Tags: Whom | the | Gods | Would | Destroy

Whom the Gods Would Destroy

Wednesday, 15 May 2002 12:00 AM

Let me begin with Dave Barry's frequent disclaimer that "I am not making this up." It's really happening out there on the left coast, and it's really bizarre and scary when you think about it – a sign of our demented times.

In San Francisco, the Bay Area Rapid Transit commuter rail line is being extended to the airport. It's a big project – estimated to cost a whopping $1.5 billion. And it appears to be somewhat massive, requiring one heck of a lot of construction through difficult terrain, including, it appears, some soggy wetland.

Last year, a workman discovered the crushed body of a small garter snake and all hell broke loose. This particular species of harmless snake, it appears, has been honored by inclusion on the state's hallowed list of endangered species.

All work in the area where the late snake was found ground to a halt. It was known that the area was what enviros love to call a "habitat" for the San Francisco garter snake, which is said to prefer wetlands and grasslands near water that support large frog populations.

(On the assumption that the snakes like being around frogs not for social reasons but for gustatory purposes, one wonders what would happen if the resident frogs were also on the endangered species list. Would the snakes be penalized for eating them?)

Because the presence in the area of a population of garter snakes was known, before work could begin steps had to be taken to remove the snakes from the area and relocate them to more suitable areas where they could slither around without being endangered by construction activities.

All told, a tidy $6 million in tax dollars was spent on this effort, which resulted in around 75 of the critters being found and shipped off to more pleasant surroundings where, one hopes, there were lots of frogs.

Somehow, the dead snake had missed out on the original ethnic cleansing operation, and paid for it with his life. The end result of his untimely death was to cost the taxpayers a cool $1.07 million in construction delays.

Remember, I am not making this up.

A postmortem was conducted in an effort to determine what killed the snake. That took a lot of time and effort by a carload of sleuths from a whole slew of agencies, local, state and federal, and while all this was going on, construction in the area stopped dead in its tracks.

"Nobody has ever been able to find out what happened to the snake and there was no evidence of foul play," BART spokesman Mike Healy told the San Jose Mercury News. "There was no evidence that the contractor or anyone was directly at fault."

When work finally resumed, a 5 mph speed limit was posted in the area and workers were required to check under parked vehicles every five minutes to make sure that no endangered garter snakes were lurking beneath.

Construction went forward. No other snakes showed up, dead or alive.

Until last week.

Last Thursday, a workman found the crushed body of another snake, and without thinking about the trouble he was going to create, handed the corpse over to someone identified by the San Francisco Chronicle as a "biological monitor," who is present, one assumes, to make sure everything is biologically, if not politically, correct around the work site.

State wildlife officials ordered work halted.

"We are working with BART to make sure they are sensitive to issues concerning the garter snake," Robert Floerke, regional manager for the state Department of Fish and Game, told the Chronicle. Officials added that they did not anticipate a long delay.

An investigation into what killed the snake is being conducted by BART officials, biologists, and state and federal wildlife officials. They want to know if the snake's death was due to natural causes or construction work, and need to determine if BART and its contractors are doing everything in their power to protect the snakes.

After the death of the first snake, BART put workers through special snake training that taught them to recognize the snake, said Molly MacArthur, a spokeswoman for the extension project.

"While the snake is brilliant blue, it doesn't look brilliant blue sitting on the road," she told the Chronicle. "It can look like a stick."

This is insanity, plain and simple. Putting workers through snake training, launching serpenticide investigations involving local, state and federal sleuths, spending $6 million on a snake relocation project – what can these people be thinking?

The problem at the root of all this is that asinine – yeah, asinine – Endangered Species Act, which has put critters above people, endangered their livelihoods, cost them their jobs, closed mines, shut down lumbering operations, farms and ranches, and continues to cost Americans hundreds of millions of dollars.

Cases as absurd as the dead snake caper are legion. Take the matter of the red wolf, for example. In the case Gibbs v. Bruce Babbit, Secretary of the Interior, et al., heard by the U.S. Court of Appeals, 4th Circuit on June 6, 2000, the court heard appellants challenge the constitutionality of a Fish and Wildlife Service regulation that limits the taking of red wolves on private land.

