PROPERTY RIGHTS AND ESA

On February 6, 2020, I asked Dr. Angus McIntosh the following: 

Hi Angus,

Could you please resend me the language on property owners rights respective of ESA - and their right to exterminate any critter on site found threatening livestock/humans - and that part about disease and good faith belief the disease will harm humans. That language that exempts property owners...

I can't find it. I want to counter a recent article about the wolves wherein the author ended it with, "a $150,000 fine if you kill a wolves."  I hate that they always end with a threat...and NEVER give the info as to property owners rights. 

Thank you Angus,

Roni

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PROPERTY RIGHTS AND ESA

Following is the 1978 amendment to ESA that states you can kill an endangered species animal if you have a "good faith belief" that it could cause bodily harm to a person (including yourself).  It does not specify that the bodily harm must be physical attack that leads to death. Wolves for example are a vector of rabies, hydatid disease and other diseases that can cause "bodily harm" and even death.  The whole measure of the law is your "good faith belief".  If I'm building fence and see a wolf or grizz within a short distance of a cow (and so am I), there is no way on earth I could outrun either the cow or the wolf.  I would shoot and under  would be justified. Notably the provision does NOT specify how i can kill the offending animal.

Section 5 of the 1973 edition of the ESA specifically cites to Section 5 of the 1929 version of the original ESA (Migratory Bird Act) that provides that the Secretary can "purchase or rent" "lands, waters, or interests therein", and that the Secretary shall recommend no area for purchase or rental except those "necessary for the conservation of migratory game birds". It also says the land owner can make reservations or easements and that NO conveyance of land, water or interests will be accepted without the consent of the State by law (legislation). Nothing in the ESA states that the United States can commandeer private property (without due process and just compensation as required by the Constitution Amendment 5), in order to provide habitat for an endangered or threatened species. A Grazing Allotment is private property, and all "permits, contracts and other instruments" (including cooperative agreements) are subject to "valid existing rights" NFMA Sec 6(i) and FLPMA Title VII. Even if regulation of "endangered or threatened" species is within the Constitutional power of Congress, such power cannot over-ride the Constitutional requirement of the Fifth Amendment that government must give due process and just compensation to property owners (United States v Cress, 1917; Bothwell v United States, 1920).  Section 16 of the 1929 version of the ESA specifically says that no endangered species habitat can be designated within a National Forest without the consent of the legislature of the State (see United States v New Mexico, 1978). 

HOPE THIS IS HELPFUL

Angus

On Thursday, February 6, 2020