Posted on 04/08/2002 1:36:58 PM PDT by B4Ranch
In December 2001, The Washington Times reported that employees of the U.S. Fish and Wildlife Service (FWS) had planted lynx fur on rubbing posts in two national forests in Washington State to make it appear as if lynx were there in order to compel closure of those forests. Western U.S. Representatives were livid; Congressman Scott McInnis (R-CO), Chairman of the House Forests and Forest Health Subcommittee, launched a congressional investigation. Months later the story is still making news, most recently when environmental groups defended the FWS employees and attacked the investigation as “a witch hunt.”
Days ago, The Washington Post reported the results of a National Academy of Sciences (NAS) study regarding the Draconian demands imposed by the FWS on Klamath Falls, Oregon. The FWS, pursuant to the Endangered Species Act (ESA), had shut off water, to which farmers had a legal right, because delivery of the water violated the ESA. The action came during a drought, which turned productive fields into acres of withering crops. Secretary of the Interior Norton visited the embattled and embittered community but said her hands were tied. The NAS concluded: there was “no sound scientific basis” for the FWS’s actions.
Meanwhile, the U.S. Court of Appeals for the Ninth Circuit, the nation’s most liberal and most frequently reversed circuit, struck down efforts by the FWS to end cattle grazing on a vast area in Arizona. The Ninth Circuit concluded that the FWS’s evidence was “vague,” “speculative,” and “woefully insufficient.” The FWS, concluded the court, “has a very low bar to meet, but it must at least attain it,” otherwise compliance with the ESA would be left “within the unfettered discretion of the [FWS], leaving no method by which [private parties] or [other federal agencies] can gauge their performance.”
For those who have followed the ESA and the FWS over the years, these recent reports of FWS malfeasance are nothing new. Almost ten years ago, when the FWS was accused of basing its opinions, not on biological science, but on political science, one high ranking official responded, “If you define ‘politics’ in the non-pejorative sense of it being the ‘balancing of competing demands,’ yes, our business is …political.” At the same time Clinton’s Forest Service Chief and spotted owl expert told reporters there was not a “magic number” of spotted owls, that what the FWS was doing was making “moral judgements between the needs of the owl and the needs of mankind!”
The FWS’s decisions may be political or moral and not scientific, but they have real life consequences. Every federal agency has a duty to consult with the FWS regarding any proposed public or private action that could affect species covered by the ESA. The so-called biological opinions that the FWS issues during that consultation, which bind all other federal agencies and private parties, can be the death sentence, as seen above, for public use of a national forest, for delivery of private water, or for the grazing of cattle.
What is new after all these years is that the public and the national media are starting to pay attention. Perhaps one of the reasons is that after eight years of a president famous for quibbling over the definitions of “is,” “alone,” and “false,” the idea that low-level federal employees might engage in unethical or illegal shenanigans is not so far fetched. But while the public may be changing its opinions, the message has yet to reach Washington, D.C. The U.S. Department of Justice, by defending the often indefensible, continues to make it difficult for citizens to obtain relief from improper, illegal, or unethical actions by federal employees. In addition, those up the chain of command have failed to signal change. Recently a federal administrative law judge declared, in a controversial ESA case, that FWS witnesses had to be believed because they had no reason to lie since they were simply doing their jobs!
I only wish you were talking about the bureaucrats instead of some other species!
A faint glimmer of hope.
Administrative law is the mechanism most used by the government to violate the rights of it's citizens, with statutory law next, and common law and Constitutional law a distant third and forth.
US FARM SERVICE: You have two cows. The government takes them both, shoots one, milks the other, pays you for the milk, then pours the milk down the drain.
US FOREST SERVICE: You have a bull and a cow. You want to milk one, but you're not sure which. You hire a biologist to study it. She purchases a barn to hold the stock, goes to training in civil rights, becomes the union rep, and has no time to study the animals. Since your timber people have no work, you detail a forester to study them. After careful measurements, Forester concludes that at the current rate of manure accumulation, the building will be full of manure before he retires. The forester assigns the fire crew to fence a pasture and to clean manure out of the barn. The supervisor intervenes, and requires NEPA to be done on the fencing and on the manure disposal. Meanwhile, the cow calves, and B&F folks increase the overhead tap on the cow department. An environmental group files protest over the increased grazing, and the cows are advertised as surplus. Two of the cows are surplused to the BLM and the remaining cow, since it is a single remaining specimen is designated a threatened species and given protection. Three new biologists are hired to prepare a recovery plan for the species. All other work is halted on the forest pending adoption of the plan. Public wonders who's taking care of the trees, and congress ponders merging BLM and Forest Service.
