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

A nail hammer is a tool used for construction. It can also be used for destruction. Using a hammer as a tool to construct can also create other forms of destruction if not wielded in the manner in which it was intended for use. Envisage the Endangered Species Act of 1973 (ESA) and all its amendments as a hammer, a tool for construction with an iron head and no claws. If something gets built wrong, there’s no tool available to tear back down and make changes. The tool begins a metamorphosis.

Many believed and still do, that the ESA was a brilliant tool that was going to make sure that man’s eagerness to grow and prosper wouldn’t come at the risk of destroying our flora and fauna. On a rudimentary level, who could argue the importance of saving species being needlessly destroyed. Rudimentary became intricate, convoluted, obscure, corrupt and difficult to understand. The hammer became a rusty vise.

In Part I, I explained how that not long after President Richard Nixon signed the ESA, the first real test of the Act came when a biologist supposedly discovered a rare tiny fish living in an area along the Tennessee River where a dam was being built. As a result, an amendment was added to the ESA, thought to provide options. I wrote:

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.

In 1973 and the result of the Tellico Dam litigation revealed the ironclad and inflexible language of the ESA. Add to that the misinterpretation of the intent of the ESA, the overreaching of the Federal Government, the abuse of litigation-addicted environmental groups, no concrete amendments to the ESA to ease this suffocation, and the giant vise becomes immeasurable, able to constrain the largest of objects while prohibiting the original intent. This all seems so asphyxiating and we haven’t begun to discuss the international treaties that threaten our national sovereignty.

The United States Constitution, Article I, Section 8 reads, “[The Congress shall have Power] 3:To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”. It may be difficult to ascertain which came first in our society. Was it the twisting of the words and intent of the Constitution by lawyers, eager to take advantage of judges more interested in “progressing” the laws of the land than interpreting them or did Congress realize the power they brandished in Article I, Section 8, Line 3, now more familiarly known as the Commerce Clause?

It may be a combination of both. Regardless, the proliferation of the Commerce Clause and how it might be applied in administration of the ESA, has left many a sane mind baffled. Whether we agree with Congress’ view on their power grab, matters little as invoking the Commerce Clause in ESA matters is very common these days and as such further tightens the grip of the enormous and growing vise.

Over three years ago, I began my serious research and self-educating about the ESA, Commerce Clause and international treaties as they pertained to the ESA. I knew at that time that Hugh Hewitt was once an Endangered Species Act expert and legal council under President Ronald Reagan for that very purpose. I contacted him to ask him questions about the Commerce Clause, not being able to believe that what was written in the U.S. Constitution 220 years ago was intended to be used in order to protect endangered species. The response I got back was straight and to the point.

The ESA is an exercise of the Commerce Clause power, unrelated to Treaty, and that’s where most of the big litigation has been in recent years.

In subsequent short communications and reading some of Hewitt’s articles on the ESA, he warned that this continued power grab of the Commerce Clause in conjunction with extended intrusions into our lives by the Environmental Protection Agency (EPA), including the Supreme Court Ruling giving the EPA authority to regulate carbon dioxide, would destroy commerce in this country. The vise grows ever larger.

In recent years, some states have attempted some kind of push back against the federal government, believing the Feds are infringing on the state’s Tenth Amendment rights, i.e. state sovereignty (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)

It appears that the courts have always pretty much agreed that the Commerce Clause trumps the Tenth Amendment. Let me reference only one example, as there are many. Gibbs v. Babbitt

In North Carolina, a private landowner (Gibbs) and others, questioned the rule of the U.S. Fish and Wildlife Service (USFWS) that “taking” of red wolves on their land was forbidden under the ESA. The red wolves in question were part of an “experimental” population of wolves. The plaintiff (Gibbs, et al) challenged the USFWS rule as a violation of the Tenth Amendment, believing the state of North Carolina and thus the counties involved had the authority over the federal government to regulate its own wildlife. The courts disagreed citing the Commerce Clause as the government’s authority.

The court, in brief, explained that the red wolves were part of a “$29.2 billion national wildlife-related recreational industry that involves tourism and interstate travel.”, even referencing “‘howling events’—evenings of listening to wolf howls accompanied by educational programs.” Because these red wolves were believed to be a part of the commerce in the region and because red wolves moved freely about across state lines, the U.S. Government was the rule of law when it comes to red wolves.

Was this the intent of the Founding Fathers when they drafted Article I, Section 8, Line 3? Was it also intended or should it even be a part of our laws today that because Congress feels the need to dictate to the states what they can and can’t do by overstating the Commerce Clause, they tread on the Tenth Amendment?

A simple hammer has become a tool that was never intended. I have heard the ESA referenced as the most powerful Act that exists in the United States and it may very well be. Perhaps that is why it has become so difficult over the years to propose and succeed at implementing much needed amendments to bring the ESA back to the simple hammer that was supposedly designed to save species.

As crippling and constraining as the ESA has become, we all should be asking what function does it now serve? Is it actually saving any species? How are we measuring the success of this Act? Or does any of this really matter anymore? Did it ever?

This is only one more aspect of the crippling and destructive power of the ESA, and I have barely scratched the surface. There’s more, which just might be even more troublesome.

The United States Constitution reads in Article II, Section 2, Line 2; “2: He [president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”

Please recall in Part I, I listed the treaties signed by our presidents and ratified by our Senate, that gives power to the administration of the Endangered Species Act. I’ll look at those closer, later.

Tom Remington