Endangered Species Act: a Dismal Failure, The

Orange County Business Journal, Sep 7, 1998 by BURNETT, STERLING, ALLEN, BRYON

The Fifth Amendment to the Constitution prohibits the taking of private property for any public purpose without the payment of "just compensation." When the government imposes land use restrictions on private property to preserve species habitat and the land loses value, a "taking" has occurred and the property owner should be compensated. The fear of uncompensated takings leave an owner three options: kill an endangered species member, destroy species habitat or lose the value of his land. Honoring the Fifth Amendment would shield the landowner from choosing between his welfare and that of the endangered species.

Conclusion: For the first 26 years of the ESA, the federal government used the threat of fines, imprisonment and federal management to force state and local officials and property owners to protect species. This produced the "shoot, shovel and shut up" syndrome, the opposite of its intended effect. Clinging to this approach will guarantee continued failure.

The survival of many endangered species literally rests with American property owners. At a minimum, to improve the chances of species recovery the government needs to swear an environmental Hippocratic oath to "do no harm." This entails assuring that landowners who protect a species valued by the public will be compensated by the public. Other ESA problems will remain, but this is a good first step.

Burnett is a policy analyst with the Dallas-based National Center for Policy Analysis and Allen is a Koch Foundation intern at the NCPA.