A Better Approach to Species Conservation – Incentives for Private Landowners

http://www.dreamstime.com/royalty-free-stock-images-red-cockaded-woodpecker-picoides-borealis-florida-north-america-image41367699Last week I had the opportunity of participating in a small forum here in DC to discuss the looming challenges confronting species conservation in the U.S. and the options for protecting stressed populations that are either listed as threatened or endangered under the Endangered Species Act or were being considered for listing.  According to the Center for Biological Diversity, “1,331 species are listed as threatened or endangered under the Endangered Species Act. Of those, 745 are plants; 213 are invertebrates, including insects, mollusks, and others; 140 are fishes; 88 are birds; 83 are mammals; 36 are reptiles; 24 are amphibians; and two are fungi — lichens, actually. For both plants and animals, many more species are listed as endangered than as threatened.”  And the number of species being considered for listing is growing and in the hundreds, and includes many aquatic mussels.  This is bad news not only for those at-risk species but for communities and business sectors who will be significantly impacted as more listings occur.  The most recent proposed listing, as has been covered here, The Weed that is Whipping the West – and the proposed listing of the greater sage grouse – will affect a whopping 11 states, which could have huge impacts to the economies of those states. 

The threats to these species are often caused by a multitude of factors, including over harvesting, pollution or pesticides, but more often than not the listing is caused by the disturbance or destruction of a species’ critical habitat.  The real challenge to proponents of species conservation – and the really scary part for those who may be skeptical of private property rights – is that 80 percent of listed species occur partially or entirely on private lands.  The Endangered Species Act is an incredibly important piece of legislation that has one goal in mind – preventing extinction.  Because of the seriousness of extinction, ESA offers zero flexibility for listed species and any landowners who just happen to have those species on their land.  Once listed, a landowner can be severely restricted in what she can and can’t do with her property.  Serious civil and criminal penalties can flow from violating ESA by harassing, harming or “taking” a listed species.  And each year, the government spends upward of $2B to conserve T&E listed species.  Yet these costs don’t reflect the enormous costs to landowners in terms of economic losses, which run in the billions of dollars as discussed here in this PERC Report.

All this negative stuff swirling around ESA has resulted in some really really bad and perverse incentives.  You may have heard of the old adage, “shoot shovel and shut up” – given these liabilities, no one in their right mind would want a T&E species on her property or maintain habitat that might attract them.  Let’s take the red-cockaded woodpecker, for example, in the Southeast that prefers mature longleaf pines forests to nest and live.  Once listed, rather than increase the amount of preferred woodpecker habitat, landowners logically began destroying it for fear that their land would attract woodpeckers.  Get out the chain saw and bulldozer honey, need to make sure that pesky woodpecker finds no shelter here.  Hardly the desirable response if we are to protect the red-cockaded woodpecker, but a logical and understandable response given the fears about ESA.  In additional, listing often occurs with imperfect and inaccurate information about the condition of a at-risk species, because landowners are reluctant to give information to wildlife managers about the presence of at-risk species on their property.  Once again, why would any landowner voluntarily give information about an at-risk species on her property, understanding the ensuing consequences.  And this is where we find ourselves – an incredibly unhealthy environment to conduct conservation and manage our wildlife populations.

The real conundrum is that ESA is a species-specific statute and it requires us to react as opposed to plan, often times forcing a reaction long after a strategic conservation plan should already have taken place.  The lessons learned from ESA are many.  But one, in particular, if we are to do a better job at protecting at-risk species we must shift our focus from individual species to a more holistic, habitat approach.  And we must do more to develop the right kind of incentives to encourage landowners to engage in protecting habitats that at-risk species need to survive.

It is with that backdrop that I was pleased to be involved in last week’s discussions sponsored by my alma mater, Duke University, which included Michael Bean, Principal Deputy Assistant Secretary for Fish and Wildlife, to discuss FWS’s increased focus on prelisting conservation efforts and proposed rule. FWS Voluntary Prelisting Policy (3)   I’m encouraged to see the Department of Interior proposing voluntary programs that will lead more landowners to act now to protect critical habitat and develop conservation plans for at-risk nonlisted species. Although the proposal isn’t perfect, and with some minor adjustments can be improved, I think this marks an important and positive shift toward a more sustainable future not only for at-risk species, but at-risk communities and jobs that would be adversely impacted by more ESA listing.  However, a note of caution – prelisting efforts will not work without the credible threat of listing (and willingness to follow-through), if voluntary efforts prove inadequate to protect the species.  I’m confident, however, that many landowners, eco-entrepreneurs, and corporate interests who care about these issues will respond positively to these new incentives, doing what is necessary to preserve these species for future generations.







