Wild conservation staff in Washington released nearly 400 endangered leopard frogs into the wild with the hopes of "establishing a new population" by setting them free in Columbia National Wildlife Refuge.

More than 1,300 species are listed as either endangered or threatened in the United States under the federal Endangered Species Act ("ESA"). The 51-year old statute has been administered (and abused) by the United States Fish & Wildlife Service (USFWS), an agency within the Department of the Interior, and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service, which is in the Department of Commerce. Two other agencies play enormous roles in the "administration" of the ESA: The U.S. Army Corps of Engineers which is inside of the Pentagon, and the Environmental Protection Agency.

Set aside the complexities of dealing with the Fisheries Service and focus just on the ESA at "work" on land. The ESA prohibits the "taking" of an endangered or threatened species and the Fish and Wildlife Service ("FWS") has its own law enforcement division that can and does arrest people for violating the ESA. A "taking" is any act that falls within the definition of "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect." The FWS has declared that "harm" includes "significant habitat modification or degradation."

The civil penalties for "taking" an endangered species begin at $25,000 per individual of the species "taken," and a person or company that "knowingly" harms, harasses etc. a listed species is looking at a $50,000 fine and/or a year in jail for every taking.

The ESA and its intersection with the Clean Water Act and the three Cabinet agencies above—Interior, EPA and DOD—provided most of my work in private law practice from 1989 when I left the federal government until I retired from my California firm in 2016 to move back to Virginia. I need some version of
Minnie Minoso’s famous line that "baseball has been very, very good to me" to apply to the ESA because this statute bedeviled almost all of my clients and it took a lawyer like me who knew the statute and federal administrative law to deal with the legion of bureaucrats who administer the law and threaten landowners with dire consequences including arrest and jail if they fall afoul of it or the Clean Water Act. But I’m out of that game now and not going back. I love the law and Constitution, love teaching it, and hate their abuse by unelected, unaccountable bureaucrats.

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But not enough to wade back into what I escaped eight years ago. Think of this column as a memo to the incoming Trump Administration that must jump start a moribund stagflation-ridden economy. Housing is to our economy and new jobs today what car manufacturing was decades ago. The National Association of Home Builders estimates that building 100 single-family homes generates 300 yearlong jobs. I’ve long been told there are four jobs downstream of the actual construction of a house and that makes sense when we think of everything that goes into a house that must be built and maintained. Home-building is the private sector engine of our economy, and among the many hurdles a home builder must climb, the federal government’s are the highest.

This combination of statutes above also works the greatest uncompensated, ongoing "taking" of private property in the country, but that sort of "taking" is ignored when the allegation of the other sort of........

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