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TO: INTERESTED PARTIES

FROM: KAREN BUDD FALEN

BUDD-FALEN LAW OFFICES, LLC

DATE: MAY 26, 2010

 

RE:  IT’S NOT ABOUT SAVING SPECIES – IT’S ABOUT SPENDING TAXPAYER MONEY AND MAKING SOME GROUPS WEALTHY

 

Below please find some disappointing data regarding Endangered Species Act (“ESA”) and its cost to the American public. ESA process and litigation are NOT about saving species, it is about spending American taxpayer money. In an economic time where American jobs are scarce, private property rights are being taken and the federal deficit is trillions of dollars, certainly the federal government can find a better way to spend American taxpayer dollars than lining the pockets of radical environmental groups and their “pro bono” (i.e. allegedly free) attorneys and spending money on a program that by the federal government’s data is a complete failure.

 

The ESA was signed into law in 1978 with the best of intentions. However, over the years it has become the battle cry to eliminate private property rights and property use, shut down agriculture and other industries and fund radical environmental groups and their attorneys. There is not a single state within the United States that does not have listed, threatened or endangered species. It would not be so bad if the original intent of the ESA was followed and species were listed, then recovered, then removed from the list—but that is not what is happening.

 

As of May 17, 2010, there are a total of 1,374 species listed as threatened or endangered.This list includes everything, even bugs, worms, plants, snakes, spiders, bogs, moss, mice, rats and other species. According to a 2009 report by Greenwire citing the U.S. Fish and Wildlife Service, the average cost of listing a single species is $85,000 and the average cost of designating critical habitat is $515,000 per species. Thus, the approximate cost to the American taxpayer of listing the 1,374 species is $116,790,000 and the approximate cost of designating critical habitat for those species is $707,610,000.

 

If it weren’t bad enough that America’s taxpayers are spending millions simply listing species, that is not the end of the story. The ESA sets very specific time frames for species listing and critical habitat designation; time frames which the federal government cannot seem to meet. Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner–in the vast majority of cases, radical environmental groups–can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days. Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorney’s fees and costs.

 

Again, there are listed ESA species in all 50 states, the District of Columbia and the U.S. Territories. Consider how much in attorneys fees have been paid if all litigation in all states is considered.

 

And it doesn’t end there; the federal agencies have placed 341 more species on the candidate species list, meaning that they are under consideration for listing on the ESA threatened or endangered species list. That is 341 species times the average cost of listing of $85,000 per species and $515,000 for each critical habitat designation for a total of $204,600,000–all from America’s pocketbooks.

 

And it still doesn’t end there; certain radical environmental groups have petitioned for additional listings of even more species and critical habitat designations. In the last 8 months, the Center for Biological Diversity, the WildEarth Guardians and the Western Watersheds Project have threatened the federal government with litigation if the government fails to list 238 more species. If the federal government does not respond to those listing petitions or Notices of Intent to Sue, federal court complaints will be filed and according to recent history, attorney’s fees will be paid. And with all this money–$116,790,000 for species listing; $707,610,000 for critical habitat designation; $11,743,287 in attorneys fees paid to some radical environmental groups because the federal government simply missed deadlines–only 47 species have been taken off the ESA list and of that 47 only 21 because they were recovered. That is a 1.5% success rate! The other 26 species were taken off the list because they either went extinct (9 species) or should never have been put on the list in the first place (17 species). There is something wrong with this picture.

 

And while you are thinking about the ESA and its cost versus failure rate, consider the additional individual costs to American taxpayers and small businesses. The California red and yellow-legged frogs have cost the taxpayers $445,924 just in litigation attorneys fees. Part of the reason that California farmers in the Central Valley

have no water for their crops is because of Natural Resources Defense Council litigationover the delta smelt, a 2 to 3 inch long minnow. Wolf litigation has cost American taxpayers $436,762 in attorney fees, all paid to environmental groups who sue the federal government. Litigation over the desert tortoise, (a total of 11 cases) – a species that only spends 5% of its life above ground – has cost the American taxpayers $702,519 just in payment of attorneys fees. In fact, in the last 10 years, the federal government has spent more than $93 million in taxpayer money on the desert tortoise.

 

And that is not counting the costs to American business, even “green business.” In California, Brightsource Energy will have to spend $20 million dollars to relocate 20 tortoises plus create a permanent tortoise trust fund so it can build its solar power plant. That is 1 million dollars plus per tortoise. Other businesses that have been impacted or stopped by the desert tortoise include a wind farm that would supply electricity to Las Vegas. Private landowners who wish to develop their own property are required to pay “mitigation fees” of between $370 and $550 per acre to develop private lands designated as desert tortoise critical habitat. Once the money is paid, it does not matter how many desert tortoises are killed. Hyundai car company had to buy 3000 acres of additional land for $5 million so that it could use its own private property for a car safety test track. In addition to the $5 million, the company also agreed to pay $1.5 million into an endowment fund for the desert tortoise. The National Military Training Center at Ft. Irwin has also been negatively impacted, agreeing to pay $6.9 million to relocate desert tortoises on the base so it can conduct its military training. None of this counts the over 30 family ranches that were eliminated because they used to graze their cattle on desert tortoise critical habitat.

