Testimony

The Importance of Property Rights for Endangered Species Conservation

Testimony before the House Constitution and Civil Justice subcommittee on the state of property rights in America ten years after Kelo v. City of New London

The central point of my testimony is that landowners and their concerns, which include their property values and property rights, are the key to the conservation of this country’s biodiversity, particularly endangered species. Unfortunately, one of main ways the United States goes about trying to conserve endangered species-the Endangered Species Act-is especially counterproductive because it is a penalty-based approach that often violates landowners’ property rights, and negatively impacts property values and the ability of people to earn income from their land.

Due to this approach, the Act discourages landowners from harboring and conserving endangered species, encourages landowners to rid their property of endangered species and the habitat necessary to support them, and discourages landowners from allowing scientists and researchers on their land to study endangered species.

ESA’s Penalties and Property Rights

It’s not hard to understand why the Endangered Species Act is so feared by landowners, which results in the Act being so counterproductive. By violating landowners’ property rights, the Act makes otherwise normal and legal forms of land and resource use illegal, such as farming, homebuilding and timber harvesting. Furthermore, through the Act’s prohibition on “harm” to listed species, the federal government can prohibit land use that merely occurs in a type of habitat suitable to a listed species even if the species is not necessarily present.

The ESA’s penalties are severe: $100,000 and/or 1 year in jail for individuals committing misdemeanor harm to a fish, bird, or even its habitat, which increases to $250,000 for a felony. For corporations the jail time is the same but the fines double to $200,000 for a misdemeanor and $500,000 for a felony. When these fines are combined with two other factors-(1) that there are no objective standards for what constitutes harm to species habitat so the process by which the federal government determines this is necessarily arbitrary and unpredictable for landowners, and (2) federal regulatory agencies have the ability to use the ESA to lock up vast amounts of land and resources-the Act’s fearsome reputation becomes apparent.

Private Landowners Are the Key

The Endangered Species Act’s penalty-based approach is especially counterproductive to the goal of conserving species because private landowners are the linchpin for the conservation of this country’s biodiversity, including endangered species. There are several reasons for this:

1. Private landowners own most of the habitat for endangered and imperiled species. Almost 80% of endangered species depended on private land for all or some of their habitat, compared to 50% for federal land. In addition, 91% of all endangered species had at least some habitat on nonfederal land.

2. Private lands are also crucially important for endangered species in states with large amounts of federal land because private landowners own most of the well-watered land, which also tends to be the land with the most biodiversity.

A good example of this is the greater sage grouse, which is being considered for listing under the Endangered Species Act across 10 states and over 160 million acres. The sage grouse is usually associated with public lands because 61% of its habitat is on federal land, compared to 31% on private land (with the remaining 8% split among state and Native American lands). Yet a new study of sage grouse habitat in California, Oregon and northwest Nevada found that 81% of the critically important moist habitat-irrigated meadows, streamsides, and seasonal wetlands-sage grouse depend on for food in summer is privately owned, despite that it constitutes only 2% of the bird’s total habitat.

3. In the past 10 years it has become increasingly clear that many endangered species are what is known as “conservation reliant.” This means that these species will depend indefinitely on a variety of conservation activities to ensure their continued survival because the threats to these species are impossible to eliminate. These actions can include predator and parasite control, prescribed fires, and mowing and grazing. A classic example is the red-cockaded woodpecker of the southern U.S., which evolved requiring frequent, low-intensity fires to maintain the open, park-like forests it inhabits. Historically, fires would occur due to lightning or Native Americans setting them to improve habitat for hunting. Over the last hundred years or so, fire suppression by humans has reduced the frequency of fires. So the red-cockaded woodpecker is reliant on people maintaining its habitat through controlled fires, mechanical brush removal or application of herbicides.

A number of prominent scientists estimate that 84% of species under the Endangered Species Act are conservation reliant. The implication of this is quite profound because it means that the Act’s ultimate goal-recovering species so that they no longer require the Act’s protection and can be delisted-is unattainable for the vast majority of species.

The fact that so many species will likely require perpetual conservation has an important implication. It provides justification for eliminating the Endangered Species Act’s penalties because the goodwill and willing cooperation of private landowners will be the key factor in determining the fate of species that require ongoing help from the landowners that harbor them.

4. Endangered species are spread across hundreds of millions of acres, often on private lands in rural areas that are sparsely populated and far from the eyes of regulatory authorities. So it is simply impossible for enforcers and supporters of the Endangered Species Act to patrol constantly this country’s hundreds of millions of acres of endangered species habitat. Short of turning the U.S. into a police state, private landowners will always be able lawfully to make habitat unsuitable for species that are already listed or proposed for listing, lawfully refrain from notifying authorities about the presence of rare species on their land, and most landowners will be able to break the law without detection by destroying species and habitat. Given these realities, the government must find a way to trust and gain the willing cooperation of landowners, many of whom good conservationists, proud to conserve species and would respond positively to incentives instead of penalties.

Four Ways ESA Harms Species

There are four ways in which the Endangered Species Act can harm species.

  • Scorched Earth: Due to the Act’s punitive nature, some landowners are financially encouraged to pursue a “scorched earth” strategy, destroying habitat in order to make it unsuitable for endangered species. This is the most damaging because habitat destruction is the leading cause of imperilment for species in the U.S. Not only are imperiled species harmed by ESA-induced habitat destruction but so are many more common species that depend on the same habitat.
  • Deny Access: Landowners deny researchers and public agencies access to their land because they fear that the discovery of species or suitable habitat will result in land and resource use restrictions.
  • Keep Quiet: For essentially the same reasons as those landowners who deny access, other landowners keep quiet in the hope that the presence of endangered or potentially endangered species, as well as suitable habitat, is not noticed by regulatory authorities or non-profit groups that are proponents of the Endangered Species Act and often assist regulatory authorities.
  • Shoot, shovel, shut-up: Because it consists of a catchy phrase that has been repeated in the media, direct persecution of species and then destroying the evidence is likely the most well-known way the Endangered Species Act causes harm to species, yet it also likely occurs least frequently among the four ways the ESA causes harm to species because it is often difficult to kill wildlife, especially rare and elusive species, many people likely have a moral aversion to wanton killing of wildlife, and many people also are likely averse to breaking the law.

Continue Reading the Full Testimony (.pdf)

Brian Seasholes is a former research fellow with Reason Foundation.