https://www.americanthinker.com/articles/2024/11/the_case_of_the_florida_scrub_jay_challenges_the_esa_s_tyranny.html
As the name suggests, the Florida scrub jay lives exclusively in the scrublands of the Sunshine State. A medium-sized, long-tailed, blue-and-gray songbird, its call when perched on scrubs is a screechy scold that sends its tail up like a Roman catapult launching a rock. One of 15 bird species native to the continental U.S.—and allegedly threatened by loss of habitat—it is protected under the Endangered Species Act (ESA) of 1973.
But should protecting the bird take precedence over a citizen’s property rights when his land isn’t habitat suited to the bird? And doesn’t the arbitrary development fee that Florida counties imposed—a scrub jay fee, supposedly for offsetting the environmental impact of building on a property—amount to an exorbitant ransom?
These are among the questions raised in a federal lawsuit filed by Michael Colosi, a tech entrepreneur who hopes to build a house on a five-acre plot he recently bought in Punta Gorda, Charlotte County, Florida. Though he believes that his land, thick with pine and saw palmetto, is unsuited to the scrub jay, he is happy to adhere to the county’s habitat conservation plan (HCP) requirements, such as planting scrub oaks to encourage bird visits and avoiding land clearance during nesting season. But he refuses to pay the hefty $120,000 scrub jay fee for allowing him to build on his plot, for he plans to use only an acre or so for a house and garage, leaving the rest in its natural state.
The lawsuit—in which Charlotte County, the U.S. Fish and Wildlife Service (FWS), and the U.S. Department of the Interior are defendants—is in the U.S. District Court for the Middle District of Florida (Fort Myers Division). The Pacific Legal Foundation (PLF) is representing Colosi pro bono in a suit challenging the fee as an unconstitutional infringement of Colosi’s right to develop and use his property. It also challenges the unconstitutional regulation under federal law—in this case, the ESA—of an intrastate species of no commercial or economic value, and hence not under the Commerce Clause’s purview.
Before discussing the precedents that the PLF cites in the lawsuit, some background on the ESA is in order. The act, which the FWS and U.S. NOAA Fisheries Services administer, is not only the most wide-ranging in the U.S. but is one that unaccountable bureaucrats in the administrative state rampantly abuse through overreach.
