Endangered Species – Court Rules in Favor of Private Property Rights: It’s the first show of the year! We’re looking at a recent court case dealing with the Endangered Species Act and private property. This Act is a great example of how difficult it is to get rid of regulations. Join us as we dive into this issue!

Air Date: 01/01/2019

Guest: Tony Francois

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith, and the culture, always doing that from a Biblical, historical, and Constitutional perspective.

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So, here we are, first day of the year, going into 2019. We’ve had a lot of positive things that happened in 2018. One of those being a reduction in regulations that President Trump did – a significant reduction in fact. I don’t even think President Reagan was as successful as President Trump has been.

President Reagan and President Trump

David:

Yeah, it’s interesting that under President Trump, for every new regulation that went in– and his requirement was executive order, every new regulation you pass you have to repeal two. Well, last count we had was for every one that was passed they repealed 22. And one thing that is really clear economically is that regulations drive up costs. They drive up costs for business, which means it goes up for consumers, which means cost of living goes– Everything is wrong about it. It goes in the wrong direction.

So, if you can get rid of regulations that’s good, but it’s really hard to get rid of regulations. President Reagan tried and he had a lot of resistance from Congress fighting back.

And this is a quote from him that I thought was really good. He said, “No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we’ll ever see on this earth.” And he’s right – once a law gets passed, or once a regulation goes in, or once a bureaucracy gets created, very rarely do you see it go away.

And a great example of that is the Endangered Species Act. That was passed back in 1973 under President Richard Nixon. And at that point in time when it was challenged, the U.S. Supreme Court said, look, Congress made themselves really clear and this is what the court said. Congress determined that the intent of Congress and the Endangered Species Act was “to halt and reverse the trend towards species extinction whatever the cost.” Doesn’t matter what it happens, doesn’t matter who it hurts, we’re not going to let these species go extinct.

Tim:

“Whatever the cost” is kind of a scary statement too.

David:

That’s a scary statement. That’s exactly right.

Tim:

Right. We don’t even know what the cost is going to be. We’re saying, “We don’t care. We don’t care if we have to take all your homes, we don’t care if we take all your property.” On so many levels, that’s a scary statement for the government to say, “We’re going to do whatever it takes.” when they don’t specify what it’s going to take.

Whatever It Takes

David:

Well, since that point in time they’ve they’ve taken that phrase literally and they have done that on a regular basis. Our friend, Jim Garlow, who’s been a pastor in San Diego for a number of years, very growing church. And they decided to add, I think it was a 3.2 million dollar extension to that church. I mean, it’s a really growing church.

Tim:

Which, in California, 3.2 million dollars would be a lot bigger if you were in another state.

David:

That’s right. That’s building a classroom.

Tim:

Right. So, California– the money doesn’t go quite as far as if you were in Texas, or one of the more mid western states. But because of the Endangered Species Act and its implications, they ended up spending over 30 million dollars to do a 3.2 million dollar extension because the government came and said, “Wait, we’ve got a test. We think there’s some turtles out here, we think there are some frogs, we think there’s some salamanders.”

And they did so many environmental impact studies and regulations, “Will it change the water flow for the snail.” And 30 million– see, whatever the cost. They literally mean that “whatever the cost.”

At our property, Tim, our family property we had in central Texas, we were told by the federal government that for a period of seven years we were unable to manage our own land because they thought somewhere out there was a yellow breasted warbler. So, instead of trying to contain the cedars that take over the property down there we couldn’t cut for seven years, we lost the property, we lost land. The grazing went away. It was it was gone because some stupid bird they think was there – they didn’t find one but they thought it might be.

What Happened to Survival of the Fittest?

Tim:

What happened to survival of the fittest?

David:

Well, see, that’s my point. This is why I’ve become pro Darwinian evolution. Because Darwin argues survival of the fittest and it was if you don’t have this, if you’re a yellow breasted warbler and don’t have the sense to fly out of a tree that’s being cut down, you deserve to be extinct. You’re just– you’re not the fittest. You need to be gone.

So, here we are on the one hand we’re so pro evolution survival the fittest. They argue that the weaker species need to go away. That’s what builds for the greater strength. And then they protect all of these things that “whatever the cost”  we have to protect the– And finally it looks like the Supreme Court has come to its senses and backed away from this Endangered Species Act. And, really, what is a great, great, decision that really returns some private property rights back in the hands of property owners.

