Answers to 2 Questions Regarding Invasive Species Legislation from the US Senate

August 7, 2003

By Jim Beers

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These two questions and answers respond to a request from the Senate Environment & Public Works Subcommittee on Fisheries, Wildlife, and Water. The questions were asked to follow up on my testimony before that Subcommittee concerning proposed Invasive Species legislation. The hearing took place on June 17, 2003, and these questions were received on August 1, 2003. - James Beers

QUESTION: "Mr. Beers, your testimony suggests that the Federal government should not attempt to exert control over state waters, but has an appropriate role for ballast water. Many states are struggling with budget issues that may affect their ability to implement their own invasive species plans. What role, if any, do you suggest for the Federal government in such circumstances?"

ANSWER: Exerting Federal authority over ballast water discharge, like regulation of interstate commerce, neither involves nor requires Federal control over state waters or lands. Just as the prevention of smuggling or terrorism necessitates Federal regulations and Federal agents -- while creating Federal requirements and enforcement regimes on and over state lands and waters without controlling the state lands and waters -- ballast water discharge and the prevention of harmful plant or animal introduction requires no Federal taking of state authorities.

Any truly Harmful plant, animal, or infectious organism should be designated by the Federal government and prevented from entering the country. Proof of such harm should demonstrate significant potential damage to human health, agriculture, or certain plants or animals important to American citizens. Such biological entities should be (and are) prevented from entering the country as much as is humanly possible. Where and when they breach these safeguards, they should be (and are) pursued and eradicated as quickly as possible, by Federal and state authorities. State waters along the coasts or Great Lakes -- like state lands bordering Canada or Mexico -- are the busy battlegrounds in these legitimate, and necessary, Federal efforts.

The current "Injurious Wildlife List" provides a proven approach. When a species like mongoose is proven (demonstrably and definitively) to be a danger and seriously harmful, it is listed -- regulations direct Federal import regulators to exclude it -- and if it breaches the controls, lethal controls and Federal/State animal specialists eradicate it immediately. "Nativeness" has nothing to do with it. The fact that it is not established -- and that it would not require draconian government controls and billions of dollars to ultimately not eradicate it -- has everything to do with it. Applying this principle to goldfish or carp (two well established "non-native" fish that could be painted by any number of aquatic biologists as environmentally disruptive) would be incredibly expensive, ultimately ineffective, and further erode the state authority over plants and animals while growing Federal authorities and the tax burden -- to no good purpose.

Regarding the issue of States "struggling with budget issues that may affect their ability to implement their own invasive species plans." If the Federal government stepped in and took state authority every time States were "struggling with budget issues" over the past century, we would have long since ceased being a Republic and would have become a centrally ruled nation like France, Australia, or Indonesia.

States were given and should maintain authority over all plants and animals within their jurisdiction. Current Invasive Species desires in many states are simply wishes -- expressed because of rumors of imminent Federal funding availability -- and their continuing (and currently acute) desire for more tax money from any source. Many states will gladly abdicate their Constitutional authorities in this regard. They are unwilling to protect the rights of their residents from other Federal intrusions from which they obtain Federal funding. An example of this would be Endangered Species takings of private property -- under the guise of Critical Habitat declarations -- by Federal bureaucrats. These same Federal bureaucrats also approve grants and monetary assistance to state bureaucrats and University professors -- in the same states. Another example is the forced closure of heavily used state highways in National Parks -- by Transportation bureaucrats who dispense highway funding to states. Invasive Species funding is likewise seductive to these same Federal and state bureaucrats, university professors and environmental activists who together testified so overwhelmingly before your Subcommittee in favor of new Invasive Species legislation. They aim to create new Federal authorities and begin an annually increasing flow of Federal dollars for invented problems -- that will put Endangered Species abuses and lawsuits to shame.

The role I suggest for the Federal government in this matter is no different from the one clearly envisioned when the final Constitutional Amendment in the Bill of Rights (10th Amendment) was ratified. Federal authority over interstate and foreign commerce provides all the Federal authority needed to prevent the introduction of harmful and non-present plants, animals, or microbes. This entails research on potential threats; techniques for detecting, preventing, and eradicating harmful entities; and maintaining regulations and employees to enforce the Federal legislation to do these things. Invasive Species authority should remain "reserved to the States respectively, or to the people."

In addition, because the Federal government owns more lands in the United States than any other landowner, Federal lands (with the exception of those few lands where Exclusive [of state authority] Jurisdiction prevails, like the Washington Mall and Yellowstone National Park) should be exemplary units managed in accordance with state laws -- and the standards of the communities wherein they occur. Federal managers should manage and eradicate harmful plants like knapweed and yellow starthistle on Federal properties, and refrain from imposing urban standards like the elimination of grazing or hunting in rural areas by new Federal authorities. Invasive Species authority will certainly encourage such attempts.

