The Endangered Species Act at 50

"I'm all for conservation," Frank Ribelin, a landowner outside Austin, Texas, told U.S. News & World Report two decades after passage of the Endangered Species Act, "but I'd like to club the little bastards." He meant the golden-cheeked warbler, a sparrow-sized songbird that leaves the state only to winter in Central America. As a family member said, land like theirs "used to be sold by the square foot, but that all crumbled the day the warbler was listed." Once an endangered species was found there, the land's value plummeted.

Thirty years later, the warbler's status remains unchanged: It is still listed as endangered. The bird's fate exemplifies several things about the act, which has become one of the most controversial laws on the books since being passed 50 years ago in December 1973. For one thing, an endangered species listing holds the power to make a conservationist want to bludgeon a dainty and rare bird to death. For another, the warbler's lack of progress highlights the Endangered Species Act's dismal record of achieving its ultimate goal: conserving species to the point that protections under the law "are no longer necessary."

It's true, as supporters of the act are quick to point out, that 99 percent of species listed under the statute have avoided going extinct over its half-century. Yet less than 3 percent of listed species have ever successfully recovered and come off the list. So while most endangered species have avoided plunging over a cliff, almost none have been able to back a safe distance away from the edge. That's largely because, as the Ribelin family's experience suggests, the Endangered Species Act is nearly all stick and no carrot.

The law takes a regulation-first approach that all too often makes an endangered species a liability to avoid, rather than an asset to conserve. The presence of a listed species can bring prohibitions on how property owners can use their land or even forbid state biologists from relocating animals to a proper habitat. Even the mere existence of habitat for a listed species can lower land values by entangling properties with federal designations.

Punitive policies turn would-be partners in recovery into enemies of rare species. It's why a popular colloquial stance toward endangered species has long been called "the three S's": shoot, shovel, and shut up. It's unfortunate, because farmers, ranchers, and other private citizens provide the majority of habitat for many listed species, and an estimated two-thirds of all listed species have at least some habitat on private land. Unless there's a change in the law's approach toward the people who can provide so much important habitat for at-risk species, the prospects for rare species don't seem likely to improve.

Irreconcilable Conflict

"As the one person in the Congress, the only one, that voted for the Endangered Species Act," the late Rep. Don Young (R–Alaska) said at a hearing a few years ago, "please beat me with a whip." Young took office the year the Endangered Species Act became law and became the longest-serving Republican in congressional history before dying in 2022. When the act passed, he has said, congressional members were told it would save "leopards," not wildlife like "mussels and snails and turtles." Virtually everyone envisioned the law protecting bald eagles and manatees, not halting infrastructure builds or slowing economic development in the name of slimy invertebrates or obscure fish.

"Essentially no skepticism was expressed about either the law's conservation goals or its regulatory strategies," University of California, Berkeley law professor Holly Doremus has written. "There was no organized interest group opposition. No one voted against the Senate bill." Lawmakers scarcely contemplated that the act would ever interfere with federal projects or restrict uses of private property. Since environmental citizen lawsuits were a new phenomenon in the early '70s, the citizen suit provision included in the act drew little attention.

"It's easy to get everybody to sign on with protecting whales and grizzly bears," Doremus recently told the Associated Press. "But people didn't anticipate that things they wouldn't notice, or wouldn't think beautiful, would need protection in ways that would block some economic activity."

It didn't take long for people to figure that out.

In August 1973, a few months before the act was passed, a University of Tennessee biologist discovered a novel type of three-inch minnow in the waters of the Little Tennessee River. By then, Congress had already sunk tens of millions of dollars into the massive federal Tellico Dam project on that same waterway. The newly discovered snail darter was listed as endangered two years later, and the Endangered Species Act had its first major conflict.

The biology professor and a law student filed suit on behalf of the fish, a legal lever that also proved fortuitous for locals who fiercely objected to a project that would flood their communities. A federal court ruling stopped construction of the facility. The Senate Appropriations Committee was not impressed. Its members wrote that they had not "viewed the Endangered Species Act as preventing the completion and use" of such projects, adding that "funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest," the act notwithstanding.

The case ended up before the U.S. Supreme Court. The justices sided with the snail darter, memorably ruling that through the Endangered Species Act, Congress had prioritized conserving rare species "whatever the cost." In the wake of the decision, even as The New York Times praised the act's aims, it declared the law "far too inflexible," pointing out that the "potential for irreconcilable conflict remains in the law's absolutism."