US BLM: You have two cows. Forest Service gives you two more. Four cows is too much for the existing organization to manage, so you immediately prepare a management plan. The plan allows 3.5 cows to graze for 3 non-contiguous months of the year. The cows are given to a rancher, who is allowed to graze them on his allotment for $1.25 per head per month for a net income of $15 per year. A range management specialist is hired to track the two cows, and two students are financed to study the effect of the two cows on the range for their masters thesis'. Net cost, with overhead, is $155,000 per year. This is a return on the ranchers money of $10,000 to 1, so it is a good deal for the country. The rancher gets confused on how to graze 3.5 cows when he actually has four, and fails to pull them off of the range for the intervening months between his alternating three month schedule. The BLM hires 10 out of state wranglers to round up the cows, confiscates them and sells them at the local sale yard. The net proceeds pay off 10% of the roundup costs. The missing cows now results in underutilization of three employees and the affected range, so you ask Forest Service for more cows. President declares a national monument of the cow grazing site.
US SOCIAL SECURITY ADMINISTRATION: You have one cow. You have the cow bred, expecting that the increase of one cow per year, with corresponding increases in that offspring will eventually allow you to retire comfortably. Congress notes that BLM is short on cows, and is asking Forest Service to share theirs. Congress reassigns cows from you to BLM as fast as they're born. When it's time to retire, you're short on funds and ask congress what to do. Congress inventories your cow, hires Enron's accountant to prepare a financial statement, and tells you that you are receiving too large a retirement check already. They then require you to pay half of your medicare expenses.
AMERICAN CORPORATION: You have two cows. You sell one and lease it back to yourself and do an IPO on the 2nd one. You force the 2 cows to produce the milk of four cows. You are surprised when one cow drops dead. You spin an announcement to the analysts stating you have downsized and are reducing expenses. Your stock goes up.
FRENCH: You have two cows. You go on strike because you want three cows. You go to lunch with your secretary. Life is good.
JAPANESE : You have two cows. You redesign them so they are one-tenth the size of an ordinary cow and produce twenty times the milk. They learn to travel on unbelievably crowded trains. Most are at the top of their class at cow school.
GERMAN: You have two cows. You re-engineer them so they are all blond, drink lots of beer, give excellent quality milk, and run a hundred miles an hour. Unfortunately they also demand 13 weeks of vacation per year.
ITALIAN: You have two cows but you don't know where they are. While ambling around looking for them, you see a beautiful woman. You break for lunch. Life is good.
RUSSIAN: You have two cows. You count them and learn you have five cows. You have some more vodka. You count them again and learn you have 42 cows. You count them again and learn you have 12 cows. You stop counting cows and open another bottle of vodka. You produce your 10th, 5-year plan in the last 3 months. The Mafia shows up and takes over however many cows you really have.
TALIBAN: You have all the cows in Afghanistan, which is two. You don't milk them because you cannot touch any creature's private parts. At night when no one is looking, you have sex with both of them. Because they are no longer virgin, you then kill them and claim a US bomb blew them up while they were in the hospital.
DEMOCRAT: You have two cows. Your neighbor has none. You feel guilty for being successful. You vote people into office who put a tax on your cows, forcing you to sell one to raise money to pay the tax. The people you voted for then take the tax money, buy a cow and give it to your neighbor. You feel righteous. Barbara Streisand sings for you.
SOCIALIST: You have two cows. The government takes one and gives it to your neighbor. You form a cooperative to tell him how to manage his cow.
REPUBLICAN: You have two cows. Your neighbor has none. So?
COMMUNIST: You have two cows. The government seizes both and provides you with milk. You wait in line for hours to get it. It is expensive and sour.
