R. J. Smith
April 5, 2001

Mr. R.J. Smith (Senior Environmental Scholar, Competitive Enterprise Institute): Mr. Chairman, I would like to thank you and the members of the committee for inviting me up here to testify on this piece of legislation [An Act Respecting the Protection of Wildlife Species at Risk in Canada].

I think it’s uniquely important for you to hear some of the varying opinions from the United States as to whether our act has been a success or a failure, and I hope that can help you in your judgment as you move to find ways to protect your species in Canada.

The noted ecologist, René Dubos, once wrote:

“Since there are countless ways to go wrong, but only a very few ways to do right, our best chance to deal with our contemporary problems and those of the future is to learn from the success stories of our times.”

The corollary of that also is to learn from the failures of our times.

Brock Evans and I have known each other for a long time, and I think I can safely say that we’re friends, but we have quite different views on how this act is working and on ways to improve it.

I would argue that 28 years after the passage of the U.S. Endangered Species Act, it is mired in controversy, eight years overdue for reauthorization, and Congress can find no way to fix this tragically flawed and broken law. More importantly, from a public policy perspective, the U.S. Endangered Species Act has been a failure—a complete and unmitigated disaster.

If one had deliberately set out to create a law that would have harmed wildlife, destroyed habitat, and discouraged private landowners from protecting wildlife on their own lands, it would have been difficult to surpass the U.S. Endangered Species Act. The ESA is causing tremendous harm to many of the very species it was designed to protect.

Indeed, in a quarter of a century, to my understanding and analysis of the endangered species list, not one single species has completely recovered and been delisted solely because of the Endangered Species Act itself. The goal of the act, of course, is to list imperilled species, assist them in recovering, and then delist them. Of some 1,400 species in the act, a few more than 27 have been delisted. Recently there have been a few more, but the same analysis holds.

According to the U.S. Fish and Wildlife Service, which administers and enforces the act, seven of those 27 were delisted because they became extinct while on the list. Certainly that’s not much of an achievement. The service then reports that nine species were delisted because of data errors, which means they never should have been on the list to begin with. Later on, when surveys were done, it was found out that they did not qualify to be on the list.

Increasingly, this category of data errors is spotlighting the tragic flaw in the act. Because of the overriding power of the act to halt all growth, development, or projects on public or private land when they might represent a harm to a species, the environmental community has largely used the act as a means of achieving cost-free national land-use control in federal zoning.

Whenever environmentalists are anxious to stop a government dam, a highway, an airport, or a hospital from being constructed or expanded, or to stop a private landowner from harvesting trees on his or her own farm, or building a home, or plowing a field, they simply find some obscure, little-known plant or animal and propose it for listing as an endangered species. Once the species is listed and the project is halted, subsequent systematic and detailed surveys by professional biologists often turn up large numbers of the species in areas where no one had bothered to look in the original, urgent press of halting the project. The biologists in the Fish and Wildlife Service then say, “Whoops!”, and usually proceed to delist the species because of data error. This, of course, can be very expensive and embarrassing.

Finally, of the original 27 species that came off the list, the service claimed that the other 11 species were recoveries. However, upon close analysis and interviews with scores of biologists and government officials in the U.S. and in foreign countries, it is clear that none of the U.S. Fish and Wildlife Service’s claimed recoveries actually qualify as true recoveries. Eight of them were little more than original data errors that the service does not want to admit, and the other species, whose populations have actually recovered, recover for reasons other than the Endangered Species Act. Thus it’s illegitimate for the service to claim credit for their recovery.

For instance, the gray whale recovered because the U.S. stopped whaling decades before the passage of the Endangered Species Act. The peregrine falcon, the brown pelican, and the bald eagle recovered because the U.S. Environmental Protection Agency had banned the use of DDT, which had caused massive reproductive failure in those species, before the passage of the Endangered Species Act.

Thus, not a single species has recovered because of the Endangered Species Act alone. Of the 27 species that have been listed, 7 went extinct, 17 were data errors, and the others were for reasons other than the Endangered Species Act.

The reason for this—the fatal flaw in the U.S. Endangered Species Act—is that it’s been used primarily as a means of cost-free national land-use control rather than as a means of protecting rare species.

In nearly every corner of the nation, landowners who happen to have threatened or endangered species on their lands—or simply have habitat on their lands that might be used by endangered species if the endangered species were there—are routinely prevented from using their lands or property, including such activities as harvesting their own trees, planting their crops, grazing their cattle, withdrawing water for which they have water rights to irrigate their fields, clearing brush along fence lines, clearing brush around their homes in fire-prone areas, disking fire breaks around their homes and barns, or even building a home.

