Endangered Species Act Turns 40: Feds Take Land, Stick Owners With Bills

Saturday marked the 40th anniversary of the Endangered Species Act, which proponents portray as a great success, claiming it has saved numerous species from extinction. In reality, the Endangered Species Act’s punitive approach to conservation has likely done more harm than good and it’s time to change our approach to endangered species in a way that works with, rather than against, the stewards of our land.

Consider Craig Schindler, a farmer in southeastern Missouri. For generations, Schindler’s family has allowed recreational cavers, kids, and scientists investigating a rare, two-inch species of fish called the grotto sculpin to access a mile-long cave running underneath their land.

In September, however, the U.S. Fish & Wildlife Service listed the grotto sculpin under the Endangered Species Act (ESA) based on information collected by the same scientists Schindler allowed on his land. The sculpin’s endangered listing means Schindler could effectively lose 18 acres of his land that produce thousands of dollars of crops each year.  “They’re cutting my living down,” Schindler told the Perryville News.  “I have cattle and grow-crops, but if you take 18 acres away from a guy, that’s quite a bit.” 

U.S. Fish & Wildlife also wants to implement buffer zones around numerous sinkholes on Schindler’s property that lead to caves with sculpin in them. The Schindlers, not the government, will have to pay the thousands of dollars in construction and fencing costs. Although the Fifth Amendment of the Constitution requires that “just compensation” be paid for any private property “taken for public use,” the Supreme Court has ruled that this does not apply to the type of “partial” regulatory takings typically imposed under the Endangered Species Act.

If he doesn’t comply, Schindler risks severe penalties, including a $100,000 fine and/or a year in jail should he harm a sculpin, an egg, or even its habitat. To avoid liability, Schindler no longer allows anyone in the cave, including people interested in the fish’s conservation. “I’m very hesitant about letting anyone in that cave, just for the simple fact that they’ll find something else” to put on the endangered species list, Schindler told the Perryville News.

Without scientific monitoring and study on land like Schindler’s, endangered species have decreased chances of survival. It’s the upside down world of the Endangered Species Act that’s become a familiar story. Because of the high costs and harsh penalties imposed upon them, far too many landowners seek to rid their land of endangered species and their habitats rather than have their properties turned into uncompensated de facto federal wildlife refuges

Given the Endangered Species Act’s severe penalties for property owners, it’s not surprising that on private lands the ratio of declining species to improving species is 9 to 1, while on federal lands the ratio is 1.5 to 1. That statistic is even more alarming when you consider that private lands are the most important habitat for endangered species. Fully 78% of endangered species depend on private land for all or some of their habitat, compared to 50% for federal land.

The best way to fix the Endangered Species Act is to remove the penalties that cause it to work against itself, replacing the penalties with positive incentives, such as payments to landowners.   There is a precedent for this: The U.S. Department of Agriculture’s Conservation Reserve Program pays farmers who agree to remove from production land that is deemed to be “environmentally sensitive”.  Currently, there are 25.6 million acres on 376,335 farms enrolled in the Conservation Reserve Program.   

“I think [the Reserve Program] really, really opened people’s eyes to what could be achieved in a basically non-regulatory, voluntary program,” stated the late Mollie Beattie, who led Fish & Wildlife from 1993-1996. “If there were an incentive to make the best habitat [for endangered and threatened species], we’d be miles ahead.”  

A similar initiative for endangered species—call it the Endangered Species Reserve Program—would have enormous potential. The key to successful endangered species conservation is to harness the generosity and willing cooperation of hardworking landowners like Craig Schindler. By punishing them for being good stewards, the Endangered Species Act unwittingly turns landowners into enemies of the very endangered species it’s trying to protect. That is counterproductive and tragic because most of this nation’s landowners would be happy to help conserve their country’s endangered species, as long as they are not punished for doing so and especially if they are compensated.  Just look at what they’re voluntarily doing through the Conservation Reserve Program.

Those serious about endangered species conservation should seek to tap the enormous goodwill, energy and talent of America’s landowners by charting a new course that respects property rights and compensates landowners for the costs incurred while conserving endangered species. 


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