Damien Schiff on the Endangered Species Act
2021-07-18 · Guest: Damien Schiff (Senior Attorney, Pacific Legal Foundation) · 52:28
Endangered Species Act and Private Property Rights
Bob Zadek and guest Damien Schiff of the Pacific Legal Foundation discuss the history and evolution of the Endangered Species Act. They explore how the 1973 statute, originally intended to protect iconic species like the bald eagle, has become a broad regulatory tool that significantly impacts private property rights and economic development.
Topics: Endangered Species Act, property rights, Pacific Legal Foundation, environmental law, biodiversity, constitutional principles Speakers: Bob Zadek (Host), Damien Schiff (Senior Attorney, Pacific Legal Foundation)
The Origins of the Endangered Species Act [00:00]
Bob Zadek: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion with the smartest guests on radio. Live, spontaneous, and thoughtful. It’s the show of ideas, not attitude. Now, your host, Bob Zadek.
Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We’ve been running now for about 15 years, and we are then, now, and in the future, the show of ideas, never once the show of attitude. Thank you so much for listening this Sunday morning.
This morning’s show is a very specific topic with a very specific statute in mind. But during the course of our discussion of this statute, we will cover so much of the core principles under which we Americans live under—the core principles of the Declaration and of the Constitution. So this show is going to be quite specific, quite general, and we will learn about the work of just about my favorite public interest law firm, the Pacific Legal Foundation.
This morning’s topic: we will visit the Endangered Species Act. “Endangered”—kind of a scary word. “Threatened,” “doomed to extinction,” and the like. The Endangered Species Act is a statute that has been around for a while. It perhaps—I guess I have to say—its goal was laudable. It perhaps was a statute that one way or another should have been enacted. But how have we lived under the Endangered Species Act? And what could there possibly be wrong with a statute that just wants to protect species from extinction?
There’s something—there’s a bit of finality about extinction, isn’t there? And we don’t want to cause any—we want to encourage biodiversity. We don’t want to cause the loss of certain species that disappear forever from our planet. So that seems to be a laudable goal. What could we possibly find to discuss about a statute that is trying to preserve species from extinction?
What can we find to talk about? The answer is a whole, whole lot, and you will be astonished at how preserving species from extinction has profound effects upon all of us, upon the economy, upon our property rights, and core constitutional principles. To help us understand all of this, I’m happy to welcome to the show Damien Schiff.
Damien is a property rights hero to me. Damien is the senior attorney for the Pacific Legal Foundation, as I said, my favorite public interest law firm. He heads up its environmental practices group and he has labored long and hard to both protect species from extinction and protect—prop—your property from extinction by the federal government. Damien has visited and has argued cases, or at least one case, in the United States Supreme Court. He was successful. And to share with us what PLF does, why you care about the Endangered Species Act, what’s wrong and what’s right with it, I’m happy to welcome Damien to the show this morning. Damien, thank you so much for joining us this morning.
Damien Schiff: Bob, thank you very much for having me on.
Bob Zadek: Okay, now, Damien, let’s just tee up the issue. I fear—maybe my fear is not well founded, but it’s there nevertheless—I fear that many of the listeners cannot recite the preamble of the Endangered Species Act from memory. I—I fear they have not learned it in high school or in college or in a master’s program. So let’s set the stage. What is the Endangered Species Act? What is its goal? And in a few words—we’ll do a deep dive—why has this statute garnered so much attention from the Pacific Legal Foundation, which exists to protect property rights?
Damien Schiff: Bob, your introduction really hit upon the main theme of the Endangered Species Act: that it’s a statute that wants to preserve certain species from extinction out of a desire to maintain biodiversity, in a sense that if something goes extinct, it’s permanent. We might lose something important for mankind, either through medical developments or just through pure aesthetics.
But I think it’s important for your listeners to understand the origin of the statute and then how, over the course of time, it’s really been transformed through its administration. The modern-day Endangered Species Act was enacted in 1973. There was virtually no opposition to it in Congress. President Nixon signed it with a very prominent signing statement. It was considered non-controversial because at the time everyone thought that it was designed to protect those iconic species that really nobody wants to see go extinct, like the bald eagle or the grizzly bear or the gray wolf or what have you.
