Coyote Blog

A reader emailed me this article about the Endangered Species Act at work:

The sharp chirps of the endangered red-cockaded woodpeckers and the
whine of chain saws sound discordantly in this coastal community of old
pine forests....

The woodpecker's status as an endangered species requires special
measures to try to prevent its extinction and restore its population,
wildlife officials say. That's the law. Wildlife officials gave the
town maps pinpointing woodpecker nests. No building or tree cutting is
allowed within 200 feet of a nest tree without a federal permit. Some
restrictions on development also apply to 75-acre circles around each
nest site to provide foraging area for the birds....

Since word got around this spring that owners could
face problems selling land or building houses where the birds lived,
people have been rushing to clear undeveloped lots of pine trees and
yanking the woodpecker welcome mat.

More than anywhere else in
North Carolina, Boiling Spring Lakes is a place where the coastal
development boom and the federal Endangered Species Act have collided.

"People
are just afraid a bird might fly in and make a nest and their property
is worth nothing," said Joan Kinney, mayor of Boiling Spring Lakes in
Brunswick County. "It is causing a tremendous amount of clear-cutting."...

Bonner Stiller, a state lawmaker from Brunswick County, has owned a
pair of lots as an investment here for more than 20 years. He cleared
them recently. Stiller said he was sorry to lose the trees but wanted
to protect his investment.

"You had to get in line to get
somebody with a chain saw," Stiller said. "I have not a single pine
tree left. Folks around here are terrified of the prospect of losing
their property. That causes people to get out there and find out what
they can do to protect themselves."

In the past, I have divided environmental law into two categories:  emissions law, which is not only consistent with but a must for the maintenance of a strong property rights regime; and land use law, which tends to be an affront to property rights.  You can read more on this distinction here.  This situation is a great example of why land use environmental law is such a problem.

Take a step back.  Consider that some (but by no means all) people in this country value the continued existence of the red-cockaded woodpecker.  There are several ways they might pursue this goal, which I will put in order of decreasing attractiveness:

• They can get together, voluntarily pool their money, and seek to purchase land that might be habitat for the woodpecker and voluntarily set aside what is now their land from development.  This is the best solution, and the only one that operates without resorting to the use of force against individuals.  Oranizations like the Nature Conservancy and other land trusts work this way.
• They can get the government to tax everybody in the country a few extra cents, flow these cents together into big dollars, and have the government buy the land (or seize it via eminent domain) and set it aside as open space or parkland.  This takes money by government force from people who don't value the woodpecker's survival, but at least it spreads the cost wide and thin.
• They can get the government to declare that the twenty-five or thirty people who have these birds on their land can no longer do anything, from development to tree-cutting, on their land.  This option is the worst, because it lands the entire cost of the woodpecker's survival on just a few individuals, and it costs these individuals inordinately high amounts of money in the form of reduced property values  (if you can't do anything to a piece of raw land, the resale value effectively drops to zero).  I personally hold a piece of raw land for future development of a vacation or retirement home.  A substantial portion of my net worth is in this land.  If it were to be suddenly made worthless, much of my life's savings would be gone.

As an interesting note, I have ranked these options in descending order with an eye to fairness and individual rights.  However, if we instead rank these options from the perspective of the average Congressman and his/her political calculations, we actually get the reverse order!  The first option of private action is the worst from your average Congressman's point of view, because then there is nothing they can take credit for in their next election campaign.  The second option is better, but would involve a tax or deficit increase he might conceivably be dinged for.  The third is the best for our average politically-calculating Congress critter, since it results in an outcome he can take credit for with important interest groups, and the costs are almost totally hidden, and born by just a few people who don't have many votes and may not even be in his district.  Not surprisingly, this is the approach Congress has taken, via the Endangered Species Act.

There is some hope that this problem may eventually get worked out the right way, at least in Boiling Springs Lake:

The Nature Conservancy hopes to help. Since 1999, it has acquired about
6,500 acres that form a horseshoe around the center of town. The land,
much of which is wetlands, has two groups of woodpeckers. Woodpeckers
typically nest in clusters of 3 or more birds with one breeding pair
and helpers. In time, the land could support six or eight clusters as
the conservancy adds more land for a nature preserve.