It took another act of Congress to complete the dam's construction. Legislators also created a so-called God squad that could exempt future government projects from being similarly derailed. But the law had plenty of conflict left to create.

Megafauna or Minnows?

The idea that the act fundamentally protects "charismatic megafauna"—popular, symbolic, large animals—holds sway even today. While nine in 10 Americans say they support the Endangered Species Act, people severely underestimate how many species are protected under it. More than 1,600 domestic species are listed, yet Americans typically estimate the number is more like 100.

Congress directed the U.S. Fish and Wildlife Service to protect two categories of species under the act. Species that are "endangered" are already at risk of extinction, while "threatened" species are deemed likely to become endangered in the "foreseeable future." The law made it illegal to "take" endangered species—that is, to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" them—or to degrade their habitats. The agency has effectively extended those prohibitions to most threatened species as well, largely erasing the distinction between the two listing categories. For listed species, the Fish and Wildlife Service can designate "critical habitat," or areas it identifies as essential to conserving the species, and the act regulates federal activities affecting those areas. (The National Marine Fisheries Service administers the law for marine species.)

The upshot is that when people encounter endangered animals, or merely take an action that may alter their habitats, they can end up in "irreconcilable conflict" with the Endangered Species Act. Mundane activities such as plowing farmland, harvesting timber, or developing a vacant lot can make private citizens subject to five-figure fines or even imprisonment.

These poor incentives are among the reasons that recovery progress has been slow. According to Fish and Wildlife Service projections, nearly 300 domestic species should have recovered by mid-2023. In reality, only 13 of those species did. (The agency had made no time-specific projections for 44 other species that recovered by then.)

The red-cockaded woodpecker offers a classic example of how punitive incentives hinder conservation of rare species. The bird, listed as endangered for the entire life of the Endangered Species Act, prefers to inhabit mature longleaf pines in the American South. A seminal study in The Journal of Law and Economics examined more than 1,000 forest plots in North Carolina; it estimated that the discovery of a red-cockaded woodpecker colony could prevent a landowner from harvesting $200,000 worth of timber. It also found that the closer forest landowners were to the bird, the sooner they harvested their trees. Another study, this one in Economic Inquiry, found that forest owners who knew or thought they were in close proximity to the woodpecker were more likely to clear-cut their land, essentially ruining potential habitat "so that the existing values of their property could be protected from the Endangered Species Act–related land use limitations." It would be hard to craft a policy that puts habitat-providing landowners more at odds with an imperiled species in need of support.

The truth is that some of the most charismatic species, such as eagles, alligators, and grizzlies, have done pretty well since the act's passage. It's the obscure or downright homely ones that often have not fared as well. When wolves were reintroduced to the Yellowstone ecosystem in the 1990s, people bought posters featuring the carnivores to raise money for the effort. The funds helped compensate ranchers in the area when they lost livestock to the predators, an innovative way to help wildlife pay for itself. Rare mussels like the Carolina heelsplitter or Atlantic pigtoe, by contrast, do not generally feature on fundraising calendars. But it's the mollusks and minnows most Americans have never heard of, let alone realize are on the endangered species list, that most need the incentives for conservation to be right.

Taking Liberties

Endangered species regulations create warped incentives because they typically work against private landowners, state agencies, and conservation groups. The word take is a prime example. A term that essentially means "harm" has been interpreted so broadly that it applies even to activities meant to help listed species.

The Nigiri Project, for instance, is a Northern California initiative that encourages farmers to allow juvenile endangered salmon to use their flooded rice fields during the winter. The habitat mimics insect-rich flood plains and nurtures the growing salmon before they migrate to the ocean, boosting their survival rates. As a scientist from the conservation group California Trout has noted, the project's biggest challenge was convincing federal and state agencies to let it move the salmon to the temporary habitat, an activity considered to be a form of take.

Then there's the saga of the threatened Utah prairie dog. Several years ago, the rodents' furious digging destroyed construction sites, compromised airport runways, and ruined children's playgrounds. So the state of Utah and private partners bought conservation lands with suitable habitat for the prairie dogs, and biologists relocated thousands of the rodents to them. Their population boomed, a clear conservation win. Then a court re-instated federal take prohibitions.