However, over the course of 50 years, the statute—because it was written so broadly and because its limitations on private property use are so stringent—it has become a very powerful weapon by employment from environmental protection groups and from government bureaucrats to limit activities on private property. So now the statute is used not just to protect things like the polar bear, but it’s also used to protect things like cave spiders or delta smelts or pesky gopher frogs—species that obviously the Congress in ‘73 wasn’t thinking about protecting, and certainly species that I think most Americans wouldn’t imagine are essential for preservation, especially when placed against private property rights.
The Impact on Private Property Rights [06:45]
Damien Schiff: That’s the other part of the equation here: that we’re not just simply protecting species, but we’re protecting them at a cost. The Endangered Species Act doesn’t just apply to animals and plants that are found on federal or state or local government land. It also applies fully to private property. So if you have private property and you have an endangered species on it, you are very much limited in what you can do with your property. And if you should try to use your property productively anyway, without getting approval first from, say, the Fish and Wildlife Service, you then expose yourself to significant civil and even criminal liability.
And it’s a liability that can be enforced not just by your local federal prosecutor, but—this is really critical—it can be enforced by other private groups, citizen groups, environmental protection groups who can bring their own lawsuits against you, and if they win, can also recover their attorney fees. So this has created a dynamic whereby a statute that was passed non-controversially as something that we can all get behind, has become what prominent environmental law commentators have called the “pit bull” of environmental law, because once you transgress it, it is hard to get out of its snare. It’s a very potent statute, and it is used very strategically and powerfully by groups who are intent upon stopping a lot of productive activity on public and private land.
Bob Zadek: Now let’s unbundle that because you did a wonderful job introducing us to the subject. One of the items, one of the points you made, was the statute was written quite broadly. We have complained on my show quite often about the laziness, the utter incompetence of the legislature in the drafting of legislation. Every law they pass, every law that is passed, almost by definition, is a statute—is a new rule that further limits freedom.
So therefore, one would imagine that every time the legislature takes a step to limit freedom—putting aside the benefit, but focus on the cost, the cost of freedom—every time the legislature passes legislation to limit freedom, one would expect (and one would be disappointed with that expectation) one would expect that every limitation on freedom be as narrow as possible, because the broader it is, the more freedom we lose. And legislatures, because the loss of freedom is buried in broad legislation—it never says “your freedom is deprived from you as follows.” It’s never there; it’s always the result, but not the purpose of the statute.
So, first of all, shame on you, legislature, for yes, enacting a statute that maybe—and we’ll concede—has a laudable goal, but it was carelessly, thoughtlessly, lazily drafted to deprive us of too much freedom, as Damien will explain. Also, Damien said a word which will come back to us quite often, I suspect, during this show, which is the “cost.” When one identifies a goal—saving a species from extinction—nobody can quarrel with that goal as standalone. However, you have to always ask yourself, just like you do in your private life when you make a decision: the decision is every benefit you get is going to be at a cost. There’ll be an economic cost, there may be a cost in loss of time, there may be a cost in comfort.
So we live our life making trade-offs. And the Endangered Species Act has kind of an unusual approach to costs. Most—and Damien, I’ll ask you to fill in on this—but most legislation which is sort of in the public good, such as the Endangered Species Act… The Endangered Species Act doesn’t protect people or people’s rights. Indeed, it compromises rights.
Bob Zadek: But administrative agencies are very often reminded and more often compelled to consider the cost of regulation, and their decision in regulation must produce a positive good. That is, the costs are less than the benefits. Now, the Endangered Species Act is one of the few statutes—I think I’m right, Damien—that specifically says we don’t care about the cost. The species must be protected at all costs. Am I correct that Fish and Wildlife Service and other agencies that administer the Endangered Species Act are given carte blanche to ignore the costs of protecting the species?
