The current environmental management system is a three-legged stool consisting of wealthy foundations, bureaucratic fiefdoms, and activist networks dominated by lawyers.
This strategy has the power to cut out all three legs. It only takes one.
What are the weapons the activist NGOs and bureaucrats use? They use the courts to broaden the Clean Air Act, the Clean Water Act, the Endangered Species Act... They need these weapons (that is what they call them).
This example will expose the granddaddy of them all: the Endangered Species Act (ESA). This case shows that civic administration of the ESA:
Up until now, all the landowner gets in a legal victory is a respite until the next round. Now, there is a difference: InsCert creates the potential for a civil alternative that takes back control of the asset. The ESA can be cited as reason to cede control back to the property owner as a superior manager. The Strategy of the Commoners uses existing environmental laws to decouple government agencies and their NGO collaborators from the legal assertion that they are disinterested and objective representatives of the public claim for ecosystem health. Landowners can recount their superior record, expose the record of harm due to civic mismanagement, and reveal the systemic motive for agencies and NGOs to instead serve corrupted interests and maintain endangered species in a state of crisis.
One can interpret anything as having harmful potential.
The ESA has unconstitutional bases in treaty law.
The Endangered Species Act (ESA), Title 16, Chapter 31, Subchapter II Section 1533 of the U.S. Code, assigns responsibility for enacting rules and regulations to the Secretary of the Interior (or the Secretary of Commerce). The text reads,
"Whenever any species is listed as a threatened species pursuant to subsection (d) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species."The delegated powers in this law are so broad that the rule-makers and regulators have the effective power to make law. They define illegal behavior, redefine the burden of proof, set penalties, provide enforcement personnel, and administer punishments, effectively combining all three (supposedly) separate and co-equal branches of government into one. The U.S. Constitution prohibits assignment of legislative authority by the Congress to the Executive Branch under both the Enumerated Powers Principle and the Separation of Powers Principle. Consolidation of legislative power into administrative government is clearly unconstitutional in practice, even if there are tenuous threads of authority that lend them supposed legitimacy. How do they get away with it?
The Endangered Species Act supposedly derives its authority to take private property from multilateral treaties, principally the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, that entered into force on May 1, 1942, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) that entered into force on November 1, 1983 and the Convention on the Conservation of Migratory Species of Wild Animals (CMS) 1 November 1983.
Administration of the ESA is under Admiralty Law, pursuant to amendments to the Trading with the Enemy Act and War Powers Act enacted during the bankruptcy of the corporate United States in 1933. These laws have had enormous effect upon property rights. To discuss them in depth is beyond the scope of this book. Once respect for common law was mortally wounded, all that the executive branch needed to accrue property was justification.
The Convention on Nature Protection must be read to be believed. In his summary report to a distracted Senate, Executive Report No. 5, April 3 1941, Secretary of State Cordell Hull misrepresented its virtually unlimited scope.
From the Preamble (bold emphasis added):
"The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man’s control;"
"The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate law-making bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves referred to in Article II hereof."
It can’t work either. This treaty is contrary to natural law.
Nature is a dynamic, adaptive, and competitive system. Under changing conditions, some species go extinct, indeed, for natural selection to operate, they must. The problem arises when human influence grows so powerful that one can always attribute loss of a species to being "within man’s control." When humans ask, "Which ones lose?" the treaty specifies, "None," and demands no limit to the commitment to save them all. This of course destroys the ability to act as agent to save anything, much less objectively evaluate how best to expend our resources to do the best that can be done.
The demand of this treaty is based upon an assumption that is a Type II error. It cannot be logically satisfied.
A government that derives power from a genetic status quo is incapable of a solution. This is a system that assumes protection and preservation work. It gives agencies of government unlimited monopoly power to manage all land use as if that would help. It supposes that agencies are experts interested only in fulfilling their mandate. It dedicates unlimited tax resources for protection of an unlimited number of species and their genera. It invokes itself across the entire nation. It assumes that destroying an economy will benefit native species. How would we then fund the research to learn to do better?
This unconstitutional treaty is the root of the proliferation of "sub-species." It is the cited authority for the powers exerted by Federal Agencies through the courts. Proponents for such multilateral treaties claim that they supercede the Constitution, per Article VI, Clause 2:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Supreme Court decisions have prohibited treaties that violate Constitutional provisions because government lacks the authority to conclude an agreement that violates Constitutional rights.
