Can California’s Endangered Species Survive Federal U.S. Fish & Wildlife Policy?

The Delta smelt is going extinct. The adorable translucent fish don’t grow much larger than a finger, but their privileged status as an endangered species puts them at the center of a huge debate over federalism.

When the population of a tiny fish called the Delta smelt started to dwindle, U.S. Fish & Wildlife kicked into high gear to save them from going to extinct. They used their authority to divert federal water from the smelt’s habitat in California’s Sacramento–San Joaquin River Delta — away from farming and other habitats in the San Joaquin Valley. Endangered species have no way to communicate to the regulators charged with keeping them alive, but if they could, they might echo Ronald Reagan in saying:

“The most terrifying words in the English language are: I’m from the government and I’m here to help.”

The more fresh water retained in the Delta region, the thinking went, the more smelt there would be. Unfortunately, “preserving” freshwater (and essentially flushing it into the ocean) seems to have done nothing to revive smelt stocks. They are still dying. Making matters worse, other endangered species in the Valley are now being deprived of water from the San Joaquin.

Tony Francois is an attorney with the Pacific Legal Foundation — a public interest law firm that litigates on behalf of vulnerable individuals and small businesses whose rights are threatened by overreaching legislative and executive power. Francois notes that property owners (farmers, etc.) are not the only ones with a stake in this issue, but also people who value biodiversity and sanity in government. He frames this as a moral issue, with the regulators to blame. However, he also puts some responsibility on citizens of various stripes to assert our power against an unaccountable agency run amok.

Federal water for tiny fish leaves other species high and dry

Tony joined the show to explain the disastrous unintended consequences of federal bureaucratic management of state resources and discuss other pending Supreme Court cases in which endangered species regulations are threatening people’s liberties (and often the environment).

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Transcript

The Story of Our Government, a Fish, and a Frog

Bob Zadek: Hello everyone. Welcome to the Bob Zadek Show, the longest running live libertarian talk radio show on all of radio. Thanks so much for listening this Sunday morning. Have you ever wondered why when you go to your favorite seafood restaurant, and you have been looking forward to ordering as your main course, a big plate of Delta Smelt, that it is never available? I’m sure you all have. Have you ever wanted, when you have gone to your favorite French restaurant, frog legs cut from gray gopher frogs and they are not on the menu?

Well, this morning we dare to answer both of those and many more questions. The fast answer is of course the gopher frog and the Delta Smelt are endangered and we are in danger of losing those two creatures from our planet. To protect us from losing these and many other creatures, Congress in the seventies enacted the Endangered Species Act.

Did the act work? Are there unintended consequences to that act? Why in the world would a libertarian talk radio show devote an hour of Sunday morning to discussing the possible loss of an endangered species and a federal act to protect it? You will find out from my guests this morning, Tony Francois. Tony is an attorney with one of my favorite and most effective public interest law firms, the Pacific Legal Foundation here in California. He works out of Sacramento and he will be participating in preparing a case for the Supreme Court this fall term on this very subject. And we will see what kind of environmental credits newly appointed Supreme Court justice Brett Kavanaugh really has.

To help us understand the Endangered Species Act (ESA) and the upcoming full calendar of the Supreme Court, and why everyone who owns even a small plot of land in our country should live in fear of the Endangered Species Act. Welcome to the show, Tony Francois.

Now Tony, let’s do a little background just for the benefits of our audience. The Endangered Species Act seems like a non-libertarian issue. We all want to protect and have biodiversity on our planet. This federal statute seems to have a laudatory goals. So tell us about the Endangered Species Act and why even a modest discussion of the ESA raises all the short hairs on the back of many libertarians necks.

Tony Francois: I think the short answer to that is the way that the ESA is enforced by the federal agencies. It tends to extend what Congress actually adopted beyond the authority of what these agencies were actually given, often resulting in some pretty significant impairment of people’s liberties, including property owners but also others. So let me just give you a quick rundown on how that works. The ESA was a federal statute that was adopted in the early 1970s that was inspired by the desire to prevent the extinction of iconic wildlife like the Bald Eagle and the Grey Whale — A lot of animal species that really kind of evoked that warm fuzzy thing in you that really appreciates the beauty of the world we live in and the diversity and the wonder of it.

