Feds Can Turn Your Land Into a Defacto Federal Wildlife Refuge

Endangered Species Act pits landowners against animals we hope to save

The resurgence of the bald eagle is reason for Americans to feel proud. Sadly, the federal government and environmental lobby are dishonoring the national symbol by attributing its rebound to the Endangered Species Act (ESA), which may have done more harm than good, and because the eagle is being used to undermine principles for which the July 4th holiday stands.

For starters don’t give the ESA too much credit: “Nearly everyone agrees that the key to the eagle’s resurgence-even more so than the Endangered Species Act-was the banning of the use of the insecticide DDT in this country in 1972,” notes the National Audubon Society.

The Endangered Species Act was passed in 1973, one year after the ban, so the Act is not the reason that the bald eagle is thriving. Faced with this fact, ESA apologists grasp as straws, falsely equating the paramount importance of banning DDT with conservation efforts allegedly carried out under the Act. In reality, the bald eagle was never in danger of extinction, just being wiped-out from the lower 48 states. The vast majority of the species’ population, around 77 percent, has lived in Alaska and British Columbia where they’ve thrived because of a combination of good habitat and a lack of DDT.

Another inconvenient truth is that for more than four years during which the bald eagle was near its most precarious status, 1973 to 1978, some 70 percent of the eagles in the lower 48 were not listed under the ESA and therefore not afforded the Act’s purported benefits. These eagles-which lived north of 40º N. latitude, an enormous region stretching from Philadelphia to halfway between Sacramento and the Oregon border-were not listed because of bureaucratic inertia and likely because the U.S. Fish and Wildlife Service (FWS) knew that most of these “northern” eagles were doing fine.

Even worse than dishonestly giving the ESA undue credit has been the use of the eagle to undermine private property rights, one of this country’s bedrock principles that is protected by the Constitution. In so doing, the ESA may have caused more harm than good because the ESA’s harsh penalties-$100,000 fine and/or 1 year jail for harming one eagle, egg, or even unoccupied habitat-punish landowners for harboring eagles. As a result, people have strong incentives to rid their land of eagles, using either the shoot, shovel, and shut-up method-“I’ve seen eagle’s nests where people climbed up the trees and knocked them out,” stated Jodi Millar, a former federal bald eagle recovery coordinator-or making habitat inhospitable by destroying it-the scorched earth strategy. This second method is especially damaging because habitat loss is the #1 threat to all wildlife.

“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 environment,” stated Michael Bean of Environmental Defense in comments about the endangered red-cockaded woodpecker that also apply to the eagle. “Rather, they’re fairly rational decisions motivated by a desire to avoid potentially significant economic constraints.”

Take the case of Ed Contoski, co-owner of 18 lakeshore acres in central Minnesota. To provide for his retirement, and because heart problems prevented him from using and enjoying the property, Ed decided in 2004, at the age of 67, to sell his property to family members. In order to raise the $425,000 needed to purchase Ed’s half-share, the only feasible plan was for the northern 7.33 acres to be divided in to five residential lots. The remainder of the property would not yield the necessary cash for a couple reasons, the most important of which is development is prohibited on much of it because it’s designated as wetlands under the federal Clean Water Act. Then the ESA shoe dropped in the fall of 2004 when authorities informed Ed they would not approve his plan due to the presence of a bald eagle nest that precluded development on all 7.33 acres.

In an effort to recover use of his land, Ed Contoski sued the Interior Department for failing to delist, or remove, the eagle from the ESA in the one year allotted under the Act following the proposal to do in 1999. Contoski won his case in August 2006, thereby forcing delisting to occur on June 29, 2007. Delisting should have happened in the early 1990s, when the eagle surpassed its recovery goal of around 3,000 pairs. But, as Contoski’s case demonstrates, Interior was in no hurry to delist because the eagle has been an effective land-use control tool. By the time delisting finally occurs this week, the population will have exceeded 10,000 pairs.

Even though delisting is supposed to mean the ESA’s regulations no longer apply, this is not going to be the case for the bald eagle because the FWS has essentially cut-and-pasted the ESA’s land-use controls to the Bald and Golden Eagle Protection Act (BGEPA). Congress passed the BGEPA in 1940, and subsequently amended it, to prevent direct persecution-shooting, poisoning, etc.-to bald and golden eagles. Yet the FWS’s cut-and-paste job extended ESA-like land-use controls to: bald eagles in the lower 48 states; bald eagles in Alaska, where they’ve never had this “benefit”; and golden eagles in the lower 48 and Alaska. All of this represents such a massive expansion of the regulatory and geographic reach of the BGEPA that it is tantamount to amending the law. Under the Constitutional doctrine of separation of powers, only Congress is allowed to do this.

Delisting should mean the end of nightmares for landowners like Ed Contoski, but this likely will not be case due to the BGEPA.

The callous disregard shown to Contoski is all the more shameful because Ed is a proud American who honorably served in the military. And the thanks he got was for the federal government to use the bald eagle to violate his Constitutional property rights. According to the Fifth Amendment, “nor shall private property be taken for public use, without just compensation.” But for people like Ed Contoski, whose land has been turned into defacto federal wildlife refuges and yet have not been compensated, these words ring hollow.

There are many, many landowners like Ed Contoski across the country. They are not afraid of bald eagles, or whatever endangered species they harbor on their land. They are, however, afraid of the Feds and the ESA’s harsh penalties. As a result, landowners across this country have been turned into unwitting enemies of endangered species, and the ESA is likely causing more harm than good.

This need not be. America has a long and proud tradition of private wildlife conservation that should serve as a roadmap for a new approach to conservation. The bison was saved from extinction by a handful of private citizens who rounded up the remaining stragglers in the late 1800s. Offspring of these bison account for almost all the 300,000 currently alive in the U.S. This proud legacy of private conservation continues today and is why nearly 80% of species listed under the ESA are found either totally or partially on private land, which is more than any public land ownership category.

Private landowners are the soul of American conservation. The time has come for Congress to acknowledge this by changing the ESA so that it no longer threatens people’s property rights, thereby removing the major hurdle to effective endangered species conservation. “Reforms,” such as Habitat Conservation Plans, Safe Harbors, Candidate Conservation Agreements, Private Stewardship Grants, and the use of sound science, merely place a velvet glove over an iron fist. The ESA does not need gimmicks; it needs a fundamentally new approach that removes the Act’s punitive regulations, thereby tapping the enormous reservoir of goodwill towards wildlife that exists among America’s landowners.

Just as this country learned over 30 years ago that ending compulsory military service led to higher quality armed services, today it needs to apply this lesson to endangered species. But so long as endangered species conservation is achieved through compulsion, the results will fall far short of what could be accomplished with the willing cooperation of U.S. landowners. Until this happens, the ESA will continue to reap a bitter harvest and the altruism of America’s citizen conservationists will continue to be squandered.

So this July 4th celebrate the return of the bald eagle, and celebrate America’s long and proud tradition of private wildlife conservation. But don’t dishonor this country’s symbol, Constitution, or suffering landowners like Ed Contoski by celebrating the Endangered Species Act.