Most Americans strongly support government efforts to protect endangered species. We all understand the value of ensuring that iconic animals such as the grizzly bear and bald eagle survive and thrive in the wild, both as matter of conservation and as our legacy for future generations.
But few Americans understand just how poorly U.S. wildlife laws protect imperiled populations and further their recovery. The good news is that, with a few commonsense reforms, these laws could work more effectively. Reform should begin by creating incentives for private property owners to help protect species.
Take the federal Endangered Species Act (ESA). Passed in 1973, the ESA is the leading federal wildlife conservation law. Yet, even though over 2,000 populations of animals, fish, and plants have been placed under the act’s protection, only a few dozen, at best, have recovered.
One reason for this failure is that the law doesn’t incentivize private landowners to use their land in a way that helps the recovery of hurting populations. Rather than making landowners partners in protecting species, the ESA too often treats them as antagonists — which ultimately harms the effort to protect imperiled wildlife.
An example of this unhealthy dynamic is the case of the red-cockaded woodpecker, a bird that relies on mature southern pine ecosystems to survive. It’s been listed as endangered since 1970, and about 20 percent of the known population dwells on private timberlands, principally in North Carolina. A 2003 study found that timberland owners who didn’t have the woodpecker on their property routinely harvested their trees much earlier than usual. The reason? To make their land less attractive to the woodpecker, because its ESA regulations substantially limit a property owner’s options on timberland where the bird resides.
Perversely, this early harvesting is most likely to happen in those areas closest to known woodpecker sites — in other words, areas that would be ideal for helping the bird to expand its range.
The woodpecker example demonstrates how the ESA’s framework for conservation punishes landowners and creates a less hospitable environment for protected species. But it doesn’t have to be that way — there are tools available, even without a complete legislative overhaul, that can help turn landowners into conservation partners.
First, change a longstanding regulation that requires the Fish and Wildlife Service to regulate “threatened” populations in the same way as “endangered” ones. (There is, in fact, a pending administration proposal that would do just that, thanks in part to rulemaking petitions submitted by Pacific Legal Foundation.)
As enacted, the ESA established a two-tiered protection system: endangered species necessarily receive all of the act’s protections, whereas less-imperiled threatened species receive less strenuous protections on a case-by-case basis. Yet, since the Carter administration, the service has interpreted the act to presumptively require treating all threatened species like endangered ones.
Consequently, landowners have little incentive to help reduce threats to an endangered species. Even if the species were to be down-listed to “threatened” status, the landowner would experience no easing of regulatory restrictions. Rewarding landowners for their efforts would be far more constructive.
Second, encourage private conservation efforts. For example, consider The Nature Conservancy’s work to restore the dusky gopher frog, an ESA-listed amphibian found only in a few spots in Mississippi (and the subject of a recent Supreme Court decision). The main reason for the frog’s decline is loss of habitat, especially the ephemeral breeding ponds and longleaf pine forests on which it relies.
In 2004, the Conservancy purchased one of the frog’s last breeding sites. With substantial cooperation from the federal government, the environmental organization has taken steps to protect the frog’s habitat. As a result, the frog’s breeding populations have increased significantly.
But as the Conservancy’s Mississippi rep wistfully observed in a recent study of the group’s dusky frog endeavors, “It’d be cool if private landowners could do something like this and get credit for it — or at least not get penalized for it.” Offering similar opportunities to private property owners would be a force multiplier for protecting and recovering species.
Finally, establish a process for federal funding of desired conservation efforts. There are existing incentive models for landowners used in other government programs to encourage progress toward environmental goals. These models have been cheered by leading environmental groups in the past.
For example, the 2018 farm bill included funding to pay farmers to set aside grasslands, wetlands and forests for permanent protection. Several green groups publicly supported this funding, recognizing the value of providing financial incentives or compensation as part of federal farm policy. The same approach could be applied to create incentives to encourage endangered species conservation.
Meaningful reform of federal wildlife laws won’t happen overnight; it will require foresight and compromise. But some needed reforms can be implemented quickly, and with little controversy. Finding ways to make landowners partners in the effort to protect species are among those commonsense reforms — and would go a long way toward ensuring that federal wildlife laws fully deliver on their promise.
Damien Schiff is a senior attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.
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