Of all the laws passed in the last thirty-some years, few have been more contentious than the Endangered Species Act (ESA) of 1973. Environmentalists complain that the ESA is not strong enough, but landowners are bitter because it too often destroys their ability to use their land. Indeed, entire communities in Oregon and Washington became ghost towns in the 1990s when the listing of the endangered spotted owl prevented forest harvesting which was the economic lifeblood of these communities.
Ironically, the concept of protecting endangered species has wide support, even among those who bitterly fight the current ESA. It is not the desire to protect species that appears to be the problem. Indeed, ESA opponents say they are in favor of protecting truly endangered species as much as environmentalists. It is how they are protected that is so polarizing. Opponents assert that not only is the ESA poorly designed to save species, but it also allows government too much control over individual property rights.
Congressman Richard Pombo (R-CA) agrees with this criticism. He is currently leading the effort to reform the ESA, having authored a bill which passed the House on Sept. 29th, and claims that “not one single species has recovered as a result of the ESA alone. The bottom line: The ESA has a zero percent rate of success.” Pombo has a point. Of the approximately 1,300 species listed, only 40 have been de-listed. Nine of these were already extinct, seven were taxonomically invalid and 9 were incorrectly listed. The remainder had actually improved but did so primarily because of efforts unrelated to the ESA — namely those by state agencies and private conservation efforts.
In spite of this apparent failure, lawsuit after lawsuit has been filed to ostensibly “protect” the habitat of endangered species using ESA. This has gotten so bad that former Assistant Attorney General Tom Sansonetti said that the ESA is “pretty much inoperable. It is run by a third branch of government. It’s the judges that are running ESA right now. It’s out of control, and Congress needs to revisit it and amend it.”
Although Congress has made numerous attempts to reform ESA since 1992, the law is so controversial that every effort to positively restructure it has thus far failed. Presently, efforts to reform it have moved to the Senate, yet anything which emerges from that chamber is likely to be doomed unless three factors are recognized — biology, property rights and good science.
The ESA centers on the need for protecting the habitat of endangered species by prohibiting all land use activities that change habitat. Although this sounds superficially logical, it is bad biology. Habitats simply cannot be protected in perpetuity. There exists in nature something called natural succession. If, for instance, a mature forests burns, or is attacked by insects, blown down or harvested, it first grows back as grassland with forbs or shrubs. Eventually fast growing “early successional” trees emerge, followed by slower growing trees that will make up a mature forest and finally very shade tolerant trees that comprise the final stage of succession called a climax forest.
This phenomenon is not unique to forests. Natural succession occurs in all ecosystems. When habitat naturally changes it no longer favors the endangered species it was supposed to protect.
The first problem with the ESA then is that no law can “save” habitat per se. Habitat is not static. It is going to change, with or without the ESA. The principle is even true for areas under development, such as subdivisions and golf courses, where planted shrubs and ornamental trees mature and change the habitat and landscape for animals in urban and suburban settings.
The second problem with the ESA is that it punishes landowners rather than providing positive incentives to encourage them to manage their land for needed habitat. It is estimated that the ESA has cost property owners tens of billions of dollars in lost property value. In just one court ruling, for example, farmers in the Klamath Basin of South Central Oregon and Northern California lost up to a half billion dollars in property value.
The Klamath Basin is a rich farming area. The federal court ruled in 2001 that two endangered sucker fish, the Shortnose and Lost River Suckers, were essentially entitled to all water in Klamath Lake, Oregon. The deed to that water was originally granted to Klamath farmers by the federal government in the early 1900s. Life magazine even did a feature story on the Klamath basin in 1947 praising the farmers for their hard work and good stewardship. Even though the farmers “owned” the water on which their livelihood depended, they could no longer use it.
Without water, farmers couldn’t plant. Their fields lay idle, turning into dust bowls. Property values dropped from as much as $2,500/acre to less than $50/acre overnight. Farmers lost their livelihood and land investment when, by a stroke of a pen, their property rights were eliminated. A farmer with 500 acres lost up to $1.2 million of equity in his land. That equity represented his life’s savings.
