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Unintended Consequences

by DEAN LUECK

New data reveal the Endangered Species Act has created economic incentives for preemptive habitat destruction.

The Endangered Species Act of 1973 was a watershed in federal policy on wildlife conservation. Prior to the act, the Secretary of Interior was authorized through the Fish and Wildlife Service [1] to list species considered to be in peril and to foster protection by banning the taking, or killing, of such species; prohibiting trade in endangered species; encouraging federal agencies to protect habitat; and establishing a federal fund for habitat acquisition.

The ESA broadened and deepened this policy. It expanded protection to a much larger set of species and populations, including invertebrates and plants. It required federal agencies to protect listed species at all costs. It broadly defined the term take, which originally meant kill or catch, to ultimately include alteration of a species' habitat. And it extended federal protection of species to private lands. [2]

The ESA had almost no impact during its first few years, partly because the full force of the act's language was not clear in the law. Starting in 1978, however, with the famous snail darter case, TVA v. Hill, [3] a series of federal court decisions and administrative rulings transformed the ESA into one of the most authoritative and wide-reaching federal environmental laws. The court said the ESA required that construction of a nearly completed federal dam be halted to save habitat for a tiny endangered fish, the snail darter, and it issued its famous mandate: "The plain intent of the statute was to halt and reverse the trend toward species extinction, whatever the cost." TVA is the most important case for federal lands and federal agencies because, even though completion of the dam was eventually authorized by Congress, the ruling nevertheless established the unilateral authority of the ESA to control the actions of federal agencies. [4]

Although many of the high-profile conflicts over the ESA have involved public-land management, the majority of endangered and candidate species reside on private land. The ESA made it unlawful to take any endangered species within the jurisdiction of the United States. It further expanded the definition of take to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." In 1975, the Secretary of Interior went on to define harm as:

An act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of "harm." [5]

While the secretary's clarification suggested that private landuse restrictions could be imposed under the ESA, the act was not used in this manner for several years. This changed in 1979, when the court sided with environmental groups who charged the state of Hawaii with taking an endangered bird, the palila, by maintaining populations of feral sheep and goats for sport hunting that adversely affected the palila's nesting sites. [6] The court ordered the state to remove the animals after considering the ESA's definition of take and harm. By the mid-1980s, a combination of administrative and court rulings combined to make habitat modification a violation of the ESA. [7] Thus, under the ESA, it is not only illegal to destroy an endangered species, it is also illegal to damage its habitat.

Property Rights

The basic problem of wildlife conservation is the difficulty of deciding who owns live populations. [8] Because it is costly to coordinate the actions of various landowners who provide habitat, wild populations often are managed as open-access resources, for which no one has exclusive rights. Predictably, this leads to over-exploitation through hunting, fishing, trapping and destruction of habitat. This lack of ownership makes it difficult for landowners to benefit economically either from providing habitat or from protecting threatened or endangered species.

During the 19th and early 20th centuries, wildlife populations in the United States plummeted under such open-access exploitation. Some species such as the passenger pigeon were extinguished, and many populations fell to dangerously low numbers. In perhaps the most alarming case, in less than a century, bison were reduced from a high of 25 to 30 million to just 2,000 animals by 1900. Similar, though less dramatic, stories of population decline occurred for numerous big-game species, including deer, elk, and pronghorn antelope, and many birds, including wood ducks, turkey, and many species of plumed waterfowl. As many populations declined and reached their lowest level, state, and to a lesser extent federal, governments began to create various agencies and game departments to dictate season closures, bag limits, trade restrictions, and wildlife refuges. Today, nearly all of these species have recovered, and some--like the whitetail deer--are so populous as to be considered pests in many areas. Moreover, these recoveries took place either before the passage of the Endangered Species Act or did not fall under its jurisdiction.

There are two basic types of species conservation policy. The first is the ESA approach, which uses landuse restrictions in an attempt to lock in existing habitat and penalize landowners for adverse alterations. The second method, which prevailed before the ESA and still applies to species not governed by the ESA, is a pay-to-protect program in which landowners are compensated for providing habitat. For example, the federal government buys and leases land for waterfowl habitat. Similarly, private conservation organizations such as the Nature Conservancy purchase and lease habitat.

The pay-to-protect system does little to change the basic system of rights to land, in which the landowner may use property for conservation, agriculture, hunting, or development. In fact, such a system retains the rights of landowners but generates a market for wildlife habitat. The ESA, however, substantially alters the system of property rights to land and the incentives of many people and institutions, most notably environmentalists, private landowners, the Fish and Wildlife Service, and public land agencies.

