Bad for Species, Bad for People: What’s Wrong with the Endangered Species Act and How to Fix It

Policy Reports | Energy and Natural Resources

No. 303
Saturday, September 01, 2007
by Brian Seasholes

Real Reform of the Endangered Species Act

The only substantive way to reform the ESA is to remove the Act's punishing provisions.  Common sense and economics indicate that if you want more of something you reward it.  At the very least, you don't punish people for providing it.  There are several very good reasons to believe that a non-punitive, nonregulatory approach to endangered species conservation will work.

First, a nonregulatory ESA would eliminate the perverse incentives for landowners to destroy habitat or avoid reintroducing species they fear might be listed under the Act.  The cases of Ben Cone and David Cameron vividly illustrate these circumstances.

Second, a nonregulatory ESA could look much like the U.S. Department of Agriculture's Conservation Reserve Program or Wetlands Reserve Program, under which the federal government pays farmers not to cultivate environmentally sensitive land. “I think this [the Conservation Reserve Program] really, really opened people's eyes to what could be achieved in a basically non-regulatory, voluntary program,” stated Mollie Beattie, then FWS director.  “If there were an incentive to make the best habitat [for endangered and threatened species], we'd be miles ahead.” 56

“Most Americans think owners should be compensated for ESA-caused property value diminution.”

Third, public opinion polls indicate Americans support a non-regulatory, incentive-based ESA.  A poll conducted by the Service in 1999 indicates that the public believes in strong protection of landowners' rights. 57 [See Figure VI.]

  • A majority (56.5 percent) agreed that landowners should be financially compensated when the Endangered Species Act prevents them from using their property.
  • A larger majority (58.8 percent) agreed that endangered species protection should not interfere with a landowner's right to develop his property.

The Service's poll also gave respondents four choices as to what should be done to the ESA:  Five percent of respondents said “revoked,” 11 percent “weakened,” 35 percent “unchanged” and 49 percent “strengthened.”

Polls conducted by the Competitive Enterprise Institute in 1995 and 1996 asked respondents whether they favored the current ESA, the current regulatory ESA but with compensation for property devalued by species, or a non-regulatory ESA.  As shown in Figure VII:

  • Only 11 percent of the people surveyed supported the current Endangered Species Act.
  • Some 33 percent to 37 percent supported current ESA regulations — if landowners received financial compensation.
  • And 35 percent to 49 percent supported a nonregulatory approach to endangered species protection using financial incentives.

All three polls demonstrate that a majority of the public believes landowners should be prevented from harming species but that they should be compensated financially for doing so.  The response to the Service's question about what should be done to the ESA also indicates that the public is unaware that the ESA's penalties harm species and landowners.  Were the public polled on this issue, it is likely that support for the law would drop considerably.

In addition to the Conservation Reserve Program, two approaches can help chart the course to a new ESA that is good for people and good for species.

“Private conservation efforts saved the plains bison and helped bluebird and wood duck.”

Private Wildlife Conservation in America.  In many respects private wildlife conservation has done a better job than the punitive approach.  For example, in the late 1800s, six ranchers saved the plains bison from likely extinction by rounding up small groups of the remaining bison.  This is the herd from which virtually all today's bison are descended.  A few bison remained in Yellowstone National Park, but these were augmented by private stock.  By 1905, there were only 969 bison left, and 95 percent of these were in private hands. 58 Today, of the approximately 250,000 bison in the United States, 93 percent are privately owned. 59

Private initiatives have also helped two other species that were declining:  the eastern bluebird and the wood duck.  Landowners have been happy to erect and place nesting boxes to substitute for the loss of natural tree cavities, because this activity does not bring with it the threat of regulation. 60 In 1978, bluebird advocates even founded a private organization, the North American Bluebird Society (NABS) to distribute information about putting up nesting boxes.  The NABS's efforts have been spectacularly successful; hundreds of thousands of nesting boxes have provided a significant boost to the bluebird, and there are now affiliated organizations in 29 states and four Canadian provinces. 61

By contrast, landowners are not likely to put up nesting boxes to attract the spotted owl because ESA regulations would come with them.  Three months after the owl was listed in 1990, Tom Cade — one of the world's foremost raptor experts and founder of the Peregrine Fund, the organization responsible for restoring the peregrine falcon to large parts of the lower 48 states through captive breeding and release of young birds — proposed captive breeding and release of the owls into nesting boxes because owls are relatively easy to breed and they readily accept boxes. 62 Jack Ward Thomas, the U.S. Forest Service biologist in charge of the spotted owl who went on to become Chief of the Forest Service, quickly declined the offer. 63 Even though captive breeding and nesting boxes held enormous promise, Thomas and the U.S. government were less interested in increasing the spotted owl population through innovative solutions than they were interested in using the owl as a tool to stymie timber harvesting.

