“We should not yank people’s private property rights to make people comply with regulations.”
-Matthew McKeown, Deputy Solicitor, United States Department of Interior
Addressing the Eighth Annual National Conference on Private Property Rights,
Sponsored by the Property Rights Foundation of America,
Albany, N.Y., October 23, 2004

The Endangered Species Act is a failure, both as a means of establishing endangered species at secure, stable populations that do not require expensive, intrusive government intervention to be certain of viability in the relatively foreseeable future, and as a statute and regulatory structure that promote freedom, especially private property rights and private property ownership, which are the foundations of our constitutional government.

Over many years, numerous changes have been discussed that would improve the legal climate to overcome these two charges against the Endangered Species Act. Based on observations on the intractable deficiencies of the current situation, the Property Rights Foundation of America would like to offer a series of interrelated proposals for improvement.

1. The Endangered Species Act should not be re-authorized unless full protection of private property rights is provided.
2. Designations of endangered species (threatened, and rare, etc., -read same meaning below at each reference to endangered species) should be solely based on peer-reviewed science.
3. Selection of habitat to protect endangered species should be solely based on peer-reviewed science.
4. All habitat on private and government-owned property that has been designated for the protection of endangered species should be inventoried, whether under federal or state laws.
5. All habitat on private and government-owned should be evaluated and classified, enabling the decision-making process to follow, with selection of protected area based on quality of habitat, after favoring government-owned land for designation. …continued
6. A peer-reviewed national plan for protected habitat required to protect each endangered species should be promulgated, while maximizing the overlap of protected habitat for differing species in any geographic area, to minimize the geographic area to be designated protected habitat. Government-owned land should be favored for protected habitat, to minimize protected habitat designated on private land.
7. No new restrictions on private property should be imposed until the national habitat protection plan is completed and mapped, public hearings held, and the plan is officially promulgated.
8. Restrictions of use of private property for protection of habitat should be compensated in the same way that an easement for any other occupation of private property is compensated such as in the case of a utility easement. Term easements and leases should be preferred over perpetual easements. The imposition of government use of private property should be offered for negotiation and compensation, followed, if necessary to settle the terms, including price, by condemnation under federal eminent domain procedure law.
9. In addition, the federal government should implement a system of voluntary reserves on private property, where property owners receive annual lease payments for establishing protected habitat. Where long-term leases are negotiated, these would be counted in the national habitat protection plan’s final inventory of protected habitat and weighed against the need for protection of habitat on a compulsory basis.
10. Owners of all existing designated protected habitat on private property that is not re-designated as a result of the national habitat protection plan should be notified that they are relieved of the regulatory burden of providing protected habitat.
11. The National Endangered Species Act should be restructured to supersede all state and local endangered species protections on private property. This means that if protected habitat on private property is not provided for in the national habitat protection plan in a particular location and if the private property owner is not fully compensated by the federal government or engaged in a fully compensated federal or state voluntary habitat protection program, the location will be entirely exempt from regulation at any level for protection of endangered, threatened, or rare species.

Discussion Draft - Presented by
Carol W. LaGrasse, President
Property Rights Foundation of America
November 16, 2004

“No person shall be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use without just compensation.”
- Amendment V, United States Constitution

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