Damien Schiff: Yeah, I think you’re right, Bob. I mean, most environmental laws take costs into account to some extent. If not just a simple cost-benefit analysis, at least they’ll say, “Well, we will moderate our command-and-control regulations based upon, say, technical feasibility and cost.” The Endangered Species Act is unique. There’s a famous line from the first Supreme Court decision interpreting the Endangered Species Act from 1978, a case called TVA v. Hill, where the court said that the goal of the Endangered Species Act—Congress’s intent—was to protect endangered species, quote, “whatever the cost.”
Now, what’s interesting is that that language has become almost like a motto or slogan for advocates of the Endangered Species Act since then. However, it is important to bear in mind—and this goes back to your point earlier about how the legislature sometimes drafts carelessly or too broadly—it is important to underline here that the Congress did respond somewhat. After that 1978 decision, Congress amended the Endangered Species Act to allow costs to be taken into account to some extent. And most prominently, you’ll find that in that part of the statute that deals with what’s called critical habitat. So this is the portion of the statute that protects the habitat on which endangered species are found or could be found.
And Congress amended the statute to allow the Fish and Wildlife Service not only to require the agency to take into account economic impact when issuing critical habitat designations, but also to give the government the power to exclude areas from critical habitat on the ground that the economic impact was just too high. Now, unfortunately, as oftentimes is the case when Congress tries to ameliorate something through legislation, the implementing administrative agencies tend not to do a very good job of it. And even though the statute for decades has authorized the government to take into account costs to some extent, the agencies and environmental groups and to some extent the courts have kind of ignored that.
And more recently, a lot of the litigation that has occurred over the Endangered Species Act is designed to try to address this issue, which is: we have some amendments that say take into account costs, and we have in practice kind of an ignoring of that command. How do we fix that? But your underlying point is absolutely correct, Bob, that the Endangered Species Act is written by and large in a cost-ignorant way, meaning you are to protect these endangered species, whatever the cost. Part of the problem, of course, is that really no statute can honestly operate that way. I mean, nobody’s really willing to save a species regardless of the cost. But this rhetoric unfortunately has become so commonplace and unthinkingly accepted that it does result oftentimes in particular injustices where a substantial harm is done to private property rights for a very hard to quantify or maybe not even really valid environmental protection goal.
Weyerhaeuser and the Dusky Gopher Frog [17:12]
Bob Zadek: Damien, give us—give us like what, in your opinion, is the poster child for what’s wrong with the steps taken by Fish and Wildlife and other agencies in merely carrying out what they perceive to be their duty under the Endangered Species Act. The Endangered Species Act, as I teed up the issue, seems rather benign. Let’s protect the species from extinction. We can get our arms around that. But give us an example why the Endangered Species Act—give us like the best example you can think of, just in stream of consciousness, of how there’s an ugly underbelly to enforcement of the Endangered Species Act, and why this has gotten so much attention from PLF.
Damien Schiff: I think the best example is the most recent U.S. Supreme Court case addressing the Endangered Species Act, which we’ve alluded to a little bit already, and that’s a case called Weyerhaeuser Co. v. U.S. Fish and Wildlife Service concerning the dusky gopher frog, which—
Bob Zadek: My favorite. I was hoping you’d pick that.
Damien Schiff: Yes, it is. [The frog hasn’t] been seen on the property for over 50 years, but moreover, that because it was still an active tree farm, that the dusky gopher frog could not survive on the property, even if it were to be planted there. And yet the government was saying this was critical habitat, essential for the conservation of the species. Moreover, even by the Service’s own estimates, by designating our clients’ property as critical habitat, the government was imposing an economic impact of up to over $30 million because of the increased federal regulation that would be triggered through the critical habitat designation.
So we and other groups challenged the government’s decision. The Supreme Court in 2018 ruled unanimously, as a matter of fact, that the federal government was wrong in interpreting the Endangered Species Act to say that land can be considered critical habitat for protected species, even if it actually doesn’t serve as habitat for the species. So I think that’s a great example because people can then see that, wait a second, this statute may be about some noble goal of preserving certain species, but in practice, for whatever motivation, it’s not being implemented that way. And in fact, it’s being implemented in a punitive way, more often than not, to prevent the development of private property.
