Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy?
2018-07-13 · Guest: Tony Francois (Pacific Legal Foundation) · 52:09
Endangered Species Act and regulatory overreach
Bob Zadek and Tony Francois of the Pacific Legal Foundation discuss the unintended consequences and regulatory overreach of the Endangered Species Act. They explore how the act has shifted from protecting iconic species to being used as a tool for land-use control, focusing on the “dusky gopher frog” case in Louisiana and the Delta smelt’s impact on California’s water infrastructure.
Topics: Endangered Species Act, Property Rights, Regulatory Overreach, Environmental Policy, Supreme Court, Delta Smelt, Dusky Gopher Frog, Pacific Legal Foundation
Speakers: Bob Zadek, Tony Francois
Introduction to the Endangered Species Act [00:00]
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 summer Sunday morning. Have you ever wondered why when you go to your favorite seafood restaurant and you’ve been looking forward all day to ordering as your main course a big plate of Delta smelt, that it’s never available? I’m sure you all have. Have you ever wondered when you’ve gone to your favorite French restaurant and been thinking all day about having frogs’ legs cut from gray gopher frogs, 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, we citizens of Earth, of losing those two creatures from our planet. To protect us from losing these and many other creatures, Congress in the ’70s enacted the Endangered Species Act in order to protect us from losing species that were, yes, endangered.
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 guest this morning, Tony Francois. Tony is an attorney with one of my very, very favorite and most effective public interest law firms, the Pacific Legal Foundation, here in California. He works out of Sacramento, and he will be, as you will learn, he will be participating and help prepare a case for the Supreme Court this fall term on that very subject. And we will see how what kind of environmental creds newly appointed, if he is confirmed, Supreme Court Justice Brett Kavanaugh, what his environmental creds really are. To help us understand the Endangered Species Act, the upcoming fall 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, I’m happy to welcome to the show Tony Francois. Tony, welcome to the show this morning.
Tony Francois: Thank you, Bob. Good morning. How are you doing today?
The Three Pillars of the ESA [02:18]
Bob Zadek: Fine. Now, Tony, let’s do a little background just for the benefits of our audience. The Endangered Species Act, it seems kind of a non-libertarian issue. We all want to protect and have biodiversity on our planet. So we have the Endangered Species Act, a federal statute, seems to have laudatory goals. So tell us about the Endangered Species Act and why even a modest discussion of the Endangered Species Act raises all the short hairs on the back of any libertarian’s neck.
Tony Francois: Sure. And I think the short answer to that, Bob, is that the way that the Endangered Species Act is enforced by the federal agencies tends to extend what Congress actually adopted beyond the authority that these agencies were given, resulting in some pretty significant impairment of people’s liberties, property owners, but others.
So let me just give you a quick rundown on how that works. The Endangered Species Act, you mentioned it’s a federal statute that was adopted in the early 1970s. And it was inspired by the desire to prevent the extinction of iconic wildlife like the bald eagle and the gray whale and, you know, a lot of animal species that, you know, really kind of evoke that warm fuzzy thing in you that really appreciates the beauty of the world that we live in and the diversity and the wonder of it.
So Congress passes this law, and it requires the federal government to do three things really quickly. First of all, to list species that are either endangered or threatened with endangerment. And so they use this process under the statute to decide whether or not a species is endangered or not. So that’s the first thing, listing.
The second thing—and this is what really then starts to create difficulties for property owners—they designate critical habitat. And that is a federal agency determination that a given piece of property is henceforth going to be designated habitat for a given species.
And then the third thing that the federal government does is called consultation. And what that means is anytime that a federal agency is going to do something that’s going to potentially adversely affect that species or its habitat, they have to consult with the Federal Fish and Wildlife Service. And that extends to an agency that’s simply going to issue you, as a property owner, a permit to do something with that property or fund something you’re going to do with that property.
So the combined effects of these three tasks create a regulatory regime in which property owners, even if their property doesn’t have a listed species on it, if it’s designated as habitat, you wind up having to go through this fairly substantial consultation and permitting process with the federal government that in practice becomes quite draconian and inflexible.
TVA v. Hill and “No Matter the Cost” [06:58]
Tony Francois: And the potential of this for interfering with people’s liberties has been dramatically expanded and accelerated by a Supreme Court decision in the 1970s that said a couple of things. First of all, and this is the Tennessee Valley Authority v. Hill, which was a case involving a dam, the Tellico Dam, I want to say in Tennessee or Kentucky, which was almost complete in the mid-’70s. All they needed to do was like close the spillway and start filling it. It had been federally funded and built, and all of this long before the Endangered Species Act went into effect. But it was not quite done before the ESA went into effect.
