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Andrew Wetzler’s Blog

I’m not a lawyer, but I play one on TV

Andrew Wetzler

Posted February 21, 2009 in Saving Wildlife and Wild Places, U.S. Law and Policy

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Florida panther

Dr. Mathew Cronin had an opinion piece in yesterday's Seward Phoenix on the Endangered Species Act that's pretty thin gruel (hat tip: PLF on ESA).  Mostly, it amounts to a policy argument that the law should not be used to protect endangered subspecies or distinct populations of wildlife, but only (maybe) full species.  Yet without the ability to protect wildlife below the species level, the Endangered Species Act could never have been used to protect wildlife that was endangered in the lower forty-eight but not in Alaska or Canada, such as the bald eagle, grizzly bear and gray wolf, or subspecies and wildlife populations such as the Florida Panther and Puget Sound (J Pod) killer whale, not to mention dozens of salmon and steelhead runs throughout California.  But what really brought me up short about Cronin's op-ed was its legal analysis, which was incredibly shoddy.  Cronin writes:

Despite its name, the ESA's definition of species is "any species, subspecies, or distinct population segment."  In my opinion, this is illegitimate federal jurisdiction over local fish and wildlife population management, and beyond Congress' intent of enacting an endangered "species" act.  After all, the U. S. Constitution clearly states that powers not enumerated are left to the states or to the people (10th Amendment). Management of fish and wildlife is a state, not a federal, function. The ESA also frequently violates the Fifth Amendment to the Constitution by infringing on citizens' use of their private land. 

First, it is simply incoherent to say that the Endangered Species Act's definition of "species" is "beyond Congress' intent."  How do we know? Because Congress wrote the definition.  If Congress hadn't wanted to protect "subspecies" or "distinct population segments" then it, you know, wouldn't have defined "species" to include "any...subspecies, or distinct population segment."  Second, management of wildlife is not purely a state function and it hasn't been for a long time.  Federal laws protecting wildlife predate the Endangered Species Act by decades, including laws like the Migratory Bird Treaty Act, which was passed by Congress at the turn of the 20th Century.  Finally, federal courts have repeatedly found the Endangered Species Act to be constitutional, rejecting challenges to its legitimacy under both the Commerce Clause and the Fifth Amendment.

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