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Property Rights Foundation of America Background Brief

The Endangered Species Act
A National Policy of Modernization To Protect Private Property Rights

"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.
The Endangered Species Act has facilitated access to the courts by radical activists to impose their agenda, thereby infringing on private property rights, interfering with scientific listing of species, obstructing worthwhile projects, locking up valuable resources, causing dangerous mismanagement of government-owned land, and resulting in economic hardship for rural Americans.
Over many years, numerous changes have been discussed that would improve the legal climate to overcome these important 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. Private Property Rights
The Endangered Species Act should not be re-authorized unless full protection for private property rights is provided.

2. Sound Science for Species Determinations
Listings of endangered and threatened species should be based solely on independent, peer-reviewed science. Studies to determine endangered or threatened status and whether an organism deserves recognition as a separate species should be conducted by independent scientists who are not in the employ of the federal government or environmental organizations. DNA analysis should be a requirement for determination of recognition as a separate species.

3. Habitat Criteria
Selection of habitat to protect endangered and threatened species should be based solely on independent, peer-reviewed science.

4. Habitat Inventory
All habitat on private and government-owned property that has been designated for the protection of endangered and threatened species should be inventoried, whether under federal or state laws. This inventory should be updated yearly.

5. Habitat Classification
All habitat designated for protection for endangered and threatened species on private and government-owned land should be evaluated and classified, enabling the decisionmaking process to follow, with selection of protected areas based on quality of habitat, after favoring government-owned land for designation.

6. National Habitat Protection Plan
A peer-reviewed national plan for protected habitat required to protect each endangered or threatened species should be promulgated, while maximizing the overlap of protected habitat for differing protected species in any geographic area, to minimize the total acreage to be designated protected habitat. Government-owned land should be favored for protected habitat, to minimize protected habitat designated on private land.

7. Moratorium on New Habitat Restrictions
No new habitat-related 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. Compensation and Minimizing Property Rights Restrictions.
Restrictions on the use of private property for protection of habitat for endangered and threatened species should be compensated in the same way that an easement for any other occupation of private property is compensated, for example, in an easement for a right-of-way. Leases and term easements should be preferred over perpetual easements. The imposition of government use of private property for habitat for endangered and threatened species should be first offered for negotiation for terms, including price. Compensation, if necessary to settle the terms, including price, should be by condemnation under federal eminent domain procedure law.

9. Private Property Rights Ombudsman
A Private Property Rights Ombudsman, modeled after the office of Property Rights Ombudsman in the State of Utah should be established in the U.S. Department of Interior. Individuals should be able to come to the Ombudsman for advice at any time, and receive, without charge, information, mediation, and informal and formal opinions on their behalf on the full range of issues including habitat designations, eminent domain, compensation demands, and other issues related to constitutional property rights involving the Dept. of Interior.

10. Compensation for Regulatory Takings
Compensation for regulatory takings at any level by establishing habitat for endangered and threatened species on private property should be provided for in the Endangered Species Act, using Measure 37 passed by Oregon's voters in November 2004 as a general conceptual model. The compensation should be equal to the reduction in the fair market value of the affected property interest resulting from enforcement of the habitat requirement as of the date the owner makes a written demand for compensation under the act. The Department of Interior would have the option of discontinuing enforcement of the habitat protection or the property owner would have a cause of action for compensation. Compensation should include the cost of litigation. The Department should bear the cost of appraisals for the property owner, but the property owner should have the right to select his appraiser.

11. Voluntary Reserves
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.

12. Competitive Bidding
Competitive bidding to establish habitat for species protection required to meet the acreage and habitat quality requirements under the national habitat protection plan should be the preferred method for utilizing privately owned property. In the interests of fair competition, non-profit organizations and owners proposing to utilize lands already encumbered with conservation easements should not be allowed to compete to provide this service.

13. Outdated Habitat Protections
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.

14. Federal Law to Supersede
The national Endangered Species Act should be restructured to supersede all state and local endangered, threatened, and rare 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 and threatened species. The United States Attorney General should be authorized to defend property owners, at the request of the U.S. Dept. of Interior Property Rights Ombudsman, against enforcements by state and local government agencies to protect species and their habitats.

15. Judicial Remedy Eliminated
Nothing in the Endangered Species Act shall create a cause for standing for judicial review of habitat protections for endangered or threatened species or for judicial review of species listings.

***

"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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