“Texas officials successfully conserved Johnston's frankenia without the threat of ESA land use controls.”

Johnston's frankenia, a south Texas plant species, provides an instructive case study of how the ESA thwarts private conservation and how a non-regulatory ESA could work. Although the Fish and Wildlife Service had conducted only the most rudimentary surveys to determine the plant's overall population and trend, in 1984 it listed the frankenia as endangered due to its perceived small population (five sites totaling around 700 plants) and the belief that cattle grazing posed a threat. 64 Then, in 1993, Gena Janssen, an energetic botanist with the Texas Parks and Wildlife Department, decided to take a closer look because the plant was rumored to be “everywhere.” 65 Initially, “[t]he landowners were scared to say the least,” she said.  “They were fearful of the ‘government' finding out they had endangered species on their property.” 66

Janssen was eventually able to gain landowners' trust in large part because plants receive a much lower level of protection than animals.  Unless an ESA-listed plant is protected by state law or the land is subject to a federal nexus, such as through a permit, the ESA's prohibitions on taking and harming species do not apply on private property.  Hence, land-use control provisions do not apply.  As a consequence, the Service is generally not able to use plants to threaten landowners with the ESA.  Also, due to the Service's use of ESA penalties for animals, landowners in the frankenia's habitat were more comfortable dealing with a state employee.

Through her hard work, Janssen discovered 53 populations totaling more than nine million plants and determined that cattle grazing was not a threat. 67 In addition, she was able to persuade the 10 landowners who owned the 19 largest populations to sign voluntary conservation agreements with the Texas Parks and Wildlife Department.  As a result, in 2003 the Service proposed delisting the frankenia. 68

The success conserving Johnston's frankenia in a region of the country known to be hostile to the ESA is testament to the Service's inability to use the plant as a means to control land-use.  Had the frankenia been afforded the same protections as animals, it is very likely landowners would have quietly initiated a scorched earth campaign to rid their property of the plant.  Fortunately, the Johnston's frankenia was saved from the ESA, not by it.

If animals were granted the same regulatory status as plants, the success story of the frankenia could be repeated many times over.

The goodwill of America's landowners toward wildlife is very evident in the cases of the frankenia, bison, wood duck and bluebird, and these success stories could be replicated all over the country.  The overwhelming impediment is the ESA's penalties for animals.

Innovative Conservation Efforts Outside the United States.  Another alternative to the ESA can be found beyond America's borders.  During the mid-to-late 1960s and early 1970s, the United States was heading down the path toward increasingly coercive approaches to wildlife conservation, culminating in the ESA's passage in 1973.  But much of the rest of the world was going in the opposite direction.  Most notably, a number of countries in southern Africa, led by Namibia and Zimbabwe, realized that the command-and-control model based on centralized state ownership of wildlife was failing, especially since most wildlife existed outside parks and protected areas.

“Several African countries encourage conservation by allowing profitable uses of wildlife.”

Countries in southern Africa and much of the third world had followed the western legal tradition imported with colonial regimes.  States assumed ownership of wildlife and created punitive laws and regulations that disenfranchised rural people and undermined the economic value of wildlife. 69 The effects of these laws have been devastating for wildlife, especially because these regions — Asia, Latin America and Africa — contain most of the world's species, otherwise known as biodiversity, and, predictably, this created conflict between governments and residents of rural areas. 70

People in rural areas bear the direct costs of living with wildlife species that may threaten their lives and livelihoods. 71 Even if lions, elephants or buffaloes don't attack people, they kill livestock and eat crops.  And herbivores, such as antelope, compete with livestock for food.  Laws and government policies that prevented people from owning, controlling or hunting these animals exacerbated this burden. Unable to benefit economically from wildlife, people did what was rational; they got rid of it.  They shot, poisoned, trapped and snared wildlife.  Indirectly, and more detrimentally, they displaced wildlife with livestock and agriculture, the “cattle and crops” solution.  The result was declining wildlife populations despite official protection. 72

In response, in the late 1960 and early 1970s several countries in southern Africa devolved authority over wildlife away from the central government to more localized forms of government, and in some cases even gave rural residents property rights to wildlife. 73 This approach acknowledges that wildlife must pay its way if it is to survive in much of Africa and the developing world. 74 When people benefit economically from wildlife there is a greater chance they will see that it is in their interest to conserve it.

The move away from “old style” conservation also has been driven by the desire of countries to shed their colonial pasts.  The punitive approach to wildlife conservation is one of the most durable and regressive vestiges of colonialism in the developing world.  Many countries reached the conclusion that not only is the ESA-style punitive approach ineffective but it is morally indefensible.  It is more than a little ironic that many ESA proponents think of themselves as progressive advocates of the downtrodden and disempowered of the third world, the very people who have been harmed most by the type of command-and-control conservation exemplified by the ESA.

