The
"Collaboration for the Recovery of Endangered
Species Act": An Analysis of the Senate
Proposal to Reform the Endangered Species Act
by Peyton Knight, Director of
Environmental and Regulatory Affairs
The National Center for Public Policy Research
6/6/06
Last year, the U.S. House of Representatives
approved legislation designed to reform the
Endangered Species Act. Dubbed the
"Threatened and Endangered Species Recovery
Act," and commonly referred to as TESRA, the
measure would place authentic property rights
protections for American landowners within the
nation's endangered species protection
policies.
Now it is the Senate's turn to put forward its
vision of ESA reform. Unfortunately for
landowners and species, the initial offering,
dubbed the "Collaboration for the Recovery of
Endangered Species Act," or CRESA, falls
significantly short.
The ESA's Three Decades of Failure
In its present form, the Endangered Species
Act must be regarded as a failure.
* after more
than three decades, the ESA is responsible
for the recovery of less than one percent of
the species placed on its "endangered" or
"threatened" lists;
* changes to
the "endangered" and "threatened" lists are
at times years behind schedule;
* political
considerations at times replace objective or
scientific reasons for listing/de-listing
actions;
* most listed
species are not recovering;
* the ESA's
implementation is funded in an arbitrary
manner;
* aspects of
ESA implementation appear to violate the
Fifth Amendment to the U.S. Constitution.
In the more than 32 years the Endangered
Species Act has been on the books, just 34 of
the nearly 1,300 U.S. species given special
protection have made their way off the
"endangered" or "threatened" lists. Of this
number, nine species are now extinct, 14
appear to have been improperly listed in the
first place, and just nine (0.6 percent of all
the species listed) have recovered
sufficiently to be de-listed. Two species (a
plant with white to pale-blue flowers called
the Hoover's woolly-star and a yellow
perennial, Eggert's sunflower) appear to have
made their way off the threatened list, in
part through "recovery" and in part because
they were not as threatened as originally
believed.
A
less than one percent recovery rate1
reflects failure, not success. Some
environmental groups, however, insist that the
ESA has been very effective. These
organizations claim that, since 99 percent of
all species given special protection have
either recovered or are still on the
endangered and threatened lists, these species
all "still exist" and, therefore, the ESA has
worked. The "still exist" standard, however,
tells us little about the true status of
endangered and threatened species and
certainly does not prove the efficacy of the
ESA.
As the following examples demonstrate, the
fact that a species has recovered does not
necessarily say anything about the ESA:
* The Columbian
white-tailed deer recovered primarily
because of a refuge that was established
prior to the ESA's enactment. Hunting
restrictions also played a role, and could
have been accomplished under laws that
predate the ESA.2
* The American
peregrine falcon's recovery benefited
enormously from captive breeding programs
sponsored by The Peregrine Fund and other
private organizations. Such programs would
have existed without the ESA.3
* The recovery
of the Aleutian goose would have occurred
without the ESA. The goose's decline was
largely due to the introduction of a
non-native predator, the Arctic fox, to the
goose's island habitat. Once the foxes were
removed, the goose again flourished.4
* The American
alligator's recovery had little to do with
the ESA. There were already 734,000
alligators in 13 states by the time the ESA
became law. Much of the alligator's
recovery likely is due to a 1967 ban on
alligator hunting.5
A
species' continued listing as "endangered" or
"threatened" does not prove the ESA works.
The goal is to recover endangered species, not
to maintain the status quo.
The "endangered" and "threatened" lists,
moreover, are not well maintained. As the
U.S. Fish and Wildlife Service noted last year
in its rejection of a petition to de-list the
slackwater darter (etheostoma boschungi),
petitions for delisting are frequently delayed
"due to low priorities assigned to delisting
petitions in accordance with our Listing
Priority Guidance... That guidance identified
delisting activities as the lowest priority
(Tier 4)."6
Findings regarding de-listing petitions are
supposed to be made within 90 days. The
slackwater darter petition was filed by the
National Wilderness Institute on February 3,
1997, but this finding was not made until July
7, 2005, more than eight years later.
