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The ESA vs. Private Conservation:

For decades land rights activists have complained that Section 9 of the Endangered Species Act punishes private conservation. Under the Act, the reward for maintaining or creating endangered species habitat is the imposition of federal land-use controls. Specifically, landowners are prohibited from modifying such land without permission from the U.S. Fish & Wildlife Service. Commented one state wildlife official in 1993, "The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears." This perverse incentive discouraged landowners from maintaining habitat. At the extreme, it induced landowners and resources users to "shoot, shovel, and shut up."

While such claims were common, the only direct evidence that landowners responded to such incentives was anecdotal. There was no doubt that some landowners took preemptive action to destroy or degrade potential habitat before it could become subject to federal regulation -- as happened in Boiling Springs Lakes, North Carolina -- but there was little evidence documenting the extent of such responses to the Act's restrictions. Defenders of the ESA could argue, with some justification, that the occasional horror did not demonstrate that there was anything fundamentally wrong with the Act.

In recent years, however, more substantial empirical evidence has started to roll in, confirming that the ESA's perverse incentives encourage the destruction and degradation of species habitat on private land. As I detail in "Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls," there are now four empirical studies examining the effect of the ESA on landowner willingness to maintain habitat. All four of these studies find the predicted effect. Taken together, these studies provide powerful evidence that the ESA may be endangering endangered species on private land. Interestingly enough, only one of these studies has received any meaningful attention in the environmental law literature to date. (I searched Westlaw for all four this morning.)

Two of the four studies look at the ESA's effect on private timber management practices and habitat for the endangered red-cockaded woodpecker (RCW). The two studies utilize slightly different methodologies, but both found that landowners have responded to the risk of ESA regulation by altering timber management practices so as to make private timberland less hospitable for RCWs. Specifically, landowners increase the rate of cutting, and decrease the age at which timber is harvested, so as to avoid land-use restrictions. This matters for the RCW. Cutting timber stands prematurely deprives RCWs of habitat because the woodpeckers rely upon older trees for nesting cavities. Cutting trees prematurely is perfectly legal. But over time it will result in a significant reduction of RCW habitat.

A third study examined landowner responses to the listing of the Preble's Meadow jumping mouse. This study, a survey or private landowners, found that a significant number of landowners took actions to make their lands less hospitable to the mouse after it was listed as an endangered species. It also found that landowners became significantly less likely to grant wildlife biologists access to their land for research purposes. This is important because accurate data on species populations and their habitat is essential to successful conservation efforts.

A fourth study looked at preemptive habitat destruction near Tucson, Arizona. Consistent with the other studies, this study found that the threat of regulation of habitat for the Cactus Ferruginous pygmy owl accelerates the rate at which privately owned species habitat is developed. These findings are reinforced by additional data showing that the value of undeveloped land designated as critical habitat fell relative to other lands in the study area. Although as a strict legal matter, critical habitat designation is not necessary for land to be burdened by the ESA's regulatory strictures, it provides a signal to landowners about the likelihood of future regulatory restraints.

These studies, taken together, provide powerful evidence that the ESA is discouraging species conservation on private land. They help explain why the ESA has been particularly ineffective at conserving endangered species on private land. Only a handful of species have been "recovered" since the ESA was enacted in 1973, and none of the recoveries -- not one -- is attributable to the enforcement of Section 9 on private land. Since most endangered species rely upon private land for some or all of their habitat, this is a particularly egregious failing of the Act. The purpose of the ESA is to conserve endangered and threatened species. Instead it appears that the Act may be endangering them.

Related Posts (on one page):

  1. The ESA vs. Private Conservation:
  2. Compensate for Conservation's Sake:
J. F. Thomas (mail):
Of course the act doesn't "punish" private conservation. Granted, it doesn't compensate landowners for loss in value in their lands as you apparently hope it would. But your argument seems to be if these species are worth saving then the government should be willing to pay for the conservation efforts--that no private landowner should be forced to bear the cost alone. That is all well and good, but you still haven't told us exactly where all this money for the compensation is going to come from. Obviously, these landowners care more about the profit they get from building subdivisions or selling their timber than providing habitat for a goddamned mouse or woodpecker (and I have heard it phrased exactly that way--actually as "goddamned bugs and bunnies"). So to say that these landowners are somehow destroying land simply to spite the government (that their actions are driven by fear of regulation and the habitat would not be destroyed if not for the ESA) is a real stretch. Granted, when asked, they may claim they cut timber earlier, accelerated plans for a subdivision, or otherwise disrupted habitat to avoid ESA complications, but the end result is probably the same in the vast majority of the cases.
8.23.2007 10:53am
Pine_Tree:
Said it before: Live Bounties

For something like RCW, find a private funding source like a recently-glorified CEO, a philanthropist, or a conservation group. Set up a reward system where each nest gets you $5,000 (or whatever is right). You're eligible every season. Extra bounties for high-performers on rates of increase.
8.23.2007 11:00am
bittern (mail):
J.F., sounds like you don't like the info J. Adler has accumulated because you don't like where you think he's going with it. Your opposition to his info seems based on where it leads. I don't take that as a very strong rebuttal. Are you interested in saving endangered species on its own merits or as a means to some other goal?
8.23.2007 11:10am
Jonathan H. Adler (mail) (www):
J.F. Thomas --

Yes, the ESA does punish private conservation. If a private landowner successfully manages his or her land so as to make it more hospitable for endangered species, the land will become subject to regulation under Section 9 of the ESA, resulting in significant economic losses. Imposing costs on a given behavior -- in this case providing habitat for endangered species -- is "punishing" that behavior. If wildlife conservationists can acknowledge that the ESA punishes private conservation (I cite quite a few in the paper that you claim to have read), I would think that you could as well.