So, Congress passed this law that requires the federal government to do three things First of all, to list species that are either endangered or threatened with endangerment. So, they use this process under the statute to decide whether or not a species in danger or not. The second thing — and this is what really starts to create difficulties for property owners — It designates critical habitat and that is a federal agency determination that a given piece of property is henceforth going to be a designated habitat for a given species. And then the third thing that the federal government does is called “consultation.”

What that means is that anytime that a federal agency is going to do something that will potentially adversely affect that species or habitat, they have to consult with the Federal Fish and Wildlife Service. And that extends to an agency that is typically going to issue you as a property owner a permit to do something with that property or find something you’re going to do with that property.

So the combined effects of these three paths create a regulatory regime in which property owners — even if their property doesn’t have a listed species on it — wind up having to go through this a fairly substantial consultation and permitting process with the federal government that in practice becomes quite draconian and inflexible. The potential of this for interfering with people’s liberties dramatically expanded and accelerated with a supreme court decision in the 1970’s. The Tennessee Valley Authority versus. This was a case involving the Teleco dam which was almost complete in the mid 1970’s. It had been federally funded and built long before the Endangered Species Act went into effect.

But it was not quite done before the ESA went into effect. A group of environmentalists sued the Tennessee Valley Authority, which was owner and operator of the dam, because the completion of the damn, the final step would potentially harm a small population of very small fish that relied on water from the reservoir. So authorized the ESA but they also authorized and funded this multimillion dollar public works project and appropriated money for it after the ESA was passed. Could it really be that Congress meant that even an important project like this would have to give way to an endangered species? The Supreme Court answer was yes.

They said two really significant things. They said that the ESA makes protection of endangered wildlife the federal government’s number one priority over all other federal activities, which is a remarkable thing to say because you don’t find that anywhere in ESA. Typically, when federal judges interpret how different federal statutes interact they try to make them both work together, at least that’s what they’re supposed to do. Secondly, that statement of protecting endangered wildlife being the number one federal priority. That wasn’t a period, that was a comma. After the comma comes “no matter the cost.”

So this decision really supercharged the authority of the Fish and Wildlife Service and another agency NOAA fisheries, which is within the Commerce Department to play a much stronger role than the members of Congress who voted for the ESA expected. So, in response to this Congress passed a bipartisan amendment of the act to give some discretion to the Government to consider whether or not to designate critical habitat, to consider the economic impact of habitat designations. Several important Senators and Congressmen said they did not mean for this to be the be all end all of the Federal Government. It is just one of the things we are supposed to do So that is the setting for it.

Bob Zadek: I just have one question. The great hero of your story was whoever the lobbyist was that the snail daughters hired. They had most powerful lobbyists in the history of the country. Who did they hire It is snail daughters one, one human race zero. What a victory that was!

Tony Francois: In general, the more iconic species like the Bald Eagles, the Great Whale, California Condors, benefited quite a bit from Endangered Species Act protection. In fact, the Bald Eagle was subsequently de-listed because of ESA But what has transpired is that small species of insects and small fish and rodents and plants get listed under the ESA. The Fish and Wildlife Service can list not just species but subspecies and then distinct populations of species. So, for example, on the West Coast a couple of different salmon species have been listed as endangered and that has had a dramatic impact on the economy and culture.

The entire social fabric of large areas of the west coast has been affected. It has affected timber, housing, ranching and farming, and of course the fishing industry. So if you take one of these species as Coho Salmon, worldwide it is not close to endangered. You buy it for some dollars a pound at Safeway. It is very abundant North of the lower 48. It is caught in Alaskan and Canadian waters. What is listed as endangered are populations of Coho that use the Columbia river and some of the coastal rivers in Oregon and the Sacramento River, and then the coastal rivers between Sacramento and between San Francisco and the Oregon border.