I think the subtext here on why the Fish and Wildlife Service, why environmental groups cared about our clients’ property, is that it’s in a part of Louisiana that is quickly going through commercial and residential development. And those groups that don’t like to see new homes built, that don’t like to see shopping centers built, that don’t like to see business parks built, use things like the Endangered Species Act to prevent development. They would rather have areas remain undeveloped or underdeveloped than to see them fully developed. And I think that was the subtext here that by getting this property designated as critical habitat with all of the costs that go with it, it would make any other use of the property economically infeasible.
And unfortunately, that’s an aspect of the administration of the Endangered Species Act that I think Congress certainly in ‘73 was not anticipating. And of course, now it’s obvious to everybody, but the Congress is certainly not in any likelihood going to be amending the Endangered Species Act in a positive way anytime soon. So we’re to some extent stuck with it, but thankfully the courts, including the Supreme Court, have started to notice that yes, there is a problem here and are gradually addressing it case by case.
Bob Zadek: Two comments on the dusky gopher frog case. As I recall, that frog had another name that Fish and Wildlife or somebody, whoever is in charge of renaming species—its original name was the Mississippi gopher frog because it was found in Mississippi. But that wouldn’t have been very persuasive. You couldn’t complain and impose restrictions on land in Louisiana to protect the Mississippi gopher frog. So step one was, “Let’s change the name to the dusky gopher frog.” And number two, let’s ignore the fact that frogs generally don’t take airplanes, and there is no sensible way for a frog to get from Mississippi to set up a new home in Louisiana in the forest.
Putting all that aside, those are fun facts about the case. Besides, if I can give a shout-out to PLF, it was, as you said, a unanimous decision, and if I remember correctly, that was one of eight or nine victories in a row that PLF had at the U.S. Supreme Court. I may be a little bit wrong on my statistics—it may be seven or eight victories—but it’s just a wonderful case to talk about because it’s one in a great line of victories for PLF.
So what happens is you take a statute with a laudable goal, and it imposes a $50 million—or could have—cost on a private landowner who just wants to go about continuing to harvest timber off timberland. And one comment I’ll notice: Damien said they farmed timber. Bear in mind that trees are a renewable crop. And so all this concept about cutting down a tree and having Joyce Kilmer sob in her grave about “I think that I shall never see a poem lovely as a tree”—don’t worry, Joyce. Trees will grow back.
The Hidden Cost of the Endangered Species Act [22:34]
Bob Zadek: So Damien makes a point in passing that I want to just remind our audience: trees are not being taken down, never to return again. They are simply being harvested and replaced by more trees. So bear that in mind when you follow litigation trying to prevent the farming operation of logging.
Now, I drew the attention of our listeners to your use of the word “cost.” And the reason I did that was once we decide—and we kind of have decided—that it is a law, it is a praiseworthy goal to protect a species from extinction. And also, obviously, that involves a cost. Somebody’s land is going to be deemed to be less productive. That’s a cost to the landowner, or if it’s government land, then government owns the land at a collective cost to us all.
So once we acknowledge that yes, there is a cost, and yes, the goal is in general a positive goal that we all could embrace, the next really important question is: who should pay for that? And Damien, I would like you to address a core property rights issue, because that’s, after all, one of the reasons that PLF exists: to protect property rights. So tell us about how the Endangered Species Act is really nothing other than a very specific tax on very specific landowners in order for those landowners to give up value for the benefit of everybody. And that’s—if I’m right—it seems to me quite unfair. If there’s a public benefit for all, then all of us should pay, not the landowner. Could you please speak to that issue?
Damien Schiff: I think you’ve articulated it, Bob, very well—that the Endangered Species Act is a great example of legislation that purports to create a public good that everyone can enjoy. But the costs of producing that good are systematically and disproportionately placed on individual, typically rural landowners.
So the idea is, “Ah, we’ve now preserved,” for example, the Dusky gopher frog, which is an amphibian that is found, as you know, mainly in Mississippi, and they thought maybe we could have it extend to Louisiana. But what is the cost of protecting and trying to encourage the growth of the Dusky gopher frog? Well, the cost is the limitation of private property rights of just a handful of landowners, including our clients. That is a little unjust because why are individual landowners being singled out to produce this ostensibly public good?