I should also note that only one of the studies I discuss is based upon surveys of landowners. The rest involve econometric analyses of actual landowner behavior, so it's not what landowners are "claiming" to be doing, but what we are actually observing on the ground.

How to fund conservation is an important question. If it were truly up to me, I have no doubt I could find plenty of money in the federal budget. I'd rather the government purchase conservation easements than build bridges to nowhere. More seriously, there are some funds in the Land & Water Conseration Fund. Historically these funds were used for federal land acquisition, or left to sit so as to offset other spending. If LWCF money is not available, or sufficient, then money would need to be allocated from other programs. Species habitat, like any public good to be provided or subsidized by the government, costs money.

Here I will make two additional points. First, conserving endangered species habitat entails costs whether or not the government pays for it. A compensation rule doesn't create costs. Rather, it shifts who bears the costs. Such a rule also has the potential to reduce the overall costs of conservation and make conservation efforts more cost-effective, as I discuss in the paper.

Second (as I also discuss in the paper), there are many ways to ensure that species habitat is conserved or even enhanced short of fee simple acquisition -- and such measures are typically far less expensive. Conservation agreements, easements and the like are all effective ways to protect many types of species habitat. There are also inexpensive ways to artificially enhance habitat at relatively minimal cost (as was done for the wood duck), a point I should add to the paper.

JHA
8.23.2007 11:13am
TJIT (mail):
J.F. Thomas does not understand that the ESA can stop all activity on a land not just timber harvesting or housing development.

This includes activities as benign as cutting and baling hay.

The ESA imposes huge burdens on landowners. Landowners who act rationally will do everything possible to avoid having the ESA apply to them.

J.F. and the environmental community need to decide what is more important to them.

1. Preserving and recovering endangered species

2. Preserving restrictive land use regulations and punitive government power.

Because the two items are not compatible.
8.23.2007 11:58am
NaG (mail):
At least acquisition of a property by eminent domain in order to protect an endangered species on that property would truly be a "public use."

I have no doubt that I'd be pissed if I found the perfect piece of property for my home, went through all the hullabaloo of buying that property, had my plans all ready to start building my dream house, and then discover that because some animal chose to nest there instead of the property right next door I'm now not only having my plans completely dashed but now I can't get any of the money back that I sank into the property to begin with. I'm hosed. And I have only the unpredictable animal to blame. Which is why this stuff should be seen as a taking and property owners should be compensated so that I could at least get my money back and find another place to build my home. Otherwise, next time I find a perfect place to build (if I manage to recover financially), I'm doing whatever I can to make sure no animals come near it. And when property owners start acting that way, it drastically reduces the available property for these endangered animals to live. If you want an attitude that is at least ambivalent toward endangered animals, then it would be best to not have the arrival of these animals associated with financial ruin.
8.23.2007 12:16pm
markm (mail):
Here's how the position for regulation without compensation translates into plain English:

"Society" wants to save endangered species.
Society does not want to pay the cost of doing so.
So, they want to impose the whole cost of that onto the people unlucky enough to own the land where those species live.

Congratulations J.F., you've just achieved the ethical status of Machiavelli and Stalin!
8.23.2007 12:53pm
J. F. Thomas (mail):
If it were truly up to me, I have no doubt I could find plenty of money in the federal budget.

Since you have an unrealistic expectation of what environmental protection costs (you apparently believe that flood protection costs can be borne by those who will be directly affected by flooding), I put little stock in what your assessment of the ability of the federal budget to pay for protecting endangered species.

If you are such a great manager of federal dollars, you are welcome to come on down to Louisiana any time and help us spend our meager budget to save our 4 million acres of coastal wetlands, the vast majority of which are privately owned, while balancing all the competing interests that are often at odds. Abstract, academic exercises that condemn a convenient target, be it "environmentalists", the uncaring government bureaucracy, or even rapcious landowners and ivory tower libertarian academics (who I pick on because someone has to do it on this site) fall apart quickly when they become mired in the politics, complexities, nuances, compromises, and realities of the real world.
8.23.2007 1:20pm
Andy Freeman (mail):
> That is all well and good, but you still haven't told us exactly where all this money for the compensation is going to come from.

We don't have enough money for everything that we'd like to see done, but how does that justify forcing someone else to pay for things that we don't consider worth paying for ourselves?

When someone pays for one thing and not another, they're telling their actual priorities, they're telling how they actually perceive the costs and benefits. The public is unwilling to pay for many conservation measures. Why don't we listen?
8.23.2007 1:37pm
bittern (mail):
In real life, it's extreme to prohibit the least bit of harm to a rare species. It's likewise extreme to imagine that land ownership confers license to do anything. The critters apparently do not come with the deed; they're supposedly the property of state governments, no? So, the property owner's rights are fettered. Just the same, if we let the government claim full dominion over anything related to its critters, then there's zero private property right. Maybe if we could trust each other long enough to consider the issue, we could come up with some workable compromises?

This is an issue that calls for screaming moderation. Absolutist principles fall apart. Maybe some folks could get off their high horses. Maybe I'm wishin' for a pony.
8.23.2007 1:41pm
Montie (mail):

Yes, the ESA does punish private conservation. If a private landowner successfully manages his or her land so as to make it more hospitable for endangered species, the land will become subject to regulation under Section 9 of the ESA, resulting in significant economic losses.


