Moving Away From Command and Control: The Evolution of Incentives to Conserve Endangered Species on Private Lands

• Author: Melinda E. Taylor
• Pages: 441-456

Chapter 26

Moving Away From Command and

Control: The Evolution of Incentives

to Conserve Endangered Species on

Private Lands1

by Melinda E. Taylor

I. Introduction

Private lands play a critical role in the conservation of endangered species.

More than 90% of the over 1,260 species on the federal threatened and en-

dangered list2occur on private land; one-half occur exclusively on

nonfederal, i.e., private and state-owned, land.3The federal Endangered

Species Act (ESA)4has not been as successful in protecting rare species on

private land as it has been on federal land. This is perhaps most evident in the

fact that species whose habitat is entirely on private land are faring much

more poorly than species whose habitat is entirely on federal land. Accord-

ing to the U.S. Fish and Wildlife Service (FWS), for species that occur only

on private land, only 3% are considered to be improving in status and declin-

ing species outnumber improving species by a ratio of 9 to 1.5In contrast, of

the species that occur entirely on federal land, approximately 18% are im-

proving and the ratio of declining species to improving species is approxi-

mately 1.5 to 1.6

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1. Portions of this chapter were presented by the author at a conference sponsored

by CLE International in Austin, Texas, on September 13, 2002.

2. See 50 C.F.R. §§17.11, 17.12 (2001).

3. David S. Wilcove et al., Rebuilding the Ark: Toward a More Effec-

tive Endangered Species Act for Private Land 3 (1996).

4. 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18.

5. Wilcove et al.,supra note 3, at 3.

6. Id.

There are many theories to explain why species that rely on private lands

are not doing as well as species on federal lands, including the lack of suffi-

cient funding for the federal agencies charged with managing recovery of the

species and absence of aggressive enforcement for violations of the ESA on

private lands. But it seems clear that one important reason is the fact that the

ESA’s “command-and-control” approach to endangered species protection

is not particularly effective for private landowners. This chapter will explain

the statutory provisions that apply to endangered species protection on pri-

vate lands and the shortcomings of those provisions, and will describe three

relatively new,flexible, incentive-based policies for private landowners that

have made a dramatic impact on endangered species conservation: safe-har-

bor agreements, the no surprises policy, and conservation banking.

II. Legal Framework for Protecting Endangered Species on Private

Lands

The ESA’s principal mechanism for protecting endangered species on pri-

vate land is §9 of the Act, which makes it illegal for any “person” to “take” a

listed species.7“Person” is defined broadly to include individuals and other

private parties, as well as state, federal, and local government entities.8

“Take” is defined in the ESAto mean “to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage in any such con-

duct.”9The FWS has defined “harm” as:

[A]n act which actually kills or injures wildlife. Such act may include sig-

nificant habitat modification or degradation where it actually kills or in-

jures wildlife by significantly impairing essential behavioral patterns, in-

cluding breeding, feeding, or sheltering.10

Penalties for violating §9 of the ESAare harsh and include civil fines of up to

$25,000 for each violation and criminal fines of up to $50,000 for each viola-

tion and/or imprisonment for up to one year.11

Despite the stiff penalties and sweeping language, the “take” prohibition

in §9 is not absolute. It does not apply to plants, which make up more than

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Biodiversity Conservation Handbook

7. 16 U.S.C. §1538(a)(1)(B). Section 9 makes it unlawful for any person to take

any “endangered species of fish and wildlife.” The FWS extended the take pro-

hibition to threatened species by regulation. 30 C.F.R. §1731(a) (2001). For

additional discussion of the ESA, see supra Chapter 18.

8. 16 U.S.C. §1532(13).

9. Id. §1532(19).

10. 50 C.F.R. §17.3 (1999). The U.S. Supreme Court upheld the FWS’ regulatory

interpretation of “harm” in Babbitt v. Sweet Home Chapter of Communities for

a Greater Or., 515 U.S. 687, 704, 25 ELR 21194 (1995).

11. 16 U.S.C. §1540.