The Constitution specifies treaties concluded among sovereign nations. It is not possible to conclude a treaty with an unspecified composition of governments capable of post facto reservations or changes in scope and application. Post facto changes are effectively changes in the terms of the treaty after ratification. Suits in Federal Court to extend the scope and application of the ESA citing the an extended interpretation of a treaty are in violation of the 11th Amendment that prohibits extending any suit by or for a foreign power, to any of the United States.
The connection between the ESA and its authority in CITES has even less in common with its practical administration or the purpose of the treaty, as ratified by the Senate. The current thread of "logic" is that economic uses of land that alter habitat are equivalent to trading in endangered species. This assertion may be technically attributable to economic theory, however, to believe that this was intended by those who ratified CITES is dubious.
The ESA specifically prohibits any "take" of endangered species as follows in USC 1532:
The term "'take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
CITES was sold as a means to protect endangered species by outlawing trade in animal commodities such as ivory. (The theory underlying CITES has been completely discredited in practice. The black market nearly destroyed these animals in Africa. As it turns out, the best way to assure protection in perpetuity is private management, because the owners of the animals have reason to protect them to maintain future cash flow.)
There is no authority to take the use of land in this definition because there is no definition of "take" in the CITES at all. The UN has such a definition in the Convention on the Conservation of Migratory Species of Wild Animals (CMS) Article 1, Chapter 1 that reads:
"Taking" means taking, hunting, fishing capturing, harassing, deliberate killing, or attempting to engage in any such conduct;Note that the CMS definition (including recursive elements) does not include the term "harm." We did this to ourselves, folks. This is a provision of the ESA that could be reformed by Congress as is the scope of powers illegally assigned to the "Secretary" (the rest may require the Supreme Court). There is no basis in treaty law that allows an attribution of "harm" as a basis for taking private property, let alone the potential for harm. If the customary application of the ESA is to control the use of private property in the interest of the enforcing agency instead of species protection, then the ESA is clearly unconstitutional in practice and destructive to its purported intent.
Civic administration of the ESA serves the interests of a financial elite.
The activist community is serving as agent for the prime civil beneficiaries of the Act: those who profit by sequestering competing resources, or reducing the cost of acquisition for conversion in use.
Upon collapse of the Brettonwoods Agreement, the Nixon Administration offered foreign investors the mineral wealth of the Western United States as collateral for U.S. Treasury Bonds. Agencies of the Federal Government are using the ESA, acting to collect and hold that weal as collateral, in violation of Government’s most sacred public trust: private property rights.
These priorities, coupled with civic power without accountability, alienate environmental laws from their purpose. Banning offshore oil drilling or nuclear fuel reprocessing serves the interests of Treasury bond-holders in the Middle East. The Grand Staircase-Escalante National Monument sequestered low-sulfur coal deposits enriching Clinton supporter James Riady. Listing salmon as endangered pleased the owners of foreign aquaculture concerns, multinational agricultural interests, exported aluminum production, and increased domestic fossil fuel demand. Hard rock mining has passed increasingly into foreign ownership (reported distinctions in regulatory scrutiny between American citizens and foreign interests are disturbing).
It is a feeding frenzy among the already wealthy.
Civic administration of the ESA expresses a democratic interest in a valuable asset and is an urban subsidy.
Private property owners maintain the land, provide economic goods, and pay taxes that support their communities. The urban assertion is that protection of endangered species is necessary without proof that the owner of the remnant habitat was culpable for species decline. The opposite is more likely true. The species probably experienced the majority of its decline when the urban public converted the use of their land and placed their demands upon natural resources without the concurrent demand to pay for species protection. The rural owner holds all that remains of the asset, and is expected to submit their property to environmental protection for urban benefit without compensation.
Public claims on private property thus place a disproportionate burden on the rural owner for a speculative urban and civic benefit. Those owners of endangered species habitat are those who did NOT destroy the habitat sufficiently to extirpate the species and are expected to bear the sole burden of compensating for prior conversions sponsored by urban interests. This burden of discrimination deprives owners of the equal protection of the laws required by the Fourteenth and Fifteenth Amendments, as enforced through 42 U.S.C. Section 1983. The finding that they are the sole parties responsible for harm because the contested habitat is scarce, is a violation of Fourth Amendment protections of unreasonable seizure without establishing probable cause. It is a violation of the privileges and immunities of State Citizenship.
