Before the United States Senate broke for the summer and decamped from D.C., one nominee it did confirm was Brian Nesvik, who will lead the United States Fish and Wildlife Service ("USFWS.") The Senate voted last Friday by 54-43 to approve Nesvik, the onetime head of the Wyoming Game and Fish Department.
This is some great news for Secretary of the Interior Doug Burgum who needed some of his top-tier appointees finally put into their jobs —more than six months into President Trump’s second term. Many other positions across the administration remain blockaded by a combination of obstructionist tactics by the Senate Democrats, as well as White House delay in nominations, paperwork filing by nominees, Senate committee hearings as well as votes, and a Senate work schedule which is leisurely as measured against the private sector even though this Senate has done more in the face of complete Democratic obstruction than recent iterations of the body. (Insiders among the Senate GOP promise they will change the Senate’s absurd confirmation rules when they return on September 3. That’s a great thing…if it happens. It should have happened immediately after the "One, Big, Beautiful Bill" passed the Senate.)
Nesvik’s appointment is crucial because the USFWS long ago blew past the intent of the federal Endangered Species Act ("ESA.") Congress has acquiesced in this bureaucratic mission creep for decades and decades as the agency grabbed more and more power over private landowners, but Burgum and Nesvik can take a sharp machete to the regulatory overgrowth.
First, though, President Trump should use an executive order to delist all "species" and "subspecies" that landed on the ESA list by virtue of the criteria of "decline in the historic range of the species’ or subspecies’ habitat." The USFWS uses this metric to list species and subspecies like the California gnatcatcher (a bird) or the San Diego fairy shrimp (a crustacean) or the Delhi Sands flower-loving fly (an insect) as "endangered" or "threatened." This metric of "projected future habitat loss" is not "science." It is politics and environmental extremism dressed up as "science."
It works this way. First, the Service identifies a "species" or a "subspecies" which it wants to "study" (and the definition of subspecies is itself a dodgy process of questionable legitimacy in the original law.) Then the Service proclaims the "historic range" of that subspecies —let’s say 10,000 square miles. Then "scientists" at the USFWS calculate how much of that 10,000 square miles has been developed for buildings, homes, parks, roads and reservoirs as well as anything else man-made and subtracts that area from the original "historic range."
If we are dealing with Southern California’s coastal regions, or the Bay Area, or the area around Las Vegas or Denver for example, a great deal of development of all sorts has taken place in those regions in the past 200 years. The USFWS then subtracts the developed part of the historic range over the past 200 years from the original historic range and then projects the same pace of development out decades or centuries.
Thus, if the 10,000 square miles of original "historic habitat range" had seen 7,500 square miles developed in the past 200 years, the Service concludes that the pace of past development which saw 75% of the historic range of the subspecies used by humans is going to continue into the future. Thus, the bureaucrats conclude that the 2,500 square miles will be reduced by 75% in the next two hundred years leaving only 600 square miles of historic range. The same calculation is then applied to the 600 square miles over the next 200 years etc. The conclusion that the species or subspecies is "endangered" or "threatened" by habitat loss is baked into the process. The species or subspecies that is endangered by "habitat loss" is placed on the endangered species list, and all land which is occupied by that subspecies is off-limits to development without one of two federal permits —a Section 10(a) permit from the USFWS or a Section 7 permit from the U.S. Army Corps of Engineers ("USACOE"). Indeed, sometimes the career bureaucrats at the agency attempt to assert that if the habitat in question could potentially be occupied by the species or the subspecies, it too is off limits to development without a permit.
Most permits applied for by private landowners are never granted, and are usually abandoned or made so expensive in terms of mitigation demanded by the USFWS that they end up combined into one big permit application that creates a new regional bureaucracy, which adds another layer of red tape and extreme costs to the private landowners’ plans. It sounds ridiculous, but it’s true. I retired from this area of law in 2015 after practicing in it on behalf of landowners for nearly 3 decades. It’s only gotten worse since I left practice to teach law and broadcast.
The ESA isn’t the only reason we have a housing shortage in many parts of the country and that critical infrastructure rarely gets built and never on budget or on time. States have their own versions of the ESA as well and their own versions of the Clean Water Acts and a host of other hurdles to construction. But this maze of species and subspecies law and regulations is backed up by criminal penalties of fines and years in jail for every individual member of the subspecies disturbed —not killed, but even just disturbed (the technical legal term is "taken")— by a landowner acting without a permit.
It’s an outrageous and idiotic system and much of it rests on three giant leaps of logic: That the ESA was intended to regulate "subspecies," that the "science" behind declaring either a species or a "subspecies" is sound, and that "decline of historic range" is also a legitimate scientific metric.
Hopefully President Trump, Secretary Burgum and Director Nesvik take aim at all three absurdities and, via executive order or rule-making, clear away hundreds of the 1,300 species and subspecies from the list of endangered and threatened species maintained by the Service. (The National Oceanic and Atmospheric Administration regulates the endangered or threatened species in the water though sometimes the USFWS and "NOAA" have overlapping jurisdiction.)
Two other moves would greatly assist the pressing need for more housing of all varieties and for major infrastructure projects and safe forests and wild-lands.
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First, the Supreme Court should be on the lookout for a case that allows it to make sense out of a tangle of cases having to do with "regulatory takings," and fashion a new, coherent rule of black letter law to apply to such regulatory takings: If any level of government requires longer than 60 days to approve a landowner’s plans for their private property, the government owes that landowner rent on a monthly basis. No more uncompensated "temporary" takings by regulation. The framers of the Constitution would be mortified by the extent the federal, state and local governments trample property rights which were explicitly protected by the Fifth Amendment from uncompensated takings, a prohibition applied to state and local governments by the 14th Amendment. Once government had to pay for its delay, the pace would pick up at every level of bureaucracy.
Second, Burgum and Nesvik should take the initiative and publish "nationwide Section 10(a) permits" that allow for all fire-prevention clearing, harbor dredging, and pier and pipeline construction and prospectively for "SMRs" —"small modular reactors" that are the future of carbon-free energy production— regardless of impacts to all species and subspecies. These are all projects of enormous public benefit and almost all of them are held-up if not blocked completely by environmental extremists using the ESA as a disguise for their no-growth, anti-human agendas.
President Trump, Secretary Burgum and Director Nesvik cannot make America great again if they can’t expedite big new infrastructure projects or prevent vast destruction by wildfires that use uncleared land for fuel or stop the quiet theft of private property by the leviathan of the giant combination of federal, state and local government regulations.
Hugh Hewitt is a Fox News contributor, and host of "The Hugh Hewitt Show," heard weekdays from 3 pm to 6 pm ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives America home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.
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