Doesn't also punish the landowner who allows his land to return to a wild state? For example, I am personally familar with currently forested areas of Appalachia that were at one time cleared for farmland. However, since this land represented marginal farmland, it was allowed to return to forest.
8.23.2007 1:44pm
Smallholder (mail) (www):
As a landholding farmer, I have had some experience thinking about government regulations impact on the way I manage my land.

I have a half-acre of land that sits wet for most of the year. It is dry in the height of summer but might qualify as a wetland if a bureaucrat looked at it. Neighboring farmers have urged me to change the counters of the land to avoid a "taking" by the Feds. I considered it, but then decided that the pleasure I derived from salamander hunting with my kids outweighed the unlikely possibility that I might lose land value. The decision was made on consciously economic grounds -- what do I value more? If the area of land was larger and thus represented a larger portion of my family's wealth, then I might have pragmatically decided to rent a bulldozer out of concern for my kids' inheritance.
8.23.2007 1:57pm
J. F. Thomas (mail):
If a private landowner successfully manages his or her land so as to make it more hospitable for endangered species, the land will become subject to regulation under Section 9 of the ESA, resulting in significant economic losses.

I don't understand this argument. This is only true if the landowner tires of hosting the endangered species and decides to put the land to some inhospitable use. Otherwise, by definition he will not run afoul of the act.
8.23.2007 2:39pm
Tom Holsinger (mail):
This has been SOP in the San Joaquin Valley for many years. "Plow fencepost to fencepost." Companies even offered soil sterilization services, nominally to eradicate pests but actually to eliminate potential endangered species claims.

We had a local dairyman who tried to make some money by digging ponds for migratory ducks on his dairy, and selling duck hunters shooting opportunities. Instead the new ponds were declared federally protected wetlands and he lost all use of the land save for grazing purposes. Dairymen with naturally occuring seasonal ponds on their property have been required in some instances to fence those, <b>at their own expense,</b> because fairy shrimp appear there and might be injured by cattle entering the ponds to drink.

Environmentalists are the blood enemies of California farmers and stockmen.
8.23.2007 2:44pm
J. F. Thomas (mail):
I have a half-acre of land that sits wet for most of the year. It is dry in the height of summer but might qualify as a wetland if a bureaucrat looked at it. Neighboring farmers have urged me to change the counters of the land to avoid a "taking" by the Feds.

Of course as a farmer you must realize what a net positive benefit overall Federal flood control programs are. You must also realize that wetlands are vital to absorb and mitigate the impact of extreme rain events. If everyone behaved like your neighbors and reflexively filled in every intermittent wetland or pond on their property it would make even minor rain events cause serious flooding. That is why the federal (and state and local governments) are so hell-bent on preserving wetlands, because we have learned through experience that simply building more dams and levees is not enough to prevent flooding.
8.23.2007 2:50pm
Jonathan H. Adler (mail) (www):
J.F. Thomas --

You wrote:
If a private landowner successfully manages his or her land so as to make it more hospitable for endangered species, the land will become subject to regulation under Section 9 of the ESA, resulting in significant economic losses.

I don't understand this argument. This is only true if the landowner tires of hosting the endangered species and decides to put the land to some inhospitable use. Otherwise, by definition he will not run afoul of the act.


Not so. Let's take a very simple example (discussed at length in the paper) involving a private timber owner. Such a landowner may well attract endangered species to his land by managing his property while also engaging in sleective cutting, but then find his ability to simply continue doing what he was doing limited or prohibited under Section 9. (This is precisely what happened to Ben Cone.)

Also, many landowners may place significant value on the option of making alternative uses of their land at some point in the future. The presence of endangered species eliminates these future options, as it makes them subject to federal control. For this reason, many landowners clear potential habitat for te sole purpose of preserving their future options. Not only does this result in premature habitat loss, but in many cases habitat is lost that would never have been developed.

ESA regulation can also have a significant effect on land values -- again, something that may harm landowners even if they do not wish to modify their land at present.

JHA
8.23.2007 3:32pm
john w. (mail):
J.F. Thomas: In plain English, your philosophy seems to be "What's mine is mine, and what's yours is ours."

You want to enjoy the BENEFITS of preserving some [allegedly] endangered species (which may or may not actually be endangered and/or a genuinely unique species), but you want the COSTS to fall on some poor unfortunate schmoo who happens to own the land.

If "society" collectively benefits from some particular action, then "society" damned well ought to pay 100% of the costs of that action -- indirect costs as well as direct.

And if society, acting through their elected representatives, doesn't think that pixilated woodpeckers (or whatever) are important enough to justify paying 100% of the costs of saving them, then *YOU* can always go out and buy up the land with your own money, and use it any way you want.
8.23.2007 4:09pm
TJIT (mail):
J.F. Thomas says
Since you have an unrealistic expectation of what environmental protection costs (you apparently believe that flood protection costs can be borne by those who will be directly affected by flooding)
and
you are welcome to come on down to Louisiana any time and help us spend our meager budget to save our 4 million acres of coastal wetlands,
J.F. apparently does not realize that one of the biggest sources of damage to the wetlands has been sediment starvation caused by the various US government / Army Corps of Engineers flood control projects which he apparently wants more of.

When you add in the various government wetland drainage projects there is no doubt the federal government J.F. loves and sees as the solution to all environmental problems has caused vast amounts of environmental destruction.

There is no doubt the US government has caused far more environmental destruction then the "rapacious landowners" J.F. likes to complain about ever could.

Another illustration of how faith based trust of the government and willful ignorance of facts on the ground by folks like J.F. impedes habitat preservation and restoration.
8.23.2007 4:20pm
J. F. Thomas (mail):
In plain English, your philosophy seems to be "What's mine is mine, and what's yours is ours."