The reason private investment in ecosystem assets does not exist is that the public enlists a civic agent to take that use at below market value. A democratized commons destroys the product before the fact. The threat of civic monopoly interest in managing species habitat also suppresses the market value of associated assets to the point that the total account goes negative. The principal reason the species management market does not exist is civic price suppression, whether via the costs of regulatory compliance and the threat of confiscation via eminent domain. Both are violations of Fifth Amendment protections against uncompensated takings or deprivations of the use of private property.
Civic and NGO administration of the ESA is motivated to fail.
The idea that mere habitat protection and regulation of commerce constitutes species protection is suspect. With but a few exceptions, Federal protections under the terms and conditions of the ESA have failed. Very few endangered species have been delisted because of Federal protection.
The United States is committed to protect rare and endangered species. That does not mean that the government should own the land and pay the workers to manage the habitat, quite the contrary. As long as government is tempted to acquire and extend its power by projection of endangered status, it will conduct itself in a manner destructive to those flora and fauna in direct violation of that treaty.
There is no accountability in a system that derives more funding if it fails to deliver an effective service. We have already seen that wildlands require management. Federal maintenance of public lands is over $17 billion dollars in arrears. Agencies prefer to expend funds for land acquisition, instead. The State of California maintenance budget for public lands is over $3 billion dollars in arrears. It, too, continues a pattern of land use acquisition. When seven million acres of National Forests were incinerated, the USFS was rewarded with $2 billion dollars for fuels reduction. Given the motivational structure of the agencies, the answer is not simply more money.
In both instances, the cumulative effect of poor maintenance has had adverse effects on the threatened and endangered species that land acquisition was purported to protect. Both State and Federal governments have thus violated the terms of their contract for stewardship of public lands and cost-effective protection of rare and endangered species on a grand scale. They have demonstrated their true intent through their budget priorities.
There are better ways to improve environmental health than civic protection of habitat for endangered species, particularly when the managing agencies have financial and political reasons to fail. A market could work to manage their numbers and improve their health but, unfortunately, the dependent beneficiaries of the ESA stand firmly in the way.
Endangered species are transformation products of private property, the principal assets of private habitat management service enterprises.
Animals and plants result from uses of process assets that transform the state of commons. The bounded right to control of the use of process assets constitutes private property. Any taking of that control is a taking of the use. Any business that manages endangered species therefore must be free to control the use of those assets.
No industry will invest in an asset that has negative market value. No person can trade in an asset that has an indeterminate price. No market can function without civic respect for the rule of law, contract enforcement, and protection of private property rights as unalienable. A market cannot develop, and prices for ecosystem assets cannot be negotiated, while the prospect of civic takings remains. Civic price suppression has been so complete as to negate calculation of the economic value of habitat for endangered species. That does not mean that their potential economic value is nonexistent, quite the contrary. The behavior of civic agencies and the scope of public support for environmental protection demonstrate the pecuniary interests of both civic agents and the urban public.
Civic administration of the ESA expresses agency interest in taking an economically valuable asset and in accruing police power thereby.
The projection of power beyond those specifically enumerated by the Constitution demonstrates an interest on the part of government. Expression of interest denotes a profit motive, whether pecuniary or political. That interest indicates the presence of potential market value in the target asset.
Government is destroying the economic value of managing endangered species as a business, creating conditions for acquisition at minimal cost. It destroys also the ancillary uses of the property that could supply the capital for such a business until it develops. The agency budget rises by virtue of the court order to protect species and administer their recovery. To successfully list a species AND economically harm the owner BOTH benefit select agency interests.
When officers of government operate as interested parties, they are incapable of providing equal protection of the laws. Any confiscation of the use of private property by administrative authority without due process is prohibited under the 14th Amendment.
All citizens are entitled to separate State and Federal processes as a part of the privileges and immunities, equal protection, and due process clauses guaranteed under the Constitution. The United States Supreme Court applied this principle of federalism for the first time in 1992. The Court deemed laws passed by Congress as unconstitutional if Congress renders itself, or the states, politically unaccountable to their constituents, by coercing a State to perform a Federally mandated requirement. The political accountability test has restored the role of the Federal courts to protecting the property rights of citizens against assertions of civic power. The Supreme Court now applies the same Fourteenth Amendment standard against Federal action that it applies against the States.
Civic administration of the ESA is unaccountable, and is therefore destructive to the environment. It threatens worse.
The environment is a competitive system. To assume that after centuries of change in base conditions that it should assume a form similar to before humans or white humans arrived could be hugely destructive, particularly when we do can’t know the goal, have no method, and no means to evaluate progress. To assume that humans are so destructive as to require separation from nature and that preservation is the only acceptable solution is worse.
