Special Series Part II-Education in Action: An Evaluation of the Endangered Species Act and Private Landowner Assurances

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Editor's Note

The UPDATE presents a three-part series of educational essays from Nancy Mathews' Wildlife Ecology class at the University of Wisconsin. We are presenting a selection of position papers regarding Section 10 of the Endangered Species Act. This educational exercise is an example of how the next generation of conservation biologists is being trained. In particular, the essay set reflects an emphasis on remaining sensitive to the perspectives of multiple stakeholders. Perhaps some novel ideas are embedded in these essays as well, as fresh eyes often bring new insights to old controversies.

Wildlife Ecology students were given sample Habitat Conservation Plans and were instructed to assume the identity of the associated landowner, who also happened to be a trained wildlife biologist. The role-playing assignment was then given as follows:

Please write a position paper to be presented at a Senate sub-committee hearing on reauthorization of the Endangered Species Act. Support or refute the intent of the Section 10 administrative policies that attempt to make conservation planning more palatable to private property owners. Give a brief overview of the policies and present the pros and cons of the private landowner assurances. Support your position using what you have learned in class, the Endangered Species Act, and the assigned Habitat Conservation Plan.

Introduction

Good afternoon. My name is Bridget Cummings. I am a private landowner in Austin, Texas, with a holding of five acres. In December of 2000, I received an Incidental Take Permit from the U.S. Fish and Wildlife Service (FWS) for the Houston toad (Bufo houstonensis). I am in the process of developing 0.5 acres of my land for a new home that will result in a taking of Houston toad habitat. I also have been a wildlife biologist with the Texas Parks and Wildlife Department for the past six years. Based on my personal and professional experiences, I believe I am qualified to speak with authority when I say that the recent Section 10 policies of the Endangered Species Act (ESA) adopted by the FWS adequately address the rights of private landowners, while insuring the protection of species against extinction. I am here today to speak in support of the reauthorization of the ESA, including the Section 10 amendments.

The controversy over reauthorization of the ESA involves two major players: (1) private landowners and the wise use movement, and (2) species conservation and environmental groups. The debates were sparked by Section 9 of the ESA, which states that it is illegal "to ... take ... any species." According to the ESA, "take" means "to harass, pursue, hunt, shoot, wound, trap, kill, capture, collect, or attempt to do such." The wise use movement has challenged the constitutionality of the ESA based on the Takings Clause of the Fifth Amendment in the Bill of Rights, which states, "... nor shall private property be taken for public use, without just compensation." Because Section 9 of the ESA curtails private landowners' activities and development rights on their land, the wise use movement views the prohibited acts of Section 9 as a taking of their land "without just compensation."

As an initial response to the private landowners' complaints, the FWS amended the ESA in 1982, allowing for the issuance of Incidental Take Permits through the implementation of Habitat Conservation Plans (HCPs). Nonetheless, growing dissatisfaction with the restrictions placed on private landowners created a more powerful and vocal force behind the wise use movement. In the late 1990s, the FWS incorporated the new Section 10 amendments into the ESA in order to forge a creative partnership between private landowners and the FWS, or more accurately, economic development and rare species' protection.

Section 10(a)(1)(A) established Candidate Conservation Agreements (CCAs) and Enhancement of Survival Permits with Safe Harbors agreements. …