In addition, thousands of Klamath residents lost their jobs. Businesses that supported farming also faced financial ruin. Later that summer the National Academy of Sciences reviewed the science supporting the court decision and found it to have been grossly distorted. The Academy said it found “no clear evidence” that high lake levels benefited the sucker fish. Nor was there “convincing scientific justification” for not allowing the farmers to continue to use the water for irrigation.
The Klamath example highlights the third problem with the ESA: Poor science. The ESA requires only “Best Available Data” (BAD) to list a species as threatened or endangered. The US Fish and Wildlife Service (USFWS) used BAD science in listing the Klamath Basin sucker fish by arbitrarily using only data that supported the claim that the fish needed all the water from Klamath Lake. The agency ignored scientific data showing the suckers did better when lake levels were low leading to the rebuke by the National Academy of Sciences.
Rob Gordon, former Executive Director of the National Wilderness Institute (NWI), testified before the House Resources Committee on March 20, 2002 that over 306 of the 976 recovery plans for species listed as endangered at that time had “little to no hard information about the status of listed species.” For instance, the plan for the endangered Cave Crayfish cites “Sufficient data to estimate population size or trends is lacking.” If there is not even sufficient data to estimate the population size, let alone trends, then how could the USFWS even know it was endangered in the first place? It obviously cannot. Yet, the ESA requires wildlife officials to make the same kind of arbitrary ruling that they made for the Klamath sucker fish – even if it causes great harm to property owners.
Michael Kelley of the Washington Post Writers Group describes in the July 11, 2001, issue of MSNBC how the ESA often causes great harm to humans, “The Endangered Species Act…has been exploited by environmental groups who have forged from it a weapon in their agenda to force humans out of lands they wish to see returned to a pre-human state.”
It is obvious that the current Endangered Species Act is a train wreck. It has caused financial distress and ruin to tens of thousands of Americans with almost no success at recovering endangered species. Some demand that the ESA not be reauthorized. Certainly, given the dismal 30 year history of the Act, eliminating the ESA would not cause any more harm to species than has occurred with the Act. However, if we are to keep some sort of Endangered Species Act, which the majority of Americans seem to want, several major changes must be made to the Act. First, all references to protecting habitat in a preservationist mode should be removed from the ESA. Habitat cannot be ecologically protected in such a manner; it can only be maintained with proper management.
Second, species should be listed as endangered and threatened only after independent scientists — not in the employ of either the government or environmental activist organizations — conduct independent, peer-reviewed science. DNA analysis, not a reliance on superficial characteristics such as the color of fur or feathers, should be required before separate species are recognized.
Third, compensation to landowners should be incorporated. As mentioned, the existing ESA unjustly penalizes property owners affected by one or more endangered species. If society determines that a property owner’s land is essential for a given species protection, then society should pay for its use. The landowner should not bear that burden entirely himself.
Compensation can take two forms. First, compensation can take the form of an incentive. Incentives are far more effective than penalties. The phenomenal recovery of the endangered wood duck in the first half of the twentieth century proves that premise. Landowners should be paid or given tax incentives to maintain (not protect) habitat using a number of management regimes. Many areas in the United States have more than one endangered species having radically different kinds of habitat requirements. By managing for needed habitat rather than trying to “protect” habitats that cannot be ecologically protected, a win-win solution is possible.
If property must be taken from landowners unwilling to manage their land to create and maintain needed habitat, the landowner should be fully out and out compensated. This is the second form of payment. Compensation for regulatory takings for endangered species habitat should equal the reduction in fair market value of the affected property. This can be very high in those cases where the land can be developed for commercial purposes. The current ESA denies the landowner full market value in the name of the so-called “public good.” This is like taking most or all of the profits from a stock market investor who finally buys into an excellent performing stock. To ensure the landowner is treated fairly, a Private Property Ombudsman could, for example, be established within the Department of Interior.
Some, however, do not want the government to have to pay affected landowners because it would be too costly and the public might resist excessive funding for such endeavors. Yet, it is not fair to force a few property owners to shoulder all of the cost for a societal good. The existing ESA is inoperable. Only by forcing the government to provide incentives and full-just compensation will it be forced to prioritize which species are in most need of recovery, and which habitats are most critical to maintain a healthy environment.