So, the act is used to protect local populations of the species that across species is abundant and healthy, and this has a dramatic effect. People will look at that and say, well, my entire industry or my family business or my property is being completely harmed by the protections for this fish. Whereas the fish, as a species as a whole, doesn’t really need these protections. It is just this particular population of them. People look at that and wonder if this is the right set of priorities.

The ESA Run Amok: A Failure of all Three Branches of Government

Bob Zadek: Tony, here is the question that would occur to any rational person on hearing your explanation of the act and how it has been used. The bureaucrats at the Fish and Wildlife Service who administer the act, are humans and Americans. They are landowners to some degree. What is there about the Statute and the people who populate those agencies that cause them to exercise what appears to me to be such bizarre judgment? They do not have to designate a subspecies or population as endangered. They are not compelled to do that? What makes them so irrational? What is it about this that produces such anti-community or anti-economic life? Why are they so oblivious to everything other than certain narrow issues?

Tony Francois: Well, the first part of that has to do with the worldview of environmentalist agency staff are. But that is not the entire picture. Remember, the ESA does three things: It lists species as endangered or threatened, to designate critical habitats for them, and to engage in consultation. Citizens can file lawsuits against the federal agencies asking federal courts to compel them to deem one or all of these three tasks to a given species, and frequently the courts will say that the species should be listed, or that the refusal to list is illegal or the ESA is taking too long to decide to list the species.

In fact, citizen litigation over the ESA is so big a part of how the act is enforced, that we found, at the Pacific Legal Foundation that almost all the significant listing and critical habitat designation decisions that the fish and wildlife service makes are under a timetable that is set by federal courts across the country. So, if you’re trying to get them to work on an issue with a species that isn’t the subject of a federal court order, you are at the very end of the list. Almost all of their workload is essentially dispatched by Federal judges for better or worse. I mean, you can understand why Congress would want some third party input into the Fish and Wildlife Services work and involve citizens in that.

But where that has led to is that organizations like the Center for Biological Diversity (CBD), file hundreds of petitions for listing species and the service cannot possibly process all those divisions within the one year deadline that the statute gives them, and CBD does this purposely knowing that the service will never be able to meet his deadline. And then, frequently the center for Biological Diversity will leverage the service into a global settlement for agreeing to a timetable under which all these species will be considered for listing. And that dominates the agency’s workload for a period of years.

So, you have got a combination of some bias within the agency toward environmental protection even when the statute doesn’t direct it. And then you have a very heavy influence of fairly radical organizations like CBD, which then drive the service’s workload. Their litigation drives the service toward outcomes that I think it reasonably would not come to.

Finally, the act has frequently been criticized as being used in an ad-hoc way simply to stop a particular project or to redo or reorganize how a given project is operated. For example, it is used to significantly hamper housing development for the specific purpose of preventing housing development by anti-development activists. So, it’s a very strong tool to control land use. I didn’t mention this earlier but one of the drivers for how it controls land use is that there are civil and criminal penalties for anybody who engages in what the act defines as “take” of an endangered listed species. And “take” is defined amazingly broadly. Under the Endangered Species Act it is not just that you cannot kill or capture or a wound an Endangered species. You cannot harass, annoy it, pursue it, or

This is been taken to absurd extremes. Some activists have tried to restrict surfers because surfers probably “annoy” migrating whales. Some of these groups even try to prevent photography of listed whales and prosecute it criminally on the basis that photography is sure to harass it.

Bob Zadek: Tony, you are a litigator and I am not. My question is, are there any depositions of whales that I could read to learn exactly the scope of their irritation?

Tony Francois: No, there’s not. What you are alluding to is one of the unspoken fallacies of the whole Endangered Species Act culture within environmental organizations. These are organizations that profess to speak for endangered whales or Delta Smelt or endangered birds. This is not like I’m here here to speak for a group of workers as their union representative. The whales can’t speak for themselves. Nobody can speak for them. As human beings a lot of us believe we have an ethical duty to behave humanely towards all wildlife. But the notion that just because you filed a Endangerous Species Act, that you’re the anointed spokesperson for those seven great whales over, there is laughable. It’s just not true.