When I read this I had not heard it in the news at all. I just happened to read it on one news site. I didn’t hear anybody else cover it. We thought we’ve got to talk about this, we’ve got to find out what’s going on here, because this sounds like it could be a really big victory in starting to push government back into a smaller framework.

Rick:

Tony Francois is senior counsel with the Pacific Legal Foundation that led this case. He’s going to be with us when we come back from the break. You’re listening to WallBuilders Live.

A Moment From America’s History

This is David Barton with another moment from America’s history. In the case, Abington vs Schempp the Supreme Court ruled that the Bible could no longer be an independent textbook in public school curriculum. Would our Founding Fathers have agreed?

Benjamin Rush certainly would have disagreed. Benjamin Rush was a signer of the Declaration of Independence and he was a leading educator of the day. In fact, he was the first Founding Father to call for free public schools.

Benjamin Rush declared, “The great enemy of the salvation of man, in my opinion, never invented a more effective means of extinguishing Christianity from the world than by persuading mankind that it was improper to read the Bible at schools. The Bible should be read in our schools in preference to all other books.”

In the view of Founding Father Benjamin Rush, the Bible was the textbook of preference for public schools. For more information on God’s hand in American history contact WallBuilders at 1 800 8 REBUILD.

Rick:

Welcome back. Thanks for staying with us here on WallBuilders Live. Tony Francois is with us. A great victory at the Supreme Court level on private property rights. He’s an attorney with Pacific Legal Foundation. Tony, thanks for your time today, man.

Tony Francois:

My pleasure. Thanks for having me.

Rick:

And thanks for taking this case and for winning it. I am so glad to see private property rights win over, frankly, abuses of power with the Endangered Species Act.

Tony Francois

Well, this is a very interesting and kind of surprising case when you look at what the federal government tried to do here. Civic Legal Foundation represents a gentleman from Louisiana named Edward Poidevin and some companies that his family owns and operates. And they jointly own about fifteen hundred acres in St. Tammany Parish, which is north of Lake Pontchartrain outside of New Orleans.

Critical Habitat?

Tony Francois:

In the path of development from that metropolitan area a few years back, the federal Fish and Wildlife Service delivered a pretty severe blow to their ability to develop that property by designating the property as critical habitat. Under the federal Endangered Species Act for a species called the dusky gopher frog. Which not only does not live or reside on that property, but actually can’t because of the characteristics of the property. This particular type of frog wouldn’t survive there.

Rick:

Wait, let me walk you through that for our listeners that aren’t familiar with Endangered Species Act at all and even for me because I’m a little slow sometimes. So, they got fifteen hundred acres, this, what’s it called, dusky gopher frog–

Tony Francois:

Yes.

Rick:

–isn’t there. Couldn’t exist there. Yet somehow they decide they’re going to designate it is habitat. Which means of it’s designated as habitat you pretty much can’t use it for anything but habitat in most of these cases, right?

Tony Francois:

It poses significant limits on your ability to use the property and modify it in a way that the government would consider adverse–

Rick:

Yeah.

Tony Francois:

–to the interests of the species for which it is supposed to be habitat.

Rick:

So, they thankfully were willing to fight and you guys came alongside. How did– as you got into this case, how did Fish and Wildlife even come to the determination to take out this 1500 acres where they didn’t even have the frog existing?

It’s Kind of a Mystery

Tony Francois:

Well, that’s actually kind of a mystery. The Fish and Wildlife Service have designated several units of critical habitat in Mississippi where there are some populations of this frog located and they’ve got some recovery efforts underway there. They convince themselves that they needed property farther afield from the existing populations, as they’ve described it, as a refuge to relocate the frogs to in case of a significant hurricane that might cause flooding far inland in the areas where the frogs are currently living.

Rick:

I’m sorry, Tony, I’m trying not to laugh–

Tony Francois:

No, go ahead.

Rick:

–but I just can’t believe we do this. I can’t believe that our federal dollars, our money, is spent on this kind of refuge to relocate a frog in case of a hurricane. Do people understand how out of whack our values are? We’re going to violate someone’s basic ownership, and liberty, and private property rights, and basically say this frog is more valuable than a human and more valuable than the rights of that human. I’m sorry, man. I laughed to not cry, okay.

