In a legal battle that could have implications for the Endangered Species Act, a young tech entrepreneur is facing off against federal wildlife officials over building on scrub jay habitat in Punta Gorda.
The scrub jay is only found in the Sunshine State and has been federally listed as a threatened species by the United States Fish and Wildlife Service since 1987. The current population is estimated at about 7,700 to 9,300 birds, according to the Florida Department of Environmental Protection.
Jon Thaxton, director of policy and advocacy at the Gulf Coast Community Foundation, said the scrub jay is a "remarkably intelligent bird." It's also one of the few animals on the planet that is capable of self-recognition, which is a trait largely confined to primates.
Julie Brashears-Wraithmell, a biologist and president of Audubon Florida, called the bird the "original Floridian."
"We have a unique responsibility to protect that for our children and for their children, too. It's our natural heritage," she said on "Florida Matters Live & Local." "The scrub jay, though, also is a really important umbrella for a lot of the ecosystem services that Floridians depend upon for both their quality of life and their economic prosperity."
She said that these birds rely heavily on fire to keep woody vegetation out of their habitat and maintain sandy patches. So they need regular management with prescribed fires to keep the habitat healthy.
"If this litigation were to be successful, we have basically eviscerated the Endangered Species Act for three-quarters of the species that are now protected under this law."Jon Thaxton, director of policy and advocacy at the Gulf Coast Community Foundation
Wraithmell added that many of the high, dry and well-drained sandy scrub areas are crucial for recharging our aquifers. They help to ensure there's water to drink and support agriculture for the food we eat.
"This is a bird that is threatened in Florida. This is the only place in the world that it occurs," Wraithmell said. "It is part of our very fabric as Floridians, and it can occur compatibly with human developments as well if we give it a modicum of consideration — if we give it the space that it needs to survive and thrive."
A legal battle over a fine
Tech entrepreneur Michael Colosi wants to build on the land these birds call home. But it's protected under a habitat plan put in place by Charlotte County in 2014 to comply with the Endangered Species Act. The plan requires anyone who wants to build on the land to pay a fee.
Colosi is in the midst of a lawsuit against the U.S. Fish and Wildlife Service to fight the fee. WUSF first reported about Colosi's lawsuit last year after a consortium of environmental advocacy groups filed to intervene to keep the bird on the federal list of threatened species. Wraithmell said Audubon is not party to the lawsuit.
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Colosi's legal team is arguing he should not have to bear the financial burden and should not need to pay a fee. They say it's not about whether the bird should be protected — it's about who is legally responsible for it.
Mark Miller, the director of Environment and Resource Litigation at Pacific Legal Foundation and Colosi's attorney, said the fee would be close to $140 thousand.
Miller said if the bird is only in Florida, then the state and its officials should be in charge of protecting it — not the federal government.
"It's not a question of not protecting it. It's a question of who legally has the authority, and if the species is only in Florida, then basically, the Constitution does not give the federal government the ability to reach down to regulate that intrastate species," Miller said on "Florida Matters Live & Local."
Miller believes if the community thinks it's important to conserve the land for the bird, Colosi should be "incentivized" to do so.
He used an example of if some of his property was used for a public road, then they'd compensate him.
"Why should he have to pay the price if we in Charlotte County or in Florida or in the United States — since this is the Endangered Species Act — think the bird is important to protect," Miller questioned.
Miller said in the 70s, the country came up with a "scarcity" mindset when it comes to environmental laws.
"Instead of putting the needs for people to be able to use our natural resources and recognizing that's important, and also recognizing species were important or the environment, we said it has to be one or the other and that's just wrong," Miller said. "We can do both. We can walk and chew gum."
What this could mean for the Endangered Species Act
But Thaxton said the land was purchased, knowing the habitat conservation plan was in place.
"It was valued with the HCP in place, and it's all based on solid science," Thaxton said. "So it's a little bit kind of changing the rules of the game in the fourth quarter for this particular property owner to assert the claims that he is making."
ALSO READ: Experts are concerned the Florida scrub jay is not getting the protection it needs from development
Thaxton said the argument that the bird is unique to Florida and therefore has no national value and that the Endangered Species Act should not be enforced is "absolutely absurd."
He added that this is because 75% of endangered species are restricted to a single state.
"If this litigation were to be successful, we have basically eviscerated the Endangered Species Act for three-quarters of the species that are now protected under this law," Thaxton said.
This story was compiled from interviews conducted by Matthew Peddie for "Florida Matters Live & Local." You can listen to the full discussions with Julie Brashears-Wraithmell and Jon Thaxton here. And the conversation with attorney Mark Miller here.