Because of the harm already done, it will require enormous amounts of investment and labor to fix. Many experiments have shown that it can be done. How do we prioritize that work? Who will do it? What technically qualified person would work alone in the woods, bent over weeding under the threat of wolves or grizzly bears? Shouldn’t we get the plants fixed first? How many educated people would that take? Aren’t we moving too fast?
A civic agent that prospers by coercive acquisition for ulterior purposes having nothing to do with ecology is incapable of objective conclusions. Without honest means to weigh the relative value of species or alleles, or the real threats they face, we cannot learn the importance of their interactions or cannot hedge the relative risks of specific methods. Without a profit motive, no one would want to characterize their adaptive mechanics, improve their response, or avoid doing unnecessary damage. Upon massive change in external conditions, it makes no sense to preserve our ignorance maintaining a genetic status quo under a maladaptive response system.
Executive Order 12986 indemnified the IUCN and their member NGOs and agencies from financial accountability for any damages. Indemnifying oil companies and government from liability for oxygenates gave us MTBE in groundwater and the Sierra Club supported it for years after the danger was understood. Big government and activist NGOs are not agents of either the public interest or environmental health, nor are they capable of satisfying the Equal Protection Clause under the Fourteenth Amendment. Sue them in the name of protecting the environment. They are taking dangerous risks.
Can you just hear the denial to those charges? ‘Oh, what we’re doing really isn’t so bad.’ Have you ever heard that before? Are people with no liability for mistakes likely to make them?
The rationale for the ESA was that interactions among species are complex and that, therefore, all species should be protected, because to do so maintains a healthy environment for humans. Without regard to whether this argument was misrepresented, the ESA is developing cumulative secondary effects that, in fact, degrade the global environment and may engender precisely such a catastrophic global environmental disaster. But, not the way that they would suspect.
Regulatory costs force industry offshore. Transportation costs rise and manufacturers pay higher costs for imported materials. Higher import volume brings increasing pest infestations, destroying domestic habitat. Foreign materials are extracted with less environmental protection and the people of those nations suffer the consequences. They don’t like that. The balance of payments deficit balloons. Investors and political patrons line their pockets with the results: secure interest payments and military protection of offshore "interests," maintaining corrupt dictatorships of nations with badly degraded local habitats. It is a process that threatens global security.
Wars have always been bad for nature and are usually fought over resources. Given that yet another global conflict might include biological weapons, another world war might well be catastrophic.
The environment IS about our interaction with natural systems at the control boundary of our influence. It is a discipline of self-control. Consider the incontinent behavior of the activist community and its sponsors and their willingness, no, DESIRE to eradicate 80% of the human community.
The private property owner can do a better job. Take it back.
At the risk of sounding foolish, as I'm still in the process of trying to understand your thesis (give me a break, was that your book I purchased?), there is a kind of species management market in the obvious farms and ranches across the country, as well as the various industry that uses other "species" resources: timber, tourism and its cousins. The various programs that have evolved and mutated from the ESA like the property owner incentive-program we talked about earlier, I imagine, approach the kind of reform you posit?
WA: “Who determines whether or not a species is “endangered”? History has shown that of the species listed, many should never have been listed. Once listed, the task of removing is remotely successful.”
C_O: “Endangered species should be treated economically as the assets that they are with a risk of loss priced actuarially.”
WA: “We still have a need to designate whether a species is endangered, threatened, or otherwise. The method employed for that task is broken; it has not evolved with us and the continued use of that method will continue to kill fire fighters trapped on a hillside, will continue to hold back water for farmers who require it to manage their own species of corn, alfalfa, beans, or cattle, to feed to that other neglected species, mankind. At the same time, a “risk of loss” premises a kind of science that would be better employed openly, with the animating contest of freedom, with dialogue among knowledgeable parties, all parties, as it should be, with built in checks and balances. The trend of ESA action is closed to any kind of dialogue, due in part to the lack of what HR2829/HR3705 are attempting to give to the process.”
C_O: “Census data should be private property as certified by an insured third party.”
WA: “And who determines the third party? HR 2829 and HR 3705 help define the intent of the ESA by addressing the process and parameters of listing a species. The idea that census data should be private property has frightful connotations considering the approach to property that has been used. Classifying census data (I assume you mean the numbers of a species, endangered/threatened or otherwise) as property is like building imaginary borders, staking out territory, that is only respected by man, not by the subject of the census, the species. This statement that you own sounds dangerously like the concern of the environmentalist and those charged with protecting an endangered species—I believe that now the whereabouts of a vulnerable species is classified, the file kept in the Holy of Holies—to guard against nefarious butterfly collectors, prairie grass embezzlers intent on wreath-making, and pharmaceutical entrepreneurs looking for Indiana bat wings to brew aphrodisiacs for the international market.
