The Consequences of the Endangered Species Act (ESA)

The Endangered Species Act (ESA) of 1973 was designed to “halt and reverse the trend toward species extinction, whatever the cost.” The act pursues this goal by requiring endangered and threatened, at risk of being endangered, species to be named on a federal list for protection. This list, governed by section four of the ESA, is the backbone to the statute. Section 9 of the ESA prohibits any person from taking endangered species of fish or wildlife on this list. T.S. Eliot said, “Most of the evil done in this world is done by people with good intentions.

” The Endangered Species Act is an unequivocal example of a statute created with the good intentions, yielding depraved results. In Babbitt v. Sweet Home, a group of individuals in Oregon argued that the cockaded woodpecker and the northern spotted owl injured them economically by inhibiting their commercial business in forestry. The ruling in this case was in favor of the woodpecker and the Secretary of Interior expanded the definition of “harm” to include the degradation and modification of a species habitat.

By including habitats in the definition, the agency recognized that food, shelter, and an environment conducive to reproduction are necessary for life to flourish. The definition of “harm” that was being challenged in Babbitt v. Sweet Home is a fine extension of the statute because those rights are indispensible. Thus, the courts must recognize that human habitats must be protected as well, with the same definition of harm relative to human life. Food, shelter, and an environment conducive to reproduction are also vital for human life to flourish and the ESA prevents individuals from developing their habitats to suit their life needs through an irrational extension of the law.

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The methods humans use to “take” endangered species are known and listed in the act however; the ways species “take” humans remain relatively unacknowledged. Endangered species take the Constitutional right to own land. The Fifth Amendment of the United States Constitution states, “private property shall not be taken for public use, without just compensation.” The Fourteenth Amendment requires that each state provide equal protection under the law to all persons within its jurisdiction. These Amendments together make the basis for property rights, and equal protection thereof, that bring into question the basis and standards for a “taking” of land, which the federal government is required to provide compensation for. Prior to Lucas v. South Carolina Coastal Council, USSC (1992), such rulings were based on a three tiered approach including character of government action, the property owners reasonable investment-backed expectations, and the economic impact of regulatory action. Regulatory taking under the Fifth Amendment of the Constitution is clearly defined when the invasion of government is physical, but the economic and usage restrictions pose complicated questions. The United States Government is based on the principle of representation and participation of the people; regulations and laws should reflect the welfare and interest of the people. Though state and local governments have power to adopt regulations limiting land usage, the powers exercised still must remain within the confines of the Constitution. In Justice Breyer’s dissent to College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999), he stated that “Federalism matters to ordinary citizens seeking to maintain a degree of control, a sense of community, in an increasingly interrelated and complex world” (Melious 673). Unfortunately, it is the ordinary citizens who are being punished and equal rights are not being protected.

If an endangered species is vital to ecological health, then the preservation efforts are of public interest and to restrict an individual’s property rights for public interest is a regulatory taking. Endangered species take our livelihood by restricting our food sources. From the time America was founded, men and women utilized the land for livelihood: providing food, shelter, and income. A landowner, and their community, may be dependent on the food yielded from a farm however; if an endangered species poses a threat to an individual’s livestock, the landowner  may not take measures to deter the species without facing harsh penalties. The health and economic benefits to locally grown and raised food are unparalleled, U.S. farmers produce around $143 billion worth of crops and $153 billion worth of livestock annually (“Major Crops”). Endangered species cause farming operations to stop therefore, they are a direct threat to our nation’s food sources. What begins with the restriction of one farm harms a community by eliminating jobs, sustainable food, and reliable income. As a nation, we are only as strong as our weakest link and if our local governments are unstable due to the impacts of the ESA, it is a national issue. Endangered species take our resources for human habitat construction. If one is growing a lumber farm for income, once an endangered species takes shelter on the land, there is to be no more cutting down of the trees.

If all lumber farms become homes to endangered species, humans will no longer have the most common resource to build their own habitats, wood. An example of this is Vincent Shaudys of Washington who had spotted owls on three sides of his property. Fearful that the owls might take residence in his lumber farm, he prematurely cut down the trees in which case both parties lose; Vincent’s lumber was far less valuable and a suitable environment for the spotted owl was destroyed (“Fulfilling the” 10). This is not an isolated case; people are inclined to either destroy the animal, or the habitat to avoid federal regulation of their land. The only current incentive in the ESA is to avoid the harsh penalties inflicted on those found in violation of the restriction. The penalties for individuals who fail to comply with the ESA are harsh with fines of $100,000 for a misdemeanor and $250,000 for a felony, both with a year of jail time (“Bad for Species” 7). However, most landowners find the incentive to kill the animal and hide the evidence greater than the threat. The risk of earning money and maintaining their livelihood outweighs possible fines and jail time. Endangered species take opportunity for development at the unequal expense of the landowner. If a landowner finds an endangered species on their property, or if a neighbor reports a sighting, all activity that interferes with the species must cease.