I mean, the best way to rectify that injustice is to compensate individual landowners who are required to forgo using their land as they would otherwise prefer in order to conform their conduct with the Endangered Species Act’s limitations and then ostensibly to further the conservation of whatever species is at issue. That would be a really just outcome.
Now, one reason why that’s not done is because if we actually compensated people for the costs of Endangered Species Act regulation, people would then realize, “Oh my goodness, the Endangered Species Act is an incredibly expensive law. Maybe we shouldn’t keep that law. Maybe we should try to amend it because it isn’t particularly successful at preventing the extinction of species or at least encouraging their full recovery.”
But when you’re able, as a legislator or as a government administrator, to shift the costs of your regulation onto individuals and not generally over society, then society unfortunately develops the idea that, “Oh, we’re getting all of these great goods by conservation of habitat and preservation of species for no price whatsoever,” because the costs of producing those goods are effectively hidden because they are disproportionately loaded upon individual landowners.
Now, in the late 1990s, there was an effort—and it’s been resuscitated occasionally since then—to amend the Endangered Species Act to do precisely this: to authorize compensation, at least for those instances where individual landowners are particularly burdened. And not surprisingly, that legislation has been defeated because those who support the Endangered Species Act from the environmentalist side recognize the same thing that we do, which is that yes, this is very expensive legislation, and if we actually have to start paying for the costs of it, the general public estimation of the Endangered Species Act as a great law will probably suffer quite a lot.
Now there is another way of getting compensation, even if Congress doesn’t do anything, and that’s through litigation under the Constitution and the Fifth Amendment, which says that private property shall not be taken for public use without just compensation. And there have over the years been a few efforts to use that constitutional provision to obtain just compensation for the limitation of private property rights. There hasn’t been much success, in part because of how the law has developed with the so-called takings lawsuits that require, before you can bring such a lawsuit, that you first ask the government if you can get a permit to use your property despite the contrary legislation. And the reason why this has become an obstacle for bringing these types of cases is because it costs quite a lot just to apply for an Endangered Species Act permit. And those costs are not reimbursable, so to speak.
Bob Zadek: I have felt it important to discuss an environmental statute on a show that focuses on libertarian principles and the sanctity of private property—the taking of property without just compensation. It really raises core, core constitutional issues. And you mentioned so much, Damien, in that brief explanation. You pointed out that environmentalists would really prefer to focus on the good part of it: preserving a species. Nobody can really, in the abstract, object to that. And if that becomes the debate, then those who might oppose it have to lose.
However, the legislatures are quite fond of giving benefits to their constituency, giving goodies to the constituents. And they want to do it without telling constituencies that, “We are giving you a benefit, and the benefit comes at a cost.” In other words, it’s not a gift. You’re selling something to the public, and the public is compelled to buy it with their own money. Legislatures don’t like—they like gifts; they don’t like to make sales of public benefits. They like to give it away. And therefore, any way that legislatures can find to disguise the cost and accentuate the benefits, it’s an easy sell. To the public, it’s free.
“Preserve the Mississippi gopher frog” is a good thing, and kudos to the legislature who has done that. But not if there’s a cost that all of us have to pay. But we don’t get to vote on the cost. We only get to feel good about our legislatures who have given us a benefit. So the Endangered Species Act, in its enforcement, simply buries the cost and taxes those random landowners who, through bad luck, find themselves in a situation where some species happens to be really comfortable living on your land, and having discovered that, you’re now doomed. And because of the random selection of the species to your land, you have to foot the bill.
That just strikes me as being wrong. It’s wrong under first principles of our country, which is the sanctity of private property. And if you want to simply support the Endangered Species Act in a way that is true to first principles, then you would simply say, as Damien has just said, “Yes, it is a laudable goal. We embrace it, and we, the taxpayers of the country who are getting the benefit, have to foot the bill. And we will decide if that’s good legislation.”
