Protecting the Environment Through the Ownership Society — Part I
Table of Contents
Using Ownership to Save Endangered Species
"Wild animals and plants are owned in common."
Lack of ownership of wild animals has limited the effectiveness of species conservation efforts. In the United States, land is owned either by individuals or groups as private property or by government as de facto trustee of society's commonly-owned resources. Ownership is essentially the right to use and control a resource. But federal and state laws treat all wild species as publicly owned and only recognize private ownership of rare and endangered wild native species in very limited circumstances. In the vast majority of cases, owners of land upon which wild animals live, feed or breed do not own the animals themselves and their right to manage them is limited by the government. The use of most wild species is regulated by individual state governments to varying degrees of stringency, though in the case of migratory species, and those considered at-risk of extinction, the federal government takes the lead role in their management and their use is highly regulated.
"The government controls privately-owned habitats of endangered species."
The Regulatory Approach. The Endangered Species Act (ESA), administered primarily by the Department of the Interior's Fish and Wildlife Service (USFWS), is widely considered the most powerful environmental law in the nation. It was enacted in 1973 and, as written, takes precedence over all other laws. The ESA requires the Secretary of the Interior to protect each endangered species, regardless of the costs, by formulating and implementing specific plans to protect its habitat and to recover sufficient numbers of the species so that it is no longer considered threatened with extinction. It also requires all federal agencies to ensure their actions do not harm threatened or endangered species — even if, in order to prevent harm to a species, they are unable to carry out their primary responsibilities under other laws. Despite its name, some of the populations protected by the ESA do not meet a scientific definition of species, but include murky categories, like subspecies, and distinct geographic populations of animals that may be abundant elsewhere, or that can and sometimes do interbreed with closely related populations. Individuals or groups can petition to have a species, subspecies or distinct geographic populations of a species listed as threatened or endangered, and then present evidence backing their petition to the Secretary, who must then decide whether the evidence provided is sufficient to merit listing the species.
"The Endangered Species Act (ESA) hasn’t saved any species."
Need for Change: Failure to Protect Species. For all its power, the ESA has not worked well. Since 1973, 1,832 species have been listed as either endangered — which means the population is in danger of extinction — or threatened, which means their numbers are declining and the species is likely to become endangered. Only 40 of the listed populations were delisted by the end of 2004. Even counting all of the delistings as "successes," they are only 2 percent of the species ever listed. A more careful examination of the facts shows that even 2 percent is far too optimistic. Of the 40 species delisted:
- 9 were delisted due to extinction.
- 16 were delisted because of "data errors" — they either were undercounted when added to the list or were later determined not to be distinct species (or subspecies).
- 3 were decimated by a pesticide, DDT, and recovered largely due to the 1972 DDT ban.
- 12 remaining species were conserved by state agencies or private organizations, or were foreign species conserved by foreign governments under their own laws — the federal government contributed very little to the recovery of any of these species. [See Figure III.]
- None of the 40 species was delisted after successful recovery attributable to ESA protection.
That the ESA has failed to protect species should surprise no one. Species recovery requires protecting critical habitats where they live and breed. More than 75 percent of the listed species depend on private land for all or part of their habitat. 95 Indeed, the continued survival of many endangered species literally rests with American property owners. Unfortunately, landowners are penalized by the presence of a protected animal on their land. Under current law, if a person's property provides suitable habitat for an endangered species, that land potentially becomes subject to severe restrictions on its use. In fact, an owner may not be able to use his or her property in any way, and may, in some cases, even be barred from setting foot on all or part of it — which amounts to outright confiscation. These uncompensated "takings" leave a landowner three options: kill an endangered species member, destroy species habitat or lose much of the use and value of his land. By undermining ownership and the incentives ownership provides, the ESA actually discourages people from fostering species recovery.
"The ESA imposes costs on landowners and taxpayers."
Need for Change: The Cost of ESA. While the ESA has failed to help species recover, it has succeeded in spending taxpayer dollars. The lowest government estimate for total spending up to 1994 on the recovery of all currently known endangered species was $4.6 billion, but this estimate is misleading because it only included costs for government recovery from select agencies. 96 In 2000 alone, it is estimated that more than $2.4 billion of federal expenditures were related to endangered species.
Even these estimates are low. Northern spotted owl recovery alone has cost an estimated $21 billion to $46 billion. And dozens of species upon which much more money has been spent have not been delisted. Millions of dollars have been spent on species that were wrongly listed — like the Tumamoc Globeberry, a gourd in Southern Arizona .
