# 538  

June 2006

The "Collaboration for the Recovery of Endangered Species Act":  An Analysis of the Senate Proposal to Reform the Endangered Species Act

by Peyton Knight


Last year, the U.S. House of Representatives approved legislation designed to reform the Endangered Species Act.  Dubbed the "Threatened and Endangered Species Recovery Act," and commonly referred to as TESRA, the measure would place authentic property rights protections for American landowners within the nation's endangered species protection policies.

Now it is the Senate's turn to put forward its vision of ESA reform.  Unfortunately for landowners and species, the initial offering, dubbed the "Collaboration for the Recovery of Endangered Species Act," or CRESA, falls significantly short.

The ESA's Three Decades of Failure

In its present form, the Endangered Species Act must be regarded as a failure.

* after more than three decades, the ESA is responsible for the recovery of less than one percent of the species placed on its "endangered" or "threatened" lists;

* changes to the "endangered" and "threatened" lists are at times years behind schedule;

* political considerations at times replace objective or scientific reasons for listing/de-listing actions;

* most listed species are not recovering;

* the ESA's implementation is funded in an arbitrary manner;

* aspects of ESA implementation appear to violate the Fifth Amendment to the U.S. Constitution.

In the more than 32 years the Endangered Species Act has been on the books, just 34 of the nearly 1,300 U.S. species given special protection have made their way off the "endangered" or "threatened" lists.  Of this number, nine species are now extinct, 14 appear to have been improperly listed in the first place, and just nine (0.6 percent of all the species listed) have recovered sufficiently to be de-listed.  Two species (a plant with white to pale-blue flowers called the Hoover's woolly-star and a yellow perennial, Eggert's sunflower) appear to have made their way off the threatened list, in part through "recovery" and in part because they were not as threatened as originally believed.

A less than one percent recovery rate1 reflects failure, not success.  Some environmental groups, however, insist that the ESA has been very effective.  These organizations claim that, since 99 percent of all species given special protection have either recovered or are still on the endangered and threatened lists, these species all "still exist" and, therefore, the ESA has worked.  The "still exist" standard, however, tells us little about the true status of endangered and threatened species and certainly does not prove the efficacy of the ESA.

As the following examples demonstrate, the fact that a species has recovered does not necessarily say anything about the ESA:

* The Columbian white-tailed deer recovered primarily because of a refuge that was established prior to the ESA's enactment.  Hunting restrictions also played a role, and could have been accomplished under laws that predate the ESA.2

* The American peregrine falcon's recovery benefited enormously from captive breeding programs sponsored by The Peregrine Fund and other private organizations.  Such programs would have existed without the ESA.3

* The recovery of the Aleutian goose would have occurred without the ESA.  The goose's decline was largely due to the introduction of a non-native predator, the Arctic fox, to the goose's island habitat.  Once the foxes were removed, the goose again flourished.4

* The American alligator's recovery had little to do with the ESA.  There were already 734,000 alligators in 13 states by the time the ESA became law.  Much of the alligator's recovery likely is due to a 1967 ban on alligator hunting.5

A species' continued listing as "endangered" or "threatened" does not prove the ESA works.  The goal is to recover endangered species, not to maintain the status quo.

The "endangered" and "threatened" lists, moreover, are not well maintained.  As the U.S. Fish and Wildlife Service noted last year in its rejection of a petition to de-list the slackwater darter (etheostoma boschungi), petitions for delisting are frequently delayed "due to low priorities assigned to delisting petitions in accordance with our Listing Priority Guidance...  That guidance identified delisting activities as the lowest priority (Tier 4)."6

Findings regarding de-listing petitions are supposed to be made within 90 days.  The slackwater darter petition was filed by the National Wilderness Institute on February 3, 1997, but this finding was not made until July 7, 2005, more than eight years later.