Litigation-to-List

In the wake of TVA v. Hill, environmentalists have successfully forced several federal agencies--the Bureau of Reclamation, the Corps of Engineers, the Forest Service, the Bureau of Land Management, the National Park Service, and the military services--to alter their land management policies to comply with the ESA. In the process, millions of acres of federal land have been managed as refuges for listed species. Litigation has also expanded federal authority over interests formerly governed by the states and broadened the definition of take. One strategy is to use lawsuits to force the listing of species that are widely distributed geographically so that the ESA can govern enormous expanses of land, both public and private.

The listing of the northern spotted owl is perhaps environmentalists' ultimate success thus far. The owl, which inhabits the old-growth conifers of the Pacific Northwest from northern California to British Columbia, requires a home range of 1,000 to 8,000 acres. By the early 1980s, environmentalists began to pressure federal forest managers with the U.S. Forest Service and BLM to limit harvest of old growth forests. Environmentalists challenged these agencies under a variety of federal environmental laws for failing to consider how proposed timber sales would affect the spotted owl. Ultimately, in a 1988 federal case--Northern Spotted Owl v. Hodel--the FWS was forced to reexamine the spotted owl as a threatened or endangered species throughout its range, and in 1990, the owl was officially listed as threatened.

As a result of these lawsuits and the settlements that followed, nearly 11 million acres of federal land in California, Oregon, and Washington are now considered as critical habitat and off limits to logging. This acreage represents a substantial fraction of public forests in these three states, as much as 50 percent in Oregon and Washington. By invoking the ESA and related environmental legislation environmentalists have dramatically altered land uses on public forest land in the Pacific Coast states.

In recent years, environmentalists have become more open about the use of the ESA as a land management tool, not just a means to protect certain species. For example, in July 1998, after the National Wildlife Federation led a petition to force the FWS to list the black-tailed prairie dog, NWF President Mark Van Putten stated, "This is the best possible use of the Endangered Species Act. If we can help the prairie dog, we'll be saving grasslands that benefit all sorts of wildlife, and people too." [9]

Perhaps no group has pursued the litigation-to-list strategy as successfully as the Tucson-based Center for Biological Diversity. The Center has extensively used the ESA throughout the desert Southwest and currently is trying to get more than 100 new species listings or critical habitat designations in California. In 1995, it obtained a one-year injunction on all logging in national forests in Arizona and New Mexico by forcing critical habitat designation for the Mexican spotted owl.

But the Endangered Species Act not only allows citizen litigation on federal land, it also alters the property rights of private landowners when an endangered species is present or when there is a probability that a species will inhabit the land. Under the ESA, the FWS essentially controls wildlife--even on private land--at least for listed species, by virtue of its authority to enforce the ESA. Once a species has been listed, the ESA is in force so that the land that provides habitat for the species is governed by the ESA. A landowner thus finds that a portion of his rights to the use and income of the land essentially is transferred to the FWS and those who are able to influence the agency through political or legal avenues.

Environmentalists can force the FWS to act by showing that federal agencies or private landuse harms listed species. Environmentalists can also encourage the listing of new species that inhabit land for which environmentalists want to change existing or planned land use. The record of extensive litigation under the ESA indicates that environmentalists have successfully used the citizen lawsuit provision to invoke and strengthen the ESA. [11]

Because the ESA allows citizen lawsuits, environmental groups can sue for listing and implementation of the ESA and thus "claim" land, public or private, by prohibiting the landowner from making any changes that would alter wildlife habitat. In addition, the ESA places no limits on the number of species to be listed or the number of acres affected and does not require that landowners be compensated for losses; as a result, the landowner who suspects there might be endangered species has no economic incentive to preserve habitat. In principle, a group can claim large areas by seeking the listing of a species that requires a large territory to thrive, thus preventing uses of the land that might harm the listed species.

Thwarting the ESA

Even under the ESA, a landowner maintains important influence over the land by virtue of his control over nonwildlife uses such as farming and forest management. Moreover, because of the information advantage landowners have over the FWS, they may be able to take action to prevent the administration of the ESA and thereby reclaim their rights to wildlife habitat.

There are several ways to thwart implementation of the ESA. First, if the species is already present but unknown to the FWS, a landowner may secretly, and illegally, kill all listed species inhabiting his property. This is known by some landowners as the shoot-shovel-and-shut-up approach to land management. In so doing, the landowner is cleansing the land of the listed species and rendering ESA regulations moot.

Second, if the species is not yet present but the potential for inhabitance is high, he may destroy or damage habitat to preempt the ESA's regulations. Preemptive habitat destruction might be active--bulldozing junipers that provide habitat for endangered warblers, for example--or it might be passive--stopping the burning of understory, a practice that helps maintain pine forest habitat for endangered woodpeckers. Such preemption not only removes the potential for costly regulations, it also effectively reduces habitat for the endangered species.