The act of delisting a species for any reason
is so politically-charged that it practically
takes an effort equivalent to the passage of
an act of Congress to get a species off the
threatened or endangered lists. In July 1999,
the Clinton Administration concluded that the
bald eagle was fully recovered and should be
delisted within one year.7
This was much to the chagrin of environmental
activists, who didn't want the government to
lose its regulatory authority over the bird's
declared habitat.8
In 2006 the bald eagle is still perched
prominently on the endangered and threatened
species list.9
Why the nearly six-year (and counting) delay?
According to Jamie Rappaport Clark, executive
vice president of Defenders of Wildlife and
former Clinton Administration Fish and
Wildlife Service director: "Partly it just
fell through the cracks."10
That the ESA has cracks large enough for
America's national bird to fall through is
proof enough the Act is flawed.
Yet it isn't only abundant species that fail
to make it off the endangered or threatened
list. By one estimate, 30 percent or more of
currently listed species are extinct.11
Even for species that aren't believed to be
extinct, "existing" doesn't mean success,
especially when species are hanging on by a
thread. Just 36 percent of the species on the
endangered and threatened lists are currently
believed to be stable or improving - meaning
that 64 percent are declining.12
The "Perverse Incentive" Problem
Another ESA weakness is that the ESA's
structure has worked against its success. The
law pits species against landowners - often
the very owners of the land on which rare
species live. This adversarial relationship
works against the interests of both and is
referred to as the "perverse incentive"
problem within the Endangered Species Act.
The perverse incentive problem occurs this
way: Those who harbor endangered species on
their property, or merely own land suitable as
habitat for such species, can find themselves
subject to crippling land use restrictions.
To avoid such restrictions and the losses in
property values that accompany them, some
landowners choose to preemptively sterilize
their land to keep rare species away.
For example, when the federal government set
out to protect the golden-cheeked warbler in
the early 1990s, it did so by seeking to
acquire land, through condemnation and other
means, with mature cedar trees, the bird's
favored habitat. Faced with the potential of
losing their property, and their livelihoods,
ranchers bulldozed cedar trees from their
property.13
ESA-related costs also are borne in a
fundamentally inequitable way. Although
Congress determined in 1973 that the
preservation and recovery of endangered
species was in the interest of the United
States as a whole, it did not make
arrangements for the nation as a whole to bear
the costs of preservation and recovery.
Instead, these costs substantially are borne
by the private landowners on whose property
rare species are found or may be found,
regardless of the ability of any particular
landowner to bear these costs. It is rather
like funding a major national program by
lottery: Lose in the lottery, and you pay,
regardless of your wealth or income. Winners
in the lottery don't have to contribute at
all.
In the House: The "Threatened and
Endangered Species Recovery Act," or TESRA
The ESA's poor performance and structure has
prompted Congress to attempt to fix the law.
In October 2005, the House of Representatives
approved TESRA. While not perfect, this bill
has several strong points. TESRA would
provide 100 percent, fair market value
compensation to landowners who lose the use of
their property due to ESA regulations. The
ESA would then better comply with the Fifth
Amendment to the U.S. Constitution, which
stipulates that just compensation must be paid
to those whose property is taken by government
for a public use.
The House bill's fair compensation provision
also would help species by eliminating
perverse incentives within the current ESA.
In the Senate: "Collaboration for
the Recovery of Endangered Species Act," or
CRESA
In the Senate, Idaho Senator Mike Crapo (R)
has introduced the "Collaboration for the
Recovery of Endangered Species Act," known as
CRESA. Unfortunately, CRESA does little to
fix the ESA, and in some respects, makes it
worse.
Among the key problems with CRESA:
* CRESA fails
to provide fair compensation to landowners
who lose their property rights due to ESA
regulations.
Landowners
essentially would have two means by which
they could attempt to receive compensation
for their lost property rights under CRESA.
One option,
which already exists, is for landowners to
pursue compensation in court. This already
has proven to be an expensive, drawn-out
process with numerous bureaucratic
roadblocks and zero guarantee of success.
CRESA would
also establish an elaborate system under
which landowners could receive tax credits
for the foregone use of their property.
However, the operative word here is
"could." Under CRESA, if a landowner loses
the right to use his property due to ESA
restrictions, he is not guaranteed any form
of compensation. The bill states that a
landowner is only eligible for tax credits
if the costs he incurs are from "qualified
conservation and recovery costs." Such
"qualified" costs are defined as those
incurred while "carrying out approved
site-specific recovery actions under section
4(f) of the Endangered Species Act (16 U.S.C.