The act of delisting a species for any reason is so politically-charged that it practically takes an effort equivalent to the passage of an act of Congress to get a species off the threatened or endangered lists.  In July 1999, the Clinton Administration concluded that the bald eagle was fully recovered and should be delisted within one year.7  This was much to the chagrin of environmental activists, who didn't want the government to lose its regulatory authority over the bird's declared habitat.8

In 2006 the bald eagle is still perched prominently on the endangered and threatened species list.9  Why the nearly six-year (and counting) delay?  According to Jamie Rappaport Clark, executive vice president of Defenders of Wildlife and former Clinton Administration Fish and Wildlife Service director: "Partly it just fell through the cracks."10

That the ESA has cracks large enough for America's national bird to fall through is proof enough the Act is flawed.

Yet it isn't only abundant species that fail to make it off the endangered or threatened list.  By one estimate, 30 or more of currently listed species are extinct.11

Even for species that aren't believed to be extinct, "existing" doesn't mean success, especially when species are hanging on by a thread.  Just 36 percent of the species on the endangered and threatened lists are currently believed to be stable or improving - meaning that 64 percent are declining.12


The "Perverse Incentive" Problem

Another ESA weakness is that the ESA's structure has worked against its success.  The law pits species against landowners - often the very owners of the land on which rare species live.  This adversarial relationship works against the interests of both and is referred to as the "perverse incentive" problem within the Endangered Species Act.

The perverse incentive problem occurs this way: Those who harbor endangered species on their property, or merely own land suitable as habitat for such species, can find themselves subject to crippling land use restrictions.  To avoid such restrictions and the losses in property values that accompany them, some landowners choose to preemptively sterilize their land to keep rare species away.

For example, when the federal government set out to protect the golden-cheeked warbler in the early 1990s, it did so by seeking to acquire land, through condemnation and other means, with mature cedar trees, the bird's favored habitat.  Faced with the potential of losing their property, and their livelihoods, ranchers bulldozed cedar trees from their property.13

ESA-related costs also are borne in a fundamentally inequitable way.  Although Congress determined in 1973 that the preservation and recovery of endangered species was in the interest of the United States as a whole, it did not make arrangements for the nation as a whole to bear the costs of preservation and recovery.  Instead, these costs substantially are borne by the private landowners on whose property rare species are found or may be found, regardless of the ability of any particular landowner to bear these costs.  It is rather like funding a major national program by lottery: Lose in the lottery, and you pay, regardless of your wealth or income.  Winners in the lottery don't have to contribute at all.


In the House: The "Threatened and Endangered Species Recovery Act," or TESRA

The ESA's poor performance and structure has prompted Congress to attempt to fix the law.

In October 2005, the House of Representatives approved TESRA. While not perfect, this bill has several strong points.  TESRA would provide 100 percent, fair market value compensation to landowners who lose the use of their property due to ESA regulations.  The ESA would then better comply with the Fifth Amendment to the U.S. Constitution, which stipulates that just compensation must be paid to those whose property is taken by government for a public use. 

The House bill's fair compensation provision also would help species by eliminating perverse incentives within the current ESA.


In the Senate: "Collaboration for the Recovery of Endangered Species Act," or CRESA 

In the Senate, Idaho Senator Mike Crapo (R) has introduced the "Collaboration for the Recovery of Endangered Species Act," known as CRESA.  Unfortunately, CRESA does little to fix the ESA, and in some respects, makes it worse.

Among the key problems with CRESA:

* CRESA fails to provide fair compensation to landowners who lose their property rights due to ESA regulations.

Landowners essentially would have two means by which they could attempt to receive compensation for their lost property rights under CRESA. 

One option, which already exists, is for landowners to pursue compensation in court.  This already has proven to be an expensive, drawn-out process with numerous bureaucratic roadblocks and zero guarantee of success.

