Endangered Species Act Must Be Enforced for the Benefit of All

When the US Fish and Wildlife Service decided to cut off irrigation water to farms and ranches in Oregon and Northern California to protect an endangered sucker fish, thousands of acres of crops and hundreds of head of cattle were threatened. Farmers and ranchers in the area pointed this out to federal officials, also calling their attention to the fact that the science used to list the sucker fish as endangered under the Endangered Species Act (ESA) was faulty. Their protests fell on deaf ears.

The irrigation waters were cut. Farmers lost crops, while ranchers were forced to sell off their cattle. The combined damages came to an estimated $75 million.

No rights under the act

The ranchers and irrigation districts sued the government over enforcement of the Endangered Species Act in Bennett v. Spear but were rebuffed in the lower courts. Their lawsuit was thrown out by the 9th United States Circuit Court of Appeals for lack of legal standing. The court ruled that the ranchers and irrigation districts failed to demonstrate that their concerns fell "within the zone of interests to be protected or regulated." They simply had no rights under the act.

Most people could spot the obvious injustice. How can people whose livelihoods are severely threatened by laws like the ESA have no right to challenge those laws in court - while the other side can sue to be sure the act is strictly enforced?

The ranchers and irrigation districts were not deterred. They continued their fight to restore some common sense and fairness to the process. Their case ended up in the Supreme Court, where the government's argument was overturned, establishing the fact that environmental regulation has economic consequences that must be considered.

Writing for a unanimous court, Justice Antonin Scalia pointed out that "all persons have an interest" in controversies surrounding environmental regulation, not only those seeking additional regulation. Congress, Mr. Scalia said, did not exclude property owners from enjoying the same rights other parties enjoy under the ESA, and their claims are "reviewable under the [act's] citizen-suit provision."

There is no debate over whether endangered and threatened species should be protected. But this decision proves that there are serious problems with the existing statute. The Supreme Court decision, while deserved and welcome, highlights a continuing inequity at the heart of the current debate over species protection and private property rights.

Protecting the environment is rarely free. Often a steep human cost is paid when government makes demands for watershed improvements, levels logging restrictions, or imposes no-use prohibitions.

Yet, when challenges should be mounted to mitigate these costs, few landowners have the means to maintain lengthy and costly litigation against the deep-pocketed government agencies, which use taxpayer funds to underwrite their court battles.

Such challenges are necessary. The ESA remains an arbitrary, badly administered law. For one, the science used to list threatened and endangered species is often faulty, based on nothing more than opinion and assumption. Furthermore, under the act, many people have had their properties essentially confiscated for the protection of listed species without receiving any compensation.

Obviously, there are still a number of hurdles to fair treatment under the act, but the Supreme Court decision in Bennett v. Spear brings hope that balance is being injected into the process. In a democracy there can be no "one way" interpretation of the law or "one sided" protections under the law.

High court's mandate

It is most instructive that the court's ruling was unanimous. When justices as philosophically and politically diverse as those sitting on the Supreme Court reach the same conclusion, it is not simply a decision - it's a mandate.

We can also hope that government regulators are mulling the implications of the ruling. Perhaps they will take their cue from the high court and remember that our laws should be enforced for the benefit of all Americans. To do so would lead to better administration and implementation of the ESA, which would serve all species, including the human species.

* W. Henson Moore is president and chief executive officer of the American Forest and Paper Association, the national trade association of the forest and paper products industry.

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