1533(f)), or any other Federal - or State -
approved conservation and recovery
agreements involving an endangered,
threatened, or candidate species under the
Endangered Species Act."
Even landowners
whose costs or lost property rights qualify
for compensation under CRESA's tax credit
system would have little incentive to
participate because the system would not
provide fair compensation.
Given the
choice between retaining 100 percent of a
property's value, or receiving a tax credit
that amounts to less than 100 percent of a
property's value, most landowners will
choose the former. Thus, if CRESA were
enacted into law, land sterilization would
remain the most financially-attractive
option for property owners who have
endangered species or related habitat on
their property.
In practice,
under CRESA, if a landowner wants to receive
the maximum value tax credit for the lost
use of his property, he would have to
surrender his property rights, or the
productive use of his property, to the
government "under a binding agreement for
not less than 99 years." Then, and only
then, would a landowner receive a tax credit
equal to the fair market value of his lost
rights. This tax credit would also include
any out-of-pocket expenses he incurs as a
result of complying with a
government-approved species recovery
agreement.
If a landowner
is not willing to surrender certain usage
rights to his property for 99 years or more,
two other options would be available.
Neither is very attractive.
A landowner
would be allowed to enter into a "binding
agreement for not less than 30 years but
less than 99 years" with the government and
receive a tax credit valued at only 75
percent of his losses, and 75 percent of any
personal expenses stemming from a species
recovery agreement.
Alternatively,
he could enter into a recovery agreement
with the government for between ten and 30
years and only receive a tax credit worth 50
percent of any personal, out-of-pocket
expenses related to the agreement. Under
this agreement, the landowner would receive
nothing in return for the lost use of his
property.
If the tax
credit the landowner receives exceeds the
amount of federal taxes he owes that year,
the landowner can spread out the remainder
over the next 20 consecutive tax years. He
may also use remaining credit against one
previous year's taxes.
It is worth
noting that CRESA does not define how "fair
market value" is to be determined. Such an
omission would appear to give federal
employees great leeway in defining this
process. This could benefit the government
to the detriment of the landowner. By
comparison, the ESA reform bill approved by
the House, TESRA, includes a clearly-defined
process whereby fair market value is
determined in an impartial manner.
Under CRESA's
tax credit system, landowners eligible for
tax credits would still have a perverse
incentive to rid their property of
endangered species and/or habitat.
Consider the
following hypothetical situation:
John Smith
suffers losses due to ESA restrictions
totaling $300,000. To reduce his financial
losses, Mr. Smith enters into a 99-year
conservation agreement with the federal
government in which he forgoes the
productive use of a portion of his land -
the land subject to the ESA restrictions -
in return for a $300,000 tax credit
(assuming his losses are properly assessed
at fair market value). This $300,000 credit
is not the same as outright compensation, as
it is only a credit he can apply against his
federal tax obligations. Under CRESA, Mr.
Smith is permitted to roll over any
remaining tax credit for as many as 20
consecutive years. He may also apply some
of the remaining credit to his previous
year's taxes.
Thus, if Mr.
Smith receives his tax credit in the year
2008, he can apply it to 2008's taxes,
2007's taxes, and taxes owed in the years
2009-2028. If he owes, let's say, $8,000
annually in federal taxes from 2007 to 2028,
he would be exempt from paying $176,000 over
the span. Though Mr. Smith appears to have
lost $124,000 on the deal, his actual losses
are much greater, as the value of his credit
has not been adjusted for inflation or
property value appreciation.
Furthermore, if
the endangered specie in question recovers
20 years after Mr. Smith surrenders his
property rights to the government, there is
no mechanism in CRESA under which Mr. Smith
can reacquire his lost property rights.
Forcing a
landowner to sign away the rights to his
property in return for a what amounts to
less than fair market value compensation
runs counter to the Fifth Amendment of the
U.S. Constitution which states "nor shall
private property be taken for public use,
without just compensation."
