Here's an interesting idea. To protect the Alameda whipsnake, folks at the Fish and Wildlife Service want to restrict development on more than 400,000 acres in California's Alameda, Contra Costa, Santa Clara, and San Joaquin counties.

Under the Endangered Species Act, the federal government wants to overturn nature and create a "critical habitat" where development for other important species, say humans, would be restricted.

Representing such groups as the California Chamber of Commerce, the Home Builders Association of Northern California, the Building Industry Legal Defense Fund, and the Construction Materials Association of California, the Pacific Legal Foundation is now suing the Fish and Wildlife Service to limit the amount of land impacted by preservation requirements.

In their brief, the Foundation makes several core points:

• The Endangered Species Act says government should carefully target habitats so that excess land is not taken. What it did not do in this case, says the Foundation, is distinguish actual from potential habitat, essential from nonessential habitat, or suitable from unsuitable habitat.

• The government has not actually checked where the critters live. It has simply assumed where they might reside.

• The government wants to set aside areas where the snake does not now live and may never live.

The Endangered Species Act allows government to ignore any cost/benefit analysis. The Act says that the Secretary of the Interior Department, of which the Fish and Wildlife Service is a part, must use the best available scientific data to determine what is or is not a "critical habitat." Economic impact can be considered -- but not if a species faces extinction. And if the government says you can't use your property anymore, forget about compensation: Somehow, magically, the "taking" clause of the Fifth Amendment no longer applies.

My thought here is the same which arose several years when efforts were proposed to protect California's "Dehli Sands flower-loving fly." In that case, you'll remember, government officials thought of closing down highways to assure there would be no "windshield incidents," an idea we should passionately support.

I think the Pacific Legal Foundation has the right principles in mind, but their point would be better made if they took a somewhat different approach.

The Foundation should agree that the Alameda whipsnake is endangered. Then it should sue the government to protect this magnificent and valued creature under the absolute requirements mandated by law.

In rough terms, 400,000 acres is equal to 625 square miles of land. Are there highways here? We surely don't want the very last Alameda whipsnake done in by a "tire incident" so we'll need to close every road. Shutter hospitals? Of course. Close schools, fire departments, and fast food joints? Absolutely. End rail traffic? Certainly. Bring the whole place to an utter and total standstill, just like the law demands.

And don't stop in California. Do the same thing in every state. Something endangered must live in downtown Manhattan, the Chicago suburbs, and parts of Miami.

Given that there are millions of different fleas, flies, and whatever you can pretty much bet one species or another is biting the dust at any given moment and that every property -- including yours -- is potentially the habitat for some endangered creature, especially when the federal government carefully defines "critical habitats" with hunches, a map and darts.

In practice, of course, no city will actually be shut down because court challenges will delay any real action. But once efforts are made to close a few cities how long do you think it will take for the law to be re-written?

Should we have an Endangered Species Act? Sure -- but we are bright enough to make it work without ignoring either common sense or the protections of the Fifth Amendment.

For more articles by Peter G. Miller, please press here.

Published: June 12, 2001

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