WEBVTT - Endangered Species at Risk & Immigration 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:09.080 --> 0:00:12.040 We've lost about one out of every five butterflies from 0:00:12.039 --> 0:00:16.160 twenty to twenty twenty. Scientists released a new study last 0:00:16.200 --> 0:00:19.720 month showing that in the last twenty years, nearly one 0:00:19.840 --> 0:00:23.239 quarter of all butterflies have been wiped out, with the 0:00:23.280 --> 0:00:26.920 loss of habitat being one of the major causes. It 0:00:27.000 --> 0:00:30.040 was just at the end of last year, after years 0:00:30.040 --> 0:00:34.640 of scientists warning that the number of monarch butterflies were shrinking, 0:00:34.800 --> 0:00:38.640 that US Wildlife officials put the monarch butterfly on the 0:00:38.760 --> 0:00:42.239 endangered species list. It's really quite troubling to see that 0:00:42.280 --> 0:00:45.720 monarch populations are declining, and if there aren't enough flowers 0:00:45.720 --> 0:00:48.640 to feed monarchs, imagine all the lesser known pollinators that 0:00:48.680 --> 0:00:51.200 aren't getting the things that they need. But this month, 0:00:51.280 --> 0:00:55.280 the Trump administration issued a proposed revision to the Endangered 0:00:55.320 --> 0:00:59.640 Species Act that would cut nearly all habitat protections for 0:00:59.680 --> 0:01:05.080 injured species like the monarch butterfly, the manage, the northern 0:01:05.120 --> 0:01:08.800 spotted owl, the whooping crane, and the green sea turtle, 0:01:09.040 --> 0:01:11.720 just to name a few. Turining me is environmental law 0:01:11.760 --> 0:01:14.920 expert pat Parento A. Professor at the Vermont Law and 0:01:14.959 --> 0:01:19.559 Graduate School. So that the Trump administration wants to scrap 0:01:19.959 --> 0:01:24.280 how the government defines harm in the Endangered Species Act, 0:01:24.600 --> 0:01:28.880 tell us how it's been defined since basically the Reagan administration. 0:01:29.319 --> 0:01:34.360 So the Act prohibits was called take of protected species, 0:01:34.400 --> 0:01:37.959 and take is further defined by a whole string of 0:01:38.080 --> 0:01:45.160 verbs including kill, wound, trap, but also harm or harassed. 0:01:46.000 --> 0:01:50.240 And it's those two words harm and harassed in the 0:01:50.320 --> 0:01:55.080 Endangered Species Act of nineteen seventy three. That were new concepts, 0:01:55.480 --> 0:01:59.480 and it took some time to define what those concepts meant. 0:02:00.120 --> 0:02:04.400 But in regards to harm, there was a very critical 0:02:04.440 --> 0:02:08.600 decision issued way back in the early nineteen eighties actually 0:02:09.120 --> 0:02:11.799 by the Ninth Circuit Court of Appeals in a case 0:02:11.840 --> 0:02:16.160 out of Hawaii involving the Palila bird, an endangered bird, 0:02:16.200 --> 0:02:22.000 which ruled that destruction of habitat constitutes harm. And as 0:02:22.040 --> 0:02:25.880 a result of that decision, the Department of Interior under 0:02:26.040 --> 0:02:31.680 then Secretary Babbitt promulgated this rule, defining harm to mean 0:02:32.200 --> 0:02:39.880 actions including habitat modification that actually kills or injures listed 0:02:39.919 --> 0:02:47.440 species by interfering with essential behavioral conditions like breeding, feeding, 0:02:47.680 --> 0:02:52.320 and sheltering. So it's a long definition, but its bottom 0:02:52.400 --> 0:02:57.400 line is the court's ruled that habitat loss is a 0:02:57.560 --> 0:03:03.160 take is prohibited under the d Species Act. Congress subsequently, 0:03:03.320 --> 0:03:07.720 after the Polila case, enacted an amendment to the Endangered 0:03:07.760 --> 0:03:10.680 Species Act in nineteen eighty two. I was there, I 0:03:10.760 --> 0:03:16.519 testified on this, which said, Okay, to protect landowner from 0:03:16.760 --> 0:03:20.360 finding themselves in violation of the Act, we're going to 0:03:20.400 --> 0:03:24.720 create a special permit process, which is called the incidental 0:03:25.160 --> 0:03:29.160 take permit, and we're going to require that landowners, if 0:03:29.160 --> 0:03:32.120 they want one of these permits, come up with a 0:03:32.240 --> 0:03:38.000 habitat