Tony Francois:

Well, even as a statement of the priorities in emergency evacuation of areas that are threatened by hurricanes. That’s a little tough to swallow.

Rick:

Right.

Tony Francois:

But the basic  problems that the government has in this case is that to make this property suitable for these frogs you would actually have to replace the types of trees that are on it. It’s currently being forested by a tenant. And you would have to completely replace the type of trees and forest and you’d have to do regular prescribed burns on the property to get the kind of undergrowth you need. So, this is a significant bit of terra forming, if you will, that would have to be done to actually turn this property into actual habitat for these frogs.

Dusky Gopher Frog Suffers a Setback

Tony Francois:

And the government’s explanation of this all along is, well, we just kind of hope that one day the owners will be willing to do all of this work at their own expense, so that then we can transplant frogs to it with their permission if they were given permission. So it’s really a stretch. And yet, simply by designating it, there are all kinds of permitting processes that this designation would create difficulties for without providing any benefit, any conservation benefit, to the frogs because they can’t live there.

Rick:

I am– I had to google while we were chatting here a dusky gopher frog just to see what it looks like. First of all, it’s not very attractive – not the frogs are, but the headline, the number one headline, you’re going to laugh at this. The number one headline is, of course, CNN and it’s “Dusky Gopher Frog Suffers a Setback at Supreme Court”. I’m not kidding you. That’s, okay, agh. Okay, so– Go ahead.

Tony Francois:

That’s not surprising, sadly, because a lot of the conversation about wildlife conservation happens on this sort of radical left wing/radical right wing talk, cable news kind of jurgen where you’ve got people thinking that frogs were harmed in the Supreme Court deciding this case in our in our client’s favor. When, as a matter of fact, all the Supreme Court said is, “You know, if this isn’t really habitat for the frogs, they can’t really use it, then you can’t have it as habitat.” There’s no set back for any frogs because there’s no conservation benefit to any frogs. And, yeah, you’re right – you get this kind of knee jerk response in the left leaning press thinking that something bad has happened.

Rick:

Yeah, and I’m guessing, they do say on the under the picture it used to be known as the Mississippi gopher frog which is that habitat you were talking about earlier. They probably purposely changed the name so they could use land outside of Mississippi without people saying, “Well, wait a minute, why are you designating–” Anyway, I’m so glad you guys won this case. Did you feel like– and I haven’t read the opinion, I apologize, but you said really all they said was since it’s not currently using it.

A Win for Private Property

Rick:

So, it wasn’t really a– we’re not yet to the point of discussing and debating the issue of whether or not the Endangered Species Act ought to even exist. This was just specifically in this case they did at least draw a line in the sand and say, “You can’t go past that. You can’t actually go change land to make it a habitat if you’re taking that land from someone. That violates their rights and their property rights.”

Tony Francois:

Well, that’s right. And it’s a pretty significant aspect of the Endangered Species Act. That’s one of the ways that it imposes burdens on private property owners is the government’s ability to designate private property as critical habitat for species.

So, what the government was arguing in this case is that even though the statute says government may designate critical habitat, they didn’t have to designate habitat. Simply by waving the wand over it and calling it critical habitat they could regulate property that isn’t, in fact, habitat. And we did think the Supreme Court said something very important in the common sense, but nonetheless, sometimes lacking in perspective that where the law it’s got, it’s critical habitat, habitat is the noun, critical is the adjective, and you can’t turn something into habitat just calling it critical, it’s got to first be habitat. So, this actually will, I think, provide some significant protections for property owners.

Rick:

Yeah. It’s going to curb their ability to abuse this for sure, it will curb it, at least.

Tony Francois:

Absolutely. Absolutely.

Rick:

Yeah. Did– now, since you’ve dealt with this case and others, Tony, has there– is there any discussion, or do you guys have any cases that will challenge some of these takings based on a Fifth Amendment no compensation of the taking of that property? That’s one thing– I haven’t looked at this in years, but it used to bug me to see property essentially regulated into a taking because you couldn’t use it, or it would cost too much to use it, but yet there’s no compensation. Has that been litigated or do you know?

