The National Center delivered a letter to members of the Senate Environment and Public Works Committee today regarding Senate efforts to reform the Endangered Species Act, which has managed to trample on the property rights of American landowners in the service of the present ESA’s less than one percent species recovery success rate.

We say these facts are not unrelated: The ESA’s antiquated regulatory structure unnecessarily pits humankind against wildlife, which (predictably) harms wildlife.

People who fear losing the use of their land if a rare species is found there (under the current ESA, without compensation) have a financial incentive to make their land inhospitable to species.

The solution is grounded in the Fifth Amendment to the Constitution, which says: “…nor shall private property be taken for public use, without just compensation.” The government should pay people fair market compensation for the land it takes. If it does so, people naturally will be less fearful of discovering rare species, or rare species habitat, on their property. (Recall that even the victims of the appalling Kelo decision retained the right to be paid for losses. Human victims of the ESA don’t even get that much consideration.)

85 policy groups share our concern:

Protect Private Property Rights, 85 Groups Tell Senate, in Endangered Species Act Reform Signatories Include Two Former Reagan Administration Cabinet Officials

Washington, D.C., Feb. 27 – Today, a letter signed by 85 major national and state policy organizations was delivered to Senators on the Environment and Public Works Committee. The letter warns Senators that any Endangered Species Act reform effort must include strong private property rights protections. The coalition letter was spearheaded by The National Center for Public Policy Research.

“Whatever action the Senate takes on ESA reform should reflect the national, bipartisan outcry for strong property rights protections,” said David Ridenour, vice president of The National Center for Public Policy Research. “Quite simply, when the government takes your property, the least it can do is pay for it.”

National policy organizations signing the letter include: Coalitions for America, the American Conservative Union, the National Taxpayers Union, Eagle Forum, the National Center for Policy Analysis, the Competitive Enterprise Institute, the National Legal and Policy Center, 60 Plus Association, the Property Rights Foundation of America, and the American Family Association, among many others.

The letter was also signed by the Honorable Edwin Meese III, who served as U.S. Attorney General under President Ronald Reagan, and the Honorable Don Hodel, who served as both U.S. Secretary of Interior and Secretary of Energy in the Reagan Administration. Former Senator Malcolm Wallop (R-WY) signed the letter as well.

State policy groups, including the Oklahoma Council of Public Affairs, Oregonians in Action, the James Madison Institute, the Illinois Policy Institute, and the Virginia Institute for Public Policy also signed the letter.

“Today, private landowners live in fear of the ESA. Those who harbor endangered species on their property or merely own land suitable for such species can find themselves subject to severe land use restrictions that can be financially devastating,” said Ridenour. “This creates a perverse incentive for landowners to preemptively ‘sterilize’ their land to keep rare species away. Such sterilizations benefit no one – least of all the species the ESA was established to protect.”

“Property owners should not be punished for being good environmental stewards, yet that is exactly what the ESA does,” said Peyton Knight, director of environmental and regulatory affairs for The National Center.

In order to fix the ESA’s perverse incentive problem, the letter says property owners who are denied the use of their land should be given 100 percent, fair market value compensation for losses. This would bring the ESA in line with the Fifth Amendment of the U.S. Constitution, which guarantees such compensation (“nor shall private property be taken for public use, without just compensation”).

“Americans nationwide were outraged when, in Kelo v. City of New London, the Supreme Court ruled that government could evict property owners to financially benefit private interests,” said Knight. “As terrible as eminent domain abuse is, at least the victims in eminent domain cases are compensated. Landowners who lose their property under the Endangered Species Act don’t receive a dime.”

Under the current ESA, landowners who apply to the Department of Interior for permission to use their property are often forced to wait years for a response – years during which they often are unable to use the land they legally own, and on which they pay taxes.

The letter suggests that establishing a simple time limit within which the Department of Interior must issue final decisions to landowners’ requests could prevent this injustice.