So Damien, thank you for that because it shows how arbitrary and how unfair it is that some lone landowner discovers to their utter dismay that some species may be comfortable living on their land, and they are then hit with a very specific tax that only applies to them.
And you mentioned the takings—just so the audience can follow, Damien. The Constitution, of course, prevents government—the federal government, and then by the 14th Amendment, the states—from taking property without giving just compensation. But the issue is in what Damien has mentioned as the Takings Clause. The issue is if you are regulating property but saying to the landowner, “You can still own the property; we are not taking it from you. We simply are regulating what you can do with it.”
Is that regulation a taking? And there the law gets kind of murky, and the question is whether the taking—the regulation—has so much removed the value of the property to, in effect, constitute a taking, or whether, “No, no, you still have your property; you can still walk on it and do certain things with it. So we haven’t taken your property; we’ve only limited the use.” And limiting land use is very common throughout the country.
So Damien, I think the problem would go away if the takings litigation was more sympathetic to any taking—any material alteration in the value is a taking and requires compensation. Nobody could really quarrel with that.
Regulatory Takings and the “Wipe Out” Rule [34:49]
Bob Zadek: After all, we’re just compensating a private citizen for action of the government and taking away their property. Isn’t that the fault line of how the take—how regulatory takings have been looked at in the courts?
Damien Schiff: It is, Bob, and I will say that this issue of regulatory takings is a top priority for PLF in our—in our litigation, in our outreach, trying to get the courts to develop a doctrine that’s more generous to the property owner. The way the law stands right now, if you are a property owner and you are told that you can’t use your property in this way or that, and as a consequence of that use limitation, the value of your property, say, falls by 90 percent, almost all courts would still say zero compensation.
The case law has developed in such a way that unless you can show an almost total wipeout in value, it’s very unlikely that you’ll get any compensation. And this really unjust framework, I think, deserves attention by the Supreme Court, and we hope to get the issue back up to the Supreme Court soon.
But if I could go back to one other thing, too, about the Endangered Species Act and takings and compensation. You know, we’ve been talking a lot about how this is an unjust law from the property owner’s perspective. But I think it’s also important to underline that even if you don’t care one whit for private property rights, and you just simply care about the most effective regime for preserving endangered species, you should still agree with what we’ve been saying.
Because as soon as you tell landowners that, “You know what? You’re gonna get no compensation for having endangered species on your property, for maintaining habitat,” what will happen then is that you will create a very strong disincentive for maintaining your property as habitat that is attractive to endangered species. And this has been a dynamic that has been documented over the years in a lot of different contexts, whereby as soon as a species is listed as an endangered species and its habitat requirements are promulgated, property owners throughout the range of the species do their best to eliminate those features on their property that might be attractive to the endangered species.
And this, of course, is legal. There’s no—there’s no law against doing that. But it’s obviously strongly, strongly counterproductive to the preservation of the species. And yet that is the problem that the Endangered Species Act has created. It has this desire to conserve the environment, to conserve endangered species, but all of its incentives are against that. All the incentives are against landowners doing anything to cooperate with the endangered species limitations and for the preservation of species.
You would eliminate that disincentive entirely if a landowner knew that, “You know what? Even if I do end up finding that endangered gopher frog on my property, I’ll be okay because I’ll know that the government will compensate me justly for what I’m now no longer able to do because the species is in my property, or because I’m not going to use my property in a way that will eliminate important habitat.” By doing that, you one, will almost certainly more effectively encourage conservation than the current regime. And by the same token, one will also respect the private property rights of those landowners who are singled out for the limitations on their private property rights because of the presence of endangered species.
The Criminalization of Land Use [41:12]
Bob Zadek: Not only that, but you mentioned a point in your introductory comments. You pointed out—and I want to revisit that because I think it’s important—is that we’ve talked up to now about property rights, diminishment in value, and just how wrong it is to do that without compensating the property owner. However, there’s a really ugly component, and that is the use of criminal law as part of the enforcement.
