- - Wednesday, October 19, 2016

The late Supreme Court Justice Antonin Scalia once described the Endangered Species Act as imposing “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.” His comment resonates with far too many landowners across the country.

The target of his criticism was the Endangered Species Act’s “take” prohibition, which broadly forbids any activity that affects a single member of a protected species or its habitat. This incredibly burdensome provision bars a wide range of ordinary land uses, and subjects anyone who violates it to costly lawsuits, substantial fines and even imprisonment.

When Congress passed the Endangered Species Act in 1973, Sen. John Tunney, California Democrat, acknowledged that this is a “stringent prohibition.” He wasn’t kidding.

The prohibition is so broad that even apparently innocent activities run afoul of it. Skylar Capo, an 11-year-old Virginia girl, learned this several years ago, when her family was issued a fine after she rescued a protected woodpecker from a cat and nursed it back to health. Catching a protected species, regardless of the reason, is prohibited.

So is getting too near a protected species. Or not so near: The protections for one whale species criminalize surfing within five football fields of the animal. Further extending the prohibition’s reach is that it applies even if you didn’t intend to cause any adverse impact to the protected animal or even know that you might.

Recognizing the severe consequences this broad prohibition can have, Congress expressly limited it to species classified as “endangered” — those in immediate danger of extinction. In contrast, for species classified as “threatened” — those that face only remote risks — the Endangered Species Act provided for less burdensome protections that do not include the take prohibition. This distinction was intentional. As Mr. Tunney explained, Congress intended that the take prohibition “be absolutely enforced only for those species on the brink of extinction.”

However, the U.S. Fish and Wildlife Service thought it knew better than Congress. Shortly after the statute was enacted, the service adopted a regulation categorically extending the take prohibition to all threatened species. Ever since, property owners across the country have borne the brunt of this regulation, without the service ever attempting to justify it or its ruinous costs.

In recent petitions to the service, Pacific Legal Foundation, a watchdog organization for property rights and balanced environmental regulations, argues that the regulation violates the Endangered Species Act and illegally imposes severe burdens on property owners and small businesses nationwide. The petitions were submitted on behalf of the Washington Cattlemen’s Association and the National Federation of Independent Business.

Repealing the service’s unlawful expansion of the take prohibition will not only benefit property owners but also protected species. This is because the illegal regulation significantly undermines incentives for conservation. Absent the regulation, property owners whose lands contain species classified as endangered would have a strong incentive to aid those species. If a species recovered to the point that its status could be changed from endangered to threatened, the take prohibition would be lifted, rewarding property owners for their efforts. Similarly, property owners with threatened species on their land would have an incentive to conserve them, because if the species became endangered the take prohibition would be imposed. As it is, however, the illegal regulation subjects people to the same draconian restrictions regardless of a species’ status, greatly reducing these incentives.

Perhaps this explains why the Endangered Species Act hasn’t lived up to its goal of recovering species. Since it was enacted more than 40 years ago, fewer than 2 percent of protected species have recovered to the point that they no longer need the statute’s protections. Repealing the illegal regulation, and restoring the statute’s primary incentive for conservation, will hopefully turn this around, while reducing regulatory burdens for the property owners contributing to species’ recovery.

Jonathan Wood is an environmental attorney with Pacific Legal Foundation.

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