Study: Property Rights Need Not Suffer for Species Protection

Published April 1, 1999

The Endangered Species Act of 1973, adopted to conserve and protect endangered or threatened species, has done little to live up to its mission. Instead, contends Alexander Annett of The Heritage Foundation, the act has fostered an out-of-control federal bureaucracy that deprives private property owners of their constitutional rights.

Since the ESA’s inception, only 27 of the more than 1,150 animals and plants listed have been removed from the endangered or threatened list. An analysis by the National Wilderness Institute concluded that not one of those species was de-listed because its improved numbers could be attributed to ESA activity.

ESA proponents were thoroughly embarrassed last spring when Interior Secretary Bruce Babbitt announced that another 33 endangered and threatened species were ready for de-listing. Babbitt claimed the de-listing was proof that the agency was working . . . and had that claim disputed by the director of his own department’s Fish and Wildlife Service, who noted that Babbitt’s list “included species which we believe to be extinct and those for which we have new scientific information concerning their taxonomy or abundance.”

Meanwhile, private property owners whose land includes species habitat must live under the threat of fines and jail sentences, and continue to watch in frustration as their property loses value because of ESA regulations.

According to the General Accounting Office’s most recent report on the ESA’s performance, released in 1994, most endangered species habitat is on land not owned by the federal government. Nonfederal lands accounted for more than 60 percent of the habitat for nearly three-quarters of the 712 species on ESA’s 1994 list. Roughly 37 percent of those species depend entirely on private land for their habitat.

“Unless Congress weighs in on the constitutional first principles of property rights and just compensation, both endangered species and landowners will continue to suffer,” warns Annett. in his Heritage Foundation Backgrounder, “Reforming the Endangered Species Act to Protect Species and Property Rights.”

Last fall Congress attempted to address the ESA’s shortcomings by attaching the Endangered Species Recovery Act of 1997 to the fiscal year 1999 omnibus appropriations bill. The effort failed . . . to the benefit of private property owners and endangered species, says Annett. The White House-supported proposal fell short, he notes, of addressing ESA’s major flaws.

  • its overly broad definition of “harm,” which includes a landowner’s modification of species habitat–even modifications to improve habitat;
  • its failure to require federal agencies to use sound science in their decisions and to examine the economic consequences of their actions;
  • its encouragement of private property “takings” without compensation, as required by the Constitution’s Fifth Amendment.
  • its negative incentives, which encourage private landowners to clear their land of endangered species and suitable habitat.

Annett contends that the interests of landowners and endangered species alike would be best served by a non-regulatory, voluntary species protection program patterned after the North American Waterfowl Management Plan (NAWMP) and similar efforts. Under the NAWMP, for example, the federal government offers grants and matching funds to local and regional groups, allowing them to buy conservation easements on privately owned wetlands, restore areas that once were wetland but have been drained, and enhance existing wetlands.

“These programs take advantage of the economic and social value people place on the presence of wetlands,” Annett writes. Similarly, “compensating [landowners] and rewarding them for acting as stewards of endangered species is the first and best incentive.”