And the reason I want to focus in on that is on many shows, I have—I have had guests and we have discussed the fact that criminal law has become distressingly useful to the legislature in motivating people to carry out government policies. And the reason that is wrong is that when you make an act a crime that is not in the normal cost of living—it’s not wrongful; it doesn’t strike us as being a bad act; it’s not a harm to personal property; it’s not theft or fraud; it’s just doing something with your own land—you in effect almost force otherwise law-abiding citizens to become criminals.
And Damien, I’m sure you can give us some examples, and I’ll—I’ll pause it a moment and have you give—offer an example if you have one. But what happens is as a result of making law—otherwise lawful citizens, making them into criminals, the result to society, and it’s profound, is that there becomes in general a lack of respect for the law because the law seems irrational and unfair. It’s not—there’s nothing inherently wrong with the act. We declare it to be a crime, and we therefore take away somebody’s liberty for doing something with their property. So are there any examples that come to mind where the criminalizing of your own land use and your behavior towards threatened species has made criminals otherwise—in otherwise law-abiding citizens?
Damien Schiff: This issue has come up a lot, as you can imagine, throughout the Act’s history. And one example is in the Southwest, where one has ranchers dealing with depredations of their—of their livestock, cattle and sheep and what have you, from what appear to be coyotes, which are not protected under the Endangered Species Act. And so ranchers will oftentimes try and use non-legal methods, but sometimes they have to use lethal methods to fight back against depredating coyotes.
Unfortunately, a coyote can oftentimes look very closely—it appear very similar to an endangered Mexican gray wolf. And the environmental community over the last several years has been trying very, very hard to get the courts to accept the idea that if you’re a rancher and you in good faith honestly believe that your livestock is being attacked by a coyote and—or some other non-unprotected animal and you shoot the coyote or other animal, and it turns out that despite your good faith belief it actually was an endangered Mexican wolf, that you are then criminally liable, despite the fact that you had the right intention, despite the fact that you might not have any reasonable opportunity to have known it’s otherwise than a coyote. Nevertheless, you’re criminally liable.
And of course, you know, that is—we go back to—to kind of the theme of the—of the show, this statute is written very broadly, and it is true that that there are criminal liabilities for the Endangered Species Act, and they are by and large strict liability. Strict liability meaning that you don’t need to know that what you’re doing is illegal. You don’t need to know that there’s some sort of traditional moral—immoral harm that you’re creating. All you need to know is that you were consciously doing what you did. And the legal consequences of that, in the case I just mentioned, whether it’s a coyote or a wolf, even if you made a good faith mistake, that’s no defense.
And so, because the statute is so broad, there is this great risk. Now, of course, with criminal liability, unlike civil liability, you can—it can’t be litigated by a private party. So even though an environmental group could sue you civilly for using your property in a way that they think violates the Endangered Species Act, they don’t have the authority to do that criminally. That is something that the U.S. Attorney for the area decides.
And by and large, I will say that the federal Justice Department and U.S. Attorneys have been judicious in their prosecutorial discretion, but they’ve been pushed, and they are being pushed by the environmental community to change that and to be much more aggressive in the criminal enforcement part of the Endangered Species Act. And as a consequence, there is a great risk that one will have a lot—even more injustices committed by people who believe that they’re acting lawfully, but as it turns out, by an innocent mistake, they have violated the Act and now find themselves criminally liable.
Bob Zadek: So what we have is we have this hypothetical rancher. And I just ask yourself, my friends out there, whether it strikes you as being appropriate that your government, acting in your name, puts that hypothetical rancher who accidentally killed a Mexican—um, I forgot a Mexican gray wolf, I think you said—um, uh, accidentally, whether society is better off if that rancher is in prison and is deprived of her liberty, whether that should be done in your name or not. And I say absolutely positively not. Freedom is to be valued too highly to cheapen it by putting that hypothetical rancher in jail, and it is a gross misuse of criminal law to accomplish what may be an appropriate goal, but it’s the wrong tool to do that.
Reforming the Endangered Species Act [45:21]
Bob Zadek: And I abhor the fact that liberty gets cheapened in that way. Now, what would be your recommendations, your hope as to how a more competent, a more thoughtful legislature would protect the species in a way that’s consistent with our country’s first principles?
