know that according to the ESA, there were no provisions to make any exceptions for endangered species no matter what the costs.

Chief Justice Warren Burger wrote the majority opinion. (Lore has it that Mr. Burger, an appointee to the Supreme Court by Nixon, was on the minority but changed his vote so he could write the majority opinion. Believing this case to be so ridiculous, he thought his opinion would prompt Congress to begin immediate amendments to the ESA.)

Mr. Burger used language from the ESA like “admits of no exception” and “jeopardize the continued existence” and “halt and reverse the trend of extinction, whatever the cost”. The order was to stop the construction of the dam, even though during this entire time of litigation, building of the dam continued.

This was the onset of resolution when Congress was able to amend the ESA (Section 7) to “create a special exemption process”. Part of this “special exemption process” was the forming of a “Committee” which became commonly known as the “god squad” – the purpose of which was to examine cases such as Tellico and determine, under very strict criteria, if any exemption should be granted. This amendment is believed by some to have actually made the language of the amended ESA even more strict, if that were at all possible, raising serious questions as to the purpose and who or what was behind it.

The “god squad” would not grant TVA an exemption and so, what do you think happened? After all, there is a dam there now. Congress was able to attach an appropriations bill rider to the Energy and Water Appropriations Act for FY 1980. The 1978 Amendment to the ESA was a bust.

So, where did Congress or the United States Government get its authority over species and state sovereignty? That’s the million dollar question in which I hope to be able to answer for you. Who or what was pushing the United States to stiffen its grip on the people through wildlife and habitat protection? In addition, under what legal avenue did the United States Government assume their authority over state sovereignty and their right to manage and care for their own wildlife? Not only is it ironic but intently troublesome that during drafting of the ESA, our own National Wildlife Federation lobbied that management of endangered and threatened species remain with the states.

Let’s take a quick examination of the ESA that tells us where this authority, contrary to the U.S. Constitution, comes from.

Section 2. (4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to—
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation’s international commitments and to better safeguarding, for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.(emphasis added)

I will examine some of these treaties and others that are very relevant to the crippling and destructive power of the Endangered Species Act.

Tom Remington