The day that the poor put-upon oppressed farmers in California who are so horribly robbed blind and deprived of their property value by the federal government and the ESA stop BLM provided irrigation water, stop growing rice and cotton in the damn desert, tell the forest service they will take care of the brush and forest fires themselves, and stop taking crop subsidies is the day I will start listening to their complaints about the ESA.
8.23.2007 4:24pm
Henry Bramlet (mail):
JF Thomas-


This is only true if the landowner tires of hosting the endangered species and decides to put the land to some inhospitable use.


Surely you have heard of Options before? We buy and sell them all the time in financial markets. The Option to do something in the future has tangible value.

The option to do something on your land has tangible value. If I buy property near a city, with the expectation that it will be "urbanized" in 20 years due to normal growth, then much of the value I place on the land is based on the option to sell or develop it for some other reason in the future. And similarly, if I sell that land to someone else, they will include the same considerations in their willingness to buy.

Reducing the options that I once had and that were once valued into the price of land induces a burden on me- a tangible cost. It is no different than if I bought an option on stock and when I went to cash in the option, you told me I couldn't convert. Not only did I lose the cost of the options, but I have also lost the unrealized value of the stock that I would have received.

Now moral and ethical considerations aside, do you at least see how this presents a bad incentive? If I buy land as a speculation, the last thing I want to do is keep that land wild and pristine because when I turn around to sell it in 10 years, ESA will prevent anyone doing anything with it. It is in my best interests to make sure no endangered species ever wants to settle on the land.
8.23.2007 4:28pm
J. F. Thomas (mail):
J.F. apparently does not realize that one of the biggest sources of damage to the wetlands has been sediment starvation caused by the various US government / Army Corps of Engineers flood control projects which he apparently wants more of.

I am perfectly aware who is responsible for the wetlands problems. Laying wholly at the feet of the Corps is grossly unfair. The oil industry is at least equally culpable, and they are not paying a penny of the restoration. The timber and agricultural industries also bears a good, but lesser amount of blame. I would split it 45/45/10 Corps/oil/timber and agriculture if I were to apportion blame.

And if I left you with the impression that I think we need more levees and dams you are wrong. We need less. We need to preserve and expand wetlands and where levees are necessary, plan them more carefully.
8.23.2007 4:32pm
Henry Bramlet (mail):

The day that the poor put-upon oppressed farmers in California who are so horribly robbed blind and deprived of their property value by the federal government and the ESA stop BLM provided irrigation water, stop growing rice and cotton in the damn desert, tell the forest service they will take care of the brush and forest fires themselves, and stop taking crop subsidies is the day I will start listening to their complaints about the ESA.


Well at least you have accepted that the wetlands do have tangible value to the Farmer and Society (being that you consider them an equal trade for other public services).

But this scheme is curious. I thought we got rid of bartering centuries ago. Instead of trading "Wetland preservation" services for "Wildfire Containment" services, shouldn't we just adopt some sort of proxy that has defined value that can be paid to each service provider? Let's call that Proxy "Currency". You see, if the farmer wants to be protected from wildfires, he pays society this "Currency". And if society wants him to use his land differently than he would otherwise choose, then society can pay him "Currency".

Yet strangely, you feel that in addition to the taxes that the farmer pays in cash, his land and services should also be pressed into service without a similar compensation.

A more effective solution would be to decide what society wants, pay for it, and then charge the collective population for those costs through taxation.
8.23.2007 4:35pm
Tom Holsinger (mail):
bittern said, "<i>In real life, it's extreme to prohibit the least bit of harm to a rare species</i>."

Environmental law as interpreted by California's 5th District Court of Appeals, which covers the southern half of the San Joaquin Valley, does prohibit the least bit of harm to a rare species. Ask UC Merced administrators.
8.23.2007 4:51pm
Tom Holsinger (mail):
J.F. Thomas,

Victims of the recent fires in the Lake Tahoe area bitterly blame the "Nazis" in the Forest Service for causing the loss of their homes by flatly prohibiting clearing of open space around their homes. The Forest Service is very defensive about this because its staff did in fact do that, in violation of the FS's own regulations, because its insane institutional culture made it career-ending for staff to permit cutting down of any trees and brush by private parties.

Your opinions seem to be based on what you wish the facts were rather than what actually happens. This affects your credibility.
8.23.2007 5:02pm
J. F. Thomas (mail):
But this scheme is curious.

Jonathon is shocked by the negative environmental consequences of the ESA. If he were really concerned about negative environmental impacts of government policy, he would be attacking our agricultural policy, without it vast chunks of the country would return to their natural state--including the Central Valley of California--as farms would be abandoned in droves and timber operations would cease. Heck, Las Vegas wouldn't exist in its present state without the Hoover Dam. He would also attack highway funding. We wouldn't have many paved roads in Montana or the Dakotas if it weren't for wasteful Federal spending priorities.
8.23.2007 5:02pm
J. F. Thomas (mail):
Victims of the recent fires in the Lake Tahoe area bitterly blame the "Nazis" in the Forest Service for causing the loss of their homes by flatly prohibiting clearing of open space around their homes.

Wahh for them. Ever hear of coming to the nuisance?

People who build their houses next to an airport shouldn't complain about the noise. People who build their houses in next to or in National Forests where fires are part of the natural cycle and know that there are strict restrictions on timber cutting shouldn't be surprised when there is a forest fire and their house gets burned down.

