The Law and Politics of
Federal Wildlife Preservation
Dean Lueck
Introduction


Until the Endangered Species Act of 1973,
wildlife preservation was relatively
uncontroversial.
Since the ESA, wildlife law has been a
contentious battleground in law and politics.
2
Key Concepts



There is an economic rationale for federal
wildlife preservation based on transaction costs
and incomplete property rights.
The ESA has placed property rights to wildlife up
for grabs and has lead to extensive “claiming”
activity.
Perverse Incentives: landowners have destroyed
potential wildlife habitat to avoid costly land-use
restrictions under the ESA.

“shoot, shovel, and shut-up”
3
Problems with Wildlife Protection

Problems with wildlife preservation stem from
imperfect property rights and high costs of
private contractual solutions.

The main finding is that the costs of
protecting wildlife on private land are borne
primarily by a small group of landowners.
4
II. The History of Federal Wildlife
Preservation


The federal government’s role in wildlife
protection begins with the Lacey Act of 1900.
Prior to 1900, states regulated wildlife by
limiting taking and trading to protect this
open-access resource.

States established departments of fish and game,
hiring game wardens to enforce game laws.
5
Federal Protections

The Lacey Act—a response to the demise of
the passenger pigeon—authorized the
Secretary of Agriculture to preserve, protect,
and restore game birds and other wild birds.

The Migratory Bird Treaty Act of 1918 ratified
the 1916 treaty with Canada to protect
migratory birds.
6
Extending Federal Protection

Federal government began establishing and
managing wildlife refuges (Pelican Island
Florida, 1903).

The Migratory Bird Hunting Stamp Act of
1934 req’d waterfowl hunters to purchase an
annual “duck stamp,” generating millions of
dollars for habitat acquisition.
7
Wildlife Management

The Land and Water Conservation Fund Act of
1964 established funds for acquisition “for any
national area which may be authorized for the
preservation of species of fish and wildlife that
are threatened with extinction.”

The Endangered Species Preservation Act of
1966 gave the Secretary of Interior broad
authority to protect species.
8
Endangered Species Preservation Act
of 1966



The ESPA authorized the Secretary of Interior to
purchase habitat to protect endangered species
and to list species threatened with extinction.
The act prohibited the taking of endangered
species on federal wildlife refuges.
Also, it required federal agencies to consider the
effects of its programs on endangered wildlife.
9
Endangered Species Act of 1973


The ESA fundamentally changed the role of
the federal government in wildlife issues.
It expanded federal authority and dramatically
changed the way endangered species would
be managed.


Secretary was required to list endangered and
“threatened” species.
Made it unlawful to take species whether on
private or public land.
10
Additional Provisions




Take was broadly defined to mean “harass,
harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect.”
Federal agencies must not jeopardize any listed
species or modify critical habitat.
A citizen-suit provision to force the secretary to
follow the law.
Federal authority extended into the management
of resident wildlife traditionally held by states.
11
Broad Reach of ESA

Amendments, court decisions, and
regulatory interpretations define the current
ESA.

Habitat modification is considered a taking

Landowner groups have demanded that they be
compensated for the lost value of property when
certain uses are prohibited in order to protect
habitat.
12
Modifying ESA


Safe Harbor allows landowners—who
through their conservation efforts have
attracted listed species—to develop land if
the species population remains above an
established base-line.
No Surprises prohibits the FWS from adding
land-use restrictions or additional financial
burdens on a landowner with an authorized
habitat conservation plan.
13
Property Rights and Wildlife
Preservation


An economic model of wildlife preservation
can illuminate the behavior of landowners,
environmental groups, politicians, and
bureaucrats.
Landowners tend to have better information
than the FWS about habitat and populations
of listed species.
14
The Model



Model assumes two competing uses of a plot
of land: wildlife habitat and non-wildlife uses.
When the marginal values in the competing
uses are equal, then the value of land will be
maximized.
The first-best outcome is at L*.
15
16
The Contracting Problem: High
Transaction Costs

The landowner may not be able to capture
the value of providing habitat for wildlife.


His small plot essentially makes wildlife an openaccess resource.
If the landowner captures no benefit from
wildlife habitat, he chooses to allocate all his
x
land to non-wildlife use—L .
17
Too Little Wildlife Habitat

The small landowner sets aside too little habitat
resulting in a deadweight loss given by the triangle
x
BCL .


this loss also represents the gains from a contract among a
group of landowners who can effectively control the amount
of habitat needed for the wildlife to thrive.
In the case of public ownership, the misallocation
results when the agency subsidizes the non-wildlife
use of the land.