CRESA would also establish an elaborate system under which landowners could receive tax credits for the foregone use of their property.  However, the operative word here is "could."  Under CRESA, if a landowner loses the right to use his property due to ESA restrictions, he is not guaranteed any form of compensation.  The bill states that a landowner is only eligible for tax credits if the costs he incurs are from "qualified conservation and recovery costs."  Such "qualified" costs are defined as those incurred while "carrying out approved site-specific recovery actions under section 4(f) of the Endangered Species Act (16 U.S.C. 1533(f)), or any other Federal - or State - approved conservation and recovery agreements involving an endangered, threatened, or candidate species under the Endangered Species Act."

Even landowners whose costs or lost property rights qualify for compensation under CRESA's tax credit system would have little incentive to participate because the system would not provide fair compensation.

Given the choice between retaining 100 percent of a property's value, or receiving a tax credit that amounts to less than 100 percent of a property's value, most landowners will choose the former.  Thus, if CRESA were enacted into law, land sterilization would remain the most financially-attractive option for property owners who have endangered species or related habitat on their property.

In practice, under CRESA, if a landowner wants to receive the maximum value tax credit for the lost use of his property, he would have to surrender his property rights, or the productive use of his property, to the government "under a binding agreement for not less than 99 years."  Then, and only then, would a landowner receive a tax credit equal to the fair market value of his lost rights.  This tax credit would also include any out-of-pocket expenses he incurs as a result of complying with a government-approved species recovery agreement. 

If a landowner is not willing to surrender certain usage rights to his property for 99 years or more, two other options would be available.  Neither is very attractive.

A landowner would be allowed to enter into a "binding agreement for not less than 30 years but less than 99 years" with the government and receive a tax credit valued at only 75 percent of his losses, and 75 percent of any personal expenses stemming from a species recovery agreement. 

Alternatively, he could enter into a recovery agreement with the government for between ten and 30 years and only receive a tax credit worth 50 percent of any personal, out-of-pocket expenses related to the agreement.  Under this agreement, the landowner would receive nothing in return for the lost use of his property.

If the tax credit the landowner receives exceeds the amount of federal taxes he owes that year, the landowner can spread out the remainder over the next 20 consecutive tax years.  He may also use remaining credit against one previous year's taxes.

It is worth noting that CRESA does not define how "fair market value" is to be determined.  Such an omission would appear to give federal employees great leeway in defining this process.  This could benefit the government to the detriment of the landowner.  By comparison, the ESA reform bill approved by the House, TESRA, includes a clearly-defined process whereby fair market value is determined in an impartial manner.

Under CRESA's tax credit system, landowners eligible for tax credits would still have a perverse incentive to rid their property of endangered species and/or habitat. 

Consider the following hypothetical situation:

John Smith suffers losses due to ESA restrictions totaling $300,000.  To reduce his financial losses, Mr. Smith enters into a 99-year conservation agreement with the federal government in which he forgoes the productive use of a portion of his land - the land subject to the ESA restrictions - in return for a $300,000 tax credit (assuming his losses are properly assessed at fair market value).  This $300,000 credit is not the same as outright compensation, as it is only a credit he can apply against his federal tax obligations.  Under CRESA, Mr. Smith is permitted to roll over any remaining tax credit for as many as 20 consecutive years.  He may also apply some of the remaining credit to his previous year's taxes.

Thus, if Mr. Smith receives his tax credit in the year 2008, he can apply it to 2008's taxes, 2007's taxes, and taxes owed in the years 2009-2028.  If he owes, let's say, $8,000 annually in federal taxes from 2007 to 2028, he would be exempt from paying $176,000 over the span.  Though Mr. Smith appears to have lost $124,000 on the deal, his actual losses are much greater, as the value of his credit has not been adjusted for inflation or property value appreciation.

Furthermore, if the endangered specie in question recovers 20 years after Mr. Smith surrenders his property rights to the government, there is no mechanism in CRESA under which Mr. Smith can reacquire his lost property rights. 

Forcing a landowner to sign away the rights to his property in return for a what amounts to less than fair market value compensation runs counter to the Fifth Amendment of the U.S. Constitution which states "nor shall private property be taken for public use, without just compensation."