conservation plan to mitigate an offset the loss of 0:03:38.040 --> 0:03:42.640 habitat for the activity logging, mining, grazing, all kinds of 0:03:42.680 --> 0:03:46.720 activity that would result in loss of habitat. So the 0:03:46.760 --> 0:03:51.360 point is this harm rule has a very long history, 0:03:52.320 --> 0:03:57.200 and it's one that Congress deliberately codified in the Endangered 0:03:57.240 --> 0:04:00.760 Species Act. That's why they created the permit for So 0:04:00.840 --> 0:04:05.400 the idea now that you would eliminate the definition of 0:04:05.480 --> 0:04:08.240 harm just rescind it, wipe it off the books, and 0:04:08.240 --> 0:04:11.840 not replace it, which is what is being proposed by 0:04:11.880 --> 0:04:16.360 Secretary Bergham. It's crazy, I mean it flies in the faith. 0:04:16.880 --> 0:04:21.560 What's the surprise here of this whole history of how 0:04:22.120 --> 0:04:26.960 the courts and Congress have dealt with this critical idea 0:04:27.480 --> 0:04:31.880 of protecting habitat. When you think about it, habitat loss 0:04:32.120 --> 0:04:37.080 is the major driver of extinction in the United States 0:04:37.560 --> 0:04:41.360 and globally. So to just eliminate it from the one 0:04:41.480 --> 0:04:46.039 law that's designed to prevent extinction, it's really nut the 0:04:46.080 --> 0:04:47.039 proposed change. 0:04:47.520 --> 0:04:51.320 Are they saying it's because of the Supreme Court's decision 0:04:51.360 --> 0:04:54.040 in Low or Bright eliminating the Chevron. 0:04:53.720 --> 0:04:57.839 Doctrine, Well they are. The irony, of course, is the 0:04:58.000 --> 0:05:00.880 United States Supreme Court, in a very very famous case 0:05:00.920 --> 0:05:04.560 which I submitted an amicus brief on behalf of E. O. Wilson, 0:05:04.600 --> 0:05:08.320 the late great conservation biologists, the biologist, by the way, 0:05:08.640 --> 0:05:11.520 who first warn the world that we were in an 0:05:11.560 --> 0:05:14.919 era of extinction. It was his work way back in 0:05:14.960 --> 0:05:19.040 the sixties that identified the loss of habitat as the 0:05:19.080 --> 0:05:22.760 main driver of extinction. Right, So we filed this brief 0:05:22.960 --> 0:05:26.080 in a case called sweet Home versus Babbitt, in which 0:05:26.120 --> 0:05:28.960 the US Supreme Court upheld by a sixty to three 0:05:29.040 --> 0:05:32.279 vote the harm rule that I just described. Right, So, 0:05:33.080 --> 0:05:38.279 now you have the Trump administration saying, yeah, but the 0:05:38.320 --> 0:05:42.360 Supreme Court has overruled Chevron, which means, of course that 0:05:42.480 --> 0:05:46.600 the Supreme Court's decision in Sweet Home is no longer controlling. 0:05:46.680 --> 0:05:49.839 But wait a minute. When you read Chief Justice Roberts's 0:05:49.839 --> 0:05:55.080 opinion in Low for Bright, he specifically says that decisions 0:05:55.120 --> 0:06:00.160 that have upheld rules based on Chevron are still in effect. Yea, 0:06:00.960 --> 0:06:05.120 So now you have the Trump administration saying, well, but 0:06:05.160 --> 0:06:08.880 we're going to change the rule by eliminating it for harm, 0:06:09.240 --> 0:06:14.400 and therefore we don't have to give the prior interpretation 0:06:14.839 --> 0:06:18.840 any significance, any difference at all. But that's not what 0:06:18.960 --> 0:06:23.479 Robert said. He said that prior decisions based on Chevron 0:06:23.560 --> 0:06:29.360 defference are entitled to what are called statutory starry decisives, 0:06:29.360 --> 0:06:32.920 in other words, precedent right. And he made it clear 0:06:33.000 --> 0:06:35.800 that it wasn't just a matter of saying, oh, well, 0:06:35.839 --> 0:06:39.679 never mind that a rule was formally upheld. He said, 0:06:40.040 --> 0:06:43.560 you have to justify, you know, new decisions to change 0:06:43.560 --> 0:06:49.200 your rule under the usual requirements of reversing prior rules, right, 0:06:49.240 --> 0:06:53.120 which is what we call the state farm doctrine, which 0:06:53.200 --> 0:06:57.760 means you have to justify repealing a rule based on 0:06:58.000 --> 0:07:04.240 change of circumstances, new facts, something has happened that justify 0:07:05.000 --> 0:07:11.120 