Section 10 of the ESA allows permits to be granted to individuals who construct a Habitat Conservation Plan that will not significantly reduce the likelihood of the survival of a species. If the permit is approved, activities may continue under the instituted plan, if the plan is deemed insufficient, landowners must conduct more research and propose an alternative. To date, only 31 conservation plans have been successfully approved and 200 are pending approval, representing a success rate that is not in favor of a landowner (Brown 9). Endangered species are a financial liability and the reporting of a habitat, then maintenance of one suitable for an endangered species, represents a gamble against loss of future economic activities. In Penn Central Transportation Co. V. City of Ney York, (1978), The City of New York barred Penn Central Transportation from further developing their public transportation terminal that is under protection of the Historic Landmark Law. As highlighted in Justice Rehnquist, Chief Justice Burger and Justice Steven’s in their dissent, the law unfairly singled out one-tenth of one percent of all buildings in New York City and was ultimately a subjective matter on which building to preserve. The same principle holds true for environmental diversity, the importance of preservation is subjective. It would be naïve to assume that citizens will treat endangered species as having equal value like the act does. In fact, it is far more harmful to do so because if development is slowed by the conservation of a small, uninteresting animal, whose contributions to ecology are not easily seen, the public may resent conservation efforts all together.

They should be evaluated case by case, according to the value society places on them, or at least considering the economic impact. Harboring endangered species should be a point of pride and not a threat to one’s livelihood. Endangered species take the opportunity for development at the expense of the whole. Both scientific and economic developments are negatively impacted by the ESA’s restrictions. Scientific development is also slowed by the ESA. Schindler, of Perry County, owned land which housed a mile-long cave; Craig allowed neighbors, scientists, and curious stewards enter the cave, free of charge, for exploration (“Fulfilling the” 2). When the U.S. Fish and Wildlife Service declared the grotto sculpin as endangered, 18 acres of Craig’s land must be sacrificed to create a “buffer” costing $7,000 annual income from crops on that portion of land (“Fulfilling the” 3). In addition, Craig had to pay for the fence himself to further isolate the habitat from his farming activities; he is one of many to be punished for harboring a rare species and paid no compensation. Landowners should be compensated, even rewarded, for investing in species conservation, not punished. The ESA slows development and deprives the human race of the scientific and economic developments possible by deterring private landowners from opening their land for exploration for fear of regulation. Societal development has taken a hard hit at the expense of the ESA. If we are unable to explore lands freely, or develop lands to discover efficiencies, we deprive ourselves of discoveries that could consequently save the endangered species. Endangered species take the human right to self-defense.

Are we missing the point? If maintenance of diversity was the sole purpose of the ESA then why do we not take a male and female of every species and create an artificial environment confined in a cube? Such an environment would allow the two to reproduce and ensure that species are preserved for future generations. Such an extreme plan is not pursued because the heart of the ESA is not only to preserve the species, but rather maintain their standard of living. Just as it would be inhumane to strip species of natural life, it is also inhumane to do so to humans. We recognize that life is more valuable than simply being alive, and it is not enough to just maintain a species. A balance must be found that both humans and species can enjoy a full life taking advantage of earth’s wonders and opportunities. Unfortunately, the ESA has launched a silent war between humans and wildlife, both wanting a sustainable habitat. If the ESA is to continue harsh regulations, an Endangered Humans Act must be instituted in order to prevent the habitat degradation of our species in the ways described above.

The unintended consequences of the ESA make it clear that we have gone far from our primary goal. It is ethical to preserve the world’s diverse species, but it is not ethical to force people to preserve species against their will. The Endangered Species Act has failed in preserving endangered species because the command approach forces individual to save species at their own expense. Great costs have already been incurred and without intervention, they are likely to continue as the courts have affirmed that the ESA is to protect at any cost in TVA v. Hill 437 U.S. 153 (1978) (Rohlf 279). TVA v. Hill further radicalized the ESA by ensuring that opportunity cost would not be factored into species protection. The law itself gives individuals incentives to destroy wildlife habitat to avoid regulation. 78% of endangered species are found on private land, and the current structure of the ESA promotes destruction that the act was specifically created to prevent (“Bad for Species” 3). Without any current compensation in place, or great enough incentives, the ESA is not only a violation of the Constitution but a direct incentive for landowners to shoot, shovel and shut-up, before the endangered species devalues or degrades human habitat. The ESA protects species at the cost of humans by “taking” several aspects of livelihood under an irrational extension of the law. In order to maintain the integrity of human life, the government continue to protect our most basic rights found in the Constitution and cease implementation of statutes that directly impede on them. We must restructure the institution so endangered species and humans can be partners in preservation, rather than enemies in mutual destruction.