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.
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