Wednesday, July 30, 2003

Endangered species act: Growing question of whose ox is gored

By M. DAVID STIRLING
Pacific Legal Foundation

Martin Luther observed that most human affairs come down to whose ox is gored. On matters of law and public policy, where government declares the dos and don'ts that can directly and substantially impact our lives, there are few better examples of Luther's "whose-ox-is-gored" adage than the federal Endangered Species Act (ESA).

While the ESA is 30 years old, the vast majority of Americans living in urban population centers are largely unfamiliar with it. Most have paid little or no attention to news stories or commentaries on the ESA. While many relate to endearing images of grizzly bears, the gray wolf-mom with her pups, and the bald eagle, few relate to the ESA. If a survey of urban residents' opinions of the ESA were taken, most could respond in only general terms, such as "I like the ESA because it saves animals." The reality is that since its enactment in 1973, the ESA hasn't directly impacted people living in urban areas.

Yet, for people living, working, and owning property in the nation's rural regions and smaller communities, the ESA has an entirely different image. Residents of rural America view themselves as social and economic victims of an oppressive, "species-first, people-last" statute that, more often than not, is enforced in an unreasonable and increasingly abusive manner by federal bureaucrats who are influenced by hardcore environmental activists.

A classic example of the ESA's heavy impact on rural residents occurred not long ago in the Klamath River Basin on the California-Oregon border, where farming has been a way of life for over 100 years. As many as 1,400 farm families lost their crops, their incomes, their seed money for the following year's planting, and the value of their farmland, with several pushed into bankruptcy, when, at activists' urging, a federal agency abruptly shut off their contract irrigation water to benefit ESA-protected species of suckerfish and salmon. Klamath Basin residents felt further abused when that quintessential voice of urban America, the New York Times, editorially blamed them for establishing "a farming economy in an arid area where none belonged." (Feb. 14, 2002.)

How would urban residents react to a U.S. Fish & Wildlife Service announcement that, due to an ESA-protected fish in the river that supplies their city's water, a rationing plan was being implemented limiting each resident to five gallons of water per day? Since the ESA became law, nothing like this scenario has occurred in a large population center, that is, until now.

New Mexico's largest city, Albuquerque, has over 500,000 residents. Situated near the upper section of the Rio Grande River, Albuquerque, since the 1960s, has planned for and spent millions of taxpayer dollars to obtain water rights from sources above the Rio Grande to assure adequate water for its anticipated population several decades in the future.

Last year, an environmental group sued in federal court, claiming that Albuquerque's long-term water program, combined with drought conditions, reduced the river's flow, thus jeopardizing the protected silvery minnow. The judge ruled that Albuquerque's water source be tapped to increase the river's flow. The federal appellate court affirmed, declaring that the government's first duty was to the fish. Before these court rulings, numerous New Mexico officials, including Democrat Governor Bill Richardson and Republican U.S. Senator Pete Domenici, were supporters of the ESA; now they are energized critics, urging U.S. Supreme Court reversal.

After several months of vigorous public discussion on who should have priority to the water, Albuquerque residents or the silvery minnow, the Albuquerque Journal commissioned a survey of New Mexicans' opinions of the ESA. It asked: "Thinking of recent developments in New Mexico involving the Endangered Species Act, such as efforts to protect the Rio Grande silvery minnow, do you think the act goes too far, does not go far enough, or is working as it should?" Sixty-nine percent said the act goes too far, 15 percent said it is working as it should, and 6 percent said it does not go far enough.

This strongly suggests that when people around the country, even city dwellers, come to understand how the ESA impacts human lives and livelihoods, that is, how it gores their ox, they overwhelmingly will agree, "the ESA goes too far."

[M. David Stirling is vice president of Pacific Legal Foundation, which works in the courts for environmental balance. PLF's legal briefs support Albuquerque residents' higher right to the water in the silvery minnow case. Founded in 1973, PLF is the oldest, largest and, in the words of the Washington Post, "perhaps most influential" public interest legal organization dedicated to limited government and property rights.]