In a speech delivered at a U.S. Fish and Wildlife Service training seminar in 1994, Environmental Defense president Michael Bean spoke about how the ESA's perverse incentives have a detrimental effect on the red-cockaded woodpecker:

Because... red-cockaded woodpeckers tend to prefer... longleaf pine over other species, landowners thinking about what species to plant after harvest or on former forest land, any of them I think regard the choice of planting long-leaf as a foolish choice because of greater potential for having woodpecker problems in the future.

And because the Fish and Wildlife Service does not apportion foraging habitat requirements among adjacent landowners when an active colony of woodpeckers occurs near a property boundary, landowners have an incentive to be the first to liquidate their share of the available habitat before the Fish and Wildlife Service's minimum threshold of remaining habitat is reached.

Now it's important to recognize that all of these actions that landowners are either taking or threatening to take are not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment.  Rather, they're fairly rational decisions motivated by a desire to avoid potentially significant economic constraints.  In short, they're really nothing more than a predictable response to the familiar perverse incentives that sometimes accompany regulatory programs, not just the endangered species program but others.

What is clear to me after close to 20 years of trying to make ESA work, is that - from the outside, in deference to you trying to do it from the inside - is that on private lands at least, we don't have very much to show for our efforts other than a lot of political headaches.  And so some new approaches, I think, desperately need to be tried because they're not going to do much worse than the existing approaches.14

CRESA's tax credit system may also have the undesirable effect of encouraging the government to acquire property, or property rights, at bargain prices.  It is much easier for the government to pay landowners for lost property through tax credits spread out over a 22-year term, as opposed to making a one-time payment equal to fair market value, as the recently-approved House bill prescribes.

Furthermore, inasmuch as CRESA leaves the ESA's regulatory stick firmly intact, property owners could be coerced to surrender their rights in exchange for a relative pittance. 

CRESA creates an ideal situation for the federal government, but not for the landowner.  By coercing the landowner to sign away his property rights, the federal government is no longer liable for "taking" his property. 

Many landowners, particularly smaller landowners, do not have the financial resources for litigation, and would thus essentially would be forced to "voluntarily" exchange their property rights for tax credits.

In reality, such a transaction is not much more voluntary than handing one's wallet to an armed robber.

* Few landowners would benefit from CRESA's meager compensation provision because the bill leaves the ESA's bureaucratic obstacles in place.

The problem is not that the Takings Clause of the U.S. Constitution doesn't apply to takings under the ESA, but that procedural hurdles make it nearly impossible for landowners of modest means to obtain any relief.

As Pacific Legal Foundation lawyer James Burling has noted, "One of the most troubling procedural hurdles is that landowners are not able to get a final agency determination that land cannot be used - unless the landowner wants to risk becoming a defendant or... can afford the time and money to seek an incidental take permit or a habitat conservation plan."15

Landowners should not be required to jump through costly and lengthy bureaucratic hoops just to determine their status under the law.  Unfortunately, CRESA does nothing to address this problem.

* CRESA would fail to eliminate costly, ineffective critical habitat designations and would imperil species by listing such designations on a public webpage.

There is a reason that 415 members of the 435-member U.S. House of Representatives voted last year to abolish critical habitat designations.16  According to Craig Manson, former assistant secretary for the U.S. Fish and Wildlife Service under the Bush Administration, designation of critical habitat is the least effective and most costly action it undertakes in its mission to save endangered species.

In testimony before the House Resources Committee in 2004, Secretary Manson labeled the ESA's critical habitat program "counterproductive" and inaccurate, and noted that "litigation over critical habitat has hijacked the program."17  Such are the reasons that all but a handful of congressmen voted to eliminate critical habitat designations.

