Biodiversity Loss, Viewed through the Lens of Mis-matched Property Rights

Americans like the image of wildlife, dislike the costs associated with maintaining it, and petulantly pretend that the two inexorably intertwined are separable. Property theory unwittingly replicates this bifurcated thinking, with disastrous results for biodiversity. Amidst growing awareness of ecosystems as complex adaptive systems, it is time to bring a new perspective to the decades-old analysis of wildlife preservation. Happily, innovations in property theory provide a radical opportunity to re-examine how humans and wildlife interact. We are observing a disruption in property theory in real time, writing even as it is happening. For decades, property theorists have envisioned rights as bilateral, focusing on intersections between directly adjacent landowners, or landowners and government actors. This over-simplified, two-dimensional model of property rights has resulted in laws that facilitate epic socio-ecological imbalances. Commentators and scholars observe these imbalances, but have yet to identify that the root of the problem is not property itself but instead a flaw in the theoretical construct of property. In this paper, we apply the emergent theory of mismatched property rights to the problem of biodiversity loss. We observe that wildlife habitat for a single species can consist of tens of thousands of acres. Land parceling systems artificially divide wildlife habitat, fragmenting ownership of landscape-level resources. Managing large-scale habitats requires coordinating the interests of many property owners, often with divergent views on habitat management. Public lands avoid this feature, but nevertheless still have competing resource users seeking to maximize allocation of natural resources rights. Wildlife habitat provides a particularly challenging variation on the theme of mis-matched property rights. In this context, a primary stakeholder—wildlife—owns no property rights and cannot represent itself. We suggest that stakeholder collaborations are one understudied tool that functionally reincorporates wildlife resource uses into the existing property regime. Stakeholder collaborations bring together parties with a shared interest in—but divergent views on—a problem. The group works collaboratively to craft solutions to the problem, often in parallel with formal systems of government. In terms of mis-matched property rights, collaborations serve to re-scale resources so that they can be efficiently managed at their natural scale. Close examination of resource fragmentation in these examples illuminate how stakeholder collaborations enable different actors to operate a parallel communal governance model that operates in tandem with law and private land ownership. Stakeholder collaborations cross administrative and property boundaries to create a landscape-level management plan that accommodates overlapping rights within differing boundaries. The reflect a middle-way in resource disputes that courts cannot achieve and serve to integrate resource users without formal property rights. In this way, they appear to be playing a crucial, under-appreciated role in stemming biodiversity loss.