How Not to Protect Wildlife

Kings, queens, feudal lords, and dictators used to decide who, if anyone, could use which resources, for what purpose, at what price, and to what extent. That antiquated system of centralized command and control over wildlife remains throughout much of the world today, but it is weakening. The "king’s game" approach to wildlife conservation, wherein government ownership and prohibitions rule, is going the way of the dodo, much like monarchy itself. But here in the United States, that transition away from the king’s game is occurring at glacial speed, primarily because the U.S. environmental establishment is committed to ensuring that indigenous wildlife remains a socialized resource. Not only is this unfortunate for people, but it is counterproductive for wildlife as well.

Illustration by Taylor Jones for the Hoover Digest.

Countless species have been extirpated from the face of the earth under public ownership and government protection; yet no species of animal that was both privately owned and commercially valued has ever gone extinct. Thus, despite what some environmentalists have argued, putting a price tag on a species does not make it disappear. As long as private rights of use and exclusion are properly defined and adequately enforced, an abundance of diverse wildlife will be supplied if it is demanded through a sufficiently free market. Without secure private property rights, however, commercially valued species are as likely to be extinguished as conserved.

When it comes to conserving wildlife, institutions matter, as do incentives. For wildlife conservation to be successful, the incentives must be either positive or neutral. In the United States, however, those incentives are almost entirely negative. This is especially true under the 1973 U.S. Endangered Species Act (ESA), which penalizes landowners for having endangered species on their property. The penalty for having listed species on your property typically translates into draconian land-use restrictions, extortionate permit requirements, red tape, lost income, lost opportunities, property taxes on land that cannot be used, and cost-prohibitive legal fees. As a result, the ESA has stopped landowners from building homes, constructing roads, plowing fields, felling trees, filling ditches, and even clearing firebreaks to protect their home and family from fire hazards.

These broad constraints on U.S. agriculture have turned many farmers and ranchers against the Endangered Species Act and the species it ostensibly aims to protect. In short, the ESA has produced enemies of wildlife, not defenders of wildlife. It has encouraged habitat destruction, not conservation. As a result, the ESA has failed in its mission to recover threatened and endangered species, and it will continue to fail until Congress fundamentally reforms the law. That is why ESA reform is imperative for rural landowners as well as for the species that currently inhabit their property and those that might in the future.

The ESA in Action: All Pain and No Gain

If one assumes that feeding, clothing, and sheltering human beings constitute legitimate economic pursuits, then one might also assume that government should and will continue to allow private landowners to produce such products. And yet the ESA can be used as a brake on commodity production, as it has been in the past. Thus, the potential for conflict is obvious, as the General Accounting Office discovered in 1994 when it reported that more than 75 percent of all threatened and endangered species in the United States depend on private land for all or some of their habitat needs. Given that the primary use of rural land continues to be agriculture, agriculture is on a collision course with the ESA. Given that some biologists estimate that as many as 250,000 species living in the United States have yet to be identified by science and that they almost surely will be "listed" under the ESA if and when they are identified, the train wreck ahead is clearly visible.

For some, the train has already wrecked.

Andy and Cindy Domenigoni (of western Riverside County, California) fallowed 800 acres of farmland, to rest and rejuvenate their soil, just as the family has done for five generations. When the Interior Department’s U.S. Fish and Wildlife Service (FWS) listed the Stephens’ kangaroo rat as an endangered subspecies in 1988, the Domenigonis were told they could no longer farm their fields. Their land was "frozen." By fallowing their fields, the Domenigonis had allowed kangaroo rats to take up residence on their land, and for this they were punished. In addition to costing several hundred thousand dollars in lost income and attorneys’ fees, the family’s 800 acres of rat habitat also provided the bulk of the fuel for a fire that burned down 29 homes on October 27, 1993.

The FWS had prohibited "disking" firebreaks and farming in designated rat habitat, and the Domenigonis had allowed rat habitat to grow by fallowing their fields. As a result, their fields were overgrown with brush and thus became a tinderbox, which fueled the destruction of property owned by close neighbors. After the fire, ironically, the FWS told the Domenigonis they could begin farming again. In fact, the FWS informed the Domenigonis that before the fire their fields had become too overgrown with brush to provide good rat habitat anyway. Thus, because of rat habitat that the FWS later claimed did not exist during much of the time the federal government was regulating it, the family lost approximately $400,000 in farming income, and many of their neighbors lost their homes.

