Improving the Endangered Species Act: Balancing the Needs of Landowners and Endangered Wildlife

The Endangered Species Act was intended to bring endangered species back from the brink, but over 30 years it has helped rescue only 10 of the nearly 1,300 species that have been listed-a success rate of less than one percent.[1] At the same time, the Act has dragged landowners into endless conflicts and litigation. Its vague classifications allow private property to be declared "critical habitats" almost arbitrarily, resulting in many use restrictions and seizures. The Threatened and Endangered Species Recovery Act of 2005 (H.R. 3824), introduced by Rep. Richard W. Pombo (R-CA), Chairman of the House Committee on Resources, would strengthen incentives for landowners to participate in conservation, to the benefit of endangered species, while clearing up the vague classifications that put private property at risk.

Better Listings

According to U.S. Fish & Wildlife Service (FWS), 39 percent of all species listed under the Endangered Species Act (ESA) have an "unknown" status, 21 percent are "declining," and only 6 percent are "improving." This is unimpressive, and it may even be overstating ESA's success. Many species that later studies have shown should not have been listed under ESA in the first place have subsequently been moved to "stable" status, falsely suggesting improvement. Data errors account for most of these changes in classification. Historically, such errors have been responsible for the delisting of more species than evidence of reduced survival threats or actual recoveries.[2]

After 30 years, there is still a blurred line between "threatened" and "endangered" species. About 38 percent of the species classified as facing a "low" threat are listed as endangered rather than threatened.[3]This is a problem because faulty listings divert limited conservation resources from the species that need them most. Under ESA, species classification is based on the "best available" scientific data, a very vague standard that is responsible for much improper listing. Additionally, the current listing process is far from transparent, making it difficult for some stakeholders to participate. The end result is wasted resources and endless litigation.

The Threatened and Endangered Species Recovery Act of 2005 (TESRA) would clearly define the phrase "best available" data, creating more rigorous standards for scientific review, such as peer review. This would reduce the number of species listed on the basis of erroneous data and allow conservation funds to be spent more efficiently, on species that are actually endangered. As well, more precise standards would reduce the secondary economic impacts that arise due to erroneous listings.

Fewer Lawsuits

ESA has embroiled the government, as well as many landowners and conservation groups, in long-running and expensive litigation. In its most recent budget document, FWS explains that its ESA listing-related litigation workload includes 34 active lawsuits concerning some 48 species, 40 court orders concerning 88 species, and 36 notices of intent to sue concerning 104 species.[4]

The current ESA pits landowners, fearful of losing use of their property, against the very species ESA is designed to protect. Because discovery of a snail, migratory bird, or other protected species on one's property can lead to a government taking of that property (or much of its use value), ESA gives landowners a perverse incentive to destroy evidence and habitats, rather than participate in conservation. The threat of severe restrictions on land use prompts landowners to make their lands inhospitable to rare species. However, nearly 80 percent of all species listed as endangered or threatened have habitats on private lands; engaging private landowners is not optional but critical to ensuring the survival of these species.[5]

To that end, TESRA emphasizes private landowners' participation in species recovery and would reduce the regulatory barriers that now block state and local approaches to conservation. To begin with, TESRA changes the incentives that landowners face. By implementing species recovery agreements and providing conservation aid that rewards environmental stewardship, TESRA would benefit both landowners and species. 

In addition, TESRA would bring some transparency and certainty to the takings process. Property owners would have the right to request timely written notification, due within 180 days, of whether or not any particular land use violates ESA. This is consistent with the public's "right to know"  TESRA also would require that private landowners be compensated for the fair market value of any lost uses of their properties. No longer would the government be able to 'take' the bulk of a property's value without compensating its owner.

TESRA would also replace the critical habitat program with a more integrated process that allows for species-specific approaches to establishing "take" prohibitions for threatened species. Without critical habitat designations, more resources could be directed to recovery plans for endangered species. This is a step in the right direction for both wildlife and property owners.

One key area of concern not addressed in TESRA is ESA's current definition of "harm." To better honor the 5th Amendment's takings clause and protect landowners, Congress should consider changing ESA's definition of harm to mean a landowner's intentional actthat causes the death or physical injury of a threatened species. At present, this is poorly defined. In cases where property owners are prohibited from making modifications to their own land, or even deprived of their land entirely, it is critical that the standard be less ambiguous.

Conclusion

In sum, TESRA will bolster species recovery efforts by providing incentives for landowners to actively participate in conservation, eliminating flawed critical habitat designations, strengthening scientific standards, and returning decisions to the state and local governments that are better suited to address them. As well, TESRA would serve landowners by increasing openness and accountability across ESA processes and improving the protection of private property rights.

Nancy Marano is Research Assistant, and Ben Lieberman is Senior Policy Analyst, in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.