Chance to act on Endangered Species Act slipping away


With each day that passes, the chances diminish that Congress will act on Endangered Species Act reform this year. Should Democrats make substantial gains in this fall’s elections, or take control of the House or Senate, the opportunity to update ESA will slip away, just when it seemed within reach.

The House approved a substantial ESA overhaul last year. But momentum stopped cold in the Senate, where good legislation goes to die, bogged down by election-year timidity, the lobbying clout of Gang Green and the indifference of Eastern senators to the havoc the law is wreaking in the West.

Not much can be done now to get senators off the dime. Yet examples can be found almost daily of why rewriting this well-intended, but absurdly out-of-control law remains important.

Today’s ESA outrage comes from Hawaii, where 24-year-old Justin Freemon is facing a $250 fine and up to a year in prison for decapitating a federally protected monk seal. That’s clearly a violation of federal law if the seal is alive — but in this case, the seal was dead when Freemon, for reasons we can’t fathom and don’t condone, lopped off its head. Officials claim that violated ESA, the Marine Mammal Protection Act and state law.

“These laws prohibit harassing, harming or killing a monk seal,” one official with Hawaii’s natural resources department said. But can you harass a dead seal? Can you harm a dead seal? Can you kill a dead seal? The federal government might arguably have an interest in protecting live animals, but does it have any business making a fetish of their dead bodies, sending people to prison for tampering with one? That seems extreme — but it’s typical of many ESA provisions.

If we were Freemon’s lawyer, we’d use a religious freedom defense, claiming that our client worships wildlife and intended to use the skull for ceremonial purposes. Absurd, you say? Not where the federal government is concerned. The federal government, while it never hesitates to prosecute non-Indians for harming or killing eagles, grants Indian tribes permission to do so if they use the body parts in religious ceremonies. And the feds maintain a facility in Denver that scavenges the carcasses of eagles for use in Native American religious rites.

Does it make sense to sanction and facilitate the scavenging of endangered species body parts by certain people, while criminalizing it for others? The question is irrelevant — since little of what’s written into the ESA makes sense.