C_O: “I'll bet you think you came here to announce what we were to support and watch us line up like the great unwashed.”
WA: “Actually, I was hoping for a circular unruly mob, as opposed to an orderly line, to gather at the River. Which is why I made the inquiries at the individual state’s sites, before nailing my Broadside to this forum. Maybe you didn’t see it? I’m sure I visited the California site yesterday in my politicking—I think I’m getting the hang of the vernacular. I’ve been visiting here long enough to know that even a quorum is unlikely. And what is really disturbing is knowing there has been a virtual roll call of proposed bills now dusty with time that have tried to change something that soiled itself years ago.”
C_O: “2. Fails to protect endangered species,”
WA: “I agree, but it is heresy to suggest anything else be done and if the ESA cannot be changed now, after Klamath and the Lynx Fraud, when?”
C_O: “3.Serves the interests of a financial elite.”
WA: “And it needs to be changed. Long overdue. It’s broken. Needs to be fixed.”
C_O: “Disinvests the species into a socialized commons motivated to fail.”
WA: “You would elevate the species to a rank deserving of nobility? Or? Taking your idea of species as private asset…?…I assume the book will explain this one. Can I assume that your picture of biodiversity does include man in the frame, instead of the Insignificant Other, one of the heathen, opposed by the little environmental barking dogs.
C_O: “4. Obscures the fact that endangered species are the principal asset of a habitat management service and are therefore private property.”
WA: “And when the sandhill or whoopers migrate? What about groundwater? It’s certainly not defined as a species, but the ESA has been used to define how much groundwater under property can be used.
C_O: “5. Destroys a competitive market that can manage species habitat at net benefit to society.”
WA: “What happened before the ESA? Even if it were torn up and shredded, even if SCOTUS ruled it unconstitutional, the mindset exists that any kind of development or other use of resurces is the cause of extinction. How would a “competitive market” be created, taking into account life before ESA? I’m sure the book (could I have cut&pasted it for free?) will explain this.
C_O: “and 6. Fails its intent to protect the environment because of its structural inability to balance competing ecological interests. Up until now, all the landowner gets in a legal victory is a respite until the next round. Now, there is a difference: InsCert creates the potential for a civil alternative that takes back control of the asset.”
WA: “I’m sure the lawyers are interested in hearing more. Or by “civil” do you mean something else entirely? The previous statement makes me think otherwise. If that is the case, how many have endured tragedy travails simply because they couldn’t pay an attorney for their right to exist? I believe the farmers of the Klamath used the courts…did it work for them? The “precautionary principle” wasn’t applied to their case. Or we’re back to my beginning and our grievances will only be addressed with the ultimate civil case, one of war? And I’m not the author of that idea—that train of thought has been growing in size for some time.”
I brought up the ESA (and The Convention on Nature Protection (though I could not remember its name at the time as usual)) with a friend of mine this evening.
He prides himself on his knowledge of the constitution. He wanted to know why he should believe me when he had not heard of anyone (authority figures) ever bringing this up before.
So, as you might imagine, I had rough going until I went to a nearby computer and printed article VI of the constitution. I showed him how treaties become instantly superior to the constitution, subsuming it and — seemingly — our individual rights allegedly protected by the Bill of Rights.
So now that he sees that, he went to defend his next barricade against reality. He says he couldn’t believe that the Senate would pass any treaty that would bring harm to the country. (!!!) So that’s when I mentioned the ESA and the treaty whose name I couldn’t recall pushed through during WWII by Cordell Hull.
I told him I wouldn’t dare rely any further on my memory, as I didn’t want to give him a half-cocked accounting, and that I’d give him more info the next time we met.
I came home and found the passage in your book and then went and searched for it online; hence I’m here.
What I’d like to know is, in addition to the ESA, do you have a list of other treaties have been signed since 1942 and any new laws have been passed pursuant to the new treaty auspices?
This could be providential should I get sufficient and documented info to him. It’s not every day I can make an impression on someone who thinks he’s well-informed by in reality is not. You know how much emotion is invested in smart people’s ego and how hard it is to enlighten under such circumstances, don’t you?