rethinking why the original rule should be completely reversed. But again, 0:07:11.880 --> 0:07:15.480 all of the evidence suggests there's no basis for eliminating 0:07:15.760 --> 0:07:20.360 habitat protection from the Protections of the Endangered Species Act. 0:07:20.600 --> 0:07:24.480 If anything, what we're seeing is that habitat loss is 0:07:24.600 --> 0:07:30.400 now affecting all species. You know. The Cornell Lab, you know, 0:07:30.440 --> 0:07:36.040 the famous ornithological lab at Cornell University, issued an incredible 0:07:36.320 --> 0:07:42.480 decision this last year saying three billion birds three billion 0:07:42.560 --> 0:07:47.440 birds have disappeared from the United States since nineteen seventy 0:07:47.880 --> 0:07:52.640 and that's primarily related to habitat loss. Pesticides and other 0:07:52.680 --> 0:07:56.840 things come into play. Habitat loss is the reason that 0:07:56.840 --> 0:08:02.360 we're losing our incredible array of species. So this idea 0:08:03.280 --> 0:08:08.480 that the local Bright decision somehow justifies eliminating protection for 0:08:08.600 --> 0:08:12.200 habitat is once again crazy. 0:08:12.560 --> 0:08:17.040 So the Center for Biological Diversity issued a report identifying 0:08:17.160 --> 0:08:20.480 ten endangered animals at risk from this proposal by the 0:08:20.520 --> 0:08:26.240 Trump administration. They include the whooping crane, monarch, butterflies, manatees, 0:08:26.440 --> 0:08:31.000 the northern spotted owl, the Florida panther, desert tortoises, etc. 0:08:31.840 --> 0:08:35.040 And a lot of those are very popular species that 0:08:35.520 --> 0:08:38.160 most of the public would probably want to protect. 0:08:39.040 --> 0:08:44.160 Right at one time, you could measure the abundance of 0:08:44.200 --> 0:08:49.160 monarch butterflies in the billions, and the western population of 0:08:49.240 --> 0:08:53.480 monarch butterflies has been reduced by I think something like 0:08:53.520 --> 0:08:58.320 eighty percent maybe more and is really in danger of extinction. 0:08:58.640 --> 0:09:02.720 It's incredible to say that butterflies that used to light 0:09:02.840 --> 0:09:05.679 up the landscape all across the United States. I mean, 0:09:05.720 --> 0:09:07.760 we have them right here in our fields at are 0:09:08.080 --> 0:09:10.839 place here in Vermont, not as many as we used 0:09:10.840 --> 0:09:14.360 to have, but still it's like the passenger pigeons, right, 0:09:14.520 --> 0:09:17.440 Flocks of passenger pigeons, history says, used to darken the 0:09:17.440 --> 0:09:21.840 skies throughout much of the central part of the United States. 0:09:21.920 --> 0:09:25.040 And then just we're gone, and we're seeing the same 0:09:25.080 --> 0:09:28.839 thing with species like monarch butterflies. And we've got an 0:09:28.840 --> 0:09:33.360 administration you know, that wants to eliminate the one law 0:09:33.720 --> 0:09:36.960 that's designed to prevent that, or to substantially weaken it, 0:09:37.000 --> 0:09:41.160 if not eliminate it. It's really quite remarkable. 0:09:41.880 --> 0:09:47.559 So would this Trump administration change limit the Endangered Species 0:09:47.600 --> 0:09:52.199 Act to prohibiting only intentional direct killings. 0:09:51.640 --> 0:09:56.680 Of animals, right, And that's what Justice Scalia's descent in 0:09:56.760 --> 0:10:01.600 this Sweet Home decision said, is that you can only 0:10:01.679 --> 0:10:04.920 interpret harm in the same way that you interpret the 0:10:05.040 --> 0:10:10.360 verb kill. So to kill means direct impact on the 0:10:10.400 --> 0:10:15.640 individual animal, as Scalia famously put it, a strikes B. 0:10:16.480 --> 0:10:22.199 But in her concurring opinion in Sweet Home, Justice O'Connor that, now, 0:10:22.200 --> 0:10:26.320 wait a minute, eliminating the ability of a species to 0:10:26.440 --> 0:10:31.200 reproduce is the essential kinds of injury. How can you 0:10:31.320 --> 0:10:37.080 say that only a strikes B constitutes harm, you know, 0:10:37.280 --> 0:10:42.319 eliminating the breeding habitat of species and their ability to reproduce, 0:10:42.920 --> 0:10:48.400 essentially eliminating the species. So it was a fascinating interchange 0:10:48.840 --> 0:10:51.959 between O'Connor and Scalia, not the first to last, by 0:10:51.960 --> 0:10:55.720 the way of those who disagreeing in print, sometimes quite 0:10:55.880 --> 0:10:59.839 tartly over how to interpret a statutory term. So once again, 0:11:00.000 --> 0:11:04.800 and this whole idea that only things that directly affect 0:11:04.800 --> 0:11:08.559 the species is ignoring what the science is telling us 0:11:08.880 --> 0:11:13.000 is the major reason we're driving species extinct. 