Both Democrat and Republican administrations have considered critical habitat more hindrance than help.  Jamie Rappaport Clark, who served as President Clinton's director of the Fish and Wildlife Service and the current executive vice president of Defenders of Wildlife, has acknowledged the failure of the ESA's critical habitat program:  "[I]n 25 years of implementing the ESA, we have found that designation of 'official' critical habitat provides little additional protection to most listed species, while it consumes significant amounts of scarce conservation resources," Clark testified before the Senate Subcommittee on Fisheries, Wildlife and Drinking Water in 1999.18

CRESA would not only keep the ESA's current critical habitat program intact, but it would "publish maps and coordinates that describe, in detail, the specific areas that meet the definition" of critical habitat.  CRESA also directs the Department of Interior to "maintain the maps, coordinates, and data on a publicly accessible Internet page."

Providing a public, online map of endangered species locations would be a convenient tool for endangered plant and animal thieves.

Like any rare commodity, endangered plant and animal species often are worth a premium.  Unscrupulous traders and poachers covet them for the price they can bring on the black market.

In the Shawnee National Forest in Illinois in 1991, an entire population of threatened Mead's milkweed was stolen.19  Orchids, cycads, cacti and carnivorous plants are also prime targets for plant thieves and international smugglers.20

Addressing the problem of plant and animal species being poached from our national parks, John Garrison, chief ranger at Blue Ridge National Parkway in North Carolina, said, "It's just of a magnitude most people can't comprehend, it's that widespread."21

* CRESA would provide conservation incentives for large landowners but ignore small landowners.

CRESA would establish a so-called "market" incentive system whereby landowners can earn credits for "preserving or restoring habitat in a conservation bank agreement."  The specific value of these credits would be assessed on the basis of each individual conservation initiative and would be up to the sole discretion of the Secretary of Interior.  These credits can then be "bought, sold or traded to offset the impact of Federal, State, tribal, local, or private activities."  In order for a landowner to earn credits, the property in question must be "managed under an enforceable legal instrument."  This instrument would likely be some form of conservation easement.

Such a system is tailored for the benefit of large landowners.  Federal, State, tribal and local governments could use the credit system to their advantage.  For example, if a state wants to build a stadium complex in a designated environmentally-sensitive area, it can conceivably purchase the right to do so by earning enough conservation credits elsewhere. 

Considering the vast land holdings of most states, the opportunities for earning credits are bountiful.  The same holds true for other governments and large landowners. 

Smaller landowners, however, are not likely to be helped by this system.  The less property one owns, the less one can afford to lock away large tracts of productive land.

The conservation bank concept may also create a new perverse incentive that is harmful to endangered and threatened species. 

According to CRESA, the conservation bank system is intended to balance "economic free market principles to ensure value to landowners through a tradable credit program."  Therefore, one would expect the value, or purchasing power, of conservation credits to fluctuate with changing market conditions.  This could prove detrimental to species.

Consider this hypothetical scenario.  A landowner with large land holdings earns conservation credits for preserving a portion of his land that contains habitat for California red-legged frogs.  The value of these credits would be tied to supply and demand, which, in this instance, would be driven by the abundance or scarcity of red-legged frogs and their habitat.  As the California red-legged frog's habitat becomes more scarce, the value of conservation credits earned for protecting this habitat goes up.  As the frog's habitat becomes more abundant, the value placed on preserving this habitat goes down.  It is, therefore, in the interest of the credit-holder that the frog's habitat remains as scarce as possible, thereby maximizing the value of his conservation credits.  This is not good for the frog.

Credit holders, whether they be government or private, could seek the destruction of particular species' habitat (on someone else's land) in order to drive up the value of their credits.  And thanks to the CRESA's convenient online maps that detail the location of species' critical habitat, credit barons would have an easy time finding habitat to eliminate.

Such a system would also encourage the spread of land use restrictions.  Consider this scenario.  A particular parcel of land has been designated as red-legged tree frog habitat and is preserved under CRESA's conservation bank system.  An adjacent parcel of land, however, has yet to be designated as frog habitat.  Because this adjacent land is unrestricted, those wishing to develop land in the area might well decide it is more economical to buy this property instead of purchasing credits to develop the property that has been designated frog habitat.  Therefore, those who have conservation credits for development within the boundaries of the frog's habitat have a vested interest in the adjacent property being similarly restricted.  They could accomplish this by "discovering" endangered species on the neighboring property, or filing suit to have that property designated as red-legged frog habitat.