When policies make it hard even to undertake projects that help endangered species, they're bound to frustrate land-owners who simply want to get on with the routine activities of, say, running a farm. It explains why timber owners decide to preemptively cut forestland rather than grow older, larger trees that would garner higher prices: The fear of a woodpecker's presence and its associated federal regulations outweighs the potential for greater profits.

The Endangered Species Act has not just made the presence of listed species a liability. It has turned lines on a map designating habitat areas into the opposite of instant curb appeal.

Critical Condition

"Our land is not suitable for the frog," Edward Poitevent said a few years ago while looking over his family's timberland in southeastern Louisiana. "We know that. The government and Fish and Wildlife Service have said that you don't have the elements for it."

Poitevent then described the steps it would take for his land to support the dusky gopher frog, an endangered species that once inhabited the area but had not been documented in the state for more than half a century. "To make it suitable, you'd have to rip up every tree on 1,544 acres, replant all of it with the right tree, make sure the ponds are still there, and make sure you burn it every year." (Some pine forests need routine fires to rejuvenate and thrive.)

The government designated Poitevent's property a "critical habitat" because it contained several rare ponds of the type the species requires to breed. Yet in recent decades, the tract had been farmed as a dense commercial timber plantation, a far cry from the open-canopied longleaf pine landscape that the frog needs.

"Their job is to find a habitat," Poitevent said. "The consequences are not their problem."

By the federal government's own estimate, those consequences included losing out on a maximum of $34 million if the designation prevented the family from developing the land, which is near an interstate in a fast-growing part of the state. A lawsuit, Supreme Court ruling, and subsequent settlement ultimately removed the land from the designation.

For listed species, the Fish and Wildlife Service may designate as critical habitat the geographic areas it deems essential to conserving them. If a designation encircles private land, it immediately lowers the market value due to stigma. Prospective buyers worry about and account for the regulatory risks. The agency and some environmentalists have argued the stigma is irrational, but that doesn't make it any less real.

Several researchers have tried to quantify the effect. A 2020 study led by economist Maximilian Auffhammer analyzed 13,000 real estate transactions within or near critical habitat for two listed species in California. It found that a designation of critical habitat for the red-legged frog cut land values by about half, and designations for the bay checkerspot butterfly slashed values by an estimated 78 percent. A 2006 working paper published by the National Bureau of Economic Research examined the critical habitat designation for a pygmy owl in Arizona. The authors found that land proposed for designation was developed approximately one year faster than comparable tracts outside of the designation, presumably to avoid being officially declared as habitat.

The rub of the designation approach is that it can penalize landowners even as it offers no clear conservation benefits to at-risk species. The ponds that supposedly remained on Poitevent's family land were never likely to help the dusky gopher frog, because the surrounding land wasn't suitable for the amphibian.

In fact, designating private land may have net costs for conservation as well as for property owners.

Gray Skipper's family has stewarded timber in Alabama for more than a century, enrolling tens of thousands of forested acres in a state wildlife management lease since the 1950s. The lease allowed the public to hunt deer and turkey and permitted state biologists to carry out wildlife research and surveys. That willingness to further conservation turned to regret when the Fish and Wildlife Service designated about 30,000 acres of the family's land as critical habitat for the black pine snake, a reptile Skipper has never seen outside of a Bass Pro Shops store in Mississippi.

After decades of collaborating in state conservation efforts, the family withdrew their land from the lease. "No good deed goes unpunished," says Skipper, who is suing the Fish and Wildlife Service over the designation.

"Infringing property rights is no way to encourage conservation," adds Charles Yates, an attorney at the Pacific Legal Foundation who is representing Skipper. "For more than half a century, the Skippers have responsibly managed their land. Now the service is penalizing them for it."

A law that pits people who could provide habitat for rare frogs or snakes against those very species is entirely counterproductive. That approach certainly helps explain why less than 3 percent of species have ever recovered and come off the list. Fights over the potential fallout from delistings account for much of the rest.

Gnashing Teeth

In the early 1800s, Lewis and Clark fascinated Americans with tales of a "verry large and a turrible looking animal, which we found verry hard to kill." The grizzly bear became easier to kill over subsequent decades, and state and federal bounties helped fuel efforts to get rid of it. The grizzly population in the Yellowstone region bottomed out at 136 bears in 1975, the same year that all lower 48 populations of the species were listed as threatened.