They are morons. If the builders told them they could clear the land then they should be sued.
8.23.2007 5:09pm
Doug Sundseth (mail):
And people who live in a river delta shouldn't be surprised when they get flooded out of their homes every few years.
8.23.2007 5:17pm
Henry Bramlet (mail):

If he were really concerned about negative environmental impacts of government policy, he would be attacking our agricultural policy, without it vast chunks of the country would return to their natural state--including the Central Valley of California--as farms would be abandoned in droves and timber operations would cease. Heck, Las Vegas wouldn't exist in its present state without the Hoover Dam. He would also attack highway funding. We wouldn't have many paved roads in Montana or the Dakotas if it weren't for wasteful Federal spending priorities.


As far as I can tell, you seem to be advocating a world where any use of land should be abandoned- or completely subordinate- to some sort of mythical stasis where we didn't have farms and dams and- evidently- we didn't experience floods or any other of nature's wrathful musings.

Why not return all of Manhattan to the wild, and hell- let's just abandon Los Angeles and San Francisco and every other large city.

In fact how do you live your life? Most likely, it involves some sort of environmental impact (from the car you drive, to the house you live in and the materials you consume) that- if reduced to no impact at all- would ultimately leave your lifestyle impossible.

Clearly there is a line to be drawn here. Adler is pointing out a specific bit of legislation, and stating that- as it was enacted- it doesn't have the desired effect. You, on the other hand, want to complain about man's horrid footprint upon the earth. The difference between you and Adler is that he recognizes that Laws cost money. And he is pointing out that when you shift those costs in the correct manner, interests align and unintended side-effects tend to minimize.
8.23.2007 5:58pm
Tom Holsinger (mail):
J.F. Thomas,

I note how you assume that landowners should not rely in good faith on government regulations. Forest Service regulations permit adjacent landowners with residences to enter onto its land to clear underbrush and small trees to create defensible firespace, as defined by state and federal regulations, around their homes.

You also assume, with zero justification beyond "I Want It To Be So, Which Makes It So", that none of the affected landowners owned their land prior to the time the FS employees in that area started violating FS regulations.

You clearly have a blame the victims attitude, in addition to factual ignorance. This makes discussion with you useless.
8.23.2007 6:02pm
bittern (mail):

Environmental law as interpreted by California's 5th District Court of Appeals, which covers the southern half of the San Joaquin Valley, does prohibit the least bit of harm to a rare species. Ask UC Merced administrators.

Tom, honestly I am not trying to be obscure. I DO think your court's action is extreme. I'm NOT saying it's extreme to point that out. Arguably, they're stuck making that judgement in accordance with the ESA; but if that's true, then the ESA is extreme. Folks on both sides of this are taking WWI as their model today. If the shoot-the-owls folks genuinely want less intrusive government, and if the save-the-plovers folks genuinely want to preserve habitat, I suggest this stupid war of words ain't doing the trick.
8.23.2007 6:27pm
Fub:
J. F. Thomas wrote at 8.23.2007 4:02pm:
Jonathon is shocked by the negative environmental consequences of the ESA. If he were really concerned about negative environmental impacts of government policy, he would be attacking our agricultural policy, without it vast chunks of the country would return to their natural state--including the Central Valley of California--as farms would be abandoned in droves and timber operations would cease. ...
I'm not sure I follow this argument.

If current ag policies ceased, then would some areas, besides California's central valley and other "vast chunks of the country", then increase production of food and lumber to make up the supply shortfall?

If so, then how would those areas which increased production be environmentally less destructive than California and "other vast chunks of the country"?

If not, then where would the food and forest products come from?

Or is the argument that food and lumber production is simply too high in general and should be decreased, and that prices for those products should rise?

Or is the argument something else entirely?
8.23.2007 6:44pm
Angus:
All of this debate over costs vs. benefits is interesting, but at the same time unnecessary.

Adler seems to assume that private conservation efforts would be sufficient if only the government would stop interfering. However, the ESA passed in the first place due to the objective truth that private conversation was not working.
8.23.2007 7:06pm
Brian K (mail):

You want to enjoy the BENEFITS of preserving some [allegedly] endangered species (which may or may not actually be endangered and/or a genuinely unique species), but you want the COSTS to fall on some poor unfortunate schmoo who happens to own the land.

If "society" collectively benefits from some particular action, then "society" damned well ought to pay 100% of the costs of that action -- indirect costs as well as direct.


Wow! Do you carry out this plan with all actions? Do you make sure that people are properly compensated when an airport is expanded or a freeway is built near them? Both reduce property values. Have you proposed your neighborhood as a future site of a coal power plant? or properly compensated the people who had one built near them, after all it reduces their property value? Would you support expanding free government provided healthcare to people with asthma or other respiratory problems caused by particulates put into the air by power plants...it is an indirect cost of generating power? Take the post on mountain top removal mining...are you going to properly compensate the people who live downstream or the hunters who use the valleys that get filled in? Have you advocated that the costs of iraq war get spread around to everyone or have you advocated for an extension of the tax cuts in spite of the increasing cost of the war? what about global warming? do you support a cap and trade system or gas tax or CO2 tax or etc...? What about globalization...do you support compensating people who lose their jobs to cheaper overseas competitors? society benefits as a whole while a minority of people suffer.

Somehow i highly doubt the answer to all of the above question is yes.
8.23.2007 7:25pm
bittern (mail):

Adler seems to assume

Angus, maybe Adler gets to that, maybe he doesn't. Unless I'm missing something that he set forth, above, the point of his post is that the Endangered Species Act currently has the effect, on private lands, of endangering species. If that's true, and protecting species is anybody's objective, then maybe, just maybe, folks ought to open their minds to change.
8.23.2007 7:31pm
Tom Holsinger (mail):
bittern,

The 5th DCA is not the only appellate court in California which makes such holdings consistently. It's merely the one I practice in. My impression is that, including the 9th Circuit, there is about a 50/50 split between Calif. appellate courts which prohibit the least harm to "endangered species" and those which take a less extreme view.