The trouble is the conservation bank system would create a group of people with a vested interest in the maximizing the value of their conservation credits.  It stands to reason that credit holders might seek to do this with disregard for the wellbeing of species, as well as disregard for the property rights of fellow landowners.

* CRESA exempts both recovery teams and executive committees from "sunshine" requirements.

Under CRESA, each endangered species recovery plan will be established and executed by an executive committee and a recovery team.  These two entities will consist of representatives from government agencies and the private sector who will be selected at the sole discretion of the Secretary of the Interior. 

Private sector recovery team members often come from rigidly-ideological environmental organizations such as The Nature Conservancy and other groups that work hand-in-hand with federal resources agencies on endangered species recovery plans.  For example, The Nature Conservancy is a member of both the Florida panther22 and the red-cockaded woodpecker23 recovery teams.

When public missions are mixed with private interests, transparency is paramount.  Yet, CRESA exempts both executive committees and recovery teams from the Federal Advisory Committee Act (FACA).

Among other things, FACA requires, "the Congress and the public... be kept informed with the respect to the number, purpose, membership, activities, and cost" of advisory committees.24

There are few things more dangerous than unaccountable, unelected advisors making important public policy decisions.


The Endangered Species Act is a clear lesson in failed policy.  Unfortunately, CRESA fails to address the ESA's fundamental problems.

Noted ESA expert James Burling described CRESA best:

Most of Senator Crapo's bill is nothing more than rearranging the deck chairs on the Titanic.  But the part dealing with landowner 'incentives' is more like the Captain of the Titanic handing out to the doomed passengers discount coupons for the next cruise.25

The ESA's failure to protect private property has proven detrimental to both species and landowners.  This failure comes at a steep price.

In 2004, the Fish and Wildlife Service and the National Marine Fisheries Services by themselves spent over $238 million on the ESA.26  Many other government agencies - from the Bonneville Power Administration to the Coast Guard to the Air Force - together spend hundreds of millions of dollars more on ESA compliance every year.

These government expenditures, of course, don't include the devastating costs to individual property owners who have lost their investments and their livelihoods in the name of species protection.

In fact, Americans are paying billions of dollars annually for a law that doesn't work.

The Property and Environment Research Center noted in a 2004 report:

From 1989 to 2000, the FWS estimates that a little over $3.5 billion of taxpayer dollars was spent on ESA-related activities.  We recognize today that the actual cost of protecting species, including private costs... may easily reach or exceed that figure per year.27

The ESA will not be fixed until private property rights are given full protection and the perverse incentives of the law are eliminated. 

There are several ways to achieve this.

One way is to provide an economically-viable means whereby landowners who lose property rights under the ESA can receive full and fair compensation for their losses in a timely manner.

CRESA falls short of providing full and fair compensation.  It also fails to remedy the current bureaucratic tangle that forces landowners to wait endlessly for an answer from the government as to whether they can use their property.  At a minimum, property owners have a right to know whether their proposed activities are within the boundaries of the law.

The ESA requires that a landowner apply to the Department of the Interior for an "incidental take permit" to determine if a proposed use of his property is lawful under the Endangered Species Act.  If his permit is accepted, he may proceed with the specific use in question.  If his permit is denied, he may then proceed to court to pursue compensation for a partial taking of his property.  Only after his permit has been denied is his case considered "ripe" for court.

Under current law, there is no time limit whereby the Department of the Interior must respond to a landowner's request for an incidental take.  Thus, under present law, at the discretion of the Department of Interior, a landowner may be forced to sit for years in a state of regulatory limbo, both unable to use his property and unable to seek compensation in a court of law.  By simply failing to respond to the landowner's request, the federal government has effectively taken the landowner's right to use his property.