Since then, it has largely rebounded. The Yellowstone grizzly now numbers an estimated 1,063, more than double its recovery target of 500. Yet efforts to delist the population in 2007 and then 2017 both failed due to litigation from environmental groups.

"It's recovered under any metric we look at," Tom France of the National Wildlife Federation said after the last attempt to de-list the population. "We should consider it a great success." But WildEarth Guardians sued to challenge the delisting. Now, even as Yellowstone National Park touts that grizzlies "have made a remarkable recovery," the bears there remain listed and, technically, unrecovered.

When species protected by the Endangered Species Act are accompanied by hefty regulatory hammers, decisions over whether to list (or delist) wildlife become all-or-nothing battles. Environmentalists often latch on to the powerful law to stop things they dislike, from hunting to harvesting to mining, so a delisting means one less lever to halt what they consider to be damaging activities.

But the people who suffer higher costs of living with endangered species want to see recovery efforts rewarded with de-listings. "Who bears the cost of the recovery of these species?" Stefanie Smallhouse asked at a 2018 hearing on potential reforms to the act, noting that it's "a handful of ranchers" who lose out from living near endangered Mexican gray wolves, as she does.

Smallhouse, president of the Arizona Farm Bureau and a fifth-generation rancher, estimated that her family's land hosted at least 20 listed species and was subject to seven critical habitat designations. "All of the people who want to see those wolves live in the city," she continued, "and don't have to live with the wolves themselves." A Colorado rancher echoed the sentiment in 2019, when activists called for reintroducing endangered gray wolves to his state, telling The Colorado Independent that a "bunch of city dudes" were trying to "cram it down our throats."

Any listed species can bring red tape, restrictions on how land can be used, and limitations on how state agencies can resolve conflicts—for instance, by removing a troublesome predator from areas with lots of cattle. In the case of large carnivores like grizzlies and wolves, rebounding populations have led to more conflicts with humans and livestock. But when species remain listed even after surpassing scientific recovery objectives, states and landowners have fewer options and less flexibility to address the conflicts. There's no carrot of regulatory relief at the end of the path to recovery.

Poach or Protect?

Three decades after being listed, the golden-cheeked warbler remains endangered largely because the incentives to recover it, let alone delist it, aren't right.

Sam Hamilton was the top U.S. Fish and Wildlife Service official in Texas when the bird was listed, and later served as director of the agency. "The incentives are wrong here," he told U.S. News & World Report around the same time Ribelin was joking about clubbing the songbirds. "If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears. We've got to turn it around to make the landowner want to have the bird on his property."

South of the border, in northern Mexico, a group of ranchers has found a way to coexist with endangered jaguars. The nonprofit Northern Jaguar Project rewards ranchers who support recovery efforts: For every photo of a jaguar taken by remote trail cameras, ranchers receive a payment. As Hamilton dreamed, the approach transforms a protected species that would usually be a liability or even poaching target into an asset.

"At first, the attraction was the money," rancher Diego Ezrré told a local radio station a few years ago. "But most of the ranchers who are in the program, our perspective has changed. We realize that the jaguars aren't such a threat."

U.S. endangered species policy, on the other hand, remains as likely to hamstring as to encourage conservation. In Arizona, jaguars worry ranchers even though the species barely exists there. The big cat used to roam from Louisiana to California, but, like many large predators, it was exterminated over time. Jaguars are now largely confined to the territory stretching from Mexico south to the tropics, with only rare sightings north of the border. Yet the Fish and Wildlife Service designated critical habitat in Arizona and New Mexico for the species in 2014.

After the designation, some University of Arizona researchers interviewed local ranchers about it. "The ranchers were less concerned about the presence of jaguars," they wrote, "but were more concerned about possible limiting effects of the Endangered Species Act, distrust of government entities, and litigious environmental groups."

The prospects for reforming the Endangered Species Act—and improving its record at actually recovering imperiled species—seem slim. There have been no substantive changes to the legislation since the late 1980s. The U.S. Constitution has been amended more recently. But without changes to the act, the next 50 years under it will likely look like the first. Most endangered species will cling to existence, but they will fail to recover and will linger on the list. Landowners who want to harbor rare species will remain as elusive as recovered species.