There really is a reason why California farmers and stock ranchers regard environmentalists as their blood enemies.

Most of the litigation-minded so-called environmental groups out here have become little more than fund-raising vehicles for their staff. They've been captured by their fund-raising staff just like the National Rifle Association has (its fuss about "cop-killer" bullets was really a fight for control of its fund-raising machine). The same is true for most gay rights organizations, etc.
8.23.2007 7:32pm
Brian K (mail):
Angus,

Excellent point! People frequently forget that much government regulation exists for reason and that it came about because private organizations were unwilling or unable to do things on their own.
8.23.2007 7:34pm
bittern (mail):
The ESA forbids Federal Agencies from authorizing, funding or carrying out actions which may "jeopardize the continued existence of" endangered or threatened species (Section 7(a)(2)). It forbids any government agency, corporation, or citizen from taking (i.e. harming, harassing, or killing) endangered animals without a permit. Once a species is listed as threatened or endangered, the ESA also requires that "critical habitat" be designated for that species, including areas necessary to recover the species (Section 3(5)(A)). Federal agencies are forbidden from authorizing, funding, or carrying out any action which "destroys or adversely modifies" critical habitat (Section 7(a)(2)). [Wiki]

Tom, I'd tend to blame Congress for any extremism, and not your court. Should the variability in interpretation require a higher authority, any real textualists on the Supremes would read "adversely modifies" strictly (by my layman perspective). Wouldn't they?

Obviously the voting public wants to have its cake both ways. I'd be in favor of loosening the ESA, but not necessarily to the extent favored by the 100 percenters in this thread. As long as a broad segment is shooting for unfettered property rights, the enviros are going to have their backs up. And vice versa. We get nowhere and everything goes to shit.

Side question. Is there some federal agricultural subsidy, enjoyed by these don't-tread-on-me private landowners, that serves as the hook to get ESA coverage onto privately owned habitat? Curious.
8.23.2007 8:06pm
Anonymouse (mail):

Cutting trees prematurely is perfectly legal. But over time it will result in a significant reduction of RCW habitat.


Solution:

Make cutting trees prematurely illegal.
8.23.2007 9:55pm
Jonathan H. Adler (mail) (www):
J.F. Thomas --

You wrote:
If he were really concerned about negative environmental impacts of government policy, he would be attacking our agricultural policy,

You seem to have shifted from making attacks on my arguments to attacking me for what you (wrongly) think I have not done. I have criticized agricultural subsidies on both economic and environmental grounds for years. My first op-ed calling for the elimination of environmentally harmful subsidies was published over ten years ago. I've also made the argument for reducing environmental harm in some of my academic writing.

Several of your other comments are clearly influenced by your focus on Louisiana, such as your placing primary blame on the oil industry for wetland destruction. If one is focused on coastal wetlands in Louisiana, there is no doubt the oil industry deserves much blame, but one cannot extrapolate from this to the nation as a whole. Coastal wetlands account for only 5 percent of wetlands nationwide, and the oil industry -- whatever its other environmental faults -- is responsible for relatively little inland wetland loss. Nationwide, agriculture has been the primary driver of wetland loss over the 20th century.

------------

Angus --

You wrote:
Adler seems to assume that private conservation efforts would be sufficient if only the government would stop interfering. However, the ESA passed in the first place due to the objective truth that private conversation was not working.

I assume nothing of the kind, and have not made this argument.

That said, I think that one could argue that private conservation would be more effective today than it was fifty years ago because of greater demand for environmental amenities and greater scientific knowledge and understanding of ecosystems. This does not mean that government action is unnecessary, but it does suggest that we should recognize the differences between fifty years ago and today.

JHA

I also find it interesting that you are much more willing to say "tough luck" to those who live near fire-prone national forests than those who live in or near floodplains. Why isn't the sauce for the goose good for the gander? I am not sure why federal taxpayers should subsidize the protection of either. Certainly, in the case of flood plains, were it not for federal subsidies, far fewer people would live in harm's way.
8.23.2007 11:05pm
BladeDoc (mail):
Anymouse -- I'd be willing to take odds that your proposed solution (and here's hoping you meant it sarcastically) is the direction Washington will take if they decide to "fix" the ESA.

My guess is that any action which can be construed as a preemptive measure to effect an endangered species will become illegal.

And the bald eagle is just a turkey vulture with a better publicist.
8.23.2007 11:22pm
TJIT (mail):
Did anybody else notice just how hypocritical J.F. Thomas is?

When it comes to folks living in california he says "They are morons." and he also says
Wahh for them. Ever hear of coming to the nuisance?

People who build their houses in next to or in National Forests where fires are part of the natural cycle and know that there are strict restrictions on timber cutting shouldn't be surprised when there is a forest fire and their house gets burned down.
However, J.F. sees nothing wrong with people living in naturally hazardous louisiana flood plains.

In fact he wants the government to spend money so people can continue to "go to the nuisance" and continue to live in naturally hazardous areas he wants them to be able to live in.
Since you have an unrealistic expectation of what environmental protection costs (you apparently believe that flood protection costs can be borne by those who will be directly affected by flooding)
Notice that J.F. holds positions that are 180 degree in opposition simply based on what J.F. wants.
8.23.2007 11:45pm
TJIT (mail):
bittern,

The ESA applies everywhere. No government monies are required as a hook for it to apply.
8.23.2007 11:48pm
David M. Nieporent (www):
JFThomas
I don't understand this argument. This is only true if the landowner tires of hosting the endangered species and decides to put the land to some inhospitable use. Otherwise, by definition he will not run afoul of the act.
I believe your first sentence. It's true that the landowner is only 'punished' if he wishes to (be able to) do something with the land. If that isn't the case -- if he prefers to protect the species in question -- then the law does absolutely nothing at all. It simply forces him to do what he was already doing. So it is either superfluous or punitive.


