House Brings Transparency to Endangered Species Act, Still Needs to Protect Property Rights

Today the House passed H.R. 4315, the 21st Century Endangered Species Transparency Act. Unfortunately, it likely has no chance of passing in the Senate and word is out from the White House that the president would veto the bill.

This bill would require the Secretary of Interior to make publicly accessible on the Internet the best scientific and commercial data available justifying the listing of any new species on the Endangered Species List and any regulations regarding them.

This is another effort by the House to amend the Endangered Species Act (ESA) of 1973 — one of the most disastrous laws ever passed by Congress.  It has been a disaster for private landowners, especially family farmers, family ranchers and family tree farmers.  But equally so, it has been a disaster for wildlife, wildlife habitats, and further threatens and endangers species.

The ESA was passed overwhelmingly in Congress and signed by President Richard Nixon during the days of environmentalism run wild in the late 1960s and early 1970s, when everyone was trying to out-do everyone else as to who could be the “greenest.”  Supposedly, in order to prevent species from going extinct, the ESA was passed to protect them and their habitat by preventing anyone from federal or state land agencies to the smallest private landowners, even an individual homeowner, from doing anything that might in any way harm or even disturb a species listed as threatened or endangered.

But the problem with the ESA is it’s aimed at giving the government and the greens cost-free national land-use control, preventing individual landowners from using their own land.  While this constituted a taking of private property for public use, the landowners received no compensation.  Zero.  In spite of the Fifth Amendment's clear statement: "…nor shall private property be taken for public use without just compensation," not only do landowners fail to receive just compensation, they receive no compensation. The entire costs and the entire burden of providing a public good was placed on individual, private landowners. 

As many in Congress have argued, the Fifth Amendment reads: “…nor shall private property be taken for public use without just compensation.” Period.  It doesn't read: unless there is a rare beetle on the land, or unless there is a rare salamander in the water.  It simply says: “without just compensation,” period.

The basic problem is that the vast majority of landowners are not afraid of wildlife on their land. In fact, they enjoy wildlife on their land, are willing to share their land with wildlife, and often go out of their way to make their land attractive to wildlife.  But they are afraid of the Feds on their land. And, if being a good steward penalizes landowners, prevents them from using their lands, using their water, harvesting their trees or crops, making improvements to their land – they no longer have incentives to manage their land in harmony with wildlife. 

The perverse incentives in the ESA, like penalizing private land stewardship, produce the unintended consequence that landowners are then no longer willing to manage their lands for and with wildlife. If private foresters in the Southeast let their pine trees grow for decades into grand, old growth before harvesting them — but then are prevented from harvesting those trees because they have attracted endangered woodpeckers — they start harvesting their trees on shorter and shorter rotations.  Instead of taking a few or select trees, they may clear cut large swathes of very young trees and pulp them for paper, and then replant in non-native trees or other trees which the woodpeckers do not utilize.

When farmers in the West are prevented from harvesting their crops because it might disturb kangaroo-rats, they have incentives to leave their fields tilled and fallowed — and home to no rodents at all.

The greens are well aware of how these perverse incentives work, but they seem to prefer the cost-free land-use control they receive and the opportunity to drive landowners off their land altogether.

This is the root cause of why the ESA is so disliked and feared by landowners and why so many have become increasingly afraid to manage and share their lands with wildlife. Therefore, instead of working with wildlife, they take steps to make their lands less attractive to wildlife.  And thus, the private sector is no longer the great engine for providing habitat for wildlife. 

But unfortunately, far too many members of Congress have little regard for private property and private landownership. They do not take the Fifth Amendment seriously, nor do they uphold their oath of office. And until the government and the ESA stop penalizing private landowners for being good stewards of the land and instead find ways to work voluntarily with them to compensate them for any taking of their land, water and crops — the problems with the Endangered Species Act will continue to grow.

The efforts and good will by many members of Congress who believe in private property rights and private landownership have gone into the hearings preceding the writing of H.R. 4315, and resulted in long hours for congressional staff.  Rep. Doc Hastings, R-Wash., and his 28 cosponsors are to be congratulated for their efforts, and this bill might slow down the listing process and make certain that listed species are legitimately in need of listing.

Originally many of the species that were listed were well known and recognized as declining, like the bald eagle, whooping crane, California condor, grizzly bear, and black-footed ferret.  But as the greens have revelled in their easy ability to shut down the use of private and government lands, they increasingly listed anything and everything they could.  This includes proposing more and more obscure species and subspecies often with tiny natural ranges and populations, and thus necessarily rare.  By proposing hundreds of species at a time, the greens have thereby overwhelmed the U.S. Fish and Wildlife Service with work that cannot be completed on time.

It was good to see cosponsors for H.R. 4315 come from 22 states, and not just in the West.  Five eastern states and four mid-western states were represented as well, again demonstrating the widespread knowledge that the ESA is a disaster.

The House vote was 233 – 190, with 14 Democrats joining the Republicans. Not surprisingly those Democrats were largely from rural districts, or close enough, who have seen first-hand how the ESA is used to shut down farming, ranching, forestry, mining, energy production, and home building, rather than protecting species.

Because of the controversy and difficulty in getting Congressional agreement on the need to follow the Fifth Amendment, too many members of Congress have focused on other issues, attempting to make common-sense amendments to the ESA to update and modernize it.  But, requiring the Secretary of Interior to provide more transparency in listings will not end the disaster that the ESA has become.

Until the ESA is reined in, and no longer allowed to trump the Constitution, it will remain a disaster: bad for landowners and bad for endangered species.