An incisive new study, Fulfilling the Promise of the Endangered Species Act: The Case for an Endangered Species Reserve Program, by Reason Foundation research fellow Brian Seasholes deftly outlines a win-win-win strategy for protecting endangered species in the United States. The current dynamic in which private landowners and threatened species both lose is illustrated by the case of Missouri farmer Craig Schindler. Underneath Schindler's fields is a cave that harbors the grotto sculpin which the U.S. Fish and Wildlife Service may soon declare "endangered." As the Reason Foundation study explains:
Based on an economic impact analysis carried out for Fish and Wildlife, the 18 acres Craig estimates he will have to sacrifice for the sculpin is worth some $90,000 and produces approximately $7,000 in crops annually.
"They're cutting my living down," Craig told the local Perryville News, "I have cattle and grow crops, but if you take 18 acres away from a guy, that's quite a bit."
Fish and Wildlife also proposed to place buffer zones around sinkholes that lead to caves with sculpins. Under the listing, Craig could face up to $100,000 and/or a year in jail for killing or injuring just one sculpin, or even harming its habitat. So, in addition to losing the use of 18 acres, he will have to spend thousands of dollars to fence the buffer zone in order to prevent livestock on the rest of his ranch from inadvertently harming the sculpin. "I'm going to have to pay for this fence out of my pocket, and lose the ground for cattle to graze on," he said. But even that will not immunize him from prosecution under the ESA because local Fish and Wildlife personnel have the power to decide if his uses of other land, such as fertilizing crops and grazing livestock, harm the sculpin.
What must the government pay for demanding that Schindler give up the use of his land and protect the sculpin? Not a cent.
With the proposed listing of the grotto sculpin, Craig Schindler discovered the upside-down world of the Endangered Species Act. In return for harboring rare wildlife, he was to be punished by having his property turned into a de factofederal wildlife refuge but paid no compensation.
This situation is in stark contrast to most other government "takings" of private property. For example, when the government wants to convert private land for a public good, such as a highway or military base, it pays landowners the market value for the land taken. It is legally required to do so because of the "takings clause" of the Fifth Amendment of the Constitution which states, "nor shall private property be taken for public use without just compensation." The takings clause seeks, "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," according to a 1960 Supreme Court decision. But in a 1994 decision, the Supreme Court ruled that "partial" takings of the sort that Craig would experience as a result of a listing of the grotto sculpin are not protected by the Fifth Amendment. To add insult to injury, if the grotto sculpin were to be listed under the ESA, Craig would still have to pay taxes on the land he would not be able to use.
So what's the solution? As I noted in my 2005 critique of the ESA, "Who Pays for the Delhi Sand Fly?":
If the public values endangered species (and most of us do), then it seems only fair that we fully compensate the people on whose land they live for taking care of them for us.
Fortunately, argues Seasholes, the Conservation Reserve Program is a model for establishing an Endangered Species Reserve Program that would pay landowners for protecting species on behalf of the American public. The new Reason Foundation study goes on to show how such a program would benefit endangered species, the public, and landowners.
Disclosure: The Reason Foundation is the publisher of this website and Reason magazine.