And a group of environmentalists sued the Tennessee Valley Authority, which was the owner-operator of the dam, because the completion of the dam, the final step, would potentially harm a small population of very small fish called snail darters that relied on water from the reservoir. And so the issue in this case was, well, wait a second. Congress, yeah, passed the ESA, but they also authorized and funded this multi-million dollar public works project and appropriated money for it after the ESA was passed. Could it really be that Congress meant that even a great big important public works project like this would have to give way to an endangered species?
And the Supreme Court’s answer was yes. And they said two really significant things. The Supreme Court said that the ESA, the Endangered Species Act, makes protection of endangered wildlife the federal government’s number one priority over all other federal activities.
Bob Zadek: Wow.
Tony Francois: Which is a remarkable thing to say because you don’t find that anywhere in the text of the Endangered Species Act. 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, protecting endangered wildlife is the number one federal priority, that wasn’t a period at the end of that, that was a comma. After the comma comes “no matter the cost.” And that’s also not really in the Endangered Species Act.
And so this decision, Tennessee Valley Authority v. Hill, really sort of supercharged the authority of the Fish and Wildlife Service and another agency that deals with sea-going wildlife within the Commerce Department, NOAA Fisheries. It really empowered these agencies to play a much stronger role than the members of Congress who had voted for the ESA.
So in response to this, Congress actually did in the late ’70s a bipartisan amendment to the act. Heavens to Betsy, can you just picture that happening now, right? But in one of its rare lucid moments back in the ’70s, the Congress made some amendments to the act that are supposed to provide some discretion for the government in whether or not to designate critical habitat, to consider the economic impact of habitat designations. And in adopting these amendments, several important senators and congressmen said, “Well, we didn’t mean for this to be the be-all end-all of the federal government. It’s just one of the things we’re supposed to do.” So that is the kind of the setting for it.
Iconic vs. Non-Iconic Species [11:02]
Bob Zadek: Tony, I have one question. The great hero of your story was whoever the lobbyist was who the snail darters hired, did quite a dynamite job. The snail darters had the most powerful lobbyist in the history of the country. Who did they hire to get that kind of a—snail darters won, human race zero. What a victory that was.
Tony Francois: Well, and that’s kind of one of the ironies of the act is that in general, the more iconic species, the bald eagles, the gray whales, those kinds of animals that people kind of know about and tend to really sympathize with—condors, California condors—have benefited quite a bit from Endangered Species Act protection. In fact, the bald eagle was subsequently delisted because of recovery. And that’s, I think, in part to the protection of the Endangered Species Act.
But what’s transpired mostly is that small species or very fine-graded subspecies of insects and small fish and rodents and things like this also get listed under the ESA. Plants do as well. And the ability of the Fish and Wildlife Service, for example, they can list not just species, but subspecies and then distinct populations of species.
And so, for example, on the West Coast for many, many years, a couple of different salmon species have been listed as endangered. And that has had a dramatic impact on the economy, the culture, the entire social fabric of large areas of the West Coast. It’s affected timber, housing, ranching and farming, it’s affected the fishing industry.
And so if you take one of these species, Coho salmon, Coho salmon worldwide is not close to endangered. And you buy it for, you know, some dollars a pound at Safeway. It’s very, very abundant north of the United States—well, north of the United States, north of the lower 48—and a lot of it is caught in Alaskan and Canadian waters. What’s 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 San Francisco and the Oregon border. And so the act is used to protect local populations of a species that across the species is abundant and healthy. And so this has a dramatic effect, and people will look at that and they’ll 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 those protections, it’s just this particular population of them.” And people look at that and wonder if this is the right set of priorities.
Bureaucratic Incentives and Litigation [14:52]
Bob Zadek: Now, Tony, here’s the question that any rational person—it would occur to any rational person hearing your explanation of the act and how it’s been used. The bureaucrats who administer the act, Fish and Wildlife Service and whatever other agencies are involved in the process, they are humans, they are Americans, they are landowners to some degree. And what is there about the statute, the people who populate those agencies, that cause them to exercise what appears to me to be such bizarre judgment? They don’t have to designate a subspecies or a population as endangered. They aren’t compelled under threat of imprisonment to do that. That was a decision they made. So what makes them so irrational? What is there about the whole process and the statute that produces such very strange anti-economic life, anti-community life decisions? Why are they so oblivious to everything other than the most narrow of issues?