Bob Zadek: I would love to experience a trial where you have two different attorneys, one which is arguing that this annoys the whale and the other attorney which says that the whale doesn’t give a damn. I would love to hear the judge make a decision on the basis of those arguments. Make your practice better than mine. This is Bob Zadek. I’m spending a wonderful morning talking to Tony for swap. Toni is with the Pacific Legal Foundation. We had discussing the absurdity, although good motives, but the absurdity of the endangered species act. We will learn about how Tony’s organization is trying to avoid the government preserving perhaps a vacation home for a frog. When we come back. We’ll be back in one really short minute. Please stay tuned. Lots to come.

When you described the use of the courts by some extreme environmental organizations, I found myself sinking into despair, because what you described very briefly in a narrative was a statute that perhaps was not well thought out. A failure of the legislative branch. Although the motives were good, the carrying out of those motives was bad. You then described how administrative agencies start to in aggrandize themselves with the accumulation of power under the statute and stretch their modest mission.

So the executive branch’s implicated. Then, the courts do their job by expanding the reach of this poorly drafted statute. So, all three branches of the government drop the ball, and it makes me truly despair about the system in Washington when there is a total breakdown of all three branches of government. When you explained the operation and how there has been regulatory capture by environmental groups where they have become kind of private attorney generals and in effect have become enforcers of federal law, let us boil it down to a couple of real examples. The Pacific Legal Foundation will be engaged before the Supreme Court in the Fall term. It might be the first bit of Environmental litigation that, if he is confirmed, hopefully Justice Kavanaugh will decide. Tell us about the “frog case” in Louisiana. It boggles the mind that this has gotten all the way to the Supreme Court.

The 34 Million Dollar Vacation Home… For a Frog

Tony Francois: We represent a couple of family-owned companies in Louisiana that owns some timberland. Our lead client owns some of this property. These are all family entities for a family in Louisiana. So they have lived on this property for a very long time and it is currently under a long term lease to a timber company which is doing logging on the property. When the property reverts at the end of the leaves, the family plans to develop it. This is a fairly high growth area in Louisiana so the property is actually quite valuable. The leader of the the organization there which owns these properties was surprised to learn that a couple of Fish and Wildlife Service Staff were walking around the property.

They were checking it out without his permission. The long and short of it is that they would like to designate his property as critical habitat for a species of frog called the Mississippi Gopher Frog. What happens is that the service ultimately determines that his family property is not suitable habitat for these frogs. It has the wrong kind of trees on it and has no undergrowth on it. And it has got a couple of ephemeral ponds that might be suitable for these frogs to lay their eggs, but without the other habitat features, the frogs couldn’t survive there. You could never have a distinct population there.

You might even violate the endangered species act by putting a couple of frogs on the property. The service said that if it designated the property as critical habitat, it would have as much as a $34 million-dollar negative economic impact on the property through loss of the development rights, because if the property is designated as a critical habitat and you need any kind of federal permit, then you’re going to get consultation and that could result in complete inability to develop the property. So this particular property, which is about 1500 acres, would have to be extensively changed. The trees would have to be harvested and then replanted with a different tree species. You would have to go through an annual regime of prescribed fire in order to get the right type of undergrowth to provide the habitat for this particular species of frog. These are expensive, time-consuming, and certainly not what the landowners have any interest in doing.

After concluding that the property is unsuitable and dangerous in its current condition for the frogs and designated as critical habitat would cause a $34 million dollar economic impact, the service went ahead and designated it as a critical habitat anyway, and determined that a $34 million dollar economic hit was not disproportionate to the benefits of designating this entirely unsuitable property as critical habitat for the now renamed Dusky Gopher Frog, because if you keep calling it the Mississippi Gopher frog, because people will wonder why you’re designating a plan for it in Louisiana. And subsequent to that Mr. Boylan, through the companies that formally own the property, has been in litigation with Fish and Wildlife Service for a number of years now. This has found it’s way all the way to the supreme court, which will hear the case on the first day of October in this fall term. Actually this is the first case the court will hear the oral argument for in the upcoming term.

