Comment to the U.S. Fish and Wildlife Service on Proposed Regulatory Revisions to the Endangered Species Act

Published September 24, 2018

U.S. Fish and Wildlife Service
Department of the Interior
5275 Leesburg Pike
Fall’s Church, VA 22041

The Heartland Institute is submitting the following comments in response to the U.S. Fish and Wildlife Service’s (FWS) call for comment on proposed regulatory revisions to the Endangered Species Act (ESA), specifically Section 424.12 – Criteria for Designating Critical Habitat.

Under FWS’ current expansive critical habitat designation, no person’s property is safe from being declared “critical habitat” for some endangered species. Since 1973, more than 2,470 plant and animal species have been classified as endangered or threatened by ESA. There are currently more than 1,600 species listed as endangered in the United States, with listings in all 50 states as well as the District of Columbia. Federal, state, and local governments, as well as private individuals, have spent billions to help endangered and threatened species recover during this period.[i]

The sheer number of species designated as threatened or endangered, as well as the billions of taxpayer dollars spent to help restore animal populations, has dealt a devastating blow to liberty and property rights. For example, Americans have been forbidden from building homes or developing land in numerous regions throughout the United States.

Yet, after all these efforts and billions of dollars spent, only 81 species—roughly 3 percent of all species ever listed—have been removed from the Endangered Species List.[ii] Worse still, the vast majority of these species were not delisted because of species recovery plans; 19 were removed due to data error after discovering they never should have been listed in the first place, and 11 others were removed because they had been extinct at the time they were listed or have since become extinct.[iii] Few, if any, species removed from the Endangered Species List have recovered primarily due to ESA protections. Hospitals or schools with a similarly dismal recovery or graduation rates would have been closed decades ago.

FWS is currently proposing three reforms, each of which individually and collectively should modestly remedy some of the flaws in the way ESA has operated. One reform would reinstate a requirement mandating that officials review currently occupied areas before uninhabited or previously inhabited areas. FWS should never count as “critical habitat” any area in which a listed species does not presently exist or in which it could not survive and recover in its present condition.

Another proposed change would reverse a decades-old policy under which threatened species receive the same protections as endangered species. ESA allows actions that impact a threatened species on a case-by-case basis. However, previous administrations applied the same heavy-handed prohibitions intended for endangered species to threatened species, basically eliminating the stark contrast between the two categories, resulting in unjustifiable restrictions on peoples’ property rights and millions of dollars in wasted resources “protecting” species not actually at risk of extinction.

FWS has also proposed rescinding the “compensatory mitigation policy.” This counterproductive policy mandates industries compensate the government for natural resource extraction on federal lands to mitigate potential damage to endangered species’ habitats. As FWS notes, the agency lacks the authority to require “net conservation gains,” and there is no evidence the monetary compensation required to offset potential damage caused to animal habitats by industries extracting resources on federal land has reduced harm.

Although these changes are important, they do not go far enough and fail to address ESA’s fundamental flaw: It does not protect species because it creates perverse incentives to destroy them and their habitats. More than 75 percent of listed species depend on private land for either all or part of their habitat, but if people provide suitable habitat for an endangered species, their land becomes subject to severe regulation and outright confiscation. Property owners are therefore faced with three undesirable options: kill the endangered species member (colloquially known as “shoot, shovel, and shut up”), destroy the habitat before a species moves in, or lose the value of their land.

The fairest and most effective way to foster species recovery would be to reward people for managing their property in ways that attract endangered species. For instance, paying landowners when their property is restricted to protect species would be consistent with the Constitution’s requirement that landowners be paid just compensation when their property is taken for public purposes, and it would keep them from being forced to face a perverse choice between their own welfare and that of the endangered species.

The Heartland Institute recognizes, however, this and other fundamental reforms require congressional action and are not within the authority of FWS to undertake. Since the three changes now being proposed by FWS should free up resources for programs and procedures that might actually result in species protection, The Heartland Institute supports them.

Respectfully Submitted,

Timothy Benson
Policy Analyst
The Heartland Institute
[email protected]


[i] Robert Gordon, “‘Whatever the Cost’ of the Endangered Species Act, It’s Huge,” OnPoint No. 247, Competitive Enterprise Institute, August 21, 2018,


[ii] U.S. Fish and Wildlife Services, “Delisted Species,”


[iii] Ibid.