E.g., “chaining”
18
Chaining


“This is an extremely
simple operation and
merely involves pulling
a large chain by two
tractors.
It may be used in light
scrub that is easily
crushed, and heavy
trees among which
there is not much
undergrowth.”
19
20
21
Collective Action to Provide Habitat

Before the ESA: Pay-to-Protect


The FWS purchases wildlife habitat from the landowner. If
the FWS sets the price correctly (P*), the solution is
identical to the first-best solution in Figure 1.
ESA: Land-Use Regulations


The ESA prevents land-use modification, meaning that
landowner will have to set LESA aside.
This allocation has a deadweight loss associated with too
much habitat provision shown by triangle ABLESA.
22
Habitat Acquisition


The pre-ESA regime of pay-to-protect will
tend to provide too little habitat, but first-best
can be approached through a program of
habitat acquisition.
The post-ESA regime can, in principle, also
approach first-best, but this ignores the
behavior of interest groups in response to the
incentives under the ESA.
23
Claiming Land under the ESA



Once a species is listed, the land that provides
habitat for a listed species comes under the
control of the FWS.
The landowner loses both the use of and income
from the land.
Because the ESA allows citizen lawsuits,
environmental groups can sue for listing, thereby
claiming land by removing it from non-wildlife
uses.
24
No Limits

The ESA places no limits on the number of
species that can be listed or the number of acres
to be affected.


If the FWS had to pay for habitat acquisition, a budget
constraint would limit acquisitions to those properties that
provided the highest marginal returns.
Groups can claim large areas by seeking to list
species that inhabit large areas, impeding those
land-use actions that harm the species.
25
Claiming Public Lands


Historically, many public lands have been
managed for single uses—timber harvesting or
grazing—because of the political power of
strong interest groups.
The ESA can provide a mechanism for
environmentalists to attack what they regard as
pork-barrel projects that lower environmental
quality.

Environmentalists used the northern spotted owl to stop
timber cutting in old growth forests.
26
Claiming Land: Preemption and Political
Action



The landowner maintains important influence
over the land by virtue of control over nonwildlife uses.
The static model does not fully capture the
actions of landowners facing potential ESA
restrictions.
The landowner may be able to take action to
prevent the administration of the ESA.
27
Thwarting the Implementation of the ESA

If the species is already present but unknown to
the FWS, landowners may kill all listed species
inhabiting their property.


“shoot, shovel, and shut-up”
If the species is not yet present but the potential
for inhabitance is high, landowners may destroy
habitat in order to preempt ESA regulations.

Preemption can be examined using a two-period
model.
28
Two-Period Model

The landowner can chose to maintain or destroy
habitat in period 1.


Destroying habitat has a one-time cost CD and
generates benefits BD from development (timber
harvest). CD is the cost of premature development,
such as foregone revenue from harvesting timber
before it is financially mature.
The FWS moves in period 2.

If it finds a listed species, the payoff to the landowner
is zero.
29
30
Choosing Preemption


In a dynamic model, landowners have
incentive to decrease the amount of wildlife
habitat, even compared to that without the
x
ESA (not even L is provided).
Without habitat the population of the listed
species declines because the amount of land
allocated to habitat declines under the ESA.
31
Other Implications




If permits are required for development, then
killing species becomes more attractive to
landowners.
Paying landowners will reduce the payoff from
preemption.
Increase in the probability of listed species
detection in period 2 will increase the likelihood
of preemption.
Risk-averse landowners will preempt more often
than risk-neutral landowners.
32
Behavior under the ESA

The ESA as an exogenous transformation of
rights


To the extent that government regulation is funded by
wildlife users and compensate landowners for landuse changes, collective action will have broad support
and little contention.
The ESA promised wide-spread benefits at a trivial
cost.

Congress could not have foreseen the judicial and
administrative expansion of the ESA.
33
Interest Group Behavior

ESA has altered the incentives of many
people and institutions, most notably
environmentalists, private landowners, the
FWS, public land agencies, scientists who
get paid to find listed species, and lawyers
and politicians.
34
Environmental Groups



Environmental groups can force the FWS to act
by showing that federal agencies or private land
uses are harming listed species.
Environmental groups can encourage the listing
of new species that inhabit land for which
environmentalists desire to change existing or
planned land use.
Environmentalists can either petition or sue the
FWS for not acting swiftly.
35
Environmental Groups, cont’d



Environmentalists have successfully use the citizen
lawsuit provision to invoke and strengthen the ESA.
By forcing federal agencies to change their land
management practices, millions of acres have been
de facto set aside as refuges for listed species.
The ESA has given environmentalists a strong claim
over private lands.