0:11:14.120 --> 0:11:17.280 So then do you think that when this is challenged 0:11:17.280 --> 0:11:21.440 in the courts, that the administration will lose? 0:11:22.640 --> 0:11:26.920 Yes, they should and they will. Now, when it finally 0:11:26.920 --> 0:11:29.920 goes back to the Supreme Court, we'll actually see whether 0:11:30.240 --> 0:11:34.400 Justice Roberts you know, sort of caution in the Lower 0:11:34.520 --> 0:11:37.160 Bright case stands up. In other words, is he going 0:11:37.280 --> 0:11:40.920 to look at this question of can you just simply 0:11:41.280 --> 0:11:45.400 wave your hand, you know, and eliminate this harm rule 0:11:45.840 --> 0:11:49.400 without any justification at all other than to say we 0:11:49.480 --> 0:11:52.400 don't think it's the single best reading of the statue. 0:11:52.600 --> 0:11:56.080 That's the rationale that the Trump administration is using to 0:11:56.120 --> 0:12:00.240 repeal the harm rule. You know, the single best interpretationation, 0:12:00.679 --> 0:12:05.280 says the Trump administration is Kalia's descent in sweet Home. 0:12:05.600 --> 0:12:08.240 So when this thing finally if it does, then it 0:12:08.320 --> 0:12:11.840 may not get back to the Supreme Court. We'll actually 0:12:12.040 --> 0:12:15.760 see whether or not just saying we're going to repeal 0:12:15.880 --> 0:12:19.880 a rule because in our view, the Trump administration view, 0:12:20.200 --> 0:12:23.679 it's not the best reading of the statute can prevail. 0:12:24.480 --> 0:12:26.959 And by the way, you know, the Trump administration is 0:12:27.000 --> 0:12:29.800 not going to get any difference for that interpretation either. 0:12:29.960 --> 0:12:33.840 That is the central message of Loper Bright. Nobody, no 0:12:33.960 --> 0:12:38.679 agency gets difference anymore under Lower Bright, including Trump. 0:12:39.120 --> 0:12:43.480 After the biotech and genetic engineering company said it successfully 0:12:43.640 --> 0:12:48.800 created three dire wolf puppies. The Secretary of the Interior, 0:12:48.880 --> 0:12:51.280 Doug Bergham, said, the only thing we'd like to see 0:12:51.280 --> 0:12:54.480 go extinct is the need for an endangered species list 0:12:54.559 --> 0:12:58.240 to exist. He compared it to Hotel California, where once 0:12:58.280 --> 0:12:59.720 you're on the list, you never get out. 0:13:00.800 --> 0:13:01.199 Wow. 0:13:02.280 --> 0:13:06.680 So the dire wolf story, it turns out those aren't 0:13:06.720 --> 0:13:13.199 dire wolves. They're an amalgamation of genetic manipulation of different 0:13:13.679 --> 0:13:18.320 painted species. If you really look behind the headlines of 0:13:18.360 --> 0:13:22.360 that story, not the dire wolf, get the knockoffs. It's 0:13:22.400 --> 0:13:26.120 a Hollywood production of a dire wolf. That's not what 0:13:26.200 --> 0:13:31.480 we're talking about with endangered species conservation. The original Act 0:13:32.200 --> 0:13:38.440 in nineteen seventy three had some incredible observations, really profound observations, 0:13:38.480 --> 0:13:44.720 things like in danger, species hold answers to questions we 0:13:44.880 --> 0:13:50.000 haven't even learned how to ask. I mean, it was 0:13:50.040 --> 0:13:53.559 really profound, right. It was like the driver of evolution 0:13:53.720 --> 0:13:58.400 on Earth is speciation and the way that species adapt. 