Tony Francois: Well, there’s two parts to that, Bob. The first part has to do with what the—I would say the worldview or the kind of environmentalist bent of agency staff are. But that’s not the entire picture because you have to also take into account that the Endangered Species Act, one of its features is that—I mentioned before that the agencies are responsible to list species as endangered or threatened with endangerment and then designate critical habitat for them and engage in consultation.
Each of those three tasks, citizens can file lawsuits against the federal agencies, the Fish and Wildlife Service and NOAA Fisheries, asking federal courts to compel them to do one or all of these three tasks for a given species. And frequently the courts will order—say, “Yeah, this group of environmental activists is correct. This species should be listed. Fish and Wildlife Service, you have to list it.” Or your refusal to list it is illegal, you have to list it. Or your failure to work quickly enough within the ESA timelines to decide whether to list the species violates the law, you have to make a quick decision.
In fact, citizen litigation over the ESA is so big a part of how the act is enforced that we’ve found in our experience at the Pacific Legal Foundation that almost all of the significant listing and critical habitat designation decisions that the Fish and Wildlife Service makes are under a timetable that’s set by federal courts across the country. And 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’re at the very end of the list. And 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 sort of third-party input into the Fish and Wildlife Service’s work and involve citizens in that. But where that has led is that organizations like the Center for Biological Diversity file hundreds of petitions for listing species. The service can’t possibly process all those petitions within the one-year deadline that the statute gives them. CBD does this purposely knowing that the service will never be able to meet its deadline. And then frequently CBD will leverage the service into a global settlement agreeing to a timetable under which all these species will be considered for listing. And that then dominates the agency’s workload for periods of years.
So you’ve got a combination of some bias within the agency toward environmental protection even when the statute doesn’t direct it, and then very heavy influence of fairly radical organizations like the CBD, which then drive the service’s workload. Their litigation drives the service toward outcomes that I think reasonably it would not come to.
And frequently also then finally, the act has been frequently criticized for being used in an ad hoc way simply to stop a particular project or to redo or reorganize how a given project is operated because of the presence of a potentially endangered species. It’s known in Southern California, for example, to significantly hamper housing development more or less for the specific purpose of hampering housing development by anti-development activists. So it’s a very, very strong tool to control land use.
One of the things that I didn’t mention earlier but is really then the driver 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 species, of a listed species. And “take” is defined amazingly broadly under the Endangered Species Act. You cannot—it’s not just you cannot kill or capture or wound an endangered species. You cannot harass it, annoy it, pursue it, or adversely modify its critical habitat.
This has been taken to such absurd extremes that there are a couple of species of endangered gray whales in the Pacific off the California coast, and some activists have tried to restrict surfing at times when some of the whales are migrating because surfers probably annoy migrating whales. And that photography of listed whales, some of these groups argue should be criminally prosecuted because photographing a reclusive migrating animal is sure to annoy it or harass it.
The Louisiana Frog Case [22:34]
Bob Zadek: Tony, you’re 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. And that’s one of the—I mean, what you’re alluding to there is one of the kind of unspoken fallacies of the whole Endangered Species Act culture, if you will, within environmental organizations is there are organizations that profess to speak for endangered whales or Delta smelt or endangered birds. And I mean, the truth is, you know, this is not like, “I’m so-and-so and I’m here to speak for this group of workers, I’m their union representative,” or “I’m so-and-so’s lawyer, I’m here to negotiate this contract or to speak for them in this criminal prosecution.” The whales can’t speak for themselves. Nobody can speak for them. As human beings, I think a lot of us recognize an ethical duty to act humanely towards all wildlife, and those impose ethical duties on us as human beings. But the notion that just because you filed a lawsuit under the Endangered Species Act that you’re the anointed spokesperson for those seven gray whales over there is laughable. I mean, it’s just not true.
Bob Zadek: Tony, I would love to hear—maybe you have experienced that—a trial where you have two different attorneys, each arguing—one is arguing in the affirmative, “I know this annoys a whale,” and the other attorney is saying, “The whale doesn’t give a damn.” And have the judge decide whether the whale gives a damn or is really irritated so that it’s having a bad day. I would love to hear the judge make a decision on the basis of those arguments. Perhaps you have. That would make your practice better than mine.