Federal advocates of further involvement in the matter of Harmful Species (i.e., "Injurious") might consider Land Grant University research on controls for species such as fire ants and kudzu. If the Environmental Protection Agency could be persuaded to permit lethal control methods and agents, perhaps states would cooperate with each other and at least reduce the density and distribution of such species. Eradication is problematic in today's world where agencies, laws, powerful environmental/animal rights organizations, and regulations generally discourage lethal controls and problem species -- once purposely eradicated, like wolves -- are forcibly reintroduced over state objections by Federal edicts.

State governments can, and do, enforce the plant and animal standards and distributions desired by their residents. Whether such species have been in place for twelve months, twelve years, or 500 years -- whether the species were introduced for agriculture, animal husbandry, hunting, fishing, gardens, or as pets; whether urban residents despise them or rural people love them -- the numbers, distribution, use, management of, and all decisions involving plants and animals should remain a primary state responsibility.

QUESTION: "You've suggested that rainbow trout and striped bass, both popular recreational fish, could be considered invasive species in some of their present range. Does that represent concern that this legislation may encourage lawsuits similar to those involving various ESA and NEPA issues? If so, please elaborate."

ANSWER: Rainbow trout and striped bass greeted the first European explorers. The striped bass occupied coastal waters and coastal streams along the Atlantic seaboard and rainbow trout were ubiquitous in clear, coldwater streams, found mainly in mountains and northern (U.S.) waters. They were found to be very desirable due to their commercial abundance, their tasty flesh, and for the fishing enjoyment they provided individual fishermen seeking a sporting challenge and a good meal. As a result they have been "introduced" (i.e., transplanted) all over the U.S. Striped bass have been placed in reservoirs, Pacific streams in California and in streams where they were formerly unknown. Even greater transplanting took place with rainbow trout -- that are now found throughout the nation in streams, ponds, reservoirs, the Great Lakes, and even in cold tailwaters below southern desert dams. There is no way to distinguish these transplanted fish from brown trout (bought from Europe) or goldfish (brought from China) or walking catfish (released from an aquarium and imported from Thailand). All are "Invasive," "non-native" and "non-indigenous" in most waters in which they occur today. Any attempt to refine the "Invasive" definition (1492, 1776, etc.) highlights the total lack of data for such an assertion -- and the foolishness of judging what should be on "that mountain slope" or in "those waters," based on past circumstances.

There is no doubt that -- however you define "Invasive" in any Federal legislation -- these and similar species that have been moved about for commercial purposes, sport purposes, or as the result of water projects -- like the diversion of the Chicago River or reservoir construction on the Missouri River -- will be targeted for extinction over the majority of their current ranges. Just as court decisions, Federal regulations, and Universities were manipulated by environmentalists and animal rights activists using Endangered Species legislative language and funding; so too will these same entities be further utilized by the same people using Federal Invasive Species authority.

Endangered Species legislative and regulatory language has been the tool used to stop public works projects, logging, public land access, fishing, and many other legitimate American freedoms and needed improvements.

One example of fishing reduction is the unjustified listing of the bull trout under the Endangered Species Act to justify the eradication of rainbow trout in hundreds of miles of streams.

Universities are influenced by the possibility of obtaining Federal grant monies for study. "Experts" on bats or darters are rewarded with funds and attention (graduate students, tenure, and recognition) if their biology asserts vague differences in races or populations to be significant -- or habitat "requirements" as needing more study -- because of overblown environmental interactions.

Invasive Species legislation will provoke the same groups to utilize courts, bureaucrats, and professors in the same way.

Meaningless competition between west coast striped bass and some other predator will be pictured as being 'very serious' by a biology professor.

Courts, bureaucrats, professors (and, sad to say, even state agencies eligible for Federal grants) will be prodded by groups opposed to sport fishing, commercial fishing, boating, gas engines, shoreline development, etc. -- to eradicate the striped bass and replace them with far less desirable or less utilizable species.

This will be presented as "restoring the balance of nature" -- and this scenario will be repeated nationwide -- until there is no more private shoreline property, no sport fishing, no commercial fishing, and no boating.

Anyone doubting these intended results need only look at the extreme agendas and radical activities of environmental and animal rights groups over the past twenty years.

Historical facts speak for themselves.

For the sake of all the things Americans hold dear -- from sport fishing to private property to making a living from the sustainable harvest of renewable natural resources -- please leave authority over plants and animals at the state level, where the Founding Fathers wisely placed it.

James M. Beers, Science Advisor

The American Land Rights Association (ALRA)

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