A Long Term Objective

Tony Francois:

Well, that is something that long term is an objective of ours and we’re optimistic that–

Rick:

Oh, really?!

Tony Francois:

–at some point in the future we’ll be able to break through on that.

Unfortunately, there are some cases in the early years of the Endangered Species Act. For example, there is a case out of, I want to say, Wyoming that said that endangered grizzly bears, that the government was not liable for taking a ranchers sheep because the government prevented the rancher from keeping endangered grizzly bears away from their sheep. And with the court said in that case was that grizzly bears are part of nature and nature doesn’t take your property only the government can.

But there are definitely circumstances where the regulation of your property goes so far that it destroys all the economic value of it. And we think that’s something that the courts will ultimately recognize. They’ve certainly done that under the Clean Water Act, so we’re hopeful that they’ll also recognize the regulation of the Endangered Species Act can go so far as to require the government to pay compensation.

And, during the hearing of the Supreme Court on this case, that was actually one of the things that got discussed. A couple of the justices pressed the government pretty hard on the question, “Aren’t you just designating this property as critical habitat to leverage the owner into turning it into habitat rather than using your eminent domain power under the endangered species act to buy it? You’re just trying to shift the price tag.” And while the government attorney denied that three bags full, it was clearly the view of some of the justices on the Supreme Court that that’s what was going on.

Rick:

That’s good to hear.

Tony Francois:

And it’s been an effort to get control of this property without paying for it.

Rick:

That’s good to hear. Well, man, I really encourage people to go visit your website today, PacificLegal.org. You all have a lot of cases going dealing with property rights, individual liberties. You all do great work and we’re just thrilled to get you on the program, and so thankful for the fight you’re engaged in out there, and glad to hear a great victory. Look forward to having you back again soon.

Tony Francois:

Hey, my pleasure. Thank you very much for having us today.

Rick:

That’s Tony Francois from Pacific Legal. The website, we’ll have a link today, but it’s PacificLegal.org. Stay with us, we’ll be right back with David and Tim Barton.

Share a veteran’s story

We Want To Hear Your Vet Story

Rick:

Hey friends! If you have been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live.  Once in awhile, we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices have amazing stories that we want to share with the American people.

One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live, from folks that were in the Band of Brothers, to folks like Edgar Harrell that survived the Indianapolis to so many other great stories you heard on WallBuilders Live.

You have friends and family that also served.  If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please e-mail us at [email protected]  Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!

Rick:

Thanks for staying with us here on WallBuilders Live. Thanks to Tony Francois for joining us as well. And just great work there at Pacific Legal Foundation. We have links today at WallBuildersLive.com so you can find out more about them.

We’re back with David and Tim now. Guys, you’ve got to be excited about this. Especially this is an issue that hit close to home for the family. I’ve always thought this Endangered Species Act has been used to tell people what they can do with their property, completely devalue their property in many cases, it’s just– it goes against everything we believe as Americans.

Crazy Logic

David:

It does, but I’ve got to back up to what you guys were talking about there at the end with the grizzly bear and Wyoming or wherever it was. Alright, you’ve got to leave the grizzly bear along because they’re endangered. Well, the grizzly bear killed my sheep and the government says, “That’s not the government taking your sheep. That’s nature taking your sheep.” No, no, no. You give me a gun, I’ll take care of the grizzly bear, and my sheep will be safe.

Rick:

That’s right.

David:

By not letting me take care of the grizzly bear, the government is taking my sheep because I’m not allowed to kill the predator that’s killing my property. So, the government’s literally taking– I mean, how crazy is that logic that the government does not see their actions as actually taking my property from me.

Tim:

Well, and this is where I’d be curious too – what are the laws of the state when it comes to defending yourself against one of these “endangered species”, right? If, for example, you’re in Alaska and a bear charges you, do I have the legal right to use a firearm or whatever means necessary to protect my life? Or is this endangered species more valuable than my life? And I ask that only because if I was that rancher or farmer and they said, “You can’t do anything.” I think I’d go camp out with the sheep for a little bit and have some high powered, high caliber, weapons with me and say, “I saw a bear, I feared for my life.” Right? “It was coming for me maybe.”, right?