Henry Bramlet, speaking to JFT:
As far as I can tell, you seem to be advocating a world where any use of land should be abandoned- or completely subordinate- to some sort of mythical stasis where we didn't have farms and dams and- evidently- we didn't experience floods or any other of nature's wrathful musings.
Not at all; at least that position would be consistent, if not very human-friendly. What JFT actually advocates is that the government randomly hand out benefits and randomly impose costs, and tell those on whom the costs are imposed to suck it up because, after all, the government is giving out benefits to some people.

If one disapproves of our agricultural subsidies -- and I do, and JFT kinda sorta seems to, although he doesn't really come out and say so -- then the rational reaction is to oppose agricultural subsidies, not to impose environmental restrictions on other people.
8.24.2007 1:07am
Brian K (mail):
What JFT actually advocates is that the government randomly hand out benefits and randomly impose costs, and tell those on whom the costs are imposed to suck it up because, after all, the government is giving out benefits to some people.

In order to use this criticism and make the argument that most of the above posters are, you have to also agree that land owners should compensate the government when they do something that increases the value of the land. Not to mention you also have to against all revenue neutral changes to the tax code...that's just the government giving a benefit to some people at the expense of other people without properly compensating them for lost benefits/services/tax breaks. Plus a whole host of other things that one must agree with in order for the belief that the government should compensate people whenever it decreases someone's utility to be internally consistent.
8.24.2007 1:34am
David M. Nieporent (www):
In order to use this criticism and make the argument that most of the above posters are, you have to also agree that land owners should compensate the government when they do something that increases the value of the land...Plus a whole host of other things that one must agree with in order for the belief that the government should compensate people whenever it decreases someone's utility to be internally consistent.
Yes, that would be the case, if I held the position that the government should compensate people "whenever" it decreases someone's utility. But I don't hold that position, and neither does any other libertarian.

All decreases in value are not the same. If the government tells me I must tear down my store because the three-spotted frog lives nearby and is threatened by all the customers my store attracts, that decreases the value of my property. If the government closes a nearby military base where most of my customers live and my store goes out of business, that also decreases the value of my property. Although they may both result in the loss of value, that is a mere superficial similarity. In fact, these are very different. One is a compensable injury, and one is not.

The same applies when discussing increases in value of the land. It depends what the "something" the government does is. If the government hands me a government grant and I use that to improve my store and bring in additional business, I should compensate the government for that. If the government merely does "something" which happens to lead to an increase in the value of my land, then there's no reason I should "compensate" the government for that.
8.24.2007 2:00am
Brian K (mail):
But I don't hold that position, and neither does any other libertarian.
Then why should the government compensate the landowner in this case? As JHA has pointed out it may increase compliance with environmental laws and that is a good reason but it doesn't explain why compensation is appropriate in this case. Paying people who live near an airport expansion would mean more airports would be expanded. Paying people who live near power plants would mean more plants will be built. What non-subjective reason differentiates these cases?

One is a compensable injury, and one is not.
Why not? both can be quantified. in both cases the governments actions are having a direct effect on property values. what besides personal opinion differentiates the scenarios?

The same applies when discussing increases in value of the land....
Again, you've provided no rational for the difference beyond merely asserting they are different.
8.24.2007 3:13am
bittern (mail):
TJIT,
The wikipedia text that I quoted suggests that you can't go killing endangered species on your property, but that ESA protects habitat only by controlling gov't actions. Now, wikipedia could be wrong, or I could be reading it wrong, but I wish you'd point out the error.
8.24.2007 10:40am
TJIT (mail):
bittern,

1. ESA authorizes strict limitation of private action on private land.

2. ESA authority is in no way restricted to only government activity.
8.24.2007 10:52am
TJIT (mail):
bittern,

The wikipedia snip you quoted may have been correct but it only discussed a few sections of the ESA.

Read Jonathan H. Adler's comment on this thread made at 2:32pm on the 27th. It explains the power the ESA has over private action on private lands.
8.24.2007 11:27am
Jonathan H. Adler (mail) (www):
bittern --

The wiki text is accurate insofar as it goes. In breif, Section 9 of the ESA prohibits the "taking" of endangered species without a permit. The ESA defines "take" to include "harm." The definition of "harm", as upheld by the U.S. Supreme Court in the Sweet Home decision includes habitat modification that could "injure" a listed species. Injury is further defined broadly to include habitat modifications that could hamper or interfere with feeding, breeding, nesting, etc.

JHA
8.24.2007 2:01pm
markm (mail):
"you have to also agree that land owners should compensate the government when they do something that increases the value of the land." I already have compensated the government, and then some - I pay taxes.
8.24.2007 2:02pm
bittern (mail):
Hmmm. Thanks TJIT and JHA. I can see how the Supremes might have figured that was a "harm." But habitat modification doesn't really fit with the pattern of Congress' litany definition of "take" as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." So, it looks to me like an overreaching court. Plus, there's so much language about "habitat" in the ESA -- but it's all about Agency actions. If Congress had desired/dared to legislate habitat restrictions, they might have said so in the law.

I wonder if there's any mileage in using the following exemption (but you've indulged me in private tutorial already and this thread is aging, so don't feel compelled!)