In a speech
delivered at a U.S. Fish and Wildlife
Service training seminar in 1994,
Environmental Defense president Michael Bean
spoke about how the ESA's perverse
incentives have a detrimental effect on the
red-cockaded woodpecker:
Because...
red-cockaded woodpeckers tend to prefer...
longleaf pine over other species, landowners
thinking about what species to plant after
harvest or on former forest land, any of
them I think regard the choice of planting
long-leaf as a foolish choice because of
greater potential for having woodpecker
problems in the future.
And because the
Fish and Wildlife Service does not apportion
foraging habitat requirements among adjacent
landowners when an active colony of
woodpeckers occurs near a property boundary,
landowners have an incentive to be the first
to liquidate their share of the available
habitat before the Fish and Wildlife
Service's minimum threshold of remaining
habitat is reached.
Now it's
important to recognize that all of these
actions that landowners are either taking or
threatening to take are not the result of
malice toward the red-cockaded woodpecker,
not the result of malice toward the
environment. Rather, they're fairly
rational decisions motivated by a desire to
avoid potentially significant economic
constraints. In short, they're really
nothing more than a predictable response to
the familiar perverse incentives that
sometimes accompany regulatory programs, not
just the endangered species program but
others.
What is clear
to me after close to 20 years of trying to
make ESA work, is that - from the outside,
in deference to you trying to do it from the
inside - is that on private lands at least,
we don't have very much to show for our
efforts other than a lot of political
headaches. And so some new approaches, I
think, desperately need to be tried because
they're not going to do much worse than the
existing approaches.14
CRESA's tax
credit system may also have the undesirable
effect of encouraging the government to
acquire property, or property rights, at
bargain prices. It is much easier for the
government to pay landowners for lost
property through tax credits spread out over
a 22-year term, as opposed to making a
one-time payment equal to fair market value,
as the recently-approved House bill
prescribes.
Furthermore,
inasmuch as CRESA leaves the ESA's
regulatory stick firmly intact, property
owners could be coerced to surrender their
rights in exchange for a relative pittance.
CRESA creates
an ideal situation for the federal
government, but not for the landowner. By
coercing the landowner to sign away his
property rights, the federal government is
no longer liable for "taking" his property.
Many
landowners, particularly smaller landowners,
do not have the financial resources for
litigation, and would thus essentially would
be forced to "voluntarily" exchange their
property rights for tax credits.
In reality,
such a transaction is not much more
voluntary than handing one's wallet to an
armed robber.
* Few
landowners would benefit from CRESA's meager
compensation provision because the bill
leaves the ESA's bureaucratic obstacles in
place.
The problem is
not that the Takings Clause of the U.S.
Constitution doesn't apply to takings under
the ESA, but that procedural hurdles make it
nearly impossible for landowners of modest
means to obtain any relief.
As Pacific
Legal Foundation lawyer James Burling has
noted, "One of the most troubling procedural
hurdles is that landowners are not able to
get a final agency determination that land
cannot be used - unless the landowner wants
to risk becoming a defendant or... can
afford the time and money to seek an
incidental take permit or a habitat
conservation plan."15
Landowners
should not be required to jump through
costly and lengthy bureaucratic hoops just
to determine their status under the law.
Unfortunately, CRESA does nothing to address
this problem.
* CRESA would
fail to eliminate costly, ineffective
critical habitat designations and would
imperil species by listing such designations
on a public webpage.
There is a
reason that 415 members of the 435-member
U.S. House of Representatives voted last
year to abolish critical habitat
designations.16
According to Craig Manson, former assistant
secretary for the U.S. Fish and Wildlife
Service under the Bush Administration,
designation of critical habitat is the least
effective and most costly action it
undertakes in its mission to save endangered
species.
In testimony
before the House Resources Committee in
2004, Secretary Manson labeled the ESA's
critical habitat program "counterproductive"
and inaccurate, and noted that "litigation
over critical habitat has hijacked the
program."17
Such are the reasons that all but a handful
of congressmen voted to eliminate critical
habitat designations.