0:13:58.520 --> 0:14:03.199 And of course nine of the species that ever existed 0:14:03.600 --> 0:14:07.520 on the Earth are extinct, so extinction is a part 0:14:08.040 --> 0:14:13.200 of the natural process. But the difference is human caused extinction, 0:14:13.720 --> 0:14:18.720 which again EO. Wilson and others documented and proved was 0:14:18.960 --> 0:14:23.840 accelerating at sometimes one hundred times and other times even 0:14:23.920 --> 0:14:28.200 a thousand times greater than what they called the background 0:14:28.560 --> 0:14:32.160 rate of extinction, which is sort of the natural evolution 0:14:32.840 --> 0:14:37.040 of species on Earth. Right, So this idea that we 0:14:37.240 --> 0:14:42.400 can recreate species, this sort of Jurassic Park notion that 0:14:42.440 --> 0:14:45.480 we don't need to preserve the natural diversity of the Earth, 0:14:45.880 --> 0:14:49.560 the natural process of evolution, that we can invent species 0:14:49.600 --> 0:14:52.880 whenever we feel like it really is a Hollywood idea. 0:14:53.160 --> 0:14:56.360 It has nothing to do with science, nothing to do 0:14:56.560 --> 0:15:01.600 with the fact that you know, natural species, including insects, 0:15:01.600 --> 0:15:05.440 which are in great decline, are incredibly important as we know, 0:15:06.040 --> 0:15:09.080 to human survival on the Earth. Scientists are saying, if 0:15:09.440 --> 0:15:12.600 we continue on the path that we're continuing to drive 0:15:12.760 --> 0:15:17.720 more and more just simply insects species to extinction, we're 0:15:17.760 --> 0:15:22.040 going to have tremendous impacts on pollination, tremendous impacts on 0:15:22.120 --> 0:15:25.120 food supply. And you can do the same thing with 0:15:25.200 --> 0:15:29.160 the oceans. You destroy the coral reefs. That's a third 0:15:29.320 --> 0:15:32.440 of the marine biodiversity on Earth. When you think about 0:15:32.560 --> 0:15:35.560 all of the protein that we get from the oceans, 0:15:35.840 --> 0:15:40.800 that depend on natural systems, natural organisms that are attracted 0:15:40.800 --> 0:15:46.160 to coral reefs. You're just inviting catastrophe when you suggest 0:15:46.200 --> 0:15:49.880 that we don't have to be concerned with preserving the 0:15:49.960 --> 0:15:51.720 natural history of the world. 0:15:52.200 --> 0:15:57.320 Is this all about making it easier for oil and 0:15:57.440 --> 0:16:01.320 gas producers? What's the goal of the Trump administration. 0:16:02.280 --> 0:16:07.280 Yeah, I mean it's property rights, it's landowner rights in part. 0:16:07.840 --> 0:16:11.040 Although what we've seen with the Harm rule in place 0:16:11.960 --> 0:16:15.600 is that there have been millions, more than twenty million 0:16:15.600 --> 0:16:20.680 acres of land, private lands that have been conserved under 0:16:20.720 --> 0:16:25.440 this incidental take permit program I mentioned, and allowed logging 0:16:25.520 --> 0:16:31.520 and mining and other activities to occur, just with offsetting mitigation. 0:16:31.960 --> 0:16:37.880 So it's not true that the Harm rule has prevented 0:16:38.480 --> 0:16:44.400 anything anything. There's no evidence that any landowner has suffered 0:16:44.400 --> 0:16:49.080 what's called a taking, a constitutional taking of property as 0:16:49.120 --> 0:16:52.960 a result of the Endangered Species Act. Never, never, So 0:16:53.320 --> 0:16:57.280 the whole idea that you have to eliminate this one 0:16:57.400 --> 0:17:03.000 mechanism of protection is simply wrong. There's no fact, no evidence. 0:17:03.120 --> 0:17:06.240 If you look at the proposed rule to resind the 0:17:06.320 --> 0:17:08.560 Harm rule in the Federal Register, and by the way, 0:17:09.040 --> 0:17:11.800 the comment period is still open until May nineteenth. For 0:17:11.880 --> 0:17:14.880 those who are interested in that, you can go look 0:17:14.920 --> 0:17:18.800 at it. It's a very short statement. We're simply repealing 0:17:19.359 --> 0:17:22.560 the harm rule. We're not replacing it. We're just pretending 0:17:22.600 --> 0:17:25.480 like we're going to erase the word from the statute, 0:17:25.760 --> 0:17:31.000 which of course violate canon number one of statutory interpretation, 0:17:31.200 --> 0:17:36.360 which is every word of a statute must be given effect. 0:17:36.800 --> 0:17:40.280 You don't just erase it because you find it difficult 0:17:40.440 --> 0:17:43.760 or whatever. You have to do something with it. And 0:17:44.080 --> 0:17:46.679 the proposal is to do nothing with it, to just 0:17:47.000 --> 0:17:49.080 erase it as if it never existed. 