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This 51-year-old law is managed and, some argue, misused by the United States Fish & Wildlife Service (USFWS), a division within the Department of the Interior, and the National Marine Fisheries Service, part of the Department of Commerce. The U.S. Army Corps of Engineers, housed within the Pentagon, and the Environmental Protection Agency also play significant roles in the enforcement of the ESA.
According to Fox News, the ESA forbids the "taking" of an endangered or threatened species. The term "taking" encompasses a broad range of actions, including "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect." The USFWS has further expanded the definition of "harm" to include "significant habitat modification or degradation." Violating the ESA can result in severe penalties, with fines starting at $25,000 per individual of the species "taken." If a person or company knowingly harms or harasses a listed species, they could face a $50,000 fine and/or a year in jail for each violation.
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The ESA, along with the Clean Water Act and the three aforementioned Cabinet agencies, has been a significant part of my legal practice since I left the federal government in 1989. I have spent years navigating the labyrinthine bureaucracy of these agencies, helping landowners avoid severe penalties, including arrest and imprisonment, if they fall afoul of these laws. However, I have since retired from this line of work, choosing instead to focus on teaching law and the Constitution, and advocating against their misuse by unelected, unaccountable bureaucrats.
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The incoming Trump Administration must address the stifling effect of these regulations on our economy. The housing sector, much like car manufacturing in the past, is a crucial driver of economic growth and job creation. The National Association of Home Builders estimates that building 100 single-family homes generates 300 yearlong jobs. However, the federal government's regulations present significant obstacles for home builders.
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The ESA, in conjunction with other statutes, has resulted in the largest uncompensated, ongoing "taking" of private property in the country. This form of "taking" is often overlooked when allegations of another type of "taking" (of a listed species) are leveled at a landowner. This is despite the fact that the uncompensated "taking" of private property for public use is explicitly prohibited by the Fifth Amendment to the Constitution.
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Most people would agree that if the government declares private property to be either "occupied" by an endangered species, or part of the species' "critical habitat," the landowner should be compensated for the temporary condemnation of their property. However, no court has yet ruled in this manner. I remain hopeful that with the current originalist majority, the United States Supreme Court will eventually rule in favor of this interpretation. If the federal government wants to use a citizen’s land to "protect and recover" an endangered species, it should pay the rental or purchase price of the property upfront and for as long as the sequestration of the private property continues. I firmly believe that the framers of the Fifth Amendment would never have approved of the current operation of the Endangered Species Act.
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During my 27 years of private practice, I dealt with numerous "endangered species," including the California gnatcatcher, the Stephen’s kangaroo rat, and the San Diego fairy shrimp. These species are abundant in Southern California, and their presence often led to landowners, large and small, facing the threat of imprisonment for an illegal taking. Many of the species on the federal government’s list are not actually "endangered" in the common sense of the term. Instead, they are listed due to extrapolations made by bureaucrats about the theoretical amount of habitat the species will need to survive in the future.
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The current system is absurd and has strayed far from the original intent of the statute. It now serves to suppress property rights and hinder land use, particularly housing and commercial development, without any compensation. Over 20 years ago, then D.C. Circuit Court Judge John Roberts dissented from a case involving one of my clients, who was appealing the outrageous application of the ESA to private property. The species in question was the Arroyo toad, and its alleged presence was preventing my client from proceeding with an approved land use on their property.
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The Endangered Species Act is a scam, filled with fake science, fake studies, and fake experts. It needs to be dismantled and rebuilt. The incoming Secretaries Doug Burgum and Pete Hegseth and Administrator Lee Zeldin, once confirmed to their positions at Interior, Defense, and EPA respectively, can rectify this bureaucratic mess. They can issue 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.
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The protection of property rights is fundamental to our prosperity. These rights have been neglected for at least half a century, with an increasing disregard among the federal courts dating back to the 1926 Supreme Court case of Village of Euclid v. Ambler Realty Co. Most landowners would willingly pay to proceed quickly with their projects. However, unlike local governments with their zoning plans and permitting rules, federal bureaucrats have no interest in economic prosperity or increasing housing stock. Instead, they are obsessively attached to their own species.
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There is a simple solution to the national issue of endangered species policy. However, the bureaucrats at FWS, EPA, and the Corps of Engineers will likely resist such simplicity. They don't care about property rights. The "citizen standing" provisions of the ESA have 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.
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If the United States is to thrive again, if houses and apartments are to be built at a rate that will actually address the housing shortage, the Trump team will have to spend a few days ironing out these issues and directing the permanent bureaucracy to get it done or get out.