Freedom Only Works for a Moral People

Tim:

But it’s utterly ridiculous to say that you can’t manage your property. And I understand some of the thought behind it where we don’t want people to be destructive and you don’t want to turn people free. But this is– it kind of goes back to even an idea from the Founding Fathers is that freedom only works if you have a moral people. And if you teach people morality, well, part of a moral compass and standard would be being good stewards of the land. Well, if you’re a good steward of the land, no farmer, no rancher, wants to destroy their land, wants to destroy their property.

David:

There’s no better steward of our ranch than we are.

Rick:

That’s right.

David:

We keep that thing really in good shape. Tim, the time we spend on that keeping that.  We take better care of that than the government ever will take care of our ranch.

Tim:

There’s no doubt about it. And this is where if the problem is you have people that are not being responsible, well, then what you need to do is teach what responsibility looks like. You don’t need to have the government come and take away choices, and freedom, and be more restrictive, and we don’t need socialism and communism. But this is where we just have that different philosophy where we have so many people that say, “Wait a second, we need the government.” Which, kind of the point of this show was looking at the Supreme Court and this decision they made trying to restore some of this individual freedoms and rights to people which is great.

But again, if people are seeing a problem, the Founding Fathers said, “Well, this is why you have to have religion morality. John Adams says our constitution only works for a moral and religious people because a moral religious people will have the underpinnings that they can be responsible.

An Easy Solution

Tim:

So, if you’re afraid of losing endangered species, it’s an easy solution. Teach people to be responsible, to be good stewards. But part of being a good steward does mean, right, if I do have animals and something is coming to attack my animal, no, I can protect and defend my animals. That’s okay, I can do that.

In fact, where we have our ranch there used to be a bounty on coyotes. There used to be a bounty on feral hogs because they were so destructive – these wild boars, or these coyotes, because they would come and the baby calves, and they could kill– actually, sometimes you’d have these packs of coyotes that would bring down a–

David:

Cow.

Tim:

–cow, right.

David:

A birthing cow.

Tim:

This mom, right, who had just given birth. And they’d destroy and devastate the deer population. These pigs will come and destroy the land.  So, part of even preserving your land and being a good steward means sometimes you need to eliminate some of these varmints that are being destructive on your property. But when you remove a system of even understanding where there’s values, or where there’s rights and wrongs– and then people want to say we’re anti science because we’re not protecting these animals.

David:

Well, but think how silly the government is. You’ve got the possibility that a hurricane might come ashore in Mississippi. And to do that we’re going to go in and pick up all the frogs and move them to Louisiana where they cannot live if we put them there. But we’re going to take this guy’s property away from him because we want to create a sanctuary there for these frogs that a hurricane–

The Fifth Amendment

Tim:

And hopefully he’ll pay–

David:

Yeah.

Tim:

–to make it a conducive environment for these frogs.

David:

We’re going to have to rebuild this entire environment. We’ve got to take out the soil, put new soil–

Tim:

Well, we’re not going to. We’re going to ask him to do it.

David:

That’s right. He’s going to do it.

Tim:

He needs to use his money to do our project.

David:

It is crazy. And, Rick, I really appreciated the fact that you brought up the Fifth Amendment, the Takings Clause. Because this is government taking private property regulating its use, saying how it should be used for the government, and there’s not compensation. And the Fifth Amendment says that private property shall not be taken for public use without just compensation. So, I appreciate you raising that question.

But this decision by the Supreme Court to curb the use of “critical habitat”, this is a really big win for private property and for the government getting out of owning everything in the nation, moving us more back toward that free market economic system.

Endangered Species – Court Rules in Favor of Private Property Rights

Rick:

Well, anybody that wonders whether it really does devalue it, you guys experienced it in that same Golden Cheeked Warbler in the Austin area back when I was in law school. That’s what I did one of my papers on it was a lady here that had a million dollar piece of property that once it got established, taken over by the government as habitat, it was worth thirty thousand – she couldn’t do anything else with it. You talk about taking – you’ve taken that from that woman and given no compensation. It’s just completely unconstitutional and has to change.

So, this is a good sign and I’m really curious to watch the questions that he was talking about that some of the justices were asking because that’s a very good sign that they’re thinking about this in the right way as well.

Thanks to Tony Francois for joining us today. Thank you for listening. You’ve been listening to WallBuilders Live.