Both Democrat
and Republican administrations have
considered critical habitat more hindrance
than help. Jamie Rappaport Clark, who
served as President Clinton's director of
the Fish and Wildlife Service and the
current executive vice president of
Defenders of Wildlife, has acknowledged the
failure of the ESA's critical habitat
program: "[I]n 25 years of implementing the
ESA, we have found that designation of
'official' critical habitat provides little
additional protection to most listed
species, while it consumes significant
amounts of scarce conservation resources,"
Clark testified before the Senate
Subcommittee on Fisheries, Wildlife and
Drinking Water in 1999.18
CRESA would not
only keep the ESA's current critical habitat
program intact, but it would "publish maps
and coordinates that describe, in detail,
the specific areas that meet the definition"
of critical habitat. CRESA also directs the
Department of Interior to "maintain the
maps, coordinates, and data on a publicly
accessible Internet page."
Providing a
public, online map of endangered species
locations would be a convenient tool for
endangered plant and animal thieves.
Like any rare
commodity, endangered plant and animal
species often are worth a premium.
Unscrupulous traders and poachers covet them
for the price they can bring on the black
market.
In the Shawnee
National Forest in Illinois in 1991, an
entire population of threatened Mead's
milkweed was stolen.19
Orchids, cycads, cacti and carnivorous
plants are also prime targets for plant
thieves and international smugglers.20
Addressing the
problem of plant and animal species being
poached from our national parks, John
Garrison, chief ranger at Blue Ridge
National Parkway in North Carolina, said,
"It's just of a magnitude most people can't
comprehend, it's that widespread."21
* CRESA would
provide conservation incentives for large
landowners but ignore small landowners.
CRESA would
establish a so-called "market" incentive
system whereby landowners can earn credits
for "preserving or restoring habitat in a
conservation bank agreement." The specific
value of these credits would be assessed on
the basis of each individual conservation
initiative and would be up to the sole
discretion of the Secretary of Interior.
These credits can then be "bought, sold or
traded to offset the impact of Federal,
State, tribal, local, or private
activities." In order for a landowner to
earn credits, the property in question must
be "managed under an enforceable legal
instrument." This instrument would likely
be some form of conservation easement.
Such a system
is tailored for the benefit of large
landowners. Federal, State, tribal and
local governments could use the credit
system to their advantage. For example, if
a state wants to build a stadium complex in
a designated environmentally-sensitive area,
it can conceivably purchase the right to do
so by earning enough conservation credits
elsewhere.
Considering the
vast land holdings of most states, the
opportunities for earning credits are
bountiful. The same holds true for other
governments and large landowners.
Smaller
landowners, however, are not likely to be
helped by this system. The less property
one owns, the less one can afford to lock
away large tracts of productive land.
The
conservation bank concept may also create a
new perverse incentive that is harmful to
endangered and threatened species.
According to
CRESA, the conservation bank system is
intended to balance "economic free market
principles to ensure value to landowners
through a tradable credit program."
Therefore, one would expect the value, or
purchasing power, of conservation credits to
fluctuate with changing market conditions.
This could prove detrimental to species.
Consider this
hypothetical scenario. A landowner with
large land holdings earns conservation
credits for preserving a portion of his land
that contains habitat for California
red-legged frogs. The value of these
credits would be tied to supply and demand,
which, in this instance, would be driven by
the abundance or scarcity of red-legged
frogs and their habitat. As the California
red-legged frog's habitat becomes more
scarce, the value of conservation credits
earned for protecting this habitat goes up.
As the frog's habitat becomes more abundant,
the value placed on preserving this habitat
goes down. It is, therefore, in the
interest of the credit-holder that the
frog's habitat remains as scarce as
possible, thereby maximizing the value of
his conservation credits. This is not good
for the frog.
Credit holders,
whether they be government or private, could
seek the destruction of particular species'
habitat (on someone else's land) in order to
drive up the value of their credits. And
thanks to the CRESA's convenient online maps
that detail the location of species'
critical habitat, credit barons would have
an easy time finding habitat to eliminate.
Such a system
would also encourage the spread of land use
restrictions. Consider this scenario. A
particular parcel of land has been
designated as red-legged tree frog habitat
and is preserved under CRESA's conservation
bank system. An adjacent parcel of land,
however, has yet to be designated as frog
habitat. Because this adjacent land is
unrestricted, those wishing to develop land
in the area might well decide it is more
economical to buy this property instead of
purchasing credits to develop the property
that has been designated frog habitat.