Meaningful ESA reform faces a big hurdle in the Senate, as the chairman of the subcommittee with jurisdiction over the Act is liberal Senator Lincoln Chafee (R-RI).

The National Center tried to schedule a meeting to discuss upcoming reform efforts with Senator Chafee’s staff. However, the prospect of a meeting was immediately rebuffed by the Senator’s staff after The National Center made it clear it wished to discuss the importance of protecting property rights in such a meeting.

“Allergy season is just around the corner and ‘property rights’ are apparently ragweed to the Chafee office,” said Knight. “Unfortunately, this strangest of allergies hurts American property owners and endangered species more than it does the Senator and his staff.”

The National Center for Public Policy Research is a non-partisan, non-profit educational foundation based in Washington, DC. Founded in 1982, it has promoted innovative, market-based solutions to environmental problems.

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Text of letter follows; click here for a PDF copy containing the full list of signers.

February 27, 2006Senator James M. Inhofe
Chairman
Committee on Environment and Public Works
453 Russell Senate Office Building
Washington, D.C. 20510

Dear Senator Inhofe:

The U.S. Supreme Court’s contentious decision in Kelo v. New London has brought the need to protect private property rights to the forefront of America’s civic debate. Citizens from coast-to-coast recognize the vital importance of being secure in the ownership and use of their homes, small businesses and family farms.

As you and your colleagues consider proposed changes to the Endangered Species Act, we hope you do so with a clear understanding of the crucial role that secure property rights plays in saving threatened and endangered species.

As you know, the ESA has failed miserably in its stated purpose: Recovering threatened and endangered species. In the three-decade history of the Act, less than one percent of the species listed as either endangered or threatened have recovered.

Failure comes at a steep price under the ESA. Not only have species populations suffered, but the Act has cost billions of dollars and deprived landowners of the use of their land and, often, their savings.

The Endangered Species Act has failed not because it isn’t strong enough, expansive enough, or funded enough, but because its incentives are wrong.

Today, private landowners live in fear of the ESA. Those who harbor endangered species on their property or merely own land suitable for such species can find themselves subject to severe land use restrictions. To avoid such restrictions and the losses in property values that accompany them, many decide to preemptively “sterilize” their land to keep rare species away. Such preemptive sterilizations benefit no one – least of all the species the ESA was established to protect.

By one estimate, up to 90% of all endangered species’ habitat is found on private property. As such, punishing landowners for good stewardship can have extremely negative consequences for endangered and threatened species.

This perverse, anti-wildlife, incentive within the ESA would be all-but-eliminated if the ESA is brought in line with the Fifth Amendment of the U.S. Constitution, which states that private property should not be taken for public use without just compensation. Property owners who have their property taken or who are denied the productive use of it due to federal species recovery efforts deserve 100% of fair market value in compensation for losses. If property owners receive this compensation, and are secure in their belief that they can be good environmental stewards without risking (at-times ruinous) financial losses, species will benefit.

Also, as a matter of simple fairness, law-abiding American landowners should be able to learn, within a reasonable time, whether a proposed use of their property would run afoul of the Endangered Species Act. Under the current ESA, after landowners apply to the Department of Interior for permission to use their property, they can be forced to wait years for a response – years during which they often are unable to use land they legally own, and on which they pay taxes.

This injustice could be prevented by establishing a time limit within which the Department of Interior must issue final decisions.

Secure property rights are a fundamental cornerstone of our liberty and are integral to our nation’s prosperity. Happily – if we as a nation would just recognize it – if we honor these fundamental rights in the ESA, endangered species will benefit.

So that it will work better for wildlife and people, the Endangered Species Act should be reformed to respect the Constitution. We urge you to keep this in mind as you begin your important work.

Full PDF copy here.In September, the U.S. House of Representatives approved legislation to reform elements of the Endangered Species Act that pit landowners against species. The environmental movement lobbied hard against the bill.