WASHINGTON — The Supreme Court decision on eminent domain in
Kelo v. New London was a wake-up call that the courts
cannot be relied upon to protect private property rights.
Similarly, the courts have made disappointing rulings on the reach
of the Endangered Species Act (ESA). Fortunately, Congress has a
chance this term to write more private property protections into
the ESA, and there is a good chance that it will do so.
Rep. Richard Pombo, chairman of the House Resources Committee,
has introduced the “Threatened and Endangered
Species Recovery Act of 2005.” Although far from the major overhaul
that ESA needs, it does contain provisions that favor private
property owners. They include:
Regulatory Relief: When a property owner wants to use land that
is regulated by the ESA, he must file what’s called an “incidental
take” permit with the Interior Department’s U.S. Fish and Wildlife
Service (FWS). FWS then takes its own sweet time to rule on the
permit application. Under Pombo’s bill, FWS has 90 days to reach a
decision. If it fails to do so, the property owner receives a
default positive ruling.
Compensation: What if the property use is denied by FWS? Pombo’s
bill instructs the Secretary of the Interior to provide
compensation to those property owners. Owners must apply for
compensation within six months of an adverse ruling. The amount of
compensation will be based not simply on the fair market value of
the current land use, but on the value of the “forgone use” of the
land. In other words, if a property owner has plans to build on the
land, he must be reimbursed for the estimated fair market value of
planned development. And the bill stipulates, “Ambiguities
regarding fair market value shall be resolved in favor of the
property owner.”
Perhaps most encouraging, Pombo’s bill allows for much greater
flexibility in permitting voluntary agreements between the federal
government and private property owners. Compared to current law,
this provision has the potential to both protect the rights of
owners and do more to save endangered species.
OPINIONS ON THE EFFECTIVENESS of the current ESA vary.
Environmentalists look at all the surviving endangered species on
the ESA list and see success. But take a closer look and it’s hard
to conclude that ESA has been anything but a failure. Since ESA was
enacted in 1973, over 1,300 species have been put on the endangered
list. Only 34 have come off the list — nine of those because they
became extinct, and fourteen because they were mistakenly listed in
the first place. Of those currently on the list, about 64 percent
are thought to be still losing the struggle to survive.
The main problem with the ESA is that it works against its own
stated goal of species preservation. ESA actually gives property
owners the opposite incentive. When landowners discover their
property may be subject to burdensome and bureaucratic ESA
restrictions, they have every incentive to quietly get rid of the
species and habitat and cover up their actions — what’s
pejoratively known as “shoot, shovel, and shut up.” That’s what
happened to the endangered red-cockaded woodpecker, which lives in
mature pine trees. In 2003, professors Dean Lueck and Jeffrey
Michael published research on the birds’ habitat that found that
the nearer the woodpeckers approached private land covered with
pine trees, the greater the probability that the trees would be
cleared before they became mature.
A better alternative is to give landowners a positive incentive
to set aside habitat for endangered species. The federal
government’s Conservation Reserve Program (CRP), established by
Congress in 1985, offers evidence that this approach works. The
purpose of CRP is to prevent land erosion. Under the CRP, farmers
sign a ten-year contract with the Department of Agriculture,
agreeing to take out of production land that is most subject to
erosion and plant grass or trees on it instead. In exchange, the
government pays farmers a rental fee based on its potential
productivity.
CRP has, by and large, been successful. In 2004 about 34 million
acres were enrolled in the program. A 1997 report to Congress found
that although only 10 percent of cropland is enrolled in CRP,
overall erosion has declined by 22 percent. Studies also show that
CRP lands serve as species habitat. For example, one study found
that the numbers of four duck species increased on CRP land in
North Dakota, South Dakota, and northeastern Montana.
Provisions in the Pombo bill could make the current ESA work
more like the CRP. For instance, Section 10, which deals with
species recovery efforts, permits the Secretary of the Interior
to
enter into species recovery agreements…with persons,
other than agencies of the Federal or State governments, under
which the Secretary is obligated, subject to the availability of
appropriations, to make annual payments or provide other
compensation to the person to implement the
agreements.
Section 14 further states that the “Secretary may provide
conservation grants…to promote the voluntary conservation of
endangered species and threatened species by owners of private
property.” Provisions like these could become the basis for a
program in which landowners agree to set aside habitat for
endangered species, in exchange for government payments. If the CRP
is any indication, such a program has the potential for
success.
Will the Department of the Interior and its Fish and Wildlife
Service support these kinds of programs? Will landowners and
private property advocates promote them? It’s noteworthy that Gale
Norton, the Bush Administration’s Interior Secretary, was once an
attorney for a free market-oriented public interest group (Mountain
States Legal Foundation) open to such approaches.
However, the Pombo bill must first get through the House and
Senate without crippling amendments. A successful bill will move
the ESA bureaucracy toward the recognition that it’s possible to
protect both private property and endangered species. A bad bill
deserves to go extinct.