Therefore, those who have conservation
credits for development within the
boundaries of the frog's habitat have a
vested interest in the adjacent property
being similarly restricted. They could
accomplish this by "discovering" endangered
species on the neighboring property, or
filing suit to have that property designated
as red-legged frog habitat.
The trouble is
the conservation bank system would create a
group of people with a vested interest in
the maximizing the value of their
conservation credits. It stands to reason
that credit holders might seek to do this
with disregard for the wellbeing of species,
as well as disregard for the property rights
of fellow landowners.
* CRESA exempts
both recovery teams and executive committees
from "sunshine" requirements.
Under CRESA,
each endangered species recovery plan will
be established and executed by an executive
committee and a recovery team. These two
entities will consist of representatives
from government agencies and the private
sector who will be selected at the sole
discretion of the Secretary of the
Interior.
Private sector
recovery team members often come from
rigidly-ideological environmental
organizations such as The Nature Conservancy
and other groups that work hand-in-hand with
federal resources agencies on endangered
species recovery plans. For example, The
Nature Conservancy is a member of both the
Florida panther22
and the red-cockaded woodpecker23
recovery teams.
When public
missions are mixed with private interests,
transparency is paramount. Yet, CRESA
exempts both executive committees and
recovery teams from the Federal Advisory
Committee Act (FACA).
Among other
things, FACA requires, "the Congress and the
public... be kept informed with the respect
to the number, purpose, membership,
activities, and cost" of advisory
committees.24
There are few
things more dangerous than unaccountable,
unelected advisors making important public
policy decisions.
Observations
The Endangered Species Act is a clear lesson
in failed policy. Unfortunately, CRESA fails
to address the ESA's fundamental problems.
Noted ESA expert James Burling described CRESA
best:
Most of Senator Crapo's bill is nothing more
than rearranging the deck chairs on the
Titanic. But the part dealing with landowner
'incentives' is more like the Captain of the
Titanic handing out to the doomed passengers
discount coupons for the next cruise.25
The ESA's failure to protect private property
has proven detrimental to both species and
landowners. This failure comes at a steep
price.
In 2004, the Fish and Wildlife Service and the
National Marine Fisheries Services by
themselves spent over $238 million on the ESA.26
Many other government agencies - from the
Bonneville Power Administration to the Coast
Guard to the Air Force - together spend
hundreds of millions of dollars more on ESA
compliance every year.
These government expenditures, of course,
don't include the devastating costs to
individual property owners who have lost their
investments and their livelihoods in the name
of species protection.
In fact, Americans are paying billions of
dollars annually for a law that doesn't work.
The Property and Environment Research Center
noted in a 2004 report:
From 1989 to 2000, the FWS estimates that a
little over $3.5 billion of taxpayer dollars
was spent on ESA-related activities. We
recognize today that the actual cost of
protecting species, including private costs...
may easily reach or exceed that figure per
year.27
The ESA will not be fixed until private
property rights are given full protection and
the perverse incentives of the law are
eliminated.
There are several ways to achieve this.
One way is to provide an economically-viable
means whereby landowners who lose property
rights under the ESA can receive full and fair
compensation for their losses in a timely
manner.
CRESA falls short of providing full and fair
compensation. It also fails to remedy the
current bureaucratic tangle that forces
landowners to wait endlessly for an answer
from the government as to whether they can use
their property. At a minimum, property owners
have a right to know whether their proposed
activities are within the boundaries of the
law.
The ESA requires that a landowner apply to the
Department of the Interior for an "incidental
take permit" to determine if a proposed use of
his property is lawful under the Endangered
Species Act. If his permit is accepted, he
may proceed with the specific use in
question. If his permit is denied, he may
then proceed to court to pursue compensation
for a partial taking of his property. Only
after his permit has been denied is his case
considered "ripe" for court.
Under current law, there is no time limit
whereby the Department of the Interior must
respond to a landowner's request for an
incidental take. Thus, under present law, at
the discretion of the Department of Interior,
a landowner may be forced to sit for years in
a state of regulatory limbo, both unable to
use his property and unable to seek
compensation in a court of law. By simply
failing to respond to the landowner's request,
the federal government has effectively taken
the landowner's right to use his property.
