June 17, 2003

By Jim Beers

jimbeers7@earthlink.net  (Jim Beers)

I testified this morning before the Senate Environment and Public Works Committee, Subcommittee on Fisheries, Wildlife & Water. There were a dozen witnesses in favor of the National Aquatic Invasive Species Act of 2003 (S.525) and I was the lone witness opposing the bill.

This bill defines "Invasive Species" so broadly that it includes any plant or animal that "degrades" the "aesthetic" environment or is somewhere it wasn't "historically." This would include (as only a few examples) brown trout, inland and west coast striped bass, most rainbow trout, muskies and walleyes south of the Mason Dixon line, largemouth bass in the west, lake trout out west, salmon and alewives and brown trout in the Great lakes etc.

The Federal government would really take over management of the aquatic habitats of "estuaries and inland waters and wetlands." This of course would, just like the Endangered Species Act, transfer management authority from the state to the Federal government.

The definitions of "harm" are so broad that the environmental/animal rights lawyers will have a field day adding plants and animals* to the Invasive Species List. *This law states (as the Endangered Species Act did not) that any group of plants or animals from species to subspecies to races to populations, varieties, population fragments, stands, flocks, herds, whatever that is "harmful" can be fodder for bureaucrats and others to do to property owners, fishermen, etc. what the Endangered Species Act has been increasingly doing across this nation.

Under the "need" to control ballast water discharge (the technology needs at least 10 years of research according to the General Accounting Office) this bill would regulate ALL plant and animal imports since the word "aquatic" mysteriously disappears in this section. Essentially the Director of the US Fish and Wildlife Service would wield the power of the President's Cabinet Secretaries and effectively stop all importation of plants and animals. If anyone came near reaching the impossible hurdles proposed for permission to import, an environmental or animal rights law clerk could tie it up in the courts long enough for the applicants to expire. Thus assuring no importation or export could or would be possible.

Last but not least the proposed penalties would make the Gulag Archipelago seem like child's play. Two sections call for a Class C felony (10-25 years) for knowing violation. Think about that! It gets even better, one of those Class C felony penalties is for violating the REGULATIONS written under the Law. Now you can't even begin writing regulations until a law is passed and signed by the President. Further, no one has the foggiest idea of what the regulations would even look like, much less how the agencies like the US Fish and Wildlife Service will tweak and stretch them over time like they have the Endangered Species Act regulations.

Everyone from the sponsor (Senator Levin of Michigan, a state that would get the lion's share of dollars) to all the Federal agencies (5) to the Vermont Invasive Species Coordinator and The Nature Conservancy all gushed about one invasive species horror story after another and how only more Federal authority and Federal spending could save our environment. All the exaggerations and denial of any benefits for species after species was pretty disgusting. When asked what "historic range" means, no one could answer but one agency said they would try to answer later in writing. When asked about rainbow trout, the bureaucrats saw that Senators like rainbows so they were assured that there is a Federal definition (at an unspecified location) that would exclude them from any invasive list. (The bill language would clearly include them.) When asked about "escaped farm salmon" in the Pacific, the bureaucrats could tell a Senator was concerned, so certainly the bill would include them as "invasive."

Where were the fishing organizations? They must be in favor. Where were the state fish and wildlife agencies? Their only representative could have been a Federal or hopefully-Federal-one-day bureaucrat. Where were the boaters, trappers, duck hunters and other aquatic habitat users? Where were the public land aquatic habitat users -- from hikers to horseback riders -- and others? Where were the fish and aquarium hobbyists and importers? Where were the florists whose aquatic plants will be severely limited? Where were landscapers and ranchers and loggers? Just as with the Endangered Species Act and Marine Mammal Protection Act, those to be harmed the most, are oblivious and paying dues to people who represent these things as "trains" that "can't be stopped." Once again their organizations represent Washington to their people instead of their people to Washington. The spouse of one of the top Federal bureaucrats pushing Invasive Species even represents one of these groups in Washington.

Mention this or give a copy of it to your friends that fish or have any connection with aquatic habitats and tell them to tell their Senator and Representative that they oppose the National Aquatic Invasive Species Act and any new Federal authority over Invasive Species. Also tell US Senator Crapo (ID) the Chairman. Tell Subcommittee members like Senators Warner (VA), Allard (CO), Murkowski (AK), Jeffords (VT), and Inhofe (OK) who is the Committee Chairman and the most powerful Senator over this matter.

Below is my testimony on the bill. Further explanations will follow but for now, getting this testimony out is my priority.

STATEMENT OF JAMES M. BEERS - SCIENCE ADVISOR

AMERICAN LAND RIGHTS ASSOCIATION

BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER, CONCERNING S. 525 THE NATIONAL AQUATIC INVASIVE SPECIES ACT OF 2003

Thank you, Mr. Chairman, for inviting me to testify at your hearing today.

I represent the American Land Rights Association, an organization of small property owners in all 50 states.

I worked for the US Fish and Wildlife Service for 30 years in four states and Washington, DC as a wildlife biologist, special agent, and refuge manager. I have enforced Injurious Wildlife regulations and investigated Endangered Species cases both here and in Europe. I have worked on Invasive Species control programs for nutria and purple loosestrife. I have attended UN Wildlife Conferences and represented state wildlife agencies fighting a threatened European fur embargo. I currently write and speak extensively about both Endangered and Invasive Species.

