The Endangered Species Act and Private Land Acquisition

“From the most narrow possible point of view, it is in the best interest of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources.” – Leonor K. Sullivan, Chairman of the House Committee on Merchant Marine and Fisheries, July 27, 1973 The Endangered Species Preservation Act was passed by congress in 1966, creating a means for listing and ranking native species. Later this act was expanded to a global scale by the Endangered Species Conservation Act of 1969. Both the Endangered Species Preservation Act of 1966 and the Endangered Species Conservation Act of 1969 only provided a limited amount of protection, however.

The progress of these policies was limited to identifying endangered or suffering species, and, in the case of the Endangered Species Conservation Act, a ban was created on the export of listed species. Despite this, many still recognized a lack of follow through provided by the aforementioned acts, thus leading to the creation of the Endangered Species Act in 1973.

The purpose of the Endangered Species Act is as written, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species” (2003). This greatly enhanced the progress made by its predecessors, the Endangered Species Conservation Act and the Endangered Species Preservation Act, in that it required Congress and Federal agencies to, “seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act” (2003).

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Over the years, there have been many controversial issues regarding the Endangered Species Act, but the most pressing and controversial could possibly be “the limitations that [the Endangered Species Act] imposes on economic growth, especially in the private sector,” (Richardson, 1995) with special regards to climate change.

Amendment 5 of the United States Constitution provides all citizens with the right to, “life, liberty, and property,” so why should the government be permitted to take private land? The simple answer is that the government is permitted, in some circumstances, to override these rights in instances where the future or current populous may be benefitted dramatically. The Endangered Species Act authorizes the Secretary and the Secretary of Agriculture “to acquire by purchase, donation, or otherwise, lands, waters, or interests therein, and such authority shall be in addition to any other land acquisition authority vested in him” (2003). This was controversial because it placed the value of the endangered species’ existence to future generations above the value of economic growth and the constitutional right of personal property in the present. This also created obstacles for many companies and organizations because, in many cases, such as Tennessee Valley Authority v. Hill (1978) and Robertson v. Seattle Audubon Society (1992), the species was introduced or discovered on the property after the land owners had already invested large amounts of money into the development of the area.

The abandonment of the Tellico Dam was an early failing of the Endangered Species Act, as building for the Tellico Dam began before the Endangered Species Act was passed. By this point, $53 million dollars (Richardson, 1995) had already been invested into the project. According to Gilmer, during the time of the dam’s construction an “anti-dam ichthyologist from the University of Tennessee found a previously unknown 3-inch fish that belonged to the perch family, which he named the snail darter” (2013). Interestingly enough, this fish was discovered in the Tellico Dam region before the Endangered Species Act was passed. The snail darter was declared endangered in 1975 which eventually led to the case of Tennessee Valley Authority v. Hill, in which the Supreme Court declared a halt to the construction of the Tellico Dam. This case provided insight into the controversy between the Environmental Party and those working in the private sector, later leading to an amendment to the Endangered Species Act calling for the creation of the Endangered Species Committee (Gilmer, 2013). The committee was intended to decide if the value of certain Federal projects, such as the Tellico Dam, could be exempt from the regulations of the Endangered Species Act. Many environmentalists believed that this amendment would only weaken the protection of species classified in the act. Yet, in 1984, the snail darter was declared “threatened,” reaffirming confidence in the Endangered Species Act.

The next trial for the Endangered Species Act dealt with the lumber industry. In 1990, the northern spotted owl became listed as “endangered,” causing many Pacific Northwest forests to become protected land, greatly affecting the area’s lumber industry. With high levels of poverty surrounding the region, the case Robertson v. Seattle Audubon Society was made all the more controversial with many focusing on the loss of jobs resulting from the protection of the timber area. Some say, however, that the opportunity cost of closing the timber land would be greater still, due to the amount of people who rely on the company for wood in order to create a greater stock of natural capital for industry across the United States. However, in the end, the Endangered Species Act won the battle and the habitat was deemed protected. In order to prevent instances such as the aforementioned court cases, section 10(a)(1)(B) of the Endangered Species Act introduced the concept of Habitat Conservation Plans. The plans were to promote cooperation between Federal and non-Federal parties by providing an incidental take permit, prompting non-Federal parties to find alternative measures, such as seasonal closings, to create a compromise where there would only be an incidental take of a species. In theory, this would create only a limited loss for both the land owner and the species.

Yet many still believed that the Endangered Species Act was ineffective in balancing the value of endangered species and the value of the land to the private sector. One such example would be the incremental taking of the Whooping Crane by the Texas Commission on Environmental Quality on the grounds of water rights (Miller, 2016). On the other hand, there is also evidence, reported by Camacho in the Environmental Law Reporter (2016), showing the benefits of the NCCP Act of 2003, which expanded upon the concept of Habitat Conservation Plans by creating a system more integrated with the public. According to Camacho, “the program currently includes 23 active planning areas covering more than 9.5 million acres” (2016) within California. Where does one draw the line between the necessity of property rights and the importance wildlife? It seems impossible to say that one is more important than the other, yet the government does it daily. People must learn to live alongside the government. I propose a revision be made to Section 5.2 of the Endangered Species Act, specifying in greater detail when and through what means the government’s execution of emanate domain may occur, and that a general compensation requirement be included. By doing this, it would lessen the opportunities for environmental injustice to occur by offering a better understanding of the externalities involved in the take of a species as well as those involved with redistricting the land given to the private sector, helping limit the risk of unnecessary job loss within the lower economic sector. The Environmental Protection Agency should also provide more specific regulations on the valuation of the species being protected, deciding if the economic effects felt from a land grab would be less than the cost to future generations of removing a species. With these amendments, mankind and nature may once again be able to live in peace together.