Delhi Fly and Property Rights Can Coexist
The Supreme Court may soon bring the Endangered Species Act of 1973 back into the legal limelight. A coalition of property rights activists, developers and farmers has asked the court to consider a San Bernardino case over the Delhi Sands Flower-Loving Fly that would restrict the scope of the controversial Act. The challenge emphasizes that by excluding property rights, the Endangered Species Act fails to save endangered species.
The fly in question is about an inch long and lives in areas of San Bernardino and Riverside counties. It has been on the endangered list since 1993, although no one knows how many exist today.
Thus far, efforts to save the fly have included everything from a suggestion to halt traffic on the San Bernardino Freeway during the fly’s mating season to development restrictions throughout the Inland Empire to preserving a 100-foot-wide “fly corridor.” The proposals have caused widespread debate, specifically regarding the building site of a planned $487-million San Bernardino County hospital. The hospital dispute, combined with halted construction projects in Colton and Fontana, led to the lawsuit claiming that such application of the Endangered Species Act is unconstitutional.
The case brings to light what happens when property rights are excluded from endangered species legislation. In order to save endangered species, policies must harness incentives, strengthen property rights and reward good land stewardship. The Endangered Species Act fails on all these counts.
Since its inception in 1973, 27 species have been removed, or “recovered,” from the endangered species list. This is not, however, because the Endangered Species Act saved them. Seven species went extinct. Nine should not have been listed in the first place, but instead were data errors made by the U.S. Fish and Wildlife Service. Of the remaining 11, eight were delisted because biologists discovered previously unknown populations of the species.
The three remaining species that were delisted, the Eastern brown pelican, the Arctic peregrine falcon and the California gray whale, legitimately owe their recovery to human action. It was not, however, the Endangered Species Act that saved them. Biologists attribute the repopulation of both the pelican and the falcon to the 1972 ban on DDT. The 1937 and 1946 international treaties that banned commercial whaling in open access waters undoubtedly saved the gray whale.
Recently, Interior Secretary Bruce Babbitt stated that the Fish and Wildlife Service was considering removing 33 additional species from the list, demonstrating that “we can now finally prove one thing conclusively: The Endangered Species Act works. Period.”
Not quite. Of those 33 species, five went extinct, 12 were data errors, one never should have been listed, three recovered due to the DDT ban. Ten exist solely on federal lands where the legislation does not affect them. The final two owe their recovery to state conservation efforts.
The Endangered Species Act has failed because like most environmental laws, it takes a command-and-control approach: It orders people to protect endangered species at their own expense. This approach is well-intentioned, but inadvertently provides misguided incentives that actually harm endangered species. In effect, the Endangered Species Act punishes good land stewardship because any landowner who provides a habitat can have that land taken away by the government if endangered species are found there.
A better approach would be to return to the Endangered Species Act that preceded the 1973 legislation--the Endangered Species Act of 1969. The 1969 law authorized the secretary of the Interior to identify endangered species and then purchase land for their protection and preservation. The FWS already identifies endangered species, and the Endangered Species Act’s budget is more than $100 million. Undoubtedly, Babbitt could purchase a great deal of land to provide habitats with that amount.
In the case of the Delhi Sands fly, a 100-foot-wide corridor may be a good idea, but that land needs to be purchased, not simply taken. Environmental groups that champion endangered species protection could be given local control of the purchased land to ensure the best conditions for the fly. This would allow environmentalists, developers and endangered species to coexist harmoniously, and would avoid the undoubtedly high court fees that result every time the Endangered Species Act challenges the rights of property owners.
In order to protect endangered species, legislation must harness, not infringe upon, property rights. Without such reform, landowners will rightfully continue to fight not only the Endangered Species Act, but endangered species themselves.