Thus the lesson for private landowners in America is the better a steward a landowner is, the more wildlife habitat he or she leaves on their lands, the more likely it is that he or she will be punished by losing the use of their private lands.

One of the first lessons in economics 101 is that if you want less of something, you penalize it or tax it. If you want more of something, you subsidize it or reward it. Because the Endangered Species Act makes private conservation and stewardship a liability, landowners stop undertaking such private conservation activities. This has been especially true in those regions of the country where endangered species have been most widespread and the problems with them most vexing.

This includes the pine forests of the southeastern United States, the brush-covered Texas hill country, the coastal hills and valleys of southern California, areas in the coastal forest of the Pacific northwest, and more recently riparian and wetland areas in the U.S. southwest.

Landowners cannot afford to risk leaving much of their land in wildlife habitat. To do so is to risk losing all economic use and value of one’s land, and irrespective of the U.S. Constitution’s fifth amendment, receiving no compensation for the loss of one’s land, let alone the just compensation mandated by the Constitution.

In fact, the fear of the act drives many landowners to actively remove habitat from their land, sterilizing their land, especially habitat that could be used by endangered species. That is not a very helpful way or a fruitful way of helping endangered species recover. This is widely known, although very little publicized. It’s not just the lore of the nation’s farmers, ranchers, foresters, and homeowners. It is well known by even the most prominent influential federal wildlife officials, state fish and game officials, and senior members of the nation’s leading national environmental organizations.

Mr. Sam Hamilton, with the U.S. Fish and Wildlife Service, who was in charge of recovery of a rare endangered warbler, the black-capped Vireo in Texas, said, when the controversy started over the listing of those species:

“The incentives are wrong here. If I have a rare metal on my property, its value goes up, but if a rare bird occupies the land, its value disappears. We’ve got to turn it around to make the landowner want to have the bird on his property.”

The result of the Endangered Species Act’s perverse incentives were also observed by Larry McKinny, who is director of resource protection for the Texas Parks and Wildlife department. He said:

“While I have no hard evidence to prove it, I am convinced that more habitat for the Black-capped Vireo, and especially the Golden-cheeked Warbler, has been lost in those areas of Texas since the listing of these birds than would have been lost without the [Endangered Species Act] at all.”

Again, that is from the director of wildlife programs for the Texas Parks and Wildlife department, not from a rancher or a landowner. He had seen himself what this act was doing to landowners.

Mr. Michael Bean, who is chairman of the Environmental Defense Fund’s wildlife program, and is widely considered in the environmental community in the nation as perhaps Mr. Endangered Species, said:

“There is… increasing evidence that… private landowners are actively managing their land so as to avoid potential endangered species problems. The problems they are trying to avoid are the problems stemming from the Act’s prohibition against people taking endangered species by adverse modification of habitat. And they’re trying to avoid those problems by… avoid[ing] having endangered species on their property. They do that by eliminating the habitat that those species would use. This is the inevitable result of the Endangered Species Act’s punitive nature.”

By threatening landowners who make room for nature with the uncompensated loss of their land or their crops, it encourages landowners to get rid of wildlife habitat and sterilize their lands. It creates the shoot, shovel, and shut up syndrome whereby wildlife is viewed as a liability by landowners, as a threat to landowners. That’s the last attitude you want landowners to have if you want to work with a nation’s private landowners in order to protect the wildlife heritage we have.

The result is that the Endangered Species Act has become a disaster. It harms people and their property and it harms species and their habitat. It is bad for species and it is bad for people.

But the important thing to remember here is that private landowners are not afraid of wildlife on their lands. They are afraid of federal regulations and federal agents coming onto their land. Eliminate that fear and they will once again be willing to help protect wildlife and habitat.

The most important step, I believe, that we could do with our Endangered Species Act—and I hope you will consider in enacting your Species at Risk Act—is to remove the perverse incentives in the act and stop making stewardship and private conservation a liability. This means no longer penalizing owners of habitat by preventing them from using their land.

The key is to work with the nation’s private landowners instead of against them. The only way to make the Endangered Species Act work for both people and species is to replace the existing compulsory regulatory act with essentially a voluntary, non-regulatory, incentive-based act.

