The country needs new houses and apartments but federal bureaucrats hate them.
More than 1,300 species are listed as either endangered or threatened in the United States under the federal Endangered Species Act (“ESA”). The 51-year old statute has been administered (and abused) by the United States Fish & Wildlife Service (USFWS), an agency within the Department of the Interior, and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service, which is in the Department of Commerce. Two other agencies play enormous roles in the “administration” of the ESA: The U.S. Army Corps of Engineers which is inside of the Pentagon, and the Environmental Protection Agency.
Set aside the complexities of dealing with the Fisheries Service and focus just on the ESA at “work” on land. The ESA prohibits the “taking” of an endangered or threatened species and the Fish and Wildlife Service (“FWS”) has its own law enforcement division that can and does arrest people for violating the ESA. A “taking” is any act that falls within the definition of “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.” The FWS has declared that “harm” includes “significant habitat modification or degradation.”
The civil penalties for “taking” an endangered species begin at $25,000 per individual of the species “taken,” and a person or company that “knowingly” harms, harasses etc. a listed species is looking at a $50,000 fine and/or a year in jail for every taking.
The ESA and its intersection with the Clean Water Act and the three Cabinet agencies above—Interior, EPA and DOD—provided most of my work in private law practice from 1989 when I left the federal government until I retired from my California firm in 2016 to move back to Virginia. I need some version of
Minnie Minoso’s famous line that “baseball has been very, very good to me” to apply to the ESA because this statute bedeviled almost all of my clients and it took a lawyer like me who knew the statute and federal administrative law to deal with the legion of bureaucrats who administer the law and threaten landowners with dire consequences including arrest and jail if they fall afoul of it or the Clean Water Act. But I’m out of that game now and not going back. I love the law and Constitution, love teaching it, and hate their abuse by unelected, unaccountable bureaucrats.
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But not enough to wade back into what I escaped eight years ago. Think of this column as a memo to the incoming Trump Administration that must jump start a moribund stagflation-ridden economy. Housing is to our economy and new jobs today what car manufacturing was decades ago. The National Association of Home Builders estimates that building 100 single-family homes generates 300 yearlong jobs. I’ve long been told there are four jobs downstream of the actual construction of a house and that makes sense when we think of everything that goes into a house that must be built and maintained. Home-building is the private sector engine of our economy, and among the many hurdles a home builder must climb, the federal government’s are the highest.
This combination of statutes above also works the greatest uncompensated, ongoing “taking” of private property in the country, but that sort of “taking” is ignored when the allegation of the other sort of “taking” (of a listed species) is leveled at a landowner, even though the uncompensated “taking” of private property for a public use is specifically prohibited by the Fifth Amendment to the Constitution.
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Most normal people agree that if the government declares private property to be either “occupied” by an endangered species, or part of the species’ “critical habitat,” so that the landowner cannot use that land without risk of criminal and/or civil liability, that at least a temporary condemnation of that property had occurred.
No court has yet ever ruled that way, however, but I have hope with the originalist majority now in place, that the United States Supreme Court will eventually get there. If the federal government wants a citizen’s land to “protect and recover” an endangered species, the federal government should pay the rental or the purchase price of the property upfront and for as long as the sequestration of the private property continues. There is zero doubt in my mind that the framers of the Fifth Amendment would never have countenanced the operation of the Endangered Species Act as it is presently administered.
My favorite “endangered species” are the California gnatcatcher, the Stephen’s kangaroo rat, and the San Diego fairy shrimp because all three are spread throughout large swathes of Southern California and landowners, large or small, threatened with prison for an illegal taking, kept my phone ringing for 27 years of private practice.
Many of the species on the federal government’s list are not actually “endangered” in any common sense understanding of the term, but they are on the federal list because of extrapolations made by bureaucrats into the distant future of the theoretical amount of habitat the species will need to survive—habitat that is projected in theory to be developed based on habitat actually developed over the past couple of hundred years as people moved to California and built roads, homes, businesses and the United States Marine Corps’ massive Camp Pendleton. These three species are abundant in Southern California, as are their cousin species, many of which are also “endangered,” and thus usually need a lawyer’s touch in the permitting process. It’s a vast scam on the landowners but it goes on and on. A good lawyer can get the permits after a few years of persistent, patient and persuasive pestering, but sometimes even the best lawyers and real biologists cannot move the bureaucrats. The agency staff fear nothing and often do nothing. Slowly.