For every dollar it spends on the recovery of protected species, the government spends more than $2.26 on the consulting and listing process to achieve protected status. Individuals and firms fighting government efforts in court or developing and implementing habitat conservation plans spend still more. Thus, the true cost of the ESA is hard to estimate; in addition to billions of federal dollars spent, state governments and the private sector have spent tens of billions more, but there is no common system of accounting for their costs.
Indirect Costs to Life and Property. The indirect costs in lost jobs and wages, delayed and halted development, increased construction costs and difficult-to-measure social costs, are much greater. The true costs of ESA failures should be measured in houses, homeless shelters and hospitals not built or significantly delayed, medical and technological discoveries not advanced, funds not available for education, crime control and other health, safety and environmental concerns, including species lost or still declining.
In one instance, massive brush fires in California destroyed 29 homes and caused millions of dollars in damage. 97 Several of the homes were lost because the USFWS denied homeowners permission to destroy brush and weeds by plowing firebreaks. The USFWS threatened homeowners with imprisonment and huge fines in order to protect the endangered Stephens kangaroo rat. Some homeowners ignored USFWS threats; their homes are still standing. Ironically, the fires destroyed kangaroo rat burrows and habitat.
"The ESA imposes even greater indirect costs."
In another case, one day before San Bernadino and Riverside Counties in California were to break ground on a new hospital, the USFWS listed the Delhi Sands flower-loving fly as endangered. Eight Delhi flies were found on the hospital site and the USFWS threatened to prosecute the counties if they built the hospital as planned. According to Ike Sugg, a wildlife specialist at the Competitive Enterprise Institute, while the counties and the USFWS have been negotiating:
- Hospital construction has been delayed for more than a year.
- The counties have spent more than $4.5 million dollars — more than half-a-million per fly to study threats to the fly and how to prevent harming it while still completing the hospital and its attendant infrastructure — and may spend millions more to establish a fly preserve.
- At one time a USFWS official even demanded that Interstate 10, an eight-lane freeway adjacent to the hospital site, be shut down or slowed to 15 miles an hour during the two months of the fly's above-ground lifespan.
Improving the Endangered Species Act. A number of changes have been proposed to the ESA. These include provisions to improve the scientific basis for listing decisions — such as requiring that listing decisions are based on sound science, with thorough, peer-reviewed data to justify listing decisions.
"The ESA encourages landowners to destroy habitat and kill endangered species."
Proposals have also been offered to limit the listing of "distinct population segments" to those of national interest as determined by Congress, and to allow captively bred and privately owned populations of animals to be counted toward species' numbers. Under this proposal, the ESA would not limit the use of members of an endangered species that were privately owned before the species was listed. For example, zoo owned and bred grizzly bears could be transferred to other parties or destroyed if necessary without first getting USFWS permission.
Proposals have also been offered to speed the recovery and habitat conservation planning process. Any of these efforts would improve the current act, but none of them gets at the heart of the problem: the perverse incentives the ESA creates to destroy species and their habitat in order to avoid having one's property come under onerous use restrictions.
Under the current act, if people provide suitable habitat for an endangered species, their land becomes subject to severe regulation, even confiscation. As a former USFWS official stated: "The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears. We've got to turn it around to make the landowner want to have the bird on his property."
Even Michael Bean of the Environmental Defense Fund recently acknowledged that "increasing evidence suggests that at least some private land owners are actively managing their land so as to avoid potential endangered species problems…by avoiding having endangered species on their property." Bean admitted that this was not the result of a desire to harm the species or the environment, but rather a rational response to the incentives in the current act. 98
An Ownership Approach. Based upon its record of costly failure, the best policy might be to end the federal government's role in endangered species protection entirely. In the current legislative environment this is unlikely, but the current act could be improved, in part, by applying the ownership ideal to species protection.
"Landowners should be compensated for environmental takings."
Ownership and Endangered Species: Baby Steps. At a minimum, reducing the threat to peoples' property from endangered species is a necessary first step to instilling the certainty that ownership provides — and thus, reducing the enmity that many property owners feel toward endangered species. The Fifth Amendment to the Constitution prohibits the taking of private property for any public purpose without "just compensation." When the government imposes land use restrictions on private property to preserve species habitat and as a result the land loses value, a "taking" has occurred and property owner should be compensated for the lost value.
If the government required private citizens to house students enrolled in a special education program and demanded that they regulate their activities so as not to disturb the students' studies, the government would have to compensate the people whose homes were used. By the same reasoning, the government should also be constitutionally obligated to compensate people who must "house" protected species.