0:17:50.400 --> 0:17:54.280 So would this move by the Trump administration, would it 0:17:54.400 --> 0:17:56.720 got the Endangered Species Act? 0:17:57.200 --> 0:18:01.840 It would drive a huge hole through the Act, for sure. 0:18:02.119 --> 0:18:05.600 There are other reasons why the Act still you know, 0:18:05.680 --> 0:18:11.199 provides protection. It still requires consultation, although there's another you know, 0:18:11.240 --> 0:18:14.520 Burghum directive now saying that we're going to shorten up 0:18:14.560 --> 0:18:19.679 the time for consultation. When a proposed activity oil and 0:18:19.760 --> 0:18:23.680 gas leasing for example, or other forms of fossil fuel development, 0:18:23.880 --> 0:18:27.479 where that threatens an endangered species, there's a requirement that 0:18:27.520 --> 0:18:31.399 there be consultation. And there's still a provision that says 0:18:31.400 --> 0:18:34.320 if an action would jeopardize a species, it can't go 0:18:34.480 --> 0:18:37.720 forward unless it gets an exemption and so forth. But 0:18:38.160 --> 0:18:42.679 the point is by taking out the central protective mechanism 0:18:42.720 --> 0:18:49.560 of the Act, the take prohibition applies to everyone, private parties, state, 0:18:49.920 --> 0:18:55.680 tribal entities, counties. I mean, it's the most comprehensive provision 0:18:55.720 --> 0:18:59.440 in the Act that protect species no matter where they are, 0:18:59.480 --> 0:19:03.560 whether or not federal land or not private land, state land, 0:19:03.640 --> 0:19:07.159 or wherever they are, they're protected by the take prohibition 0:19:07.640 --> 0:19:09.840 and this incidental take permit process. 0:19:09.960 --> 0:19:10.200 Right. 0:19:10.680 --> 0:19:15.200 So it's a really central mechanism of the law. It's 0:19:15.280 --> 0:19:17.480 not the only one, and it doesn't mean that the 0:19:17.560 --> 0:19:21.919 law would simply disappear without it, but the ability to 0:19:22.040 --> 0:19:26.040 protect habitat on non federal lands, which is where most 0:19:26.040 --> 0:19:29.280 of the habitat is, would be severely diminished. 0:19:29.560 --> 0:19:30.919 There's a lot at stake here. 0:19:31.560 --> 0:19:34.119 I don't think this one is going to survive. I 0:19:34.160 --> 0:19:36.639 really don't. But the point is we're going to have 0:19:36.720 --> 0:19:41.280 to fight about it for years instead of moving forward 0:19:41.760 --> 0:19:45.679 with making the laws work better. And certainly there's ways 0:19:45.680 --> 0:19:48.679 of improving the way the Endangered Species Act works to 0:19:48.800 --> 0:19:51.720 make it more effective at recovery, for example, and to 0:19:51.800 --> 0:19:55.640 provide more incentives for landowners. That's fine, you know, let's 0:19:55.680 --> 0:19:59.679 have that conversation. But just going backwards that's not going 0:19:59.720 --> 0:20:00.520 to help anything. 0:20:00.800 --> 0:20:03.760 We'll see what happens after the notice and comment period 0:20:03.840 --> 0:20:05.520 is over. Thanks so much. 0:20:05.600 --> 0:20:05.919 Pat. 0:20:06.400 --> 0:20:10.000 That's Professor Pat Parento of the Vermont Law and Graduate School. 0:20:10.440 --> 0:20:14.560 The Trump administration's immigration moves have been in the headlines. 0:20:15.240 --> 0:20:18.680 Last Friday, it was the FBI's arrest of a Wisconsin 0:20:18.800 --> 0:20:25.000 judge for allegedly helping an undocumented immigrant evade ICE borders 0:20:25.040 --> 0:20:27.600 are Tom Homan defended the arrest. 0:20:27.880 --> 0:20:30.120 You can sit aside and watch you. You can argue 0:20:30.119 --> 0:20:32.520 against us, always want, and protest all you want. But 0:20:32.560 --> 0:20:34.439 when you cross that line. I've said this to a 0:20:34.480 --> 0:20:38.200 thousand times, when you cross that line to impediment or 0:20:38.240 --> 0:20:43.000 annoying Harbard, concealing an illego alahaim Ice, you will be prosecuted, 0:20:43.720 --> 0:20:44.280 judge or not. 0:20:44.800 --> 0:20:47.920 And then the removal of three children who are US 0:20:48.000 --> 0:20:51.840 citizens to Honduras with their mothers who were being deported. 