Bob Zadek: There is a concept, which most of my listeners are aware of, called “regulatory taking.” That is to say, we all know from the Kelo case and many other cases that if the government takes your property for public use, they have to compensate you. They can’t just take your property, without paying you the fair value of the property. They cannot just take it for free. Well, there is a slightly different concept called “regulatory taking,” where if the government in effect sucks out all the value of your property by regulation, you get to own it, but you can’t do diddly with it because of the regulations. That is a regulatory taking and under those cases the government doesn’t have to compensate you, even if you have lost value because of this regulatory taking. The theory being will you still have your property. So, you cannot do anything except have a summer home for frogs, but that’s too bad! Is this a regulatory taking or are the owners of the property entitled to any compensation if they lose in the Supreme Court.

Tony Francois: That is a very good question Bob. I don’t have a direct answer for you because the way we have approached this case in any government taking is whether government has the authority to carry it. If they do have the authority and there’s nothing you can do to stop it, then the question is whether or not you’re entitled to compensation. What we are arguing in this case is that the Fish and Wildlife Service doesn’t have the authority to designate this property as, as critical habitat. In the end if this property is designated as critical habitat, it is still an open question in the courts as to whether or not an endangered species designation would result in the right of compensation.

So that at least is some good news. The immediate question is whether the agency even has the right to do this or whether the ESA is a blank check that allows them to do whatever they want with designated property. The specific question that the Supreme Court will look at is how the definition of critical habitat works in the statutes and under what conditions a property can be designated as a critical habitat but which is not actually occupied by the species in question. The Statutes speaks in terms of unoccupied habitat being capable of designation of critical habitat if it is “essential for the conservation of the species.”

The federal government has defended this decision to designate this non-habitat as critical habitat by re-writing “essential” to mean “useful” or, “one day if there is some completely, unforeseen and catastrophic event that wipes out dozens of other critical habitats in different states. The statute says “essential,” which seems to mean species won’t recover without this land being used, but the service says “this would be wise.”

Bob Zadek: There has been a lot of litigation about airlines allowing emotional support like pets on airplanes. You can’t bring a peacock and you can’t bring a whole pig, and such. How exactly are these Mississippi frogs going to get to this land in Louisiana? Are they going to take coach tickets on Southwest? What is the plan? Are they going to just take the train or rent a car? How do they get to Mississippi?

Tony Francois: Actually, emotional-support amphibians go via Uber trips or Lyft. The answer is that the service says that if one day the family decide, instead of developing the property for economic use, they want to spend the enormous amounts of time converting the land to gopher frog habitat, we’d be happy to transplant, in attempts to sustain a population of the frogs, from one of their other breeding populations. I read an interesting article just Friday, where in of the other sites where there actually are Gopher Frogs being managed by a group called the Nature Conservancy. It is a very robust operation. They have a breeding laboratory and a really intensive program of planting and then tracking the frogs within a habitat that has been rather carefully managed so the frogs benefit, including the regular use of prescribed fire.

It is a difficult process. They’re really working hard to try to sustain a breeding population that doesn’t require rearing and hatcheries and things like that. So the service is basically saying that we are going to red-tag your property and if you decide as a result of this kindness that you would like to cooperate with us and spend your own money completely renovating this property, then we can put endangered species on it and then you will really be stuck with the restrictions of the act. There is no discussion I recall seeing in any of the services decision-making that really digs into the feasibility of turning this into land for sustaining population of frog, other than to talk about how difficult it would be and that the property owner has no interest in doing it.

Bob Zadek: To actually use this property for rearing and trying to develop a sustaining breeding population of a frog in the wild, would require the service to outright condemn it and pay for it because otherwise they wouldn’t have any control over it other than through their permitting restrictions. They can’t force the property owner to remodel the property. So our fundamental argument is that there’s no way you can consider this property essential for species conservation, because there nothing about it that is suitable for species to be in.