Honoring the Fifth Amendment would shield the landowner from choosing between his welfare and the endangered animal's welfare. Protecting endangered species would no longer be a loser's game because landowners who protect a species valued by the public will be compensated by the public.
Bolder Ownership Moves. True ownership goes beyond the landowner's incentive to simply tolerate the presence of an endangered species. A bolder government action would provide incentives to landowners to foster and further species recovery — by making their property useful and attractive to endangered species. History provides numerous examples of individuals and private groups that have protected species through private initiatives — sometimes even while governments were contributing to the species decline. For example,
- When state governments were awarding bounties for killing birds of prey, a concerned citizen helped found the private Hawk Mountain Sanctuary in eastern Pennsylvania to prevent the slaughter of thousands of hawks, falcons, ospreys, eagles, owls and other endangered birds.
- When state governments were awarding bounties for killing seals and sea lions, a for-profit corporation protected the only mainland breeding area for the endangered Steller sea lion.
- While the federal government owns only 4.7 million acres of wetlands and has encouraged the destruction of private wetlands, about 11,000 private duck clubs have managed to protect five to seven million acres of wetlands from destruction.
"Private efforts have sucessfully protected species and habitats."
In addition, beginning in the 1930s, long before the Endangered Species Act or the Convention on International Trade in Endangered Species (CITES) provided regulatory protection, Texas ranchers began to import foreign species. About 370 Texas ranches are involved in managing their lands for so-called exotic species. Because these species are not native to America , they can be privately owned and managed. A 1984 census counted 120,201 animals in 59 different species, from all over the globe. A sampling: biesa oryx from Sub-Sahara Africa, sika deer from Japan, white-tailed gnus from South Africa, Armenian red sheep, aoudads from Morocco, Nile lechwe, nilgai and blackbuck [antelope] from India, European mouflon sheep, Persian gazelles, Pere David's deer from China, and so on. Significantly, not all the species being raised in Texas are hunted, and only six are regularly hunted for profit. Currently, Texas ranchers take pride in providing new habitats for as many as nine species threatened with extinction on their native grounds.
Also, a number of environmental organizations focus the majority of their efforts and resources on protecting species and their habitats. For instance, the mission of the National Audubon Society is to conserve and restore natural ecosystems, focusing on birds and other wildlife for the benefit of humanity and the earth's biological diversity. In the United States , the Audubon Society has more than 550,000 members, 508 state and local chapters and more than 100 Audubon Sanctuaries and nature centers comprising more than 300,000 acres.
The Nature Conservancy, a nonprofit organization founded in 1951, is the world's largest private international conservation group. The mission of the Nature Conservancy is to preserve the plants, animals and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive. To carry out this goal, the Conservancy sets its conservation priorities through ecoregional planning, attempting to preserve at least one representative example of each unique ecosystem.
The Conservancy both hires biologists and ecologists and works with various academics to establish its conservation priorities. Rather than protest and lobby, the Nature Conservancy largely uses a nonconfrontational approach to protecting species in situ : it purchases habitat.
The Conservancy runs the largest private system of nature sanctuaries in the world. To date, the Conservancy and its 1,029,012 members have protected and maintained 12,089,000 acres in the United States in nearly 1,400 private preserves. This amounts to an area greater than the combined size of Connecticut , Delaware , New Jersey and Rhode Island . The preserves range in size from less than half an acre, to several hundred thousand acres. In addition, the Conservancy has helped like-minded organizations preserve more than 80 million acres in the Asia Pacific, Canada , the Caribbean and Latin America .
"Ownership would improve conservation of endangered species and their habitats."
All of the Conservancy's preserves are managed to maintain the ecosystem or habitat as a functional whole. These preserves are field laboratories, dedicated both to studying specific ecosystemic goods and their interrelationships as protected by the specific preserve, and to better understanding how to improve ecosystem management and protect biodiversity worldwide. The Conservancy does not promote the preserves for recreation, and many of them are not open to the general public.
Expanding the benefits of ownership to endangered species could encourage more private conservation efforts. For example, government could offer tax incentives or credits to landowners who create habitat for endangered species on their land. Or, in a reversal of previous policies, the government could pay bounties to people for every breeding pair of endangered species found to inhabit their property for all or part (in the case of migratory species) of the year. Adjoining landowners, seeing the financial benefits accruing to their neighbors who protect species would then have the incentive to manage their own lands similarly.