This problem can be solved by placing a time
limit on the Department of Interior and
establishing a time frame within which the
agency must respond to a landowner's
incidental take request. If the agency
decides that the landowner cannot use his
property in the manner he wishes, then the
landowner should receive 100 percent fair
market value compensation, as in accordance
with the Fifth Amendment to the U.S.
Constitution.
CRESA attempts to pay homage to a voluntary
approach to saving species, in which
landowners are offered incentives to work with
federal regulators toward species recovery.
In reality, it provides little more than lip
service to landowner concerns.
Merriam-Webster defines "voluntary" as
"proceeding from the will or from one's own
choice or consent."
Quite simply, as long as the ESA's regulatory
stick looms large above the heads of private
property owners, no deal struck between
landowners and federal regulators can ever
truly be "voluntary."
History has shown that secure private property
rights and good environmental stewardship go
hand-in-hand.
Environmental scholar Robert J. Smith points
out:
Why are some species disappearing and others
thriving? First, we can examine what is
disappearing and what is not. Why was the
American buffalo nearly exterminated but not
the Hereford, the Angus or the Jersey cow?
Why do cattle and sheep ranchers over-graze
the public lands but maintain lush pastures on
their own property? Why are rare birds and
mammals taken from the wild in a manner that
often harms them and depletes the population,
but carefully raised and nurtured in aviaries,
game ranches, and hunting preserves? In all
of these cases, it is clear that the problem
of overexploitation or overharvesting is a
result of the resources being under public
rather than private ownership. The difference
in their management is a direct result of two
totally different forms of property rights and
ownership: public, communal, or open-access
common property vs. private property.
Wherever we have public ownership we find
overuse, waste, and extinction; but private
ownership results in sustained-yield use and
preservation.28
In its present form, the Endangered Species
Act fails species and landowners alike. It
will continue to do so until private property
rights are given full protection and
anti-specie perverse incentives within the law
are eliminated.
# # #
Peyton Knight is the director of environmental
and regulatory affairs for The National Center
for Public Policy Research. Comments may be
sent to
pknight@nationalcenter.org.
Footnotes:
1
"GAO Report Shows Agencies Fail to Plan
Adequately for Species Recovery," News
Release, U.S. House of Representatives
Committee on Resources, Washington, DC, April
7, 2006, available at http://resourcescommittee.house.gov/Press/releases/2006/0407gaoesareport.htm
as of May 16, 2006.
2 "Babbit's Big Mistake: The Real Story Behind
His Endangered Species Recovery Announcement,"
National Wilderness Institute, Washington, DC,
July 15, 1998, available at http://www.nwi.org/SpecialStudies/BabbittReport/BabbittReport.html
as of May 16, 2006.
3 Robert J. Smith, "How Private Conservation
Saved the Peregrine Falcon," Environment News,
The Heartland Institute, Chicago, Illinois,
October 1, 1999, available at http://heartland.org/Article.cfm?artId=12995
as of May 16, 2006.
4 Ned Rozell, "Nizki, Population 1," Alaska,
August 2005.
5 Brian Seasholes, "Fools for Falcons," CEI
Update, Competitive Enterprise Institute,
Washington, DC, October 1994.
6 "Endangered and Threatened Wildlife and
Plants; 90-Day Finding on a Petition To Delist
the Slackwater Darter and Initiation of a
5-Year Review," U.S. Fish and Wildlife
Service, Washington, DC, Federal Register,
Volume 70, Number 153, August 10, 2005,
available at http://www.epa.gov/fedrgstr/EPA-SPECIES/2005/August/Day-10/e15720.htm
as of May 16, 2006.
7 Jim Morris, "Bald Eagle Flies Off Endangered
List," Cable News Network, July 2, 1999,
available at http://www.cnn.com/NATURE/9907/02/bald.eagle.02/
as of May 16, 2006.
8 William Booth, "How to Protect Habitat?
Bald Eagle's Removal From Endangered List
Delayed," The Washington Post, July 4, 2000.
9 "USFWS Threatened and Endangered Species
System," U.S. Fish and Wildlife Service,
Washington, DC, available at http://ecos.fws.gov/tess_public/SpeciesReport.do?groups=B&listingType=L
as of May 16, 2006.