It’s very important to me to make sure that my friends out there understand that I have not declared war on the Mississippi Gopher Frog. We are talking not about the important result. We are talking about how we get there, and most importantly, who pays under the case that Tony’s organization will be prosecuting in the full term of the Supreme Court. The question is who has to pay? And under the formulation of the federal government, a a family which happens to own some Timberland can get stuck with a $34,000,000 bill and has to absorb the cost because they have decided that the Gray Gopher frog may like to live there someday.

And I say that if the federal government determines that part of their mission is to protect this potential habitat, then the federal government must buy the land at the fair market value. If you can force the purchase under eminent domain regime, pay the landowner the $34 million or whatever you have deprived them and have at it. So, I don’t quarrel with the result, although it seems insane and irrational. But if that is what the government has the power to do, so be it. But why in the world is there a lottery where if the family gets the short straw they have to pay for this folly. The goal is laudable. The question is who should pay? And if we have decided as a country that part of our wealth should be spent in preserving a species, then we all should bear the cost and the political process will tell the elected officials if we support them.

I don’t quarrel with government. If they want to pass stupid laws that is okay, but I don’t want to have to pay for them. And that’s the issue. Now, Tony, lest this seem like just trying to preserve private property, God forbid, tell us about the Delta Smelt and the economy of huge swath of valuable land in California. We only have a few minutes left, but if you can tell us the story of the Delta Smelt and how the Endangered Species Act has harmed so many people in California.

The Delta Smelt Story

Tony Francois: So, like the snail bird, the Delta Smelt is a very small fish that resides in the San Francisco Bay Delta. It moves around in the delta amongst the islands out there towards Stockton and Pittsburgh. In addition to being the habitat for these small fish, it is also the through-way for a transfer of the Southland water project or the Central Valley project water supplies that are originally stored in reservoirs north of the delta, like Shasta, Oroville Fulsom, etc., and then sent via the two canals to Southern California, both to the Los Angeles Metro area, but also farms south of Stockton all the way down to Bakersfield.

And this water supply is a piece of infrastructure. It’s like a water supply that, uh, you get out of your tap in San Francisco when you turn on the water. It is like the roads, bridges, and telephone lines. It is basic infrastructure. It makes it possible for the farming communities in the central valley to exist and thrive. The effect of Endangered Species Act protection for the Delta Smelt has been rather significant on the Central Valley agricultural communities.

Protections for the Delta Smelt have resulted in significant restrictions on the ability to move the water that’s stored north of the Delta through the delta as a result of the operation of two sets of pumps at the south end of the delta. And so the Fish and Wildlife Services “consultation” with the bureau of reclamation and the ESA that protect Delta Smelt, has resulted in significant restrictions on when and how much those pumps can operate to actually get the water to these farming communities. And if those pumps can operate, then the water doesn’t get to them. This has caused significant economic and cultural harm to these communities, not just to farm owners but also farm workers.

Bob Zadek: So, as a result of the Endangered Species Act operation protecting the Delta Smelt, which by the way isn’t even that cute of a fish, has been to deprive farmers of the water and residents of Southern California, all to protect a little fish that nobody even knows exists. So that’s a draconian effect of this act. It is not about protecting one landowner. It’s about protecting an entire state and entire country from the operation of this statute.

Links

• Federal water for tiny fish leaves other species high and dry | The Fresno Bee, 2016, by Tony Francois
• Pacific Legal Foundation — PacificLegal.org
• VIDEO: Don Boudreaux — How to Save Endangered Species, Learn Liberty
• Brett Kavanaugh Will Mean Challenging Times For Environmental Laws Buzzfeed, July 9, 2018

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• The Supreme Court Has Spoken: The Unanimous Decision in U.S. Army Corp of Engineers v. Hawkes, July 5, 2016
• We Are Not Sardines. We Are People! March 9, 2014
• Richard Epstein on Climate Change, Aug. 13, 2017