The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
8.24.2007 3:40pm
Jonathan H. Adler (mail) (www):
bittern --

Your argument is similar to that made by Justice Scalia in dissent. Ultimately six members of the Court disagreed, and deferred to the FWS' interpretation of "harm."

One other point that is important to note: The imposition of land-use controls is not co-extensive with the designation of critical habitat. Activites outside land designated as critical habitat can still be regulated if the FWS determines they will "harm" listed species. Therefore, excluding land from critical habitat does not have the effect of excluding land from regulation.

JHA
8.24.2007 3:58pm
Andrew Wetzler (mail) (www):
One problem with Professor Adler's post--as I pointed out here--is that populations of the Red-cockaded woodpecker have actually done quite well over the last ten years; hardly a symptom of a law that is "endangering endangered species."
8.25.2007 2:30pm
Andrew Wetzler (mail) (www):
Darn...correct link here
8.25.2007 2:50pm
TJIT (mail):
Bittern,

The big picture problem is the ESA has been an abject failure at recovering endangered species and preventing extinction. A simple look at the number of species actually recovered under the act make that painfully clear.

There is abundant anecdotal evidence and increasing empirical evidence that the ESA actually hinders endangered species preservation and recovery. Jonathan Adler's post provided additional information on this.

Therefore, if a person is interested in protecting and recovering endangered species it is blatantly obvious that the ESA needs to be blown up and replaced with something that actually facilitates endangered species preservation and recovery.

For this to happen the environmental community and folks like J.F. Thomas and Brian K need to decide which is more important to them.

1. Preserving and recovering endangered species

2. Having powerful centralized government regulation in the form of the ESA to use as a large club to regulate land use

The comments of J.F. Thomas and Brian K show that many folks in the environmental community consider regulatory power to be more important then the protection and recovery of endangered species.
8.25.2007 3:05pm
Jonathan H. Adler (mail) (www):
Mr. Wetzler's post over at the NRDC blog is not particularly responsive. If one actually consults the Center for Biological Diversity's "ESA Success" website to which he links, which in turn cites information from the FWS, one learns the following about red-cockaded woodpeckers: RCWs populations are stable or improving on federal lands -- something that has absolutely nothing, zilch, zero, to do with my argument. What about private lands? The best the CBD can say is the following: "The implementation, in 1992, of the private lands strategy between the U.S. Fish and Wildlife Service and private land conservation partners also helped to slow, stabilize and in some cases reverse population declines on privately owned lands." Moreover, what neither the CBD nor Mr. Wetzler mentions is that the "private lands strategy" that has shown some modest success largely involves deactivating Seciton 9's land-use controls under certain conditions. Hardly evidence that Section 9's land-use controls are themselves of net benefit to RCWs, or any other endangered species.

Time permitting, I will address some of the other issues raised in Mr. Wetzler's post later in the week.

JHA
8.25.2007 3:17pm
TJIT (mail):
Jonathan,

Did you catch the cute but subtle way Wetzler changed the subject?

Your post was on the demonstrable negative impact ESA has on habitat preservation.

His reply was entitled Should we pay landowners not to kill endangered species?

A subtle but underhanded way of changing the subject away from the problems with the ESA.

It does serves the purpose of deflecting attention from the failures of the ESA, something ESA proponents really, really, don't want to discuss.
8.25.2007 5:03pm
TJIT (mail):
The short sighted and counterproductive attachment of Wetzler and others to centralized, regimented, and punitive approaches to species preservation is disappointing.

Habitat preservation by private landowners provides survival space to the endangered species Wetzler is supposed to care about.

Providing this habitiat preservation generally involved the private landowner voluntarily devoting considerable amounts of resources (financial and otherwise) to preserving the habitiat.

Wetzler and folks of similar philosophy aren't aware of or ignore the fact that preserving this habitat often involved private landowners not taking substantial financial incentives from government agencies to destroy habitat.

Given those two facts you would think Wetzler would be interested in trying to have a regulatory framework that at the very least did not punish private landowners for maintaining habitat for the species preservation he is supposed to be concerned about.

The unavoidable, iron law of human activity is punish an activity and you will get less of it.

In spite of this Wetzler and others remained attached to a policy that punishes habitat preservation.
8.25.2007 6:08pm
Andrew Wetzler (mail) (www):
I look forward to your more detailed response. In the meantime, I've posted a short reply over at Switchboard.
8.25.2007 7:28pm
Deoxy (mail):
"One is a compensable injury, and one is not.
Why not? both can be quantified. in both cases the governments actions are having a direct effect on property values. what besides personal opinion differentiates the scenarios? "

OK, here's the difference:

In the case of being near a military base that closes, I have ben benefitting from the voluntary actions of the government. They cease those actions; I cease benefitting. I have no ownership or share in that action of the government, and they decided to stop doing it. Oh well - I'll have to find more customers elsewhere.

In the case of ESA, I'm sitting at home, minding my own business, and the government comes into my home and essentially TAKES MY STUFF. Oh, sure, I still own it on paper (and pay taxs on it, actually), but I can do nothing with it without their permission. NOTHING. Nice, eh? What do I own? Not the land, not anymore!

The case of airports is actually a bit more difficult; land value change is not uniform, so it's hard to call it a taking or damage. In fact, many people are actually able to profit from it (the land becomes much MORE valuable... for hotels and other travel services).

Other things done nearby (power plants, etc) can be a difficult case, but they still don't fall anywhere near this: none of them are the government coming directly into my home and telling me what to do (or not do) with stuff that is supposedly still mine.
8.27.2007 12:16pm