10 "Bald Eagle Making Its Way Off Endangered
List," Associated Press, February 14, 2006,
available at http://www.msnbc.msn.com/id/11343742/
as of May 16, 2006.
11 "Implementation of the Endangered Species
Act of 1973," Report to the House Committee on
Resources, U.S. house of Representatives,
Washington, DC, May 2005, available at http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm
as of May 16, 2006.
12 "Endangered Species," The Wall Street
Journal, July 1, 2005.
13 Felicity Barringer, "Aware of Political
Ecosystem, Property Rights Advocate Embraces
Conservation Plan," The New York Times,
Section A, Page 16, Column 1, December 27,
2005.
14 David Hogberg, "Dim Prospects for Property
Rights," Organization Trends, Capital Research
Center, Washington, DC, February 2006,
available at http://www.capitalresearch.org/pubs/pdf/OT0206.pdf
as of May 16, 2006.
15 Unpublished e-mail correspondence from
James Burling, Pacific Legal Foundation,
Sacramento, California, June 15, 2005.
16 "Norton Applauds House Action to Remove
"Critical Habitat" Designation Requirement
from Endangered Species Act," News Release,
U.S. Department of the Interior, Washington,
DC, September 30, 2005, available at http://www.doi.gov/news/05_News_Releases/050930b.htm
as of May 16, 2006.
17 Craig Manson, Assistant Secretary for Fish
and Wildlife and Parks, Department of the
Interior, Testimony before the House Resources
Committee regarding H.R. 2933, the Critical
Habitat Reform Act of 2003, U.S. House of
Representatives, Washington, DC, April 28,
2004, available at http://www.fws.gov/laws/testimony/108th/2004/MansonCHHR2933.htm
as of May 16, 2006.
18 Jamie Rappaport Clark, Testimony before the
Senate Subcommittee on Fisheries, Wildlife and
Drinking Water, U.S. Senate, Washington, DC,
May 27, 1999, available at http://epw.senate.gov/107th/cla_5-27.htm
as of May 16, 2006.
19 Chris Holmes and Phil Villa-Lobos, "Theft
of Threatened Plants Hinders Recovery Effort,"
U.S. Department of Agriculture Office of Press
and Media Relations, Washington, DC, available
at http://www.nal.usda.gov/pgdic/Probe/v1n3_4/theft.html
as of May 16, 2006. Additional information
available at http://permanent.access.gpo.gov/websites/fsfedus/www.fs.fed.us/mntp/speciesreintro/3_1.htm
as of May 16, 2006.
20 "The Convention on International Trade in
Endangered Species of Wild Fauna and Flora
(CITES)," Animal and Plant Health Inspection
Service, Riverdale, Maryland, March 2006,
available at http://www.aphis.usda.gov/publications/plant_health/content/printable_version/fs_cites3-06.pdf
as of May 16, 2006.
21 Joan Lowy, "Poachers Stealing National Park
Heritage," Scripps Howard News Service,
available at http://sports.espn.go.com/outdoors/conservation/news/story?page=c_fea_parks_national_poachers_steal_Lowy
as of May 16, 2006.
22 "Florida Panther Recovery Plan: Third
Revision," The Florida Panther Recovery Team,
U.S. Fish and Wildlife Service, Washington,
DC, January 31, 2006.
23 "Recovery Plan for the Red-cockaded
Woodpecker: Second Revision," U.S. Fish and
Wildlife Service Southeast Region, Atlanta,
Georgia January 27, 2003.
24 Public Law 92-463.
25 Burling.
26 "Implementation of the Endangered Species
Act of 1973," Report to the House Committee on
Resources, U.S. House of Representatives,
Washington, DC, May 2005, available at http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm
as of May 16, 2006.
27 Randy T. Simmons and Kimberly Frost,
"Accounting for Species: True Costs of the
Endangered Species Act," Property and
Environment Research Center, Bozeman, Montana,
April 2004, available at http://www.perc.org/perc.php?id=393
as of May 16, 2006.
28 Robert J. Smith, "Resolving the Tragedy of
the Commons by Creating Private Property
Rights in Wildlife," The Cato Journal, Vol. 1,
No. 2, Fall 1981, available at http://www.cato.org/pubs/journal/cj1n2-1.html
as of May 16, 2006.