  1. Avatar
    Brian Seasholes 9 years ago

    I agree that pre-listing agreements represent a positive development, especially because they can avoid much of the rancor that makes the ESA so problematic. I would, however, take issue with the assertion “prelisting efforts will not work without the credible threat of listing (and willingness to follow-through), if voluntary efforts prove inadequate to protect the species.”
    An equally credible argument could be made that, given the ESA’s fearsome reputation among landowners, the threat of listing can lead to the perverse incentives that cause landowners to engage in habitat destruction, degradation, direct persecution of species, and going silent in the hope they regulatory authorities do not notice they harbor endangered species or endangered species habitat. For example, following the 1998 petition for an emergency listing of the black-tailed prairie dog, requests to the Montana Department of Agriculture for permits to poison prairie dogs skyrocketed.
    And, as David Cameron, now professor emeritus of zoology at Montana State Univ. and ranch co-owner, so eloquently testified before Congress in 1995 about his decision not to reintroduce grayling to his family’s ranch: “My recollections of the horror stories abundant in stockmen’s journals about the hazards of hosting an endangered species didn’t help, and I sadly bowed out. It seemed a good deed would probably be punished, and life has sufficient complications without federal agents giving orders.”
    He added: “How many times do you think this sort of thing has been repeated throughout the country? How often have people felt terrified by the consequences of supporting some poor creature on their habitat that they are responsible for managing? I think it is more often than you may think. And it is just one more step to proceed from failing to do a good deed to worrying about, hey, I have got something here which is pretty uncommon, maybe I had better get rid of it before somebody declares it an endangered species. And I know that that has gone on.”
    For a lifelong rancher, academic and conservationist (1993 recipient of the Wildlife Society’s Outstanding Research in Wildlife Genetics Award) to say this is significant and telling of how the Endangered Species Act’s punitive nature harms species.
    Since 1995, I think it is reasonable to assume the ESA’s reputation among landowners has grown worse, which suggests that the Act may well have become more counterproductive. Given that landowners have an enormous advantage if they want to break or evade the ESA–due to the fact that species are often spread across vast areas in rural regions, far from the eyes of regulatory authorities–coupled with the growing number of species and the Act’s worsening reputation, I think it is entirely possible the Act is more counterproductive today than it was in 1995. And, as hundreds of species are listed in the coming years as a result of the 2011 multi-district lawsuit settlement, this problem is likely only to get worse.

  2. Avatar Author
    Brent Fewell 9 years ago

    Brian, we’re in agreement that ESA has created the reverse response of what we all desire – more conservation. However, there must be a driver in order to create the prelisting supply/demand. In most cases, there’s very little incentive for landowners to engage in species conservation, unless there is a market value for the species. We could pay landowners to protect species without market value, but that’s unrealistic. But I’m open to ideas. If you can persuade me there are other drivers, I’ll rethink and retract that last statement.

  3. Avatar
    Brian Seasholes 9 years ago

    Brent, I think it is important to recognize that there are two sides to the equation. One, as you point out (the “driver”) is the demand for conservation services/outcomes. The other is the supply of these services and outcomes. While fear of being clobbered is certainly one driver that can compel landowners to supply these services, mounting evidence strongly suggests that the ESA’s punitive-based approach to creating demand may well be counterproductive. Exhibit A is the red-cockaded woodpecker mentioned in your post. Scholarly research has shown that landowners preemptively harvest pines to deny RCWs habitat, are more likely to clearcut than selectively cut, are more likely to harvest timber in proximity to RCW colonies, are more likely to harvest trees of younger ages, and are less likely to replant with longleaf pine, the RCW’s preferred species for nest cavities (all of this is detailed in my recently published study on the ESA, which is available at; http://reason.org/news/show/endangered-species-act-promise).

    Perhaps the most significant research is a growing number of surveys of landowners in regions of the country with endangered species, including RCW, which reveal:

    -Landowners have significant concerns about risks to their property values and livelihoods associated with protecting endangered species.

    -Financial compensation is very important. For the most part, landowners think they should be compensated for conserving species that are endangered or close to being endangered. In many cases compensation increases landowners’ willingness to conserve endangered species.

    -Other financial assistance, such as technical assistance and cost sharing, can also improve landowners’ willingness to conserve endangered species.

    -Assurances against future regulation can increase landowners’ willingness to conserve endangered species.

    -Landowners prefer shorter (5–10 year) contracts and easements to conserve endangered species.

    -Landowners do not like long-term contracts or permanent conservation easements. This strongly suggests that landowners don’t like many of Habitat Conservation Plans under the ESA, which run for long time periods.

    -Independence and autonomy are very important values to landowners, and these values exert a strong influence over their willingness to become involved in conservation initiatives in general.

    -Landowners strongly prefer to have some management and decision-making authority if they are involved in a program to conserve wildlife and very much object when they do not.

    -Many landowners have a strong sense of stewardship.