To "take" a member of this species under the Endangered Species Act (ESA), is "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." The district court upheld the regulation as a valid exercise of federal power under the Commerce Clause.

The red wolf is an endangered species whose protection is at issue in this case. Feeling that the wolves' numbers had increased enough in captivity, the Fish and Wildlife Service decided to "re-introduce" the species into the wild.

The wolf was "re-introduced" into a rural farming and ranching community in North Carolina and subsequently began doing what wolves do, that is, killing other animals for food. Only in this case, the animals the wolves were killing were not out in the wild, they were cattle and other farm animals living on private lands.

In October 1990, plaintiff Richard Lee Mann shot a red wolf on his own private property that he feared might threaten his cattle. The federal government prosecuted Mann (under the ESA) and he pleaded guilty. This case led to the passage of a North Carolina bill entitled "An Act to Allow the Trapping and Killing of Red Wolves by Owners of Private Land" (1995).

The act allows the killing of wolves when they pose a threat to pets or livestock, when wounded or dead animals are evident and the taking is reported within 24 hours. This state law conflicts with the federal regulations of the ESA.

The plaintiffs sought judgment that an anti-taking regulation on private land exceeds Congress' power under the Commerce Clause. To fall within Congress' commerce power, this regulation must have a "substantial relation to interstate commerce" – it must "substantially affect interstate commerce."

In this case, "interstate commerce" – I'm not making this up – refers to red wolf T-shirts and postcards and "howling sessions" where tourists are guided to red wolf "hotspots" where they get the chance to hear the wolves howl at dusk and perhaps join in the fun by howling along with a fellow species.

Incredibly, the court held that the relationship between red wolf takings and the commerce clause is quite direct – with no red wolves, there would be no red-wolf-related tourism, no scientific research, and no commercial trade in pelts, no listening to the wolves howling.

"[The] eradication of an endangered species would have a substantial effect on interstate commerce," the court said. While the regulation might also reflect a moral judgment concerning the importance of rehabilitating endangered species, this does not undermine the economic basis for the regulation."

This is sheer madness. The Endangered Species Act has spawned a case in which federal officials resorted to such chicanery as that reported by the Washington Times. Federal and state officials planted three separate false samples of Canadian lynx hair on rubbing posts used to identify the presence of the rare creature.

Evidence of the cat's presence would force the closure of roads to vehicle traffic in national forests. Also banned in lynx habitat are off-road vehicles, snowmobiles, skis, snowshoes, livestock grazing and tree thinning.

The feds have included species that are not in the least endangered. According to the Federal Register, one such species was the Indian Flapshell turtle. It was later learned that instead of being endangered, it was discovered to be "seemingly the most common and widespread turtle in all of India." How it ever made Appendix I is a big mystery, said Dr. E. O. Moll, who happened to be researching in India at that time.

The story of the pine barrens tree frog, is similar. Listed as endangered, it was found in a total of 165 more sites than were believed to exist when a fraction of this frog's population was listed.

Then there was the case of the Mexican duck, which was determined to be essentially a "blue-eyed version" (not literally) of a common duck, the mallard. Almost comically, the Federal Register states that "all reports and observations of 'Mexican ducks' in the United States and Northern Mexico must now be interpreted to be of only 'Mexican-like ducks.' "

The notice continues: " 'Mexican ducks' are only identifiable segments of the entire population, just as brown-eyed and blue-eyed individuals are phenotypic segments of the human species."

Finally, there was the Tumamoc globeberry, a vine. After including this plant on the endangered species list for seven years, the Fish and Wildlife Service determined that "surveys have shown Tumamoc to be more common and much more evenly distributed across its range than previously believed."