Damien Schiff: I think one thing, Bob, is certainly to have costs taken into account. And this is something that’s come up throughout our conversation this morning. We can leave it to the discretion of the legislature legislature as to how to do that, but whether you factor in costs in the front end in terms of deciding, “All right, whether we should even protect the species to begin with, we should take into account how expensive is this going to be,” or whether we take costs into account at at the back end—meaning we protect all species regardless of the cost, but then when we find that individuals are disproportionately burdened with protecting those species, we’ll compensate those individuals—I think that is is certainly the first, the first and most important point.
I think a second point is more generally to encourage landowner cooperation. Don’t interpret the act, don’t enforce the act in a way that will disincentivize private property owners from using their property in a way that will help species conservation and preserve their habitat. View landowners as potential partners, not as enemies.
And lastly, with respect to criminal liability and other serious civil liability, reserve that for only the really bad actors. Don’t criminalize conduct that is in good faith trying to conform to the law. The example of the rancher: if someone really believes that he or she is acting appropriately and the act is not intrinsically wrong, but just simply something that the government has decided to regulate, let’s not regulate that—let’s simply not criminalize that.
And I think if you employ those three general approaches to reform, you’ll find not only that private property rights will be much more respected, but I think you also find that the goals of the Endangered Species Act will be even more effectively furthered. Endangered species and their habitat will be more effectively preserved, precisely because one has now respected private property rights and ensured that individual property owners are not unjustly targeted.
The Regulatory Pendulum [48:30]
Bob Zadek: You have written persuasively, Damien, and passionately, I dare say, in commenting on—since we’re in the early days of the Biden administration—how dramatic, dramatic the regulatory climate environment, if you will, changes from administration to administration, and how hard it is for businesses and the public at large to adjust. After all, we all benefit from predictability. We like to plan into the future, and our planning goes—it transcends one administration or another. And if no one can plan beyond the remaining term of an existing administration, it imposes an uncertainty, which is simply a cost of being alive and conducting a business that we all have to bear.
So I wonder if you can comment about how profound the change has been from Obama, Trump, Biden, and what’s the effect upon the business climate and upon citizens. We have about a minute to go, but if you could comment upon that—how difficult it is to manage one’s business affairs and personal affairs with unpredictability.
Damien Schiff: The regulatory pendulum swing back and forth is certainly not good for anybody, whether it’s a businessman or an employee or a private property owner or even an environmental advocate. Uncertainty is never good. But in particular with the Endangered Species Act, it’s really sad to see some good reforms that are now trying to be revoked.
At the—towards the end of the Trump administration, the Fish and Wildlife Service issued a number of new regulations that would have required economic costs to be taken more into account and would also have given the government a little more discretion in deciding to what extent do we want to fully regulate or only partially regulate. And all of these things were designed to make the Endangered Species Act a little more respectful of private property rights.
Unfortunately, last month the Biden administration announced its intent to withdraw those regulatory reforms. Now, this is just the first step in the process, but if the administration does follow through in revoking those, we’ll just go back to the way things were in the Obama administration and earlier, where we had what was frankly an unjust situation: private property rights being ignored, endangered species not being effectively conserved, and a lot of rancor created between environmental advocates and property rights advocates. And that’s not really good for anybody.
So let’s hope that the administration’s proposals don’t succeed. If they do succeed, perhaps they can be defeated by litigation. But it is unfortunate to see the pendulum swing back dramatically in favor of government regulation and against private property rights.
Bob Zadek: I’m Bob Zadek. I’ve been speaking with Damien Schiff, who heads the environmental practice group of PLF, a major property rights public interest law firm. Please follow the work of PLF and of Damien Schiff, S-C-H-I-F-F. If you have enjoyed this podcast and this live show, please let us know. All comments are welcome, good and bad. Suggestions are always welcome on your podcast. There is a way to indicate your pleasure with our show by checking the right number of stars and giving us your comments.
Thanks so much for PLF—I mean that from the bottom of my heart—and thanks so much for Damien for sharing an hour of his wisdom and his thoughts and his work. Thank you so much, everybody. I’ll be back again next Sunday. Enjoy the rest of the weekend.