The Endangered Species Act and Property Rights

The Endangered Species Act (ESA) was passed over 40 years ago as one of many environmentally friendly laws by the United States. The act was passed due to increasingly threatened groups of animal species because of habitat destruction caused by humans. Since its implementation, the ESA has created controversy, especially regarding property rights. Opponents of the ESA believe the measure has done more harm than good and has been responsible for the addition of new species to the endangered list because of property restriction. Proponents of the ESA believe the inconveniences suffered by landowners are minimal and that the overall goal of the ESA should be respected and upheld.

The ESA is perhaps the most invasive but protective measure for endangered species. Cousins to the ESA include the Endangered Species Preservation Act and the Endangered Species Conservation Act, passed in 1966 and 1969. While these laws provided minimal protection for endangered species, the acts did not have enough funding behind them to make a noticeable impact. “It was not until the 1973 ESA that federal law required endangered species conservation on private lands” (Michael 29). The ESA was also written in a broad manner, which has required several judicial decisions to help clarify the parameters of the law. The start of the ESA’s effects on private property begins with “listing” where experts within the Fish and Wildlife Service (FWS) declares a species as threatened or endangered (Meltz 2). Section 9 of the ESA elaborates on the rights and restrictions of private property owners. “In the most important Section 9 case, Babbitt v. Sweet Home Communities for a Greater Oregon (1995), the Supreme Court overturned a lower court’s decision and upheld the broad definition of “take” that includes habitat alteration” (Michael 29-30). This decision set a precedent of favoring endangered species in a very broad sense over property owners through the restriction of any changes that could impact the habitat of an endangered species residing on private property.

The lengths the ESA has gone to achieve its goals have undermined the law in several ways and have created an imbalance for private property owners. The 1995 Supreme Court case illuminated this well through the dissenting opinion:

Justice Antonin Scalia argued that “the Court’s holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin – not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use. (Simmons and Simmons 6)

Scalia’s analysis shines light on a crucial point of contention within the wording and interpretation of the ESA. While it is one thing for the federal government to impose restrictions on federal lands it is a completely different scenario when private property is subject to a broad federal statute like the ESA. Further, the interpretation in the 1995 case by the Supreme Court has created the potential to view run-of-the-mill private property owners, through the ESA, in the same light as hunters and poachers. “…a forest landowner harvesting timber, a farmer plowing new ground, or developer clearing land for a shopping center stood in the same position as a poacher taking aim at a whooping crane” (Simmons and Simmons 6). The reason for this illogical summation of the ESA is due to its reliance on the residence of endangered species. The ESA can, therefore, easily strip a law-abiding private property owner of their rights simply because a species on the list exists within the boundaries of the private property.

About 10 years ago, the ESA was reexamined critically to see if changes could be made to the law in order to balance property rights with the protection of species. “Many analysts suggest that the act’s restrictions on property rights actually discourage conservation…” (Simmons and Simmons 6). The irony in this comes from the process used to determine whether or not a species is considered endangered. In essence, “listing” a species as endangered, under the broad range of the ESA, prevents any alteration to the existing habitat of the species. Since there are thousands of endangered species protected under the ESA statute, the effects are far reaching for landowners. “Nearly 80 percent of all listed species occur partially or entirely on private lands…” (Simmons and Simmons 6). Since the ESA has an imbalance highly favoring and advocating for habitats to be left untouched where an endangered species is found to be residing, landowners have resorted to other tactics to prevent their private property decisions from being restricted.

By the time an endangered species makes it onto the list under the ESA it is very likely the habitats of these animals have dwindled down rapidly. In many cases, remaining habitats are located partially or solely on private property. Since the ESA has a past record of favoring the preservation of habitat regardless of the cost to landowners, a common tactic has sprung up to protect economic vitality and profit of the land:

Unfortunately, the highest level of assurance that a property owner will not face an ESA issue is to maintain the property in a condition such that protected species cannot occupy the property. Agricultural farming, denuding of property, and managing the vegetation in ways that prevent the presence of such species are often employed in areas where ESA conflicts are known to occur. (Simmons and Simmons 7). Even more unfortunate, the harm does not end with the current species “listed” under the ESA.

These measures taken by private landowners to protect their investments, businesses and agricultural pursuits have increased the number of endangered species protected under the ESA. In a stroke of irony, it can be argued the ESA has been somewhat responsible for the addition of more endangered species under its protection.