 

It is clear that the American taxpayers have a tremendous problem. This wouldn’t be so hard to take if the ESA was successful or if the radical environmental groups that are getting taxpayer money to litigate over the ESA were spending money on species or their habitats. However, there is no evidence that one single dime of the money the federal government pays to environmental groups to litigate over ESA species is spent on habitat or species research or mitigation projects—the money is just spent to get more taxpayer money and put more small businesses out of business or stop private landowners from using their properties. Even those businesses that supply “green jobs” and “green technology” suffer. This is a maddening state of affairs for America - somewhere the madness must stop!


Judge Rules OHV Closures 'Not Appropriate' and 'Not in the Public Interest'

CANTIL, Calif., Feb. 1, 2011 /PRNewswire-USNewswire/ -- The following was released today by Friends of Jawbone:

A federal judge Saturday declined to restrict public access to some 5,000 miles of roads and trails in the West Mojave desert.

A coalition of environmental groups had asked United States District Judge Susan Illston to allow only the use of street legal vehicles across the 9.3 million acre planning area of the Bureau of Land Management's (BLM) West Mojave Plan (WEMO).  Illston ruled that restrictions would "significantly reduce the opportunity for OHV recreation," and wrote that a request for full closure was "not in the public interest."  An additional request by environmental groups to close three popular recreation areas to all motorized use was ruled by Illston as being "not warranted."

The decision also paved the way for the BLM to re-designate the motorized route network in the West Mojave, and directs them to immediately install route signs and update their maps.

"This decision breaks five years of limbo at the BLM with regard to OHV route signing and mapping in the West Mojave," said Ed Waldheim, president of the Friends of Jawbone.  "Sadly, this challenge resulted in five years of unnecessary environmental degradation that could have been prevented with timely and accurate route signing and maps.  OHV users want to stay on the legal trails, but this lawsuit has only served to frustrate route signing efforts, and to keep current and accurate OHV maps out of our hands."

"Route signs, maps and law enforcement officers are all necessary and co-equal components of any successful travel management and user education program," said Randy Banis, an outdoor enthusiast and advisor to the BLM.  "Judge Illston acknowledged that the 'majority of harms' cited by environmental groups are the result of those 'traveling off of the designated OHV routes.'  Therefore, I welcome the court's directive to the BLM to make improvements in their OHV education and enforcement efforts in the West Mojave.  The result will be a healthier environment for wildlife, and better recreational opportunities and access for the public."

The motorized route network in the West Mojave desert serves a wide array of important recreational uses, including:  backcountry touring, bicycling, camping, collecting and trapping, educational enrichment, equestrian staging, gem and mineral collecting, geo caching, guzzler maintenance, hiking and backpacking, history seeking, hunting, model rockets and planes, OHV and 4WD driving, picnicking, photography, rock climbing, solitude seeking, spiritual renewal, sport shooting, star gazing, and wildlife watching.