This is Bob Zadek. I’m spending a wonderful morning talking to Tony Francois. Tony is with the Pacific Legal Foundation. We are 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.
[Sponsor Break Removed]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio, the show of ideas, never the show about attitude. This morning we are speaking with Tony Francois. Tony is with the Pacific Legal Foundation. They are a staunch defender of property rights, individual liberty, and modest federal and state governments. Tony, thank you for joining us this morning.
Before the break, when you described the use of the courts by some extreme environmental organizations—that of course is my label and perhaps your label as well—it got—I found myself sinking into despair because what you described very briefly in a narrative was you described a statute that perhaps was not well thought out, so 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 aggrandize themselves with the accumulation of power under the statute and stretching the mission, the perhaps modest mission of the statute, so the executive branch is implicated. And then the courts do their job in expanding the reach of this ill-drafted statute. So all three branches of the government dropped the ball, and it makes me truly despair about the system, the capital-S system in Washington, when there is a total breakdown of all three branches of government. Well, after you have a breakdown of three branches of government, there’s not a fourth branch left to save us. Just an observation which occurred to me during your presentation.
Now, when you explained the operation and how there has been kind of capture, regulatory capture if you will, although not quite, by environmental groups where they have become kind of private attorneys general, within effect become private enforcers of federal law, let’s boil it down to a couple of real examples. You have explained one at the beginning with the TVA case, which predated the Environmental Species Act. But now, bringing it sort of close to home, we have Pacific Legal Foundation is engaged—will be engaged in litigation before the Supreme Court in the fall term. It might be the first bit of environmental litigation that, if he’s confirmed, Justice—hopefully Justice Kavanaugh—will get to decide. Tell us about the frog case in Louisiana, because it boggles the mind that this has gotten all the way to the Supreme Court.
Tony Francois: Sure. Well, we represent a group of family-owned companies in Louisiana that owns some timberland. And our lead client is called Markle Interests, and there’s a couple of other LLCs that also own some of this property. But these are all family entities for a family in Louisiana. And so they’ve owned this property for a very long time, and it’s currently under a long-term lease to a timber company, forest products company, which is doing ongoing logging on the property.
When the property reverts to the end of the lease, the family has plans to develop it, and this is a fairly high-growth area of Louisiana, and so the property is actually quite valuable. Edward Poitevent is our leader of the organization there which owns these properties. He was surprised to learn one day that a couple of Fish and Wildlife Service staff were walking around the property, and this was six, seven years ago, without his permission. And so he responds to them, kind of figures out what they have going on, “What are you guys up to?” And the long and the short of that is that they would like to designate his property, his family property, as critical habitat for a species of frog that’s on the endangered species list, which at the time was referred to as the Mississippi gopher frog. And here we are in Louisiana.
And so he doesn’t really care for that and begins to discuss this with them. And here’s what transpires. The service ultimately determines that his property, his family’s property, is not suitable for habitat for these frogs. It’s got the wrong kind of trees on it, it’s got the wrong kind of undergrowth, ground cover on it. It’s got a couple of kind 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 sustained population there. And you might even violate the Endangered Species Act by putting a couple of frogs on the property because that would harm them.
And the service determined that if it were designated as critical habitat, it would have as much as a $34 million negative economic impact on the property through loss of development rights because if the property is designated as critical habitat and you need any kind of federal permit, then you’re going to go through consultation and that could result in complete inability to develop the property.
This particular property, it’s about 1,500 acres, would have to be extensively changed. The trees would have to be harvested and then replanted with a different tree species, and then you’d have to go through an annual regime of prescribed fire in order to get the right type of undergrowth to actually provide habitat for this particular species of frog. These are expensive, time-consuming, and certainly not what Mr. Poitevent and the other landowners had any interest in doing.
So after concluding that this property is unsuitable, in fact probably dangerous in its current condition for the frogs at issue, and that designating it as critical habitat would cause a $34 million economic impact, the service went ahead and designated it as critical habitat anyway and determined that the $34 million 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, people will wonder why you’re designating land for it in Louisiana.
And subsequent to that, Mr. Poitevent, through the companies that formally own the property, has been in litigation with the Fish and Wildlife Service for a number of years now. And this has found its way all the way to the Supreme Court, which will hear the case on the first day of October in this fall term, actually the first case that the court will hear oral argument in in the upcoming term.
