endangered species

The architects of the Endangered Species Act likely couldn’t have anticipated a 2011 decision by the Fish and Wildlife Service to declare roughly 1,500 acres of private property in southeastern Louisiana as critical habitat for the frog. The reasons are straightforward: The area in question in its current condition cannot support the frog, and the species hasn’t even been documented in the state for half a century.

Tate Watkins

Property and Environment Research Center (PERC) as published in the Washington Post

Changing the Endangered Species Act could actually help conservation

When the Endangered Species Act passed in the Senate 45 years ago this month, not one member voted against it. As University of California at Berkeley law professor Holly Doremus has chronicled, the bill’s 1973 passage “went almost unnoticed by the national press” and was seen as a unanimous win for conservation.

Today the act is a perpetual source of conflict among landowners, environmentalists, states and the federal government. That could begin to change with a proposal to “improve and modernize” the law unveiled last week by the Department of the Interior. The changes, which would alter the way the Fish and Wildlife Service lists certain species and designates critical habitat, could help accord win out over acrimony in disputes over imperiled species.

While some environmental groups decried the Interior Department’s announcement with sky-is-falling statements, others offered more nuance: “Although some conservationists might characterize the entire rulemaking as simply another Trump administration effort to undercut conservation,” said Jake Li of the Environmental Policy Innovation Center, “we think that a closer look will reveal both advantages and concerns from a conservation perspective.”

One advantage is that avoiding conflicts over endangered species could allow states, landowners and conservationists to work more proactively to recover species — a glaring shortfall of the act’s first 45 years. Of the 1,692 species ever listed, only 39 have recovered. Since about half of listed species rely on private land for 80 percent of their habitat, cooperation with landowners is crucial for recovery.

The Fish and Wildlife Service does not report on litigation costs regularly. But Benjamin C. Jesup, an attorney in the Interior Department’s Office of the Solicitor, has noted that, over the years, “court orders and settlement agreements swamped the listing program, and [Fish and Wildlife Service] lost any ability to prioritize its efforts and get the most bang for the buck in protecting imperiled species.” And species under threat don’t benefit when the law makes enemies out of landowners who might otherwise be inclined to help in recovery efforts.

Take the dusky gopher frog, the subject of a case the U.S. Supreme Court will hear this fall. The architects of the Endangered Species Act likely couldn’t have anticipated a 2011 decision by the Fish and Wildlife Service to declare roughly 1,500 acres of private property in southeastern Louisiana as critical habitat for the frog. The reasons are straightforward: The area in question in its current condition cannot support the frog, and the species hasn’t even been documented in the state for half a century.

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