Month: September 2014

An incisive new study, Fulfilling
the Promise of the Endangered Species Act: The Case for an
Endangered Species Reserve Program, by Reason Foundation
research fellow Brian Seasholes deftly outlines a win-win-win
strategy for protecting endangered species in the United States.
The current dynamic in which private landowners and threatened
species both lose is illustrated by the case of Missouri farmer
Craig Schindler. Underneath Schindler’s fields is a cave that
harbors the grotto sculpin which the U.S. Fish and Wildlife Service
may soon declare “endangered.” As the Reason Foundation study
explains:

Based on an economic impact analysis carried out for Fish and
Wildlife, the 18 acres Craig estimates he will have to sacrifice
for the sculpin is worth some $90,000 and produces approximately
$7,000 in crops annually. 

“They’re cutting my living down,” Craig told the local
Perryville News, “I have cattle and grow crops, but if you take 18
acres away from a guy, that’s quite a bit.”

Fish and Wildlife also proposed to place buffer zones around
sinkholes that lead to caves with sculpins. Under the listing,
Craig could face up to $100,000 and/or a year in jail for killing
or injuring just one sculpin, or even harming its habitat. So, in
addition to losing the use of 18 acres, he will have to spend
thousands of dollars to fence the buffer zone in order to prevent
livestock on the rest of his ranch from inadvertently harming the
sculpin. “I’m going to have to pay for this fence out of my pocket,
and lose the ground for cattle to graze on,” he said. But even that
will not immunize him from prosecution under the ESA because local
Fish and Wildlife personnel have the power to decide if his uses of
other land, such as fertilizing crops and grazing livestock, harm
the sculpin.

What must the government pay for demanding that Schindler give
up the use of his land and protect the sculpin? Not a cent.

Seasholes continues:

With the proposed listing of the grotto sculpin, Craig Schindler
discovered the upside-down world of the Endangered Species Act. In
return for harboring rare wildlife, he was to be punished by having
his property turned into a de factofederal wildlife refuge but paid
no compensation.

This situation is in stark contrast to most other government
“takings” of private property. For example, when the government
wants to convert private land for a public good, such as a highway
or military base, it pays landowners the market value for the land
taken. It is legally required to do so because of the “takings
clause” of the Fifth Amendment of the Constitution which states,
“nor shall private property be taken for public use without just
compensation.” The takings clause seeks, “to bar Government from
forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole,”
according to a 1960 Supreme Court decision. But in a 1994 decision,
the Supreme Court ruled that “partial” takings of the sort that
Craig would experience as a result of a listing of the grotto
sculpin are not protected by the Fifth Amendment. To add insult to
injury, if the grotto sculpin were to be listed under the ESA,
Craig would still have to pay taxes on the land he would not be
able to use.

So what’s the solution? As I noted in my 2005 critique of the
ESA, “Who
Pays for the Delhi Sand Fly?“:

If the public values endangered species (and most of us do),
then it seems only fair that we fully compensate the people on
whose land they live for taking care of them for us.

Fortunately, argues Seasholes, the
Conservation Reserve Program is a model for establishing an
Endangered Species Reserve Program that would pay landowners for
protecting species on behalf of the American public. The new Reason
Foundation study goes on to show how such a program would benefit
endangered species, the public, and landowners.

Disclosure: The Reason Foundation is the publisher of this
website and Reason magazine.

An incisive new study, Fulfilling
the Promise of the Endangered Species Act: The Case for an
Endangered Species Reserve Program, by Reason Foundation
research fellow Brian Seasholes deftly outlines a win-win-win
strategy for protecting endangered species in the United States.
The current dynamic in which private landowners and threatened
species both lose is illustrated by the case of Missouri farmer
Craig Schindler. Underneath Schindler’s fields is a cave that
harbors the grotto sculpin which the U.S. Fish and Wildlife Service
may soon declare “endangered.” As the Reason Foundation study
explains:

Based on an economic impact analysis carried out for Fish and
Wildlife, the 18 acres Craig estimates he will have to sacrifice
for the sculpin is worth some $90,000 and produces approximately
$7,000 in crops annually. 

“They’re cutting my living down,” Craig told the local
Perryville News, “I have cattle and grow crops, but if you take 18
acres away from a guy, that’s quite a bit.”

Fish and Wildlife also proposed to place buffer zones around
sinkholes that lead to caves with sculpins. Under the listing,
Craig could face up to $100,000 and/or a year in jail for killing
or injuring just one sculpin, or even harming its habitat. So, in
addition to losing the use of 18 acres, he will have to spend
thousands of dollars to fence the buffer zone in order to prevent
livestock on the rest of his ranch from inadvertently harming the
sculpin. “I’m going to have to pay for this fence out of my pocket,
and lose the ground for cattle to graze on,” he said. But even that
will not immunize him from prosecution under the ESA because local
Fish and Wildlife personnel have the power to decide if his uses of
other land, such as fertilizing crops and grazing livestock, harm
the sculpin.

What must the government pay for demanding that Schindler give
up the use of his land and protect the sculpin? Not a cent.

Seasholes continues:

With the proposed listing of the grotto sculpin, Craig Schindler
discovered the upside-down world of the Endangered Species Act. In
return for harboring rare wildlife, he was to be punished by having
his property turned into a de factofederal wildlife refuge but paid
no compensation.

