Deadly Sucker Fish

John C. Eastman

August 1, 2001

When Congress enacted the Endangered Species Act in 1973, members of Congress proudly proclaimed to voters how the act was going to stop the threatened extinction of such species as the American Bald Eagle, a symbol of our national pride and resolve. Like so many of the laws it enacts, though, Congress designed an enforcement mechanism where it got to take all the credit—saving the Bald Eagle is good politics—without having to make the really tough decisions about the costs. Indeed, Congress did not even have to make the initial determinations as to which species would be covered by the Act. That would be determined by unelected bureaucrats at the Department of Interior, who list which species in their view are either threatened or endangered.

Once a species is so listed, the law prohibits anyone from “taking” the endangered species—that is, from harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting the species. The bureaucrats have further defined “take” to include any action that significantly modifies or degrades the habitat or impairs essential behavioral patterns of listed species. The law prohibits these actions without consideration of the costs involved.

We have learned this past summer just how high those costs can be. In Klamath Falls, Oregon, for example, hundreds of farmers are fighting for their livelihoods because the federal government refuses to release irrigation water that it has been under contract to provide for nearly a century. This, because the release might affect the sucker fish, which happens to be on the list of endangered species. As a result, the government has reportedly sent armed Federal Fish and Game wardens to arrest and imprison any of the farmers who might try to get the water that they need for their livestock and crops to survive. Thus, the century-old family farming operations are threatened with extinction, with the loss of livelihood for the farmers and their families, not to mention the loss of agricultural produce for all of their customers, all to protect what one reader described to me as a “worthless fish, not good to catch nor eat, and certainly not as valued as human life.”

But the costs that are being borne by the Klamath Falls farmers pale in comparison to the price that was paid by the brave men and women fighting forest fires in the Okanogan National Forest in Winthrop, Washington earlier this month. There, four firefighters died when government bureaucrats refused to let helicopters snorkel water from the Chewach River. The River is habitat for endangered species, and another provision of the lauded Endangered Species Act prohibits any governmental agency from taking or authorizing any action that might harm an endangered species—again, without consideration of costs.

Some might attribute these tragic events to unfortunate mistakes made by overworked government bureaucrats, but the fact of the matter is they are endemic to a system that allows Congress to avoid the really tough issues that underlie any public policy as monumental as the Endangered Species Act. Where those issues involve costs measured not just in dollars but in human lives, it is time to question the very structure that Congress has established.

None of our elected representatives would survive the next election campaigning on the fact that they had managed to save the worthless sucker fish at the expense of 1400 small family farms in Klamath Falls, Oregon. Even members of Congress from districts thousands of miles away would have trouble getting re-elected on such a platform.

And while we might well see our elected representatives memorializing the four unfortunate firefighters who died at Okanogan National Forest, it is inconceivable that they would do so by claiming, as Abraham Lincoln did at Gettysburg, that the cause for which they gave this “last full measure of devotion” was a noble one. Instead, any elected official who pledged to take from those honored dead an increased devotion to the cause that cost them their lives—the protection of sucker fish, or of kangaroo rats, or flower-loving flies, or even of the exalted Bald Eagle—would be hounded out of office and more.

Our Founders built into our system of government two features that were supposed to serve as preventative medicine immunizing us from such deadly folly. The first is that the federal lawmaking power was granted to Congress, and to Congress alone. Having unelected bureaucrats issue regulations that have the force of law may be more efficient than having to go through the cumbersome constitutional process of passage in both houses of Congress and presentment to the President. But the non-delegation doctrine meant that tough policy decisions such as weighing benefits against costs were supposed to be made by a Congress answerable to voters.

The second feature was that the federal government was given authority only over truly national matters such as interstate commerce, so that foolish mistakes would not be perpetuated merely because the harm caused by them was only localized. Sucker fish remain protected under the law our representatives enacted thousands of miles away in Washington, D.C. even if every member of the Oregon delegation in Congress, and every member of the Oregon state legislature, would repeal it in order to save the Klamath Falls farms. Any system that allows representatives from Massachusetts and North Carolina—where there are no sucker fish—to have such a profound impact on the daily lives of farmers in Oregon is pushing, and probably exceeding, the limits of legitimacy.

For the better part of the last century, though, neither the non-delegation doctrine nor the limits of the interstate commerce clause was given much credence, yet the Endangered Species Act would not survive under a proper application of either. After the breach of faith at Klamath Falls and the tragedy at Okanogan National Forest, the need to rededicate ourselves to the wise limits on federal power that our founders envisioned is more clear than ever. That is a noble cause worthy of Lincoln, one that might even enable us to “resolve that these dead shall not have died in vain.”

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

“First Principles” is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.