    -Landowners are more likely to join incentive programs if they are approached by trusted intermediaries, instead of public officials from regulatory agencies.

    One such survey is of forest landowners in Alabama, Florida and Georgia, within the area for which the gopher tortoise is a candidate species, which assessed their willingness to participate in a hypothetical candidate conservation program. Half the respondents refused even to fill out the survey because of “potential for government involvement” (i.e., fear of the ESA’s penalties). In many ways, this is the most damaging response elicited by the ESA’s penalty-based approach. I think many landowners across this country are like those in gopher tortoise habitat: when faced with the Endangered Species Act, they opt to lay low and hope they do not draw attention from regulatory authorities wielding “sticks”.

    Another line of critique of the ESA, and in particular many of the administrative reforms that have been implemented over the past two decades (e.g., Safe Harbor and No Surprises) is offered by legal scholars; Barton Thompson, Richard Epstein, and Jonathan Adler. As all three point out (again, referenced in my ESA study), these remedies only ameliorate the ESA’s counterproductive penalties, and because these remedies are administrative they are of uncertain security.

    I think in policy circles there is often a lack of appreciation of how feared the Endangered Species Act is among landowners (see previously referenced surveys) and the very real outcomes this fear has (e.g., destroying and altering habitat, and simply going silent and hope not to draw notice). As hundreds of species are listed over the coming decade as a result of the 2011 lawsuit settlement, these problems are most likely going to get worse. Furthermore, given that such an overwhelming number (as much as 84%) of endangered and threatened species are conservation reliant, which means they will need conserving indefinitely, there is all the more need for long-term, sustainable relationships between the private landowners who own most of the habitat for these species and public and private sector actors interested in conserving species. Yet relying on “sticks” to drive this relationship does not bode well, either for landowners or species as the growing body of aforementioned evidence indicates. Force is seldom, if ever, a sustainable basis for relationships. This is especially the case with the ESA in which landowners have a massive advantage if they choose not to participate in conserving species (which they can legally do under the Act), legally evade the law (RCW is a classic example), and illegally evade the law (which is not condoned, yet is the regrettable but entirely predictable response to the ESA, which unfairly forces an unlucky few to bear a disproportionate share of the costs for the entire country of conserving imperiled species). Sustainability is most often thought of in an environmental context. But there needs to be an increased appreciation that biodiversity conservation through the use of “sticks” is not sustainable, which is why there is a growing literature on what is known as payment for environmental services or payment for ecological services.

    For example, the U.S. Department of Agriculture’s wide array of voluntary conservation program, led by the Conservation Reserve Program,are arguably successful because they have no coercive law driving them. And because of this, it seems that landowners enrolled in these programs have much more sustainable and friendly relationships with their local NRCS personnel than landowners with endangered & threatened species have with their local FWS personnel.

    I think the issue boils down to how are incentives to conserve endangered species created? I think it is increasingly apparent that the current, punitive method that drives the creation of these incentives (which are really more a desire on the part of landowners to avoid being hit with the ESA’s “sticks”) is counterproductive and unsustainable.

  4. Avatar Author
    Brent Fewell 9 years ago

    Brian, great discussion and excellent points. I agree that creating the right incentives is crucial to optimizing conservation results. My point about regulatory drivers is not to encourage or justify the use of the “stick” simply for enforcement purposes or to be punitive.

    One thing I appreciate about the ESA is its unwillingness to accept extinction as an option. I think that is the correct perspective with which we conservatives must start the debate. You and I are in agreement that command and control approaches do not always achieve their intended goals and, if they do, those goals are not always achieved most efficiently. In the case of ESA, the command is “thou shall not cause extinction” – from my perspective that’s a key command and one that I think society has largely accepted. It is the method of “control” beyond that seminal command that I believe warrants greater attention. If environmental markets and private actions are insufficient to prevent extinction (and I realize that that is not always clear, given imperfect data), then government intervention in my view serves as an important role and backstop. And we should all strive for greater flexibility and alternatives short of violating that seminal command.

    My perspective on ESA and voluntary conservation is informed largely by my experience as a former EPA regulator and improving water quality through a mix of regulatory and market-based approaches. These water markets would not work but for regulatory drivers that create demand through clearly defined goals and ground rules. The goal is for cleaner water and we’ll get there through either more or less government intervention. While I agree that many landowners have a sense of “stewardship”, many don’t. And I’m not convinced we can rely solely upon the good will of some landowners to achieve species protection. Ultimately it is a thoughtful balance of the carrot-and-stick that will protect both at-risk species and property rights.

    Thanks, again, for engaging. Unfortunately, so often the debate over ESA reform gets lost in the subterfuge of whether proponents of change care about conservation or are simply looking to “roll back” regulatory protections. In this case, I think our concern for the resource is mutual and abundantly clear.

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