Under such a law, the government would have no power to take or regulate private property in order to protect endangered species or their habitat. If the government wanted to protect habitat on private lands, it would have to work out a mutually compatible, voluntary, contractual relationship with the landowner.

This would be very similar to what our Department of Agriculture does on a regular basis. It protects highly erodible lands on our nation’s farms by offering to pay farmers to place some on their land in the Conservation Reserve Program for a set term of years and then paying the landowners for their cooperation.

The agriculture department’s Conservation Reserve Program, and their similar Wetlands Reserve Program, has landowners all across the United States clamouring to join those programs. Landowners are queuing up to join those programs. The program is a success because when the Department of Agriculture agent shows up at a landowner’s door, he shows up with a cheque in his hand. You have a habit to open the door when somebody appears that way.

But unfortunately, when the U.S. Fish and Wildlife Service agent shows up, he’s either got a gun in his hand or a subpoena in his hand. Landowners react differently to that than they do with the person with the cheque in his hand.

If the government and the environmentalists in America can work with landowners to plant and protect grassland habitat for common species such as meadowlarks and field sparrows and game birds and even non-native species such as ringneck pheasants, we certainly should be able and willing to do a little more to protect habitat for the far more important endangered species.

Furthermore, eliminating the power to take private lands would not render wildlife defenceless. It’s important to realize that there are a number of existing federal laws and state laws prohibiting the killing or capture of most species of wildlife in America, including the Migratory Bird Treaty Act that gives full protection to almost every single species of bird in North America, from the most common to the rarest.

Under such a voluntary cooperative program, the government would have the option of negotiating a full range of possible protective measures. It could rent land from landowners. It could lease it. It could purchase conservation easements or development rights or even purchase the land in fee simple.

For instance, you could pay tree farmers or foresters to delay harvest of their trees for a certain number of years in order to allow the species utilizing those trees to produce more young and help the population for 10 or 15 years. Then at the end of that time, when the landowner again was out of the lease, when he harvested his trees or sold his trees to a sawmill, they would have been 15 years older and bigger, and he would get more money. He would have created a true win-win situation.

You could also pay landowners to produce wildlife by erecting nest boxes or platforms, or for creating specific types of habitat for wildlife reproduction. However, the truly significant aspect of a voluntary non-regulatory law would be the elimination of the current perverse incentives in the current act.

Landowners would no longer be afraid of doing good, of helping wildlife, of sharing their lands with wildlife. Thus, a great many landowners would be willing to voluntarily maintain wildlife habitat and to take steps to create more wildlife habitat to help endangered species. Therefore, the cost associated with a non-regulatory law would be far less than maintaining a draconian regulatory law and then requiring compensation for takings or loss of the economic user value of private lands.

Landowners would once again be willing to be partners in helping wildlife, as they have been for most of this century in the U.S., and indeed in Canada, until the heavy hand of the U.S. ESA began to turn them against wildlife and make them fear doing good things to help wildlife.

Landowners would stop sterilizing their land and would again leave marginal land for wildlife, such as riparian habitat, hedgerows, windbreaks, borders along fence lines, tops of hills, and outcrops, etc. Many landowners would be willing to allow the friends of the red-cockaded woodpecker or the northern spotted owl to come on their land and erect nesting boxes to help those species recover and increase their populations, because they would no longer have their land shut down if those endangered birds began to utilize the nest boxes.

One great example in the U.S. is we have a program at the Competitive Enterprise Institute called the Center for Private Conservation in which we document the good examples of private stewardship. The species we have selected is the wood duck. Many of you know this beautiful little duck. It’s the most colourful duck in North America. It is a cavity nester, nesting in holes in trees. In 1920 it was near extinction because we had felled our bottom land forest. Fortunately for this duck, there was no endangered species at that time and the Friends of the Wood Duck went around to landowners all across America and asked if they could hammer up artificial nest boxes for this species to live in, and landowners said, yes, because they would not be penalized if the duck came on their lands.

It’s such a success that this duck is now the second most populous duck in the eastern United States, and in duck hunting season the Department of the Interior urges people to shoot more of them to take the pressure off other ducks that are in trouble because of drought.

We could do the same thing for the endangered spotted owl if we didn’t penalize landowners for having it show up on their land. No one will put up a nest box for a spotted owl, because as soon as the spotted owl comes in the nest box, your land is shut down. If we move to incentives instead of disincentives, I think we can all share the bounty of wildlife and also have the benefits of a free society.

Thank you.