This situation is in stark contrast to most other government
“takings” of private property. For example, when the government
wants to convert private land for a public good, such as a highway
or military base, it pays landowners the market value for the land
taken. It is legally required to do so because of the “takings
clause” of the Fifth Amendment of the Constitution which states,
“nor shall private property be taken for public use without just
compensation.” The takings clause seeks, “to bar Government from
forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole,”
according to a 1960 Supreme Court decision. But in a 1994 decision,
the Supreme Court ruled that “partial” takings of the sort that
Craig would experience as a result of a listing of the grotto
sculpin are not protected by the Fifth Amendment. To add insult to
injury, if the grotto sculpin were to be listed under the ESA,
Craig would still have to pay taxes on the land he would not be
able to use.

So what’s the solution? As I noted in my 2005 critique of the
ESA, “Who
Pays for the Delhi Sand Fly?“:

If the public values endangered species (and most of us do),
then it seems only fair that we fully compensate the people on
whose land they live for taking care of them for us.

Fortunately, argues Seasholes, the
Conservation Reserve Program is a model for establishing an
Endangered Species Reserve Program that would pay landowners for
protecting species on behalf of the American public. The new Reason
Foundation study goes on to show how such a program would benefit
endangered species, the public, and landowners.

Disclosure: The Reason Foundation is the publisher of this
website and Reason magazine.

The Federal Communications
Commission’s support for sports broadcast blackouts is about to
become a thing of the past: The agency’s commissioners voted 5-0
today to end the blackout policy
the agency has had in place since 1975. 

The policy is an explicit form of protectionism for big-league
sports teams: Basically, as The Washington Post notes, it

says that if a game doesn’t fill every stadium seat, then it’s
off limits for broadcast TV, which means cable provider that rely
on those broadcast streams can’t really carry it either.

The rule cover all pro sports, but mostly ends up benefiting the
National Football League, which has
lobbied extensively to keep the policy in place. The league’s
argument for the rule, that it’s necessary to “protect football on
free TV,” is pretty transparently a self-serving cover for
protectionist policies designed to maximize stadium revenues. As
The Hill reported last month, “The league argues the rule
helps teams sell tickets and creates a compelling stadium
atmosphere, allowing the NFL to keep games on free
television.” 

The FCC’s vote today was a rebuke to the idea that helping teams
sell tickets is somehow part of the FCC’s job: “It is not the FCC’s
role to make sure the NFL gets [the] last nickel out of every game
played,” agency commissioner Michael O’Riley
said, according to The Washington Examiner.

In a USA Today
op-ed, Chairman Tom Wheeler called the rules “a bad
hangover from the days when barely 40 percent of games sold out,”
and declared that “the NFL should no longer be able to hide behind
government rules that punish loyal fans.” 

“It’s a simple fact, the federal government should not be party
to sports teams keeping their fans from viewing the games—period,”
Wheeler
said after the vote today, reports Politico.

The NFL will still be able to blackout some games without agency
help, however, by making private deals. 

Last
week, an Iraq war veteran jumped the White House fence armed with a
knife and got all the way into the East Room before agents
apprehended him. At first, the Secret Service claimed the man, Omar
Gonzales, had only gotten just inside the White House. That was a
lie, turning what might’ve been  an odd story forgotten by
next week into an indicator of bigger problems at the Secret
Service.

The Secret Service’s controversial recent history—arguing with
prostitutes in Colombia, getting drunk in Holland, and missing
things like party crashers and gunfire—means the incident became a
reason to hold hearings in Congress about the Secret Service. This
morning, the director of the Secret Service, Julia Pierson,

appeared before the House Committee on Oversight and Government
Reform.

And while the Secret Service’s recent history of mishaps was
brought up throughout the hearing, several members of Congress,
both Democrat and Republican, appeared more interested in demanding
the Secret Service use more force in situations like last week’s
fence jumper. This even though the president and his family weren’t
at the White House that day, something the Secret Service knew when
responding but Gonzales probably didn’t.

Rep. Stephen Lynch (D-Mass.), for example, insisted the Secret
Service should’ve arrested Gonzales the first time he showed up
outside the White House with a hatchet—something Pierson stressed
was not illegal. She also stressed that Gonzales was cooperative
with authorities at the time.

No matter. Rep. Jason Chaffetz (R-Utah) said he and his fellow
members of Congress “want to see overwhelming force” in a situation
like the fence jump, saying he would defend the lethal use of
force. Remember, President Obama and his family were not at the
White House when the fence was jumped so there was no threat to the
president during this incident.

Although Pierson promised something like this would “never
happen again” (an impossible guarantee to make no matter the
vigilance exercised) and said she took full responsibility, it’s a
big old case of “nothing else happens.” Although Pierson
acknowledged a failure during the fence jumping incident
(debatable: again, the Obamas were not at the White House and the
Secret Service agents involved apparently did not feel threatened),
she didn’t announce any concrete disciplinary measures because of
the failure. She did manage, at one point, to blame “funding
constraints.”

The Secret Service has a $1.8 billion budget in 2014 to protect
the president and his family, down from $1.92 billion in 2013. It’s
just a 6 percent decrease from 2012’s budget, a year when the
Secret Service had to protect both the president and eventually
also his challenger during a long season of election
campaigning.