There are many other species that kept me employed full-time for almost 30 years: the Delhi Sands flower-loving fly, the Desert tortoise, the Pacific pocket mouse and the Tiger salamander, for example. These are all species in California but of course there are “endangered” and “threatened” species everywhere in the states and I’ve worked on obtaining permits to “take” them with permission of the feds from states all over the U.S. It is an absurd system that has strayed far from the statute’s original aims. Now it works to crush property rights and delay or destroy all varieties of uses of land, but especially housing and commercial development. And it does so to private property without any compensation.
More than 20 years ago, then D.C. Circuit Court Judge John Roberts dissented from one of my client’s appeal to the federal courts to curb the outrageous application of the ESA to private property. The species in question so long ago was the Arroyo toad, and its alleged presence was stopping my client from proceeding with an approved land use on its property. Judge Roberts wrote in his dissent at the time: “The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce … among the several States.’”
Indeed the majority in that case did hold just that, and thereafter I counseled clients it was a fool’s game to challenge the application of the ESA to their property in the courts but to instead dive into the maze of Section 404 permits (issued by the Army Corps of Engineers for impacts to “navigable waters”) “Section 7 consultations” or “Section 10(a) permits” issued by the Fish & Wildlife Service as well as the “elevation” process that the EPA could deploy at its will over the original 404 permitting decision, and to persevere for the years and years the process takes. (A ridiculously expensive and lengthy process that ends in a permit and not going to jail is preferable to a righteous and expensive lawsuit that ends up before the wrong panel of federal judges.)
You wouldn’t believe it if I described this crazy law and regulations in detail—not even one such process, much less the hundreds of permitting processes that go on (and on and on and on) every year in the States. It’s an absurd and wasteful process, and it’s also an outrageous assault on the property rights guaranteed any landowner in the United States by the Fifth Amendment. “The process” does go on and on, unchallenged because of court decisions such as the one from which the now Chief Justice dissented from and the desire on the part of landowners to pay massive ransoms for absurd schemes worked out over many years of meetings rather than face jail or the alternative of no use of their property at all.
The endangered species scam—and it is a scam, full of fake science and fake studies and fake experts competing with the real versions of each—needs to be blown up and rebuilt, and when Secretaries Doug Burgum and Pete Hegseth and Administrator Lee Zeldin are confirmed to their jobs at Interior, Defense and EPA respectively, they can fix this tangle of bureaucracies in a day or two of focused briefings, followed by clear, specific directions to approve or deny every application for a consultation or a permit within 30 days, and to prepare within 90 days a nationwide Section 10a permit for all species not specifically exempted (there are some genuinely endangered species) and make it available to every landowner as the rule and not the exception, and make it a simple money contribution to the Service for use in acquiring land it wants for the purpose of species protection.
Sounds simple? It is. I’m out of the game but there are some superb colleagues who could lay this out for the new secretaries and the administrator and their senior staff. It ought not to be complicated. It shouldn’t be ponderous and expensive. It shouldn’t require lawyers billing at hourly rates that would make your eyes roll back in your head.
Property rights undergird our prosperity and have been forgotten for at least half a century, in an accelerating amnesia among the federal courts that dates to the 1926 Supreme Court case of Village of Euclid v. Ambler Realty Co. which was rotten law then and remains rotten law today.
The absurdity is that most landowners would gladly pay —a lot— to proceed quickly with their projects. They are used to exactions from state and local governments for roads, schools, parks and fire stations etc. All such costs get passed on to the home buyer of course, but first you have to get the home, commercial building or infrastructure built before you can pass on the costs.
Unlike local government with its zoning plans and permitting rules, the federal bureaucrats have zero interest in economic prosperity for the country or increasing housing stock, but they do have an obsessive attachment to their own species. A particular species invests particular “biologists” in the bureaucracy with enormous power and particular “biologists” in the private sector with a huge payday for studies and monitoring. None of it is necessary. Not much of the elaborate mouse-trap actually works to preserve species. Again, it is a scam. It’s always been a scam. But it’s a legal scam that ignores the Constitution.
There is an elegant, simple solution to the national issue of endangered species policy. (And, sigh, many states have their own versions of the federal law and their own legions of bureaucrats).
But the bureaucrats at FWS, EPA and the Corps of Engineers won’t want such elegant simplicity. They don’t care about property rights. The “citizen standing” provisions of the ESA has enriched many “environmental groups” over the years. The bureaucrats would oppose any such solution and “the groups” will scream and sue when and if it proceeds.
But if the United States is going to boom again, if houses and apartments are going to be built at a rate that will actually provide the only solution to the housing shortage which is more housing units, Team Trump will have to spend three or four days hammering this out and directing the permanent bureaucracy to get it done or get out.
Hugh Hewitt is host of “The Hugh Hewitt Show,” heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America 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.
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