This problem can be solved by placing a time limit on the Department of Interior and establishing a time frame within which the agency must respond to a landowner's incidental take request.  If the agency decides that the landowner cannot use his property in the manner he wishes, then the landowner should receive 100 percent fair market value compensation, as in accordance with the Fifth Amendment to the U.S. Constitution.

CRESA attempts to pay homage to a voluntary approach to saving species, in which landowners are offered incentives to work with federal regulators toward species recovery.  In reality, it provides little more than lip service to landowner concerns. 

Merriam-Webster defines "voluntary" as "proceeding from the will or from one's own choice or consent." 

Quite simply, as long as the ESA's regulatory stick looms large above the heads of private property owners, no deal struck between landowners and federal regulators can ever truly be "voluntary." 

History has shown that secure private property rights and good environmental stewardship go hand-in-hand. 

Environmental scholar Robert J. Smith points out:

Why are some species disappearing and others thriving?  First, we can examine what is disappearing and what is not.  Why was the American buffalo nearly exterminated but not the Hereford, the Angus or the Jersey cow?  Why do cattle and sheep ranchers over-graze the public lands but maintain lush pastures on their own property?  Why are rare birds and mammals taken from the wild in a manner that often harms them and depletes the population, but carefully raised and nurtured in aviaries, game ranches, and hunting preserves?  In all of these cases, it is clear that the problem of overexploitation or overharvesting is a result of the resources being under public rather than private ownership.  The difference in their management is a direct result of two totally different forms of property rights and ownership: public, communal, or open-access common property vs. private property.  Wherever we have public ownership we find overuse, waste, and extinction; but private ownership results in sustained-yield use and preservation.28

In its present form, the Endangered Species Act fails species and landowners alike.  It will continue to do so until private property rights are given full protection and anti-specie perverse incentives within the law are eliminated.


# # #

Peyton Knight is the director of environmental and regulatory affairs for The National Center for Public Policy Research.  Comments may be sent to [email protected].


1 "GAO Report Shows Agencies Fail to Plan Adequately for Species Recovery," News Release, U.S. House of Representatives Committee on Resources, Washington, DC,  April 7, 2006, available at http://resourcescommittee.house.gov/Press/releases/2006/0407gaoesareport.htm as of May 16, 2006.

2 "Babbit's Big Mistake: The Real Story Behind His Endangered Species Recovery Announcement," National Wilderness Institute, Washington, DC, July 15, 1998, available at http://www.nwi.org/SpecialStudies/BabbittReport/BabbittReport.html as of May 16, 2006.

3 Robert J. Smith, "How Private Conservation Saved the Peregrine Falcon," Environment News, The Heartland Institute, Chicago, Illinois, October 1, 1999, available at http://heartland.org/Article.cfm?artId=12995 as of May 16, 2006.

4 Ned Rozell, "Nizki, Population 1," Alaska, August 2005.

5 Brian Seasholes, "Fools for Falcons," CEI Update, Competitive Enterprise Institute, Washington, DC, October 1994.

6 "Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist the Slackwater Darter and Initiation of a 5-Year Review," U.S. Fish and Wildlife Service, Washington, DC, Federal Register, Volume 70, Number 153, August 10, 2005, available at http://www.epa.gov/fedrgstr/EPA-SPECIES/2005/August/Day-10/e15720.htm as of May 16, 2006.

7 Jim Morris, "Bald Eagle Flies Off Endangered List," Cable News Network, July 2, 1999, available at http://www.cnn.com/NATURE/9907/02/bald.eagle.02/ as of May 16, 2006.

8 William Booth, "How to Protect Habitat?  Bald Eagle's Removal From Endangered List Delayed," The Washington Post, July 4, 2000.

9 "USFWS Threatened and Endangered Species System," U.S. Fish and Wildlife Service, Washington, DC, available at http://ecos.fws.gov/tess_public/SpeciesReport.do?groups=B&listingType=L as of May 16, 2006.