The National Aquatic Invasive Species Act of 2003, S. 525 is based on erroneous assumptions. Briefly, it is wrong:

1. To characterize all recently arrived plants and animals as having only exaggerated bad effects and "reducing biodiversity" (Sec. 2 Findings 1-10). This striped bass is an "Invasive Species" in numerous lakes, rivers and reservoirs across the nation as well as in West Coast estuaries. This rainbow trout is another "Invasive Species" in lakes, rivers, and reservoirs throughout the United States. Fishing license money, State fishery management staffs, charter boat revenues, boat and boating equipment sales, fishing tackle sales, tourist revenues, annual Sport Fish Restoration dollars in the millions, taxidermy business, as well as millions of hours of family recreation and many fine meals will all be reduced under this legislation. These fish are typical of many desirable "Invasive" plants and animals that increase "biodiversity" while benefiting us all.

2. To infer a Federal concern for plants and animals "outside the historic range of the species of which the organism is a member" (Sec.1003 [15]). This applies directly to these two fish that have been widely and purposely introduced for the many direct and indirect benefits to citizens and aquatic habitats that they create. What does "historic range" mean? When Asians arrived 10,000 years ago? When Columbus arrived? When the Constitution was signed? Camels, horses, and elephants once thrived here, are they native or "Invasive Species"?

3. To define Federal aquatic authority as including "estuarine" and "inland waters and wetlands" (Sec. 1003 [2]). These waters are nearly all under State jurisdiction. Given the current court case involving the decade-long dumping of toxic sludge by the US Army Corps of Engineers through a National Park under an EPA permit reviewed by the National Marine Fisheries Service and the US Fish and Wildlife Service on the spawning grounds of Endangered shortnose sturgeon in the Potomac River as it passes Washington, DC, it does not appear prudent to expand Federal authority in this manner.

4. To infer Federal jurisdiction over "invasive species" and "non-indigenous species" that "may cause harm" (Sec. 1003 (17)) so broadly defined as to permit any biological competition or increase in biodiversity to be declared harmful. These two fish for instance eat other fish and compete with yet others for space and food.

5. To claim authority over "any fundamental category of taxonomic classification below a genus or subgenus" (Sec. 1003 (28)). This enshrines the unwritten Endangered Species Act principle that authorizes all manner of Federal intervention to the smallest flock, school, or stand of any species. This has caused increasing friction with property owners and many others as the level of Federal concern descended below that of species to races, varieties, distinct populations, and even beyond.

Using the need for the Federal government to regulate ballast water, a penumbra of Federal authorities and tasks are being created to mimic the Endangered Species Act. That Act has caused havoc with much more than property rights and has gone unauthorized for fifteen years while it's reach and annual appropriations continue to grow.

The authority to manage, control and eradicate plants and animals is one of those "powers" "reserved to the States" in the 10th Amendment. The Federal government is responsible for the management of the import, export, interstate, and foreign aspects of these matters. It is proper that the Federal government assures clean ballast water discharges, manages imports and exports, and cooperates with State governments in the management, control, and eradication of harmful plants and animals regardless of their origins or arrival dates.

The American Land Rights Association joins with all citizens concerned about the loss of not only land property rights but also the rights of fish owners, aquarium hobbyists, florists, gardeners, landscapers, boaters, horseback riders, pet owners, hikers, trappers, duck hunters, fishermen and scores of others whose property rights, outdoor activities, property rights held in trust by State governments, and public land access are directly threatened by this proposed expansion of Federal authority and diminishment of State authority over aquatic habitats. The task being proposed (encouragement of "native species") is not desirable, not beneficial, not achievable, not measurable, never-ending, and a public expense beyond comprehension.

Please consider a revised bill that: controls ballast water discharge, controls harmful aquatic plants and animals on the Federal estate, and cooperates with the States to fulfill the fish, wildlife, and plant responsibilities assigned them in the Constitution. Otherwise, S. 525 will, like the Endangered Species Act, radically modify our basic freedoms while enriching only Federal bureaucracies, Universities, and the agendas of environmental and animal rights organizations.

One last observation: The bill's proposed "white list approach" (Sec. 1105 et al) for controlling imports is fraught with pitfalls. It is causing problems in Australia and had it been in effect here 200 years ago we would not have brown trout, tulips, Holsteins, or even house cats here today. Definitions like "organism in trade" (Sec 1003 (21)) which does not even mention "aquatic" appear designed to stop all trade in plants and animals. Including "aesthetic degradation" (Sec. 1003 (34)) as an "undesirable impact" likewise seems designed to maximize serious mischief. The authority given an agency Director (Sec. 1105 (d) (2)) exceeds authorities formerly reserved only for Secretaries. Assigning penalties of a Class C felony (10-25 years) (Sec 1105 (k) (2) (b)) especially for violating "regulations" (Sec.1101 (g) (2) THAT HAVE NOT EVEN BEEN DRAFTED suggests agendas one can only speculate about. Five minutes is not enough time for me to explain this, but I would offer to point out there is a better approach that does not impair the trade and freedoms we cherish while minimizing future, harmful UN controls which are likely with Invasive Species as they have been with Endangered Species under CITES.

Further explanation of these issues may be found on the American Land Rights Association website http://www.landrights.org

Thank you and I am ready to answer any questions you might have.

James Beers

Centreville, Virginia

703-830-7229