Endangered Species and Timber Harvesting: The Case of Red‐Cockaded Woodpeckers

I. INTRODUCTION The issue of differentiating legitimate public regulation of private property from regulatory takings has become important and controversial in the United States. The Endangered Species Act (ESA), probably the most powerful environmental regulation ever enacted in the United States, is in the center of this controversy. The modern version of the ESA was enacted in 1973, and it has been amended several times since. The ESA is intended to protect species from becoming extinct. The ESA creates two main processes: the designation of species and their critical habitats through listing, and protection. Souder (1995) shows that listing is important because it triggers the four major provisions of the ESA, which are to conserve listed species, avoid jeopardizing them, avoid destruction of critical habitat, and avoid taking them. Under the ESA, no person may take endangered or threatened species. In the ESA, "the term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct" (16 USC Section 1532 [19]). Furthermore, the U.S. Department of the Interior has defined the statutory term harm as "an act which actually kills or injures wildlife, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering" (50 CFR Section 17.3 [1995]). This regulatory definition has been upheld by the U.S. Supreme Court (Sweet Home v. Babbitt, II S.Ct. 714 [1995]), and it is the fulcrum on which the government levers regulation of private land. Because habitat modification may be a "take," Flick et al. (1996) indicate that the normal forestry activities of landowners fall within the purview of the U.S. Fish and Wildlife Service on lands with endangered or threatened species. U.S. Government Accounting Office (1995) shows that more than 80% of listed endangered species have some habitat on private lands that are mostly used for forestry or agricultural purposes. Furthermore, the list of endangered or threatened species is growing continually with no limit in sight. Because the ESA prescribes behavior and extracts use rights from the bundle purchased or inherited by private landowners, its potential reach over private land is very large yet uncertain. Few publicly provided incentive programs have been offered to private landowners for protection and enhancement of endangered species until very recently. (1) Because of this "stick" approach to public policy regarding endangered species, the usual presumption is that, other things being equal, landowners will avoid management activities that might attract endangered species onto their lands and possibly develop their lands early. (2) This belief continues to produce advocates for protection of private property rights, not only from private landowner organizations but also from public agencies and some environmental groups. Recently, the U.S. Fish and Wildlife Service, with the support of the Environmental Defense Fund, designed and implemented the Safe Harbor Program, No Surprise Policy, and No Take Regulation, as noted by Zhang (1999). These policies were in part designed to mitigate the existing incentives to manage against endangered species on private lands. On the other hand, individuals and groups who want to stop development, construction, or logging may latch onto the ESA as a tool to do so, with little or no concern in fact for listed species. "Not in my back yard" and other motives are served well by the strong ESA as currently formulated. As such, these individuals and groups who can be labeled as bootleggers are no doubt supportive of the current ESA. (3) However, with the exception of Lueck and Michael (2003), there is little empirical evidence in support of the view that weakness in the current endangered species-related regulations impedes good management and stewardship of forest resources. …