In Tuesday’s "Morning Glory" column, I laid out a small part of the abuses perpetrated on farmers, ranchers and landowners by the application of the federal Endangered Species Act (ESA) to private property by the 9,000 bureaucrats of the United States Fish & Wildlife Service (USFWS.)
The National Oceanic and Atmospheric Administration (NOAA) has another 12,000 bureaucrats and they regulate marine species. The USFWS is by far the worst offender of private property rights, but NOAA as well as the U.S. Army Corps of Engineers (USACOE) and the United States Environmental Protection Agency (EPA) also contribute to the giant, tangled tumbleweed of regulations, rules, "guidance," incompetence and environmental extremism that have paralyzed major infrastructure projects as well home and apartment building projects across the country.
Three executive orders from President Trump would greatly assist the farmers, ranchers and landowners who have been shut down from using their land in whole or part because of the listing of one or more of the 1,300 species and subspecies listed as "endangered" or "threatened" by the USFWS and NOAA.
MORNING GLORY: MEMO FOR PRESIDENT TRUMP, SECRETARY BURGUM AND DIRECTOR NESVIK
The first EO would direct Secretary Burgum to immediately remove from the list of "endangered" or "threatened" species and subspecies all mammals, birds, crustaceans and insects that were added to the list because of the application of the criteria that looks at the "projected decline" in "critical habitat" or "occupied or potentially occupied habitat." This criteria for declaring a species or subspecies on the basis of "projected decline" of its habitat is guesswork, not "science," and the application of this criteria has been repeatedly abused by bureaucrats for the past three decades.
A species or subspecies is considered "endangered" when it is in "imminent" danger of extinction throughout all or a significant portion of its range. A "threatened species" is one that is liable to become endangered in the foreseeable future. Both the terms "imminent" and "foreseeable" are accordion terms that can be stretched to absurd limits. The USFWS has done so, again and again.
When the ESA passed in 1973 there were 78 species or subspecies listed as "endangered" or "threatened." Now there are 1,300. This extraordinary rise in the number of "protected" species is because the Service began using "projected future decline" in a species’ or subspecies’ range. Every species or subspecies that is on the list because of projected loss of habitat should be immediately removed from the list. Such "projections" are not "science" and indeed are often absurdly applied to achieve listing status. Very often the USFWS doesn’t even account for permanently set aside parks and open spaces in its calculations of "projected habitat loss."
If President Trump orders these removals from the ESA list be done immediately, he will focus the energy and budget of the bureaucracy on truly endangered and threatened species, and stop environmental extremists within the USFWS and NOAA and outside of those agencies from manipulating the list.
The second executive order from President Trump should declare that private property impacted by ESA listings has been "taken" by the federal government and the owner must thus be compensated the fair market value of the land in question. The Constitution protects private property from uncompensated "takings," and the vast cost imposed by the ESA should be born by all taxpayers, not the few thousand landowners slammed by the Act.
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Finally, President Trump should order Secretary Burgum and USFWS Director Brian Nesvik to downsize both the USFWS and NOAA and do so on the basis of merit. Too many activists have infiltrated these agencies and use the ESA to block development, not protect species. They are also among the least responsive and most inefficient members of the federal workforce. It is long past time to clean house, beginning with new regional and area directors who are committed to the Constitution’s explicit protection of private property, not their own private agendas or stopping development.
The Pacific Legal Foundation does yeoman’s work to protect the rights of all landowners, including ranchers, farmers and developers, but the scale of this problem has been growing exponentially for decades. Secretary Burgum and Director Nesvik would do well to hire from within the Pacific Legal Foundation for their senior staffs. That way lies growth and true protection of genuinely endangered or threatened species. And if that protection requires the sequestration of private property for months or years, the landowner should be paid immediately for their lost economic value of their land, as the Fifth Amendment requires.
Hugh Hewitt is a Fox News contributor, and host of "The Hugh Hewitt Show," heard weekdays from 3 pm to 6 pm ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives America home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.