0:20:52.440 --> 0:20:55.760 Secretary of State Marco Rubio set it's up to the 0:20:55.840 --> 0:20:59.120 families to decide whether the children go with their mothers 0:20:59.359 --> 0:21:02.080 who are being deported, or stay in the US. 0:21:02.880 --> 0:21:06.600 If someone's in this country unlawfully, illegally, that person gets deported. 0:21:06.760 --> 0:21:08.840 If that person is with a two year old child 0:21:08.920 --> 0:21:10.359 or has a two year old child and says, I 0:21:10.400 --> 0:21:12.880 want to take my child with you with me, Well, 0:21:12.880 --> 0:21:14.960 now what you have two choices. You can say yes, 0:21:15.000 --> 0:21:16.720 of course, you can take your child, whether they're a 0:21:16.760 --> 0:21:19.200 citizen or not, because it's your child. Or you can 0:21:19.240 --> 0:21:22.080 say yes, you can go, but your child must stay behind. 0:21:22.240 --> 0:21:25.560 And then your headlines would read us holding hostage two 0:21:25.600 --> 0:21:28.120 year old, four year old, seven year old while mother deported. 0:21:28.359 --> 0:21:30.800 So the mother, the parents make that choice. 0:21:31.320 --> 0:21:34.520 My guest is immigration law expert Leon Fresco, a partner 0:21:34.560 --> 0:21:38.320 at Holland and Knight. Three US citizen children from two 0:21:38.520 --> 0:21:41.879 families were removed from the United States with their mothers 0:21:41.920 --> 0:21:45.440 who were being deported to Honduras, and Secretary of State 0:21:45.520 --> 0:21:49.800 Marco Rubio defended the removals, saying it was the mother's choice. 0:21:50.400 --> 0:21:53.520 Well, this is not an uncommon fact pattern, which is 0:21:53.560 --> 0:21:56.640 there are many of these so called mixed status families, 0:21:56.680 --> 0:21:59.040 and what that means is that one or both of 0:21:59.080 --> 0:22:02.520 the pirates might be documented. And then obviously, if a 0:22:02.600 --> 0:22:04.760 child is born in the United States, the child is 0:22:04.760 --> 0:22:07.960 a US citizen, and the question is what happens there? 0:22:08.000 --> 0:22:12.240 And normally what happens in that situation is ice like 0:22:12.320 --> 0:22:15.520 in any arrest, there's a car and there's a parent 0:22:15.560 --> 0:22:19.000 and a child in a drunk driving situation. If you 0:22:19.080 --> 0:22:22.400 have an arrest, what happens is the authority say, what 0:22:22.440 --> 0:22:25.159 would you like the dispensation to be for the child? 0:22:25.280 --> 0:22:28.560 Is there some plan that you had in this situation, 0:22:28.720 --> 0:22:31.320 and it might be in the case of a US 0:22:31.359 --> 0:22:34.639 citizen child of an undocumented parent, an aunt, an uncle, 0:22:34.720 --> 0:22:38.639 a cousin. Dispute in this case is that I didn't 0:22:38.680 --> 0:22:42.400 give that opportunity for those wishes to be carried out. 0:22:42.480 --> 0:22:45.280 And that's what the federal court judge is going to 0:22:45.359 --> 0:22:48.640 have to determine, is was that plan not carried out? 0:22:49.240 --> 0:22:52.360 And the reason this matters is, yes, the US citizen 0:22:52.359 --> 0:22:54.880 could come back into the US, but it takes time 0:22:54.960 --> 0:22:57.800 to go to an embassy and get a passport appointment, 0:22:57.880 --> 0:23:00.159 and get that evidence and do all of that that 0:23:00.200 --> 0:23:03.119 could take months in the ordinary course. Is perhaps the 0:23:03.160 --> 0:23:06.480 court would want to order that much more quickly and 0:23:06.960 --> 0:23:09.199 not have to go through the process of getting a 0:23:09.240 --> 0:23:11.919 passport and doing all of those appointments and evidence and 0:23:11.960 --> 0:23:15.320 everything else, or maybe the court will simply order that 0:23:15.359 --> 0:23:19.720 a passport be printed immediately and get the citizen back 0:23:19.720 --> 0:23:22.400 to the United States if that is the parent wishes, 0:23:22.440 --> 0:23:26.320 which that seems to be the allegations in these complaints, 0:23:26.400 --> 0:23:28.680 and so that's what's going to have to be worked 0:23:28.680 --> 0:23:32.760 out here. But yes, sometimes the parents actually say to 0:23:32.760 --> 0:23:36.040 bring their children with them back to the home country, 0:23:36.320 --> 0:23:38.800 and that's their right and they can do that. And 0:23:38.880 --> 0:23:41.600 sometimes they want the children in the United States and 0:23:41.640 --> 0:23:44.800 that's their right. But usually this gets worked out through 0:23:44.840 --> 0:23:48.440 some process, and Ice is currently saying that got worked 0:23:48.480 --> 0:23:50.919 out here, and this is what the parents chose. The 0:23:51.000 --> 0:23:53.720 lawsuits are saying the parents didn't choose this, and that's 0:23:53.720 --> 0:23:55.320 what's going to have to be played out in court. 