Although never really endangered, during its seven years on the list this plant soaked up over $1.4 million in funds from the Corps, BLM, DOD, NPS, USFS, and the Bureaus of Indian Affairs, Mines, and Reclamation, and was the basis for FWS to issue a jeopardy opinion on the Tucson Aqueduct. Finally, there was a case reported by Robert J. Smith of the Competitive Enterprise Institute in an article entitled "Fire, Rats and the Endangered Species Act," published in the Cato Institute magazine Regulation.

Smith told the harrowing story of "Cindy and Andy Domenigoni, fifth generation farmers in Riverside County, California who were working a 3,200-acre property first farmed by Andy's great-great grandfather who settled the valley (that is now named after him) in 1879. Their farm has also been home to the Stephens' kangaroo rat, a species the government has listed as endangered since 1988. In compliance with the Endangered Species Act (ESA), the Fish and Wildlife Service (FWS) has prohibited the Domenigonis from farming 800 tillable acres that are considered prime rat habitat.

"In 1990, as the Domenigonis were preparing to begin plowing their fields, FWS law enforcement agents and biologists ordered them to stop and warned them that disking their fields would constitute a "taking" of the endangered Stephens' kangaroo rat and they would be arrested. Furthermore, they were cautioned that if they subsequently disked their fields, they would face impoundment of their farm equipment and a year in jail or a $50,000 fine – or both – for each and every act of "taking" an individual rat.

And as the FWS considers a taking to mean harassment, harm, digging up a burrow, or plowing under the grass and plants whose seeds the rat eats – almost any action a bureaucrat can conceive of as affecting the rat in any way – the Domenigonis could have been facing life sentences for plowing their 800 acres. (That is what the environmentalists refer to as "sustainable development.")

Smith reported that the Domenigonis "lost $75,000 in foregone crops each season for the past four years – a total loss of $300,000 in gross income – because of the FWS prohibition. They have also incurred another $100,000 in biological consulting fees, legal fees, and associated costs in fighting this regulatory taking of their property and of their livelihood. In addition, they have been prevented from raising crops on other farmland that they leased from local landowners.

Ironically, on Nov. 1, 1993, shortly after the devastating Southern California fires destroyed thousands of acres of k-rat habitat – as well as human habitat and homes – FWS biologist John Bradley authorized the Domenigonis to plow their fields, having determined that the endangered rats no longer lived in the area and hadn't for some time before the fire.

Because the land hadn't been plowed in order to protect the rats, the foliage had grown too thick for the rats to live there and they were forced to leave.

Thus, the ESA regulations directly caused an uncompensated loss to the Domenigonis of close to half a million dollars. Their land had undergone a de facto nationalization by the federal government; they could derive no economic return from it. Yet they were still required to pay property taxes on land deprived of all economic value by government fiat.

The brutal realities of the ESA were exhibited to the entire nation on ABC's "20/20" television news program of Friday, Nov. 19, 1993 (hosted by Hugh Downs and Barbara Walters and reported by John Stossel), where Ms. Anna Klimko, who obeyed the federal government's orders not to create a firebreak by plowing the brush in front of her house because doing so would damage the k-rat's burrows and therefore harm the k-rat, was kneeling in the ashes of her completely destroyed home and dreams, digging for possible remnants of family keepsakes.

Ms. Klimko looked up with tears streaming down her face and asked, "In three minutes, my house was fully consumed in flames and in seven minutes, everything was gone. For what? A rat?"

As I said, it's obvious the Gods are out to get us.

Phil Brennan is a veteran journalist who writes for NewsMax.com. He is editor & publisher of Wednesday on the Web ( http://www.pvbr.com) and was Washington columnist for National Review magazine in the 1960s. He also served as a staff aide for the House Republican Policy Committee and helped handle the Washington public relations operation for the Alaska Statehood Committee which won statehood for Alaska. He is a trustee of the Lincoln Heritage Institute.

He can be reached at

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Let me begin with Dave Barry's frequent disclaimer that I am not making this up. It's really happening out there on the left coast, and it's reallybizarre and scary when you think about it - a sign of our demented times. In San Francisco, the Bay Area Rapid Transit...
Wednesday, 15 May 2002 12:00 AM
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