Another egregious example from California involved Tang Ming-Lin, a Taiwanese immigrant who bought 723 acres of undeveloped farmland in Kern County, all of which was zoned for agriculture. One day in 1994, when his foreman was plowing a new field, some 20 government agents (6 of whom were armed) raided his farm and confiscated his tractor. His crime? Tang Ming-Lin had allowed his foreman to plow land inhabited by endangered species, a federal crime. Specifically, the FWS claimed that Ming-Lin’s foreman had killed two (possibly five) Tipton kangaroo rats and "taken" the habitat of blunt-nosed leopard lizards and San Joaquin kit foxes. The FWS never provided any evidence, but it did demand 363 of Ming-Lin’s 723 acres, $300,000 in fines, and $172,425 to maintain the expropriated land as a wildlife preserve.

The FWS raided Ming-Lin’s offices and slandered his family in the media. Among other outrages, the FWS threatened to deport his family and implicated them in tax fraud and other nefarious schemes, all of which turned out to be untrue. One FWS official even managed to convince local authorities to suspend the immigrant’s driver’s license. In the end, however, the FWS backed down when faced with a jury trial. Tang Ming-Lin’s persecution had sparked a property-rights backlash. Although he admitted to no wrongdoing, Ming-Lin did agree to donate $5,000 to a habitat conservation fund and to stop farming his land until he obtained an ESA permit. This episode awakened people to what the ESA could do to farmers and ranchers.

A Dismal Failure

As we have seen, the bulk of the ESA’s costs and burdens are borne by the unlucky people who own or lease the wrong pieces of land. As Jim Huffman, dean of the Northwestern School of Law at Lewis and Clark College, has written: "The pervasive notion that society can avoid the costs of public action if government can avoid compensating for property affected is simple self-deception. The costs of government action will be borne by someone. The compensation requirement, like a rule of liability, simply determines who that someone is."

There is no doubt that the ESA has run roughshod over the lives and liberties of some people, a fact that some environmentalists still try to deny. Nor is there any doubt that, after 25 years of regulation, the ESA has been a complete and utter failure.

Although the act’s statutory objective is to recover listed species, none have recovered due to the ESA. Not a single one. As of September 1999, only 27 species (out of more than 1,150 currently on the list) have been removed from the ESA’s list of protected species. Seven of those species were "delisted" because they went extinct. Nine of them, according to the FWS, were "data errors," which means they never should have been listed in the first place. The FWS, the Interior Department agency charged with implementing and enforcing the act, only claims to have "recovered" the remaining 11 (of 27) delisted species, but not one of them was saved by the ESA.

Thus, based on the record to date, a species is more likely to go extinct under the ESA than it is to recover (11 extinctions versus 0 recoveries). This is sad but true, much like the reasons for the ESA’s abysmal failure.

Solving the Problem

If society wants more of something, it would do well to reward those who provide it, not punish them. Instead, the ESA has turned wildlife assets into regulatory liabilities. People tend to protect assets and eliminate liabilities, which is largely why the ESA has failed so miserably. Solving this problem, however, is easier on paper than it is in practice. It is all but a foregone conclusion that we will be stuck with some sort of federal ESA for the foreseeable future. Thus, if repeal is not a viable option, reform is imperative.

In the absence of punitive regulations, most landowners would gladly host threatened and endangered species on their property. Some would even go out of their way to ensure that rare wildlife had every chance to recover on their land. In many cases, landowners would need no other incentive than the assurance that they will not be regulated for having such species on their property. In other cases, positive incentives might be necessary. With minor clarifications, the ESA’s land acquisition provision could provide all the authority needed by the secretary of the interior to pursue all manner of positive inducements. And, of course, there is no law barring private environmental groups from purchasing habitat or easements or otherwise putting their money where their values are.

For many people in the agricultural community and elsewhere, ESA reform is a simple matter of justice. Surely, the cost of satisfying the public’s desire to protect publicly owned wildlife would qualify as a public burden that should not be foisted on certain people who happen to own the last remnants of certain habitats.

After all, the people who own that land are those who refrained from modifying endangered species habitat; that is why they still have such habitat. While everyone else was busy building homes, office buildings, malls, and restaurants, those landowners were busy growing habitat. Now we have the temerity to tell them that they owe us. We make our demands as we sit in the same homes and office buildings that destroyed previous habitat, oblivious to the fact that the owners of today’s habitat are literally, almost by definition, the last people who deserve to be blamed or punished.

Thus, solving this problem of publicly owned wildlife residing on privately owned habitat is the main goal of true ESA reform. The trick is to do it without treating private land as if it were legally owned or controlled by the government.