0:23:56.119 --> 0:23:59.320 So what happens if one parent wants the child to stay, 0:23:59.440 --> 0:24:03.639 Let's say it's a parent with US citizenship, and the 0:24:03.760 --> 0:24:05.920 other wants to take the child with them. 0:24:06.320 --> 0:24:09.440 That almost puts us into one of those famous Elim 0:24:09.480 --> 0:24:14.320 Gonzalez type situations of the past, and that would actually 0:24:14.359 --> 0:24:17.080 be a very interesting question. In a scenario like that, 0:24:17.600 --> 0:24:20.840 What would normally happen is then that's an issue for 0:24:20.920 --> 0:24:26.159 the state court. Child custody judges to determine, and in 0:24:26.200 --> 0:24:29.280 that situation, the state court child custody judges are going 0:24:29.320 --> 0:24:31.280 to have to determine what's in the best interests of 0:24:31.320 --> 0:24:36.320 the child. And that may certainly be a completely different 0:24:36.359 --> 0:24:38.879 analysis if a child is being deported to a country 0:24:38.920 --> 0:24:42.080 where the conditions are very similar to those in the 0:24:42.160 --> 0:24:45.200 United States as opposed to one where the conditions are 0:24:45.520 --> 0:24:48.520 quite onerous and very difficult for the child to live in. 0:24:48.720 --> 0:24:52.320 And also is one parent capable of caring for the 0:24:52.400 --> 0:24:54.760 child is the other one, And so all of that 0:24:54.800 --> 0:24:57.160 would need to be determined by a state court judge. 0:24:57.600 --> 0:25:00.400 And that's what would happen in a case like this. 0:25:01.680 --> 0:25:04.040 So does there have to be a hearing before the 0:25:04.160 --> 0:25:06.800 child can be removed with the parent? 0:25:07.760 --> 0:25:10.320 No, the problem is there's no hearing at all. The 0:25:10.400 --> 0:25:13.720 child is a US citizen, and so the immigration court 0:25:13.760 --> 0:25:18.359 has no jurisdiction whatsoever for any child of any kind. 0:25:18.480 --> 0:25:21.560 But what has to happen is that if there is 0:25:21.600 --> 0:25:25.719 a parent and a child that are physically together and 0:25:25.760 --> 0:25:29.879 you're trying to deport the parent only you have to 0:25:29.920 --> 0:25:33.480 give the parent some process visa the what they want 0:25:33.760 --> 0:25:36.760 to have happened to the child. And so the parent 0:25:36.880 --> 0:25:38.920 is well within their rights to say I want the 0:25:39.000 --> 0:25:42.000 child to come with me. That the parent doesn't lose 0:25:42.400 --> 0:25:46.560 jurisdiction over the child by virtue of the deportation, but 0:25:46.840 --> 0:25:49.000 they also have the right to say I have this 0:25:49.080 --> 0:25:53.560 other plan for my child, and they can give the child, 0:25:53.640 --> 0:25:56.200 who's a US citizen, to someone in the United States, 0:25:56.240 --> 0:25:59.600 and then it will be up to those individuals who 0:25:59.640 --> 0:26:02.200 are remains with the child if they want to get 0:26:02.240 --> 0:26:06.600 some sort of formal guardianship established in the courts. They 0:26:06.600 --> 0:26:10.040 don't have to, but ideally they would so that you know, 0:26:10.240 --> 0:26:14.160 decisions can be made about the child's life by this guardian, 0:26:14.240 --> 0:26:17.840 whether it be school decisions or health decisions or anything 0:26:17.880 --> 0:26:18.600 related to that. 0:26:19.000 --> 0:26:23.919 Apparently the mother was taken into custody while she was 0:26:24.080 --> 0:26:27.080 attending a routine check in last week. 0:26:28.080 --> 0:26:31.240 Yes, the problem is there that those check ins were 0:26:31.720 --> 0:26:36.639