Making Endangered Species Friends Instead of Enemies
By Richard L. Stroup

The Endangered Species Act jeopardizes the very species it's supposed to protect. The case of Ben Cone illustrates how.

In 1982, Benjamin Cone, Jr., inherited 7,200 acres of land in Pender County, North Carolina. He has managed the land primarily for wildlife. He has planted rye and other food crops to attract wild turkey, for example, and the wild turkey has made a comeback in Pender County partly due to his efforts. He has also frequently conducted controlled burns of the property to improve the habitat for quail and deer.

In the 1970s, when Ben Cone and a caretaker were managing the land for other family members, they noted a couple of red-cockaded woodpeckers on the property. Red-cockaded woodpeckers--residents of the federal government's endangered species list--nest in the cavities of very old trees and are apparently attracted to places that have both old trees and little underbrush. By clearing the underbrush to help quail and deer, and by selectively cutting small amounts of timber, cone may have helped attract the rare woodpecker.

In the 1970s the birds posed no obvious problem to Cone, because he did not want to log their habitat, which the Endangered Species Act might have prevented him from doing. In 1991, when Cone did intend to sell some timber from his land, the presence of the birds was formally recorded. Cone hired a wildlife biologist to determine the number of birds, believed to be 29 birds in 12 colonies. According to the Fish and Wildlife Service's guidelines then in effect, no timber could be harvested within a half-mile radius of each woodpecker colony, with any harvester facing severe fines and/or imprisonment.

Based on biologists' estimates of the presence of the birds and the Fish and Wildlife rules, over 1,100 acres of Cone's land are now under the control of the Fish and Wildlife Service. Yet Cone is still required to pay taxes on the land's previous value, before its worth was considerably diminished by the government logging restrictions.

As a result of the government's intervention, Cone has had to change the way he manages his land's wildlife and timber. In the past, he used small clear-cuts and controlled burning to clear a 50-acre area every 5 to 10 years and thereby create the sort of "edge" between forest and non-forest that attracts many types of wildlife. But since the woodpeckers were found and the logging had to be stopped on more than 1,100 acres, Cone has clear-cut 300 acres and more per year on the rest of his land. He told an investigator, "I cannot afford to let those woodpeckers take over the rest of the property. I'm going to start massive clear-cutting. I'm going to a 40-year rotation , instead of a 75- to 80-year rotation." Cone's new rotation will do away with old trees on the areas he can still harvest and thus prevent woodpeckers from nesting in the tree cavities that would have appeared there. Eventually, the acres now set aside for the woodpecker will rot or burn, and his land will be free of the woodpecker.

Ben Cone is a relatively wealthy man, and so to many people he may not be a sympathetic figure. But we don't have to have sympathy for him personally to see that he faces a genuine problem and that other landowners may well act the same way. Indeed, after Cone informed the owner of neighboring land about possible liabilities in connection with the red-cockaded woodpecker, he noticed that the owner, a business firm, clearcut its property.

Experiences like Ben Cone's have encouraged landowners around the country to prevent their land from harboring listed species. Some landowners now manage their land in a way that almost assures it will not be suitable for endangered species. Others many even be going to the extreme of "shoot, shovel, and shut up." No one knows for sure that this has happened, but the government's takeover of land for the sake of protected species is having a perverse effect. In 1993 an official of the Texas Parks and Wildlife Department wrote that in his state, more habitat for the black-capped vireo and the golden-checked warbler has been lost since they were listed under the Endangered Species Act than would have been lost if the ESA had not been applied to them.

Our Constitution explicitly forbids the U.S. Army from forcing citizens to "quarter" soldiers (that is, provide them with food and shelter), even n the name of national defense. Yet the government can now require the same citizen to quarter a grizzly bear, a spotted owl, or any other member of a threatened or endangered species--all at the landowner's expense without any society-wide sharing of the burden.

If the Army had the same power to demand the billeting of soldiers as the Fish and Wildlife Service does for endangered species, we would expect to see soldiers feared, despised, and perhaps even ambushed, as listed species reportedly are today. But in fact, the armed forces are nearly always welcome, for the simple reason that the military pays its way. Communities currently battle the military leadership not to have soldiers removed from their midst but to ensure that they stay. Thanks to the policy of compensation, the Pentagon must struggle to close a base.

Several groups are trying to come up with modifications of the Endangered Species Act that would provide similar incentives capable of transforming rare species from feared enemies of landowners to welcome friends. One suggestion is to provide property tax credits for landowners who commit themselves to long-range habitat protection. Another is to pay landowners "bounties" or "rewards" for endangered species found on their land. Still another is for the government to "rent" the land whose use is to be confiscated for endangered species' habitats.

All these approaches are worth considering, but the critical change is to remove the ability of the Fish and Wildlife Service to seize control of land without compensation. This could be accomplished through court action or through legislation Such a change would have two benefits: (1) landowners would no longer fear finding endangered species on their property, and (2) the Fish and Wildlife Service would for the first time have to consider the costs of its regulations. Rather than foisting the costs of its programs onto a few unfortunate landowners, the service would be able to take only those actions it could afford, based on funding it received through the normal congressional budget process. This would encourage the service to be more thoughtful and efficient in its executive action. Once they had to pay for the land they used, the agency staff would begin searching for less intrusive and more cost-effective ways to preserve species.

