A monumental obstacle to sustainable fishing

a_lobster_boat_at_bar_harborOver on PLF’s Liberty Blog, I have a post on our lawsuit challenging the designation of the Northeast Canyons and Seamounts Marine National Monument under the Antiquities Act. Representing commercial fishermen from New England and the Mid-Atlantic, we argue that the statute’s authorization of monuments on “land owned and controlled by the Federal government” doesn’t give the President a blank check to declare the ocean off-limits.

President Obama’s proclamation establishing the monument forbids most fishing in the 5,000 square mile area—roughly the size of the Connecticut. What little fishing is allowed to continue is phased out over the next 7 years. This was all done with the stroke of a pen, without any obligation to consider impacts on New England’s iconic fishing communities or whether the designation would be a net environmental benefit.

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Limits on states’ influence over federal lands cut both ways

Last week, the Washington Times published my op-ed on PLF’s challenge to California’s ban on suction dredge mining. From the introduction,

If you ask a rural Westerner how he feels about federal lands, the response will likely contain plenty of four-letter words. For decades, decisions made by faraway bureaucrats to restrict the productive uses of these lands have significantly affected nearby property owners and local economies, creating a constant source of conflict.

. . .

When these federal decisions are criticized, supporters respond that only the federal government can decide how “our” lands should be used. Yet blue states and environmentalists do not think that what is good for the goose is good for the gander. When Congress decides to put federal lands to productive use, they proclaim that states in which they hold political power should be able to overrule federal decisions at will.

You can read the rest here. For more on this case and conflict over federal lands, read this and this.

States cannot veto Congress’ decisions to put federal lands to productive uses

For decades, the federal government’s ownership of vast areas of the west, and its decisions to restrict the productive uses of these lands, have been a constant source of conflict. States, local communities, and neighboring property owners complain that these decisions, which can have significant impacts on their local economies, should not be made by distant politicians and bureaucrats in Washington.

However, their calls for the federal government to transfer these lands to states or private property owners, as the government did in eastern states, have been sharply opposed by environmentalists. They argue that only the federal government can decide how “our” lands should be used. States have to accept Congress’ decisions about these lands.

California’ seal features a prospector, but the state has recently cooled on mining

But the tables have turned in a case that Pacific Legal Foundation is asking the U.S. Supreme Court to hear. Federal law encourages mining on many federal lands. California disagrees with Congress’ decision and, spurred on by environmentalists, has adopted an outright ban on suction dredge mining within the state, including on federal lands. Apparently, all that talk about states having to accept Congress’ decisions about federal land had an unstated qualification—except those states where environmentalists hold political power.

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What sort of federal environmental reform will we get?

With a Republican-controlled Congress and a new, unpredictable President who campaigned against several of his predecessor’s high profile environmental policies, it seems all but inevitable that some sort of environmental reform is coming. That may be a broad reform of one of the major statutes. Or it may be changes to the regulations implementing them. Having no inside knowledge, I can only speculate or rely on the (often wild) speculation of others. Although the environmental left fears, or at least fundraises on the fear, that the reform will mean open-season for polluters, I hope that it will be more along the lines of federalism or libertarian environmentalism. (But, as I said, I have no inside knowledge, so this is just a hope.)

The Progressive Farmer highlights several, reasonable regulatory reforms that would increase freedom without harming the environment, and perhaps providing environmental benefits. The first, which has been pushed by 18 states, calls for the repeal of a recently enacted regulation that permits the U.S. Fish and Wildlife Service to designate “critical habitat” for endangered species on private lands that are not only unoccupied by the species, but  also unsuitable for the species. For instance, the Service designated private lands in Louisiana as critical habitat for the dusky gopher frog even though no frogs live there and couldn’t without substantially modifying the site (which the private owners have no intention of doing). Designations like this impose significant restrictions on private property owners with no compensating benefit for the species. If anything, they distract limited resources that could otherwise go to real conservation.

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Should you go to jail if you can’t recognize every endangered species?

[Update: since this post, we’ve asked the Court to rule against this radical attempt to expand the criminal reach of the ESA. More here.]

collage_20150930151632106Over on PLF’s Liberty Blog, I have an update on a case that seeks to radically expand the reach of the Endangered Species Act’s criminal provisions. In that case, WildEarth Guardians is challenging the government’s interpretation of the statute—which limits criminal punishment to cases where you “knowingly” take a protected species—as requiring knowledge that your actions will cause take and the identity of the species affected. Thankfully, the court has granted our motion to intervene, allowing us to defend the government’s reasonable interpretation as the only one the statute allows.Read More »

Regulation can harm the environment

Over the last few weeks, I’ve had several op-eds published explaining why the overreliance on regulation may be undermining the effect of the Endangered Species Act. The op-eds focus on two petitions PLF recently submitted  to the U.S. Fish and Wildlife Service to reform that agency’s implementation of the ESA. Those petitions, based on this law review article, argue that repealing a federal regulation will benefit both species and property owners.

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Overcriminalization is rampant in environmental law

animas_river_spill_2015-08-06This week, the Daily Caller published my article on the overcriminalization of environmental law.

Recently, the Department of Justice announced that it would not prosecute the EPA officials responsible for the Animas River spill. As you may recall, EPA employees accidentally spilled several million gallons of toxin-laced water into the Animas River when attempting to open an abandoned mine. The spill turned the river bright orange, photos of which quickly went viral on social media.

As I discuss in the article, DOJ’s announcement has fairly been criticized as hypocritical.

The decision, made by prosecutors who wouldn’t hesitate to throw the book at ordinary people, was immediately criticized as hypocritical. “[T]here is one set of rules for private citizens and another for the federal government,” a letter from several Republican Congressmen noted.

Although true, we shouldn’t allow the hypocrisy to distract us from the more important issue—overcriminalization. The EPA officials shouldn’t face criminal charges for this accident, since they had no criminal intent, but neither should ordinary people who find themselves in similar situations. Unfortunately, federal prosecutors are not so forgiving when it comes to the rest of us.

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