Endangered species listing needs regulation

CNJ staff

The proposed removal from the endangered species list of the rodent formerly known as the Preble’s meadow jumping mouse is obviously something to cheer. But it likely won’t happen without a protracted battle against those who are exploiting the Endangered Species Act to dictate land use decisions everywhere in the country.

More than just a mouse is riding on the outcome. Relegating the creature once dubbed “mighty mouse” to the realm of myth — where it joins Bigfoot and the jackalope — would be an embarrassing black eye for federal bureaucrats and environmentalist groups who pushed the listing. And neither group likes to admit error or relinquish control. The debacle might also bolster the case for overhauling the ESA, threatening the Holy Grail of environmental laws. So it will require vigilance on the public’s part to move the process forward.

Let’s remember: We’re where we are today only due to the persistence of a handful of people who looked at the mouse and smelled a rat. Were it left to the federal government and the greens, this costly charade would have gone on forever.

Efforts already are under way to redefine the law and the debate in ways that will keep the mouse on the list. And almost any loophole or legal maneuver will be tried. Expect lawsuits. Expect foot-dragging. Expect attacks on the science, and the scientist, that exposed the animal’s true taxonomy. Expect an effort to list the Bear Lodge mouse, which is what a Preble’s mouse actually is.

We’ve already heard activists questioning the methods used to determine the animal’s identity and impugning the motives of the scientist involved, Rob Roy Ramey of the Denver Museum of Nature and Science. We’ve even heard it said that Ramey’s findings won’t be valid until they appear in a respected journal.

Funny, we don’t remember such fastidiousness about the science used to support the animal’s listing — it was shockingly flimsy, as we now know. Nor did anyone question the motives of those pushing mouse protections. We all might have been spared a lot of time and trouble had such skepticism been applied back then. A double standard seems to exist for what level of evidence is required to list and to de-list a species, suggesting that expediency, rather than science, frequently dominates the process.

And what of those on whom the mouse’s listing has fallen hardest, curtailing their property rights or costing them millions of dollars? What recourse do they have now? To whom can they turn for justice or compensation? Who will be punished to ensure such mistakes aren’t repeated?

There are no clear answers to these questions. But a few possible responses come to mind. Impacted parties should seek Preble’s mouse reparations, either through the courts or Congress. The Fifth Amendment prohibits the government from “taking” private property without compensation. And this clearly meets the definition of what some call a “regulatory taking,” for which compensation is due. Farmers in California recently received millions of dollars in compensation because the federal government diverted their irrigation water to meet the needs of an endangered fish, drying up their crops. That court decision set a precedent worth exploring.

If that fails, legislation should be introduced requiring that compensation be paid to private individuals or entities adversely impacted by an endangered species listing made in error. This would not only be the constitutional thing to do, but the right thing to do if we intend to hold the federal government accountable when it regulates this recklessly.