Regulatory Takings and “Essential” Habitat [34:54]
Bob Zadek: Now, the question is, 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 use for public use, they have to compensate you. They can’t just take your property, they have to pay you the fair value of the property. They can’t just take it for free. Okay. Well, there’s a concept of regulatory taking, which 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’s a regulatory taking. And under those cases, I believe, Tony, that the government doesn’t have to compensate you if you have lost value because of this regulatory taking. The theory being, well, you still have your property, you can’t do anything except have a summer home for frogs, but that’s too bad. Is this a regulatory taking, or is the owners of the property, are they entitled to any compensation whatever if they lose in the Supreme Court?
Tony Francois: Well, that’s a very good question, Bob. And the reason I don’t have a direct answer for you is that the way we’ve approached this case is even in regulatory taking, the first question in any government taking is whether the government has the authority to carry out the taking. And so 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.
But what we are arguing in this case is that the Fish and Wildlife Service doesn’t have the authority to designate this property as critical habitat. And then, in the end, if some of this property is unavoidably designated as critical habitat, it’s still an open question in the courts the extent to which an endangered species designation like this would result in a right to compensation. There are some cases that say that wildlife protections under the ESA can affect a compensable taking. And so that at least is some good news.
But the immediate question here is, does the service even have the authority to do this, or is the Endangered Species Act really just a blank check for federal authority to do whatever they want in designating property? The specific question that the Supreme Court’s going to look at is how the definition of critical habitat works in the statute and whether property that’s designated as critical habitat but which is not actually occupied by the species in question, under what conditions can that actually be designated as critical habitat?
And the remarkable thing here is that the statute speaks in terms of unoccupied habitat being capable of designation as critical habitat if it is, in the words of the statute, “essential for the conservation of the species.” And what’s gone on in this case is that the federal government has defended its decision to designate this, I think it’s fair to call it “non-habitat,” as critical habitat by rewriting “essential” to mean “handy, maybe one day if there is some completely unforeseen catastrophic event that wipes out a dozen other units of critical habitat that are themselves miles apart from each other in another state.”
In other words, in the words of The Princess Bride, “You keep using that word. I don’t think it means what you think it means.” The statute says “essential,” which seems to mean the species won’t recover without this land being used. But the service says, “Well, this would just be—we think it would be a good idea. We think it would be wise.” And yet here we are.
Logistics and “Red-Tagging” Property [39:44]
Bob Zadek: I’m a little curious. There’s been a lot of litigation—this is going to seem off-message, but I’ll bring it all together. There’s been a lot of discussion about airlines allowing emotional support pets on airplanes, and you can’t bring a peacock and you can’t bring a whole pig and all this stuff going on, silly stuff. How exactly are these Mississippi frogs going to get to this land in Louisiana? Are they going to take like coach tickets on Southwest? What’s the plan? Or are they going to just take the train or rent a car? How do they get from Mississippi? Emotional support amphibians by Uber trips or Lyft or something like that.
Tony Francois: Well, I mean, the answer to that though, Bob, is that the service says, “Well, if one day Edward Poitevent and his family decide instead of developing this property for economic use, they want to spend the enormous amounts and time that would be necessary to convert it into gopher frog habitat, we’d be happy to transplant and attempt to sustain a population of the frogs from one of their other breeding populations.”
I read an interesting article just Friday on one of the other sites where there actually are dusky gopher frogs, being managed by a group called The Nature Conservancy. And it’s a very robust operation. They’ve got a breeding laboratory and then a really intensive program of planting and then tracking the frogs within a habitat that’s been rather carefully managed for the frogs’ benefit, including the regular use of prescribed fire. And it’s a difficult process. They’re really working hard to try to sustain a breeding population that doesn’t require rearing in hatcheries and things like that.
So the service is basically saying, Fish and Wildlife Service, “We’re 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 at great expense of time, well then we could put endangered species on it, and then you’d really be stuck with the restrictions of the act.”
So there’s no discussion that I recall seeing in any of the service’s decision-making that really digs into the feasibility of turning this into suitable land for a sustained population of frogs, other than to talk about how difficult it would be and that the property owner has no interest in doing it.
Bob Zadek: Now, I don’t want to—I’m sorry.
Tony Francois: No, I was just going to wrap up with that. Go ahead.
Bob Zadek: Go ahead, no, you finish, Tony. Go ahead.