E.g., northern spotted owl, and black-tailed prairie dog?
36
Landowners



The ESA represents an uncompensated
transfer of rights to their land.
Preemption model predicts habitat
destruction.
Landowners have incentives to reclaim these
rights through both private and public action.

Safe Harbor and No Surprises policies mitigate the
harm caused to landowners by the ESA.
37
The FWS



The FWS enjoys expanded powers under the
ESA, but must be cautious not to alienate
long-lived constituents.
Before the ESA, the FWS had served a
hunting/fishing constituency.
Since the ESA, the FWS serves a nonhunting, environmentalist constituency.
38
Public Land Agencies


Since TVA (the snail-darter case), federal
agencies have been forced to enhance the
conservation and restoration of list species.
Timber harvesting and grazing activities have
declined, and water development projects
have been eliminated or reduced in scale.
39
Three Case Studies

Takeovers of Public Land by
Environmentalists: The Northern Spotted Owl

Preemptive Habitat Destruction on Private
Land: The Red-Cockaded Woodpecker

Wildlife Restoration before and after the ESA
40
41
The Northern Spotted Owl



In 1990, the owl was listed as a threatened
species.
Nearly 11 million acres of public forests in
California, Oregon, and Washington were set
aside as crucial habitat.
Annual timber harvests from public lands has
declined dramatically.
42
43
44
45
46
The Red-Cockaded Woodpecker



RCWs—listed in 1969—reside in longleaf
pine ecosystems ranging from Virginia to
Arkansas.
Cost of foregone timber harvests for a single
RCW colony can be as much as $196,107.
A forest landowner has an incentive to
preemptively harvest timber.
47
48
RCWs cont’d


Ben Cone’s confrontation with the FWS.
The closer a plot is to RCWs, the higher the
probability that the plot will be harvested, even if
the trees are younger than when trees are
normally harvested.


Timber at high risk sites is harvested 9 years earlier
than the average age of 47.9 years.
Population of RCW continues to decline despite
being listed for 37 years.
http://www.taemag.com/issues/articleID.168
92/article_detail.asp
49
How Many RCWs?



Estimated Population: There are currently about 5,000
groups of red-cockaded woodpeckers -- or roughly
12,500 birds -- throughout their range, according to the
U.S. Fish and Wildlife Service in 2000.
Currently, there are an estimated 14,068 red-cockaded
woodpeckers living in 5,627 known active clusters
across eleven states (Jan 2003).
Despite protection, all monitored populations (with one
exception) declined in size throughout the 1970's and
into the 1980's.

In the 1990's, in response to intensive management based
on a new understanding of population dynamics and new
management tools, most populations were stabilized and
many showed increases.
50
Wildlife Restoration Before and After the
ESA

Populations of many wildlife species fell to
alarming low numbers before dramatic
recoveries long before the ESA.

Unlike the regulations inherent in the ESA,
landowners were never penalized for altering
habitat, thus the preemption incentive was
absent.
51
The Record before the ESA




Recoveries in many species have been
impressive and provide keys to success:
Season closures were enforced and game trade
was restricted.
Habitat was enhanced through refuges,
especially for migratory waterfowl.
Animals were live captured, raised in captivity,
and released in depleted areas.

Landowners often supported these efforts.
52
The Record Under the ESA

Only 24 species have been de-listed.


Seven were de-listed because they were extinct,
and nine because of data errors.
Eight were considered “recovered”



None of these eight recoveries is because of the
ESA.
The alligator should never have been listed.
Improving status of the bald eagle is due to the ban
on DDT and enforcement against poaching—
neither unique to ESA policies.
53
Conclusion


Under the ESA no dramatic species
recoveries can be claimed.
The ESA has been a double-edged sword for
environmentalists.


It has given them great sway in the use and
management of public lands.
But habitat is being destroyed and species are
losing ground on private lands because of the
perverse incentives under the ESA.
54
Additional Reading


Richard L. Stroup, “Making Endangered
Species Friends Instead of Enemies,”
Work! September/October 1995 Issue,
http://www.taemag.com/issues/articleID.1689
2/article_detail.asp
Richard Stroup, “Endangered Species Act:
Making Innocent Species the Enemy,” PERC
Policy Series Issue Number PS-3, April 1995
http://www.perc.org/perc.php?id=648
55