The new approaches to conservation have many names, such as conservation through commerce, community-based conservation, community-based natural resource management, community wildlife management, and integrated conservation and development.  Yet they all share the common feature of devolving property rights to wildlife and other natural resources to the people or communities that bear the costs of harboring species.

An example of the new-style conservation is Zimbabwe's CAMPFIRE program (Communal Areas Management Program for Indigenous Resources), which allows residents of Communal Lands (that is, poor rural blacks) to earn money from wildlife.  The Districts — the lowest level of officially recognized government — are roughly equivalent to counties in the United States.  Districts set hunting quotas for various species in consultation with the Parks Department, the equivalent of the U.S. and Wildlife Service.  Safari hunting is the most important component of CAMPFIRE because it generates most of the revenue.  Districts also are heavily involved in negotiating the sale of hunting concessions and quotas to safari operators, most of whose clients are Americans and Europeans.  Proceeds from sport hunting species such as elephants have been channeled to the villagers who bear the costs of living in close proximity to wildlife that can threaten their cattle, crops and lives.  Because wildlife is seen as an asset, Communal Land residents do more than tolerate species, in some cases they manage wildlife.  As a result, between 1990 and 2003, elephant populations in Communal Lands doubled and populations of other game species increased by 50 percent. 75

Similar efforts have also been initiated in Zambia, Botswana, Tanzania, Mozambique and Namibia.  Even Kenya, which banned hunting in 1977, may allow hunting again.  With 65 percent of the country's wildlife outside of state protected areas, it is imperative that owners of non-state lands benefit from wildlife lest they convert land to livestock pasture or row crops. 76

A more localized example of innovative conservation occurs in the village of Ostional along the Pacific coast of Costa Rica, one of the most significant nesting sites for the olive ridley sea turtle.  Villagers had long collected turtle eggs for sale as a food source.  Government authorities realized the eggs could be sustainably harvested because after the initial eggs are laid in the beach sand, successive “waves” of turtles inadvertently destroy eggs when they dig their nests.  Consequently, villagers are permitted to collect eggs from the initial nests.  The eggs are a significant source of income, and as a result villagers vigilantly protect the nests and newly born turtles from predators. 77 “My ultimate goal for a conservation program would be to ensure long-term survival of the species, with benefits derived at the local level for local communities,” states Lisa Campbell, a professor of marine policy at Duke University who has conducted research at Ostional. “The poorest of the poor should not bear the cost of international feelings about charismatic species.” 78

These and a myriad of other innovative efforts have shown what can be accomplished through private initiative, devolution of property rights to local governments, and the absence of command-and-control conservation.  Unfortunately, the ESA is harming wildlife in other countries as well.  Foreign species can be put on the U.S. list, which restricts the value-added trade that is a key component of the new-style conservation taking hold in the third world.  The United States is the largest market for sport hunted trophies and a major market for wildlife products.  If landowners and communities in foreign countries cannot export trophies from safari hunts and other wildlife products, then wildlife loses value and, ultimately, habitat.

“Allowing villagers to harvest and sell olive ridley sea turtle eggs helps conserve the species.”

The ivory ban is probably the most prominent example of eco-colonialism or eco-imperialism that ESA-style conservation has imposed on the third world. 79 In 1989, trade in ivory was banned by CITES, the Convention on International Trade in Endangered Species, and implemented in the United States through the ESA.  Pushing the ban were the United States and European governments, western environmental pressure groups, and a number of African countries, most notably Kenya, which had outlawed hunting and commercialization of ivory and as a result was faced with declining elephant populations.  Opposing the ban were the southern African countries that had purposely made hunting and commerce legal (resulting in large and increasing elephant populations), along with a small handful of conservationists in the U.S. and Europe who favored using markets and property rights as a means to protect the elephant.  The sound and carefully reasoned arguments of the southern African nations and their supporters about the need to attach commercial value to the elephant to ensure its survival were drowned out by the tidal wave of protectionist rhetoric from western nations and environmental pressure groups.  While westerners see elephants as majestic, the poor rural Africans who have to live with them, and often suffer loss of crops and even life, tend to view elephants as dangerous threats.  Due to the policy of attaching commercial value and property rights to elephants, southern Africa's elephant population is growing at 3.88 percent annually, according to the latest estimate by the IUCN.  By contrast, in east Africa, where hunting has been largely banned and the central government maintains tight control over wildlife ownership, elephant populations are not increasing. 80

Fortunately, there are some who realize that the regressive approach to wildlife conservation, such as the ivory ban and the ESA, is doomed to failure.  “[S]uccessful conservation depends on the commitment of the people living with the wild species — not us…[n]ot laws. Not government policies.  And not our wishful thinking,” according to Steven Edwards, of the IUCN (the World Conservation Union), and one of the world's foremost experts on wildlife conservation. 81

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