OREGON SHERIFF STANDS UP AGAINST THE U.S. FOREST SERVICE
 
By Sarah Foster
July 2, 2011
@2011 NewsWithViews.com
 
Josephine County, Oregon - When Gil Gilbertson was sworn in as Sheriff of Josephine County, a rural county in southwest Oregon, in 2007, he had 30 years of law enforcement experience behind him, both in the United States and with various military missions overseas.
     So when citizens of the county began coming to him complaining of "harrassment" by U.S. Forest Service law enforcement officers (LEO), he said he'd investigate their concerns, figuring he could work things out with the local ranger district. After all, as the county's chief law enforcement officer he was in the "club" and moreover had gotten along with the "feds"--though he disagreed with their road closing policies and other efforts to keep the public off public lands which cover 68 percent of the rural county.
     "You know, until about a year ago this wasn't even on my radar," Gilbertson told NewsWithViews. "It was the miners that were coming to me saying they were being harrassed. I said I'd look into it."
     He contacted the local ranger district for information, but instead of answers he was bluntly told that no, they couldn't, wouldn't discuss anything about any complaints with him, but he could file a FOIA (Freedom of Information Act) request and they'd get back to him.
"Go Pound Sand"
    As talk-radio host Bill Meyer [of KMED] put it in an interview with Gilbertson, the Forest Service had essentially told the sheriff to "go pound sand." Federal agencies are notorious for taking months and years to answer FOIAs Meyer said.
     "I'm not going to file any FOIA," Gilbertson told Meyer. "I think that they're obligated to impart that information to me."
     On May 5, Gilbertson sent a blistering letter to the District Ranger of the Wild Rivers Ranger District in Caves Junction, setting down in no uncertain terms his objections not only to the Forest Service response to his requests for information but his dissatisfaction with USFS policies.
     "Frankly, I was somewhat taken aback by your legal department's position advising you to not discuss issues with me," he wrote, adding he was "aghast" at the refusal to provide information without a FOIA "to find out what your agency is doing in regards to the citizens of this county." He continued:
     "As the CLEO [chief law enforcement officer] of this county, elected by the citizens, saddled with the expectation and responsibility to safeguard their rights, I fully intend to uphold the laws against any threat, inappropriate or unlawful actions against them.
     The issues of illegal road closures, grazing, logging, minerals, taking land under the auspices of 'Monument' status, citizen complaints against your LEO agents, high unemployment and other socio-economic issues we all face today; coupled with the uncooperative nature presented by the USFS are causing me great concern about our relationship and future cooperation."
     The following day he released the contents of the letter to the public at a meeting of the South West Oregon Mining Association, which posted it on their website. He explained he'd been discussing the issue and sharing information with Sheriff Glenn Palmer of Grant County, Ore., who sent a similar letter [dated March 31] to Teresa Raaf, superivsor of Malheur National Forest.
     In his letter Sheriff Palmer questioned the USFS's authority to engage in law enforcement within Grant County, declaring: "your jurisdiction as I see it is limited to the Federal Building in John Day" [the county seat]; and that the presence of USFS "Law Enforcement" violates Article 1, Section 8 of the U.S. Constitution.
     "Within the confines of Grant County, Oregon, the duties and responsibility of law enforcement will rest with the County Sheriff and his designees," he wrote.
     Palmer's letter was apparently prompted by Forest Service attempts to pressure him into signing a "co-operative policing agreement" that would allow the agency to engage in law enforcement activities inside the lines of Grant County.
     Palmer said that in the near future, he'll be raising other issues about USFS's activities in Grant County, including its recent treatment of the local citizenry, illegal road closures, grazing, logging and other concerns that he and his community have. He also expressed concern about the way Forest Service LEOs had "treated citizens of this county in Oct. and Nov., 2010," but dererred giving details until a later time.     
Drawing the Line
     Sheriff's Gilbertson and Palmer have crossed personal Rubicons to join a growing cadre of sheriffs in western states who are drawing the line against federal agencies like the Forest Service.
     For instance, Sheriff Greg Hagwood, of Plumas County in northern California, has publicly stated he will not enforce federal regulations laid down by the Forest Service that demand road closures and restrict vehicle access to the land.
     Asked if he agreed with Hagwood, Gilbertson said he was not familiar with Hagwood's action, but agreed with him and pointed to the famous case of Prinz v. United States (1997).
     "The Supreme Court ruled that the federal government cannot force us [local law enforcement] to enforce federal regs, rules or laws," he said. "They can't force sheriffs to do that. The sheriff is the highest law enforcement official for that county. My understanding is that there is no other authority that supersedes the sheriff's office for that county."
     Gilbertson said that he had recently signed a cooperative policing agreement with the Forest Service, "but I will rescind it immediately if I determine that it was a mistake," he promised.
     Since his letter was released Gilbertson has appeared on various talk shows, where he discusses the issues that affect not only Josephine County but the entire country.
     Meanwhile, at a meeting of the Oregon State Sheriffs' Association, gilbertson agreed to head a committee to research the many questions that have arisen regarding federal jurisdiction and the limits - if any - to federal authority.
     "We're checking to see if things are being done appropriately according to the U.S. Constitution and the laws that govern all this," said Gilbertson. "So it's a process right now that we're in the research phase...I'm looking at doing all the research before I make a final decision.
     Gilbertson also explained that for him the road-closing issue is a safety issue. "If I need to go Search-and-Rescue, or if I need to go look for crime or marijuana grows, I don't need those roads closed; I need them open so I can get to them.
     "You're not supposed to take any vehicles onto certain federal lands. But guess what? If I've got somebody missing; if I need to take a helicopter in I will. That's my authority as a sheriff and I'm not going to let anyone stand in my way to protect the people of this county."
     Gilbertson pointed specifically to the "Biscuit Fire" in July 2002, which burned nearly 50,000 acres of Siskiyou National Forest and much of the Kalmiopsis Wilderness.
     "They had a big tanker loaded with chemicals ready to go, but were told not to dump because it was on a Wilderness Area," said Gilbertson bitterly. "Had they been allowed to dump they would have suppressed the fire right there. The same thing is happening in Arizona right now," he added. "It's nonsense."
     "They've let these forests grow so you have all this fuel that burns and just goes crazy. If they would go in and thin it out - that's good stewardship. But they've gone from being good stewards to being over-lords that think they have unlimited authority."