10 "Bald Eagle Making Its Way Off Endangered List," Associated Press, February 14, 2006, available at http://www.msnbc.msn.com/id/11343742/ as of May 16, 2006.

11 "Implementation of the Endangered Species Act of 1973," Report to the House Committee on Resources, U.S. house of Representatives, Washington, DC, May 2005, available at http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm as of May 16, 2006.

12 "Endangered Species," The Wall Street Journal, July 1, 2005.

13 Felicity Barringer, "Aware of Political Ecosystem, Property Rights Advocate Embraces Conservation Plan," The New York Times, Section A, Page 16, Column 1, December 27, 2005.

14 David Hogberg, "Dim Prospects for Property Rights," Organization Trends, Capital Research Center, Washington, DC, February 2006, available at http://www.capitalresearch.org/pubs/pdf/OT0206.pdf as of May 16, 2006.

15 Unpublished e-mail correspondence from James Burling, Pacific Legal Foundation, Sacramento, California, June 15, 2005.

16 "Norton Applauds House Action to Remove "Critical Habitat" Designation Requirement from Endangered Species Act," News Release, U.S. Department of the Interior, Washington, DC, September 30, 2005, available at http://www.doi.gov/news/05_News_Releases/050930b.htm as of May 16, 2006.

17 Craig Manson, Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior, Testimony before the House Resources Committee regarding H.R. 2933, the Critical Habitat Reform Act of 2003, U.S. House of Representatives, Washington, DC, April 28, 2004, available at http://www.fws.gov/laws/testimony/108th/2004/MansonCHHR2933.htm as of May 16, 2006.

18 Jamie Rappaport Clark, Testimony before the Senate Subcommittee on Fisheries, Wildlife and Drinking Water, U.S. Senate, Washington, DC, May 27, 1999, available at http://epw.senate.gov/107th/cla_5-27.htm as of May 16, 2006.

19 Chris Holmes and Phil Villa-Lobos, "Theft of Threatened Plants Hinders Recovery Effort," U.S. Department of Agriculture Office of Press and Media Relations, Washington, DC, available at http://www.nal.usda.gov/pgdic/Probe/v1n3_4/theft.html as of May 16, 2006.  Additional information available at http://permanent.access.gpo.gov/websites/fsfedus/www.fs.fed.us/mntp/speciesreintro/3_1.htm as of May 16, 2006.

20 "The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)," Animal and Plant Health Inspection Service, Riverdale, Maryland, March 2006, available at http://www.aphis.usda.gov/publications/plant_health/content/printable_version/fs_cites3-06.pdf as of May 16, 2006.

21 Joan Lowy, "Poachers Stealing National Park Heritage," Scripps Howard News Service, available at http://sports.espn.go.com/outdoors/conservation/news/story?page=c_fea_parks_national_poachers_steal_Lowy as of May 16, 2006.

22 "Florida Panther Recovery Plan: Third Revision," The Florida Panther Recovery Team, U.S. Fish and Wildlife Service, Washington, DC, January 31, 2006.

23 "Recovery Plan for the Red-cockaded Woodpecker: Second Revision," U.S. Fish and Wildlife Service Southeast Region, Atlanta, Georgia January 27, 2003.

24 Public Law 92-463.

25 Burling.

26 "Implementation of the Endangered Species Act of 1973," Report to the House Committee on Resources, U.S. House of Representatives, Washington, DC, May 2005, available at http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm as of May 16, 2006.

27 Randy T. Simmons and Kimberly Frost, "Accounting for Species: True Costs of the Endangered Species Act," Property and Environment Research Center, Bozeman, Montana, April 2004, available at http://www.perc.org/perc.php?id=393 as of May 16, 2006.

28 Robert J. Smith, "Resolving the Tragedy of the Commons by Creating Private Property Rights in Wildlife," The Cato Journal, Vol. 1, No. 2, Fall 1981, available at http://www.cato.org/pubs/journal/cj1n2-1.html as of May 16, 2006.

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