CAPITALISM, AMERICAN STYLE: You have two cows. You sell one, buy a bull, and build a herd of cows.
DEMOCRACY, AMERICAN STYLE: You have two cows. The government taxes you to the point you have to sell both to support a man in a foreign country who has only one cow, which was a gift from your government.
FLORIDA: You have a black cow and a brown cow. Everyone votes for the best looking one. Some of the people who like the brown one best vote for the black one. Some people vote for both. Some people vote for neither. Some people can't figure out how to vote at all. Finally, a bunch of guys from out-of-state tell you which is the best looking one.
NEW YORK: You have fifteen million cows. You have to choose which one will be the leader of the herd, so you pick some fat cow from Arkansas.
"Some of these scientists stated that they were only testing the system by submitting unauthorized control samples, making sure that the lynx hair could be identified. If this is true, it shows a fundamental mistrust that these scientists have for the very science they are using. This is very, very troubling."
I believe that was the line taken by Representative Kelly, of Abscam fame, that he was really playing spy-counter-spy. That so many are willing to let the scientists go with a slap-on-the-wrist goes to show how much faith people have in "science".
That their actions could have affectd the management decisions in fifteen states and fifty-seven national forests, is just as troubling, considering that it was down-played.
There is a report titled, Canada Lynx Survey: Unauthorized Hair Samaples Submitted for Analysis," dated March 3, 2002 (GAO-02-338R) that details one of the investigations. Unfortunately, that report does not appear to be available on-line. Ronald Malfi, Acting Managing Director, Office of Special Investigations, mentions the report in GAO-02-496T.
There is legislation in the House (HR2829 & HR 3705) that is aimed at putting real science back into the ESA. Given the weight that the ESA can hold over people, we should argue for an even more stringent standard of science for the ESA.
Administrative law is the mechanism most used by the government to violate the rights of it's citizens, with statutory law next, and common law and Constitutional law a distant third and forth.
I have spoken with several framers of the original Act [ESA] and it is clear that it was not initially intended as a tool for land use regulation. Yet that is certainly what it is today. In fact, few had an understanding of the depth and breadth of regulation that would evolve with this Act.
There is an attempt in Congress presently to reform the ESA. There are two bills in the House, HR 2829 sponsored by Walden from Oregon, and HR 3705, sponsored by Pombo from California, both aimed at putting true science into enforcement of the ESA.
The ESA has been used as a buzzsaw to hack away branches from the Tree of Liberty. The bumper sticker should read: Save a Tree, the Tree of Liberty. But there are no environmentalists that will climb that Tree to defend it from attack. The question is, then, who is going to defend the Tree of Liberty and when will that defense begin?
As it stands now, species are listed endangered or threatened based more on litigation than on the merits of their survival. Mr. Lilburn said, “And typically, no one reviews of questions the field data, assumptions, techniques or accuracy of the information presented in these listing applications.”
We know from the struggles of the Klamath farmers that when three federal bureaucracies are involved, with three different interests at stake, a salmon, a suckerfish, or a farmer, that “the best available data” (B.A.D.) now employed by the ESA, means that everyone loses, jobs are lost, and any hope that we will continue as a free society is lost.
It is time for all of us to take a stand on the issue of the ESA. We should support our legislators in their attempt to reform the ESA. The two bills are an attempt to place the same kind of checks and balances the framers of our Constitution placed on our government. For a piece of legislation such as the ESA that has the power it does to control and influence the lives of our countrymen, it is only right that the ESA should have the same kind of checks and balances. HR 2829 and HR 3705 are a first step in correcting a legion of wrongs that will continue unless change is effected. There is an army of environmental evangelists with hordes of fanatics that will stop at nothing to use the ESA to coerce other citizens to convert to their religion.
I don’t believe that the majority of Americans would hesitate to change the ESA if they heard some of the horror stories associated with it. How many Klamaths will happen before we use the power at our hands to make a difference? I could easily pose a canny analogy to our nation’s early days when legitimate grievances were ignored, and a crisis followed. The question is, would it fall on uncaring ears?
P.S. During the recent hearings on HR 2829 and HR 3705, mention was made of a "Science Court," that should raise the curiosity of people.
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