While the argument against the ESA was presented strongly through the 1995 Supreme Court case as well as through the statistical realities of the increased interaction between private landowners and endangered species, advocates of the law claim the ESA does a good job of protecting endangered species. The argument lies in the belief that while there are undoubtedly restrictions imposed by the ESA, these restrictions can be honored by private landowners without experiencing noticeable or drastic changes to their business practices. The ESA, in the minds of environmental advocates, does not entail landownership versus the protection of species. Rather, the preservation of species should begin with a preventative mindset so that the ESA does not have to infiltrate the last few pockets of land endangered species are using to survive. “Often landowners, caught in such circumstances, complain that it is unfair for them to bear such costs, given that other landowners were able to degrade or destroy habitat before the species was listed” (Goldstein 120). In this light, the ESA can be looked at as the last line of defense for endangered species on the list of protection. Another argument presented against the grievances of landowners is property rights are not as far reaching as some believe.

Property rights, according to advocates of the ESA, are mutable and are not unlimited in their exercise. “Property is always purchased subject to prevailing limitations. Property rights…are not inalienable, and never have been…they are a creature of social compact, and they evolve with the changing nature of society” (Goldstein 120). Prior to 1973, before the ESA was implemented, the threat facing endangered species was not, in the minds of legislators, pressing enough to create these restrictive measures. When the ESA was passed, however, the view of the government became more sensitive and accommodating to the preservation of species over the “rights” of landowners. The question facing opponents and proponents of the ESA is where do property rights end and where does the ESA begin? Judicial decisions of the past have given a wide range of jurisdiction to the ESA.

One area of concern regarding the applicability of the ESA provision is the perceived over usage of the law by landowners and analysts. In recent years an outpouring of requests from various environmental groups have called into question the sincerity and focused purpose of the ESA. “Beginning in 2000, environmental groups began to flood the USFWS (United States Fish and Wildlife Services) with requests for new additions to the ESA…over 1,230 plants and animals to be added to the list since 2007” (Wahlen, par 3). In recent years, these massive additions and expansions of the ESA have hurt several groups of landowners, consequently stunting economic growth.

In the state of California, farmers suffered an egregious drought when President Obama followed the advice of the USFWS and deterred water sources away from the farms to protect a fish species recently “listed” under the ESA provision. Utah has seen effects in an urban setting with the “listing” of prairie dogs. Under the ESA, homeowners have no rights to safeguard their own backyards because prairie dogs commonly burrow and dig in order to create a sufficient habitat. In Texas, cattle ranchers have experienced the far-reaching ESA statute through increased regulations. Ranchers cannot take their cattle to graze if certain “listed” species reside on their farmland (Wahlen, par 4). It is obvious, countering the pro-ESA argument, the effects of the ESA law have gone beyond simple economic disturbance and adjustment. When basic practices of business and homeownership are compromised under a federal law like the ESA, the parameters are definitely too broad.

The ESA’s original intention back in 1973 was to protect fewer than 80 endangered species. Within the last few years, these numbers have increased astronomically. “The current endangered species list of both plants and animal numbers over 9,000…” (Wiegold 2). The sheer jump found with the massive addition of species has to call into question the ease of applicability found within the ESA. It appears, due to the jump, environmental groups are taking advantage, and perhaps, preventatively striking against private property owners. This is especially concerning since the ESA has a past and present record of being applied loosely in favor of “endangered species.”

Another problem with the ESA is its lack of progress regarding the improvement of species labeled as endangered. “…only nine percent of those listed under the ESA are improving and only 30 percent of listed species are stable” (Simmons and Simmons 8). If the costs to private property owners are increasingly becoming more difficult to adjust to and the preservation of species are mediocre under the ESA, perhaps the applicability of the ESA should be reined in and reexamined.

The ESA is definitely the strongest environmental law in existence within the United States government. While the intentions behind the law are admirable, the clash between the protection of species and the welfare of citizens is imbalanced and rigged against the latter. The ESA may also be undermining its own purpose, causing an increase rather than a decrease of species in danger of extinction. In order for the ESA to be respected by landowners, a compromise between the protection of species and the protection of personal property must be reached.

Works Cited

Goldstein, Jon H. "Whose Land Is It Anyway? Endangered Species, Private Property, and the Fight for the Environment." Increasing Understanding of Public Problems and Policies (1995): 118-26. 1995.

Meltz, Robert. The Endangered Species Act (ESA) and Claims of Property Rights "Takings" Rep. no. 7-5700. Congressional Research Service, 7 Jan. 2013.

Michael, Jeffrey A. "The Endangered Species Act and Private Landowner Incentives." Diss. North Carolina State University, 2000.

Simmons, Daniel R., and Randy T. Simmons. "The Endangered Species Act Turns 30." Regulation 26.4 (2004): 6-8. 2004.

Wahlen, Michael J. "The Use and Abuse of the Endangered Species Act." Property Rights Alliance. Property Rights Alliance, 10 Oct. 2011.

Wiegold, Benjamin M. "Endangered Species, Private Property, and the American Bison." Ludwig Von Mises Institute. Ludwig Von Mises Institute, 10 Feb. 2014.