At present, the Fish and Wildlife Service's chief way of protecting threatened animals is to control wildlife habitat directly and to forbid other uses of the land. Since that habitat costs the service nothing its officials have an incentive to overuse it, the same way a driver handed a free supply of gasoline would use his car more. Yet there may be ways of protecting wildlife that don't exclude so many other uses of land. The captive breeding that brought back the peregrine falcon, for example, requires little or no habitat set aside specifically for the falcon. Specially designed nesting boxes that would replace the cavities of old trees might be an excellent alternative means of protecting red-cockaded woodpeckers. (Companies such as International Paper are already using the boxes, and many more landowners could be persuaded to do so if their very success at housing woodpeckers wouldn't increase the danger of draconian land-use controls.)

Putting the Fish and Wildlife Service "on budget" does not mean that species protection would disappear or even diminish. Under such a scheme, the current bizarre incentives for destruction of flora and fauna would end, and landowners would become far more co-operative in protecting rare creatures. Strong evidence exists that individuals and organizations would take action on their own to protect species, if the penalties for owning valuable habitat were removed. For decades, private organizations--both for-profit and non-profit have persued effective, low-cost means of habitat preservation. Removing penalties to landowners' cooperation will make it easier for such groups to expand their preservation efforts.

Here are a few examples of what to expect:

• The Delta Waterfowl Foundation has an "adopt-a-pothole" program that pays farmers to protect prairie potholes (depressions in the land that harbor nesting areas for ducks).
• The Montana Land Reliance keeps large stretches of agricultural land from development through voluntary donations of conservation easements.
• Many private refuges protect birds and other species; some of these refuges pay for themselves by allowing oil or gas drilling.
• The Nature Conservancy's Pine Butte Preserve in Montana, which protects lowland habitat for the threatened grizzly bear, offsets expenses by providing "ecotourist" facilities for environmentalists. The managers of the preserve have actually created a new habitat for the bear by burning grasslands in the spring to allow vegetation to grow and by planting chokecherries, a prized food of the grizzly.

Enforcement of the Endangered Species Act doesn't only cause problems on private land; it also causes government owned lands to be mismanaged. For just as the mission of the ESA trumps all other goals on private land, so it trumps all other government agencies' goals, including the Forest Service's goal of harvesting timber for land-management purposes and lumber production. Agencies like the Forest Service must bend to the wishes of the Fish and Wildlife Service, just as private landowners do, even when less extreme actions could solve habitat problems equally well.

To correct this imbalance, some means of deciding how land should be managed is needed. One option is for the Fish and Wildlife Service to be required to compensate another federal agency whenever its commands reduce the ability of that agency to use land to pursue its own goals. But since all federal land is owned by taxpayers and its management overseen by Congress, another approach may be more feasible: the Fish and Wildlife Service could be required to go to Congress when it believes that a parcel of land managed by another agency is necessary to protect a listed species. Congress could explicitly debate the transfer of control over any sizable tract of federal land to Fish and Wildlife. In this way , the goals of all citizens could be considered, and a single goal would not automatically triumph in every case. Congressional debate could be triggered by the quantity of land the Fish and Wildlife Service wants to take over, with the control of any parcel over 100 acres perhaps requiring Congress's concurrence. (This process might also include appropriating compensation to the agency whose land is being seized.)

Another reform would enlist the help of private groups to protect endangered species on federal lands: federal laws could be changed to allow environmental groups to bid for the lease or purchase of federal lands in order to protect endangered-species habitat (or to pursue other environmental goals). Today, only someone planning t cut down timber can bid at Forest Service timber sales. It's actually illegal to purchase timber and then not harvest it. This law could be changed so that Defenders of Wildlife, the Wilderness Society , or some other group could bid for timber parcels then leave them unlogged in order to preserve the habitat for some species. (Concerns over disease and fire control, however, would have to be addressed.)

In short, any reform of the Endangered Species Act should aim to make endangered species the friend, not the enemy, of landowners, whether they be private citizens or government agencies. This can largely be accomplished just by ending the Fish and Wildlife Service's power to control land without compensation. Then landowners will no longer fear finding exotic plants and animals on their property, and the Fish and Wildlife Service will begin weighing its goals against other desirable goals and have an incentive to husband its resources, try new approaches, and establish priorities.

These much-needed reforms appear unlikely to come through the courts. The Supreme Court recently had a chance to set them in motion but declined, and so the ball passes to Congress. Through broad-ranging "takings" legislation, lawmakers could require that any reduction in property value that results from government action--such as restricting logging on Ben Cone's land--requires compensation from the agency that "takes away" the value. Or Congress could just amend the Endangered Species Act to require compensation for lost property use. That would give Congress an opportunity to specify the way in which the Fish and Wildlife Service should compensate landowners and encourage mutually beneficial land uses.

On public land, where other worth goals besides endangered-species protection should be considered, one approach would be to require some sort of interagency compensation. A more feasible way may be to let Congress decide which goal has priority whenever the Fish and Wildlife Service wants to control a significant amount of federal acreage in an other agency's domain.

However they come about, these changes will end the tragic situation that now occurs when landowners lean they will lose their freedom to use their own land if they find endangered species on it. Only by respecting property rights will landowners and species both benefit.

—Richard L. Stroup is senior associate at PERC, a Bozeman, Montana center that researches market solutions to environmental problems, and an economics professor at Montana State University. He previously directed the Office of Policy Analysis at the Department of the Interior.