Tony Francois: All I was going to say is to actually use this property for rearing and trying to develop a sustaining breeding population of the frogs in the wild, the service would actually have to outright condemn it and pay for it because otherwise they don’t have any control over it other than through their permitting restrictions. But they can’t force the property owner to remodel the property. So our fundamental argument is there’s no way you can consider this property essential for species conservation when there’s nothing about it that is completely unsuitable for the species to be in.
The Cost of the Delta Smelt [41:11]
Bob Zadek: Now, it’s very important to me to make sure that my friends out there understand that I am not—I have not declared war on the gray gopher or 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 defending, prosecuting in the fall term of the Supreme Court, the issue is, if you understand it, an issue which always arises, the question is who has to pay. And under the formulation of the federal government, the federal government says to a privately owned—to a family which happens to own some timberland, “You get stuck with a $34 million bill. You have to absorb the cost because we have decided that the gray gopher frog may like to live here someday.”
Well, putting aside the absurdity of the conclusion, the how you get there is what I take issue with. And I say if the federal government determines that part of their mission is to protect this potential habitat, then federal government, buy the land at the market value. If you can force the purchase under the 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’s what the government has the power to do, okay, so be it. But why in the world is there a lottery that this family owner happens to get the short straw, doesn’t win, and they have to pay for this folly? So the question is not “Should you preserve a species?” 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 preserving a species, then we all should bear the cost, and the political process will tell the elected officials if we support them. So it is the “who pays” that is a big deal in Tony’s story to me, not whether or not it’s a good idea. I don’t quarrel with government if they want to pass stupid laws, that’s 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—we only have a few minutes left—but the story of the Delta smelt is not about one person’s private property. It’s about the economy of an huge swath of valuable land in California. So 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 irrationally.
Tony Francois: Well, sure. So like that snail darter that I discussed in the Tennessee Valley Authority v. Hill case back in the ’70s, the Delta smelt is a small, you know, couple of inches long fish that resides in the San Francisco Bay Delta. And it kind of moves around—if folks are familiar with the Delta, it’s a series of channels amongst a bunch of islands east of Walnut Creek and out toward Stockton and Pittsburg and Brentwood, kind of at the north and south end of it.
And that Delta, in addition to being the habitat for these small fish, the Delta smelt, it’s also the through-way for transfer of the California Water Project and the Central Valley Project water supplies that are originally stored in reservoirs north of the Delta, like Shasta, like Oroville, Folsom, and then sent via the two canals to Southern California, both the Los Angeles and that metro area, but also to farms south of Stockton all the way down to Bakersfield. And this water supply is a basic piece of infrastructure. It’s like the water supply that you get out of your tap in San Francisco when you turn on the water. It’s like the roads, it’s like the bridges, it’s like telephone lines. It’s basic infrastructure.
And in this case, this basic infrastructure makes it possible for the farming communities of the Central Valley to exist and to thrive. And the effect then 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 Service’s consultation with the Bureau of Reclamation under the ESA to protect Delta smelt, because the Bureau of Reclamation operates these pumps, has resulted in significant restrictions on when and how much those pumps can operate to actually get the water that the government has stored for the benefit of these farming communities to them. And if those pumps can’t operate, then the water doesn’t get to them.
Now, this has caused enormous economic and cultural harm to these communities. It’s caused significant economic harm not just to farm owners but to farm workers because of the amount of land that’s had to be fallowed over the years, over the last several years, as a result of this.
Conclusion [50:54]
Bob Zadek: So Tony, just because we’re running out of time, so the result of the Endangered Species Act operation protecting the Delta smelt, which by the way isn’t even that cute a fish, has been to deprive farmers of their water, residents of Southern California of their water, all to protect a not-very-appealing little fish that nobody even knows exists. So that’s the draconian effect of this act.
So this is not about protecting one landowner, it’s about protecting an entire state, an entire country if you will, from this operation of this statute. So Tony, unfortunately we have run out of time. I can’t stand running out of time when I have such interesting guests as you. Tony is with the Pacific Legal Foundation. They do great work. Please follow the case in the fall term of the Supreme Court. Do all you can to help the Pacific Legal Foundation in doing God’s work, which is what they do. Thanks so much for the Pacific Legal Foundation. Thanks so much to my friend Tony Francois. This is Bob Zadek. I’ll be back next Sunday. Can’t wait. Speak to you in a week.