Many students of the ESA, including biologists, bureaucrats, economists, environmentalists, and lawyers, have recognized the possibility of preemptive habitat destruction, and anecdotes and case studies abound. [12] In Texas, landowners have cleared and overgrazed juniper habitat for the golden-cheeked warbler and the black-capped vireo. Forest owners clearcut old growth Douglas fir in the Pacific Northwest to avoid logging restrictions designed to protect the northern spotted owl. Farmers in California have switched crops to eliminate habitat for kangaroo rats. The National Association of Home Builders actually advises preemption, or what it calls scorched-earth management, to ensure that the property will be unsuitable for protected species. [13]

War on Woodpeckers

The evidence of preemption is strongest for the red-cockaded woodpecker, a non-migratory, territorial species that resides exclusively in longleaf pine ecosystems ranging from Virginia to Arkansas. This bird was listed as an endangered species in 1970 before the ESA was enacted, making it one of the longest listed species. A clan of red-cockaded woodpeckers requires 100 to 250 acres of mature pine forest for nesting and foraging, and the FWS's guidelines recommend parcels ranging between 60 and 300 acres. At roughly $2,000 per acre of mature, unharvested timber, these regulations are potentially costly landuse restrictions that can stimulate preemption.

Perhaps the most famous reported preemption case is that of North Carolina landowner Ben Cone, who dramatically increased his harvest of old-growth pine in response to potential ESA regulations. In 1991, the FWS restricted Cone from harvesting timber on 1,500 acres of his 7,200-acre property to protect 12 colonies of red-cockaded woodpeckers. A consultant estimated the market value of timber on the 1,500 acres to be $2 million, roughly $1,300 per acre. In response, Cone proceeded to clearcut potential woodpecker habitat on nearby, but currently unregulated acres. [14] Rather than waiting to cut 80-year-old trees, he cut them at age 40 before they were prime nesting habitat. Cone also sent a letter to his neighbors describing the situation, and at least one soon began clearcutting his pine stands.

Recently, a colleague and I examined a detailed set of data on forest ownership and management, coupled with detailed data on the location of known colonies of redcockaded woodpeckers, to examine how the potential for ESA regulation affects the probability that a particular forest plot will be harvested. [15] We used data on more than 1,000 individual privately owned forest plots from a 1984-1990 U.S. Forest Service survey and from a 1997-1998 North Carolina State University survey of over 400 North Carolina forest landowners.

Controlling for other economic factors such as timber prices and stand quality, we found that the closer a plot is to red-cockaded woodpeckers, the greater the probability that the plot will be harvested and the younger the age at which the forest is harvested. For the 1984-1990 period, the probability that a 50-year-old stand of pine will be harvested increases from between 5 and 25 percent when there are woodpeckers within 5 to 15 miles of a site. For example, during this six-year period, the probability of harvesting a 50-year old stand with no woodpeckers within 15 miles was 31 percent, while the probability was 50 percent if there were high densities of woodpeckers within 15 miles. [16]

Out of a total pine acreage of 960,000 acres in North Carolina, we found that between 12,000 and 70,000 additional acres were harvested between 1984 and 1990 because, of the potential of ESA regulations. These findings are the first empirical evidence of systematic preemptive habitat destruction and confirm both the economic model of preemption and the dismay of some environmentalists who have noted that populations of red-cockaded woodpeckers have been declining on private land under the ESA.

Lobbying Limbo

Besides acting to preempt the ESA by altering habitat, landowners may form interest groups and lobby for changes in the ESA or in the way the FWS implements the act. Indeed, the emergence of the so-called "property rights movement" in the early 1990s came as a response to ESA regulations. In some cases, existing groups such as the American Farm Bureau Federation and the Forest Products Association were ready to champion the causes of landowners affected by the ESA. In other cases, new organizations such as the National Endangered Species Act Reform Coalition were formed to explicitly address the concerns of landowners with the ESA.

The property rights movement gained supporters in the Republican-led 104th Congress in 1994. It generated numerous bills to amend the ESA as well as anti-takings bills that would require compensation to landowners if some portion of land value were lost. Although none of these bills became law and the ESA remains in limbo, the political pressure undoubtedly is part of the reason for the development of recent "No Surprises" and "Safe Harbor" policies. "Both of these new policies develop baseline populations of an endangered species for a landowner, so he will be able to manage the land without the threat of expanding landuse regulations." [17]

Federal Agencies

Federal agencies have also been influenced by ESA's incentives. The FWS, for example, has faced competing forces, so its behavior has not been uniform. On one hand, the ESA offers opportunities to expand the reach and size of the agency beyond its traditional role of regulating primarily game species. On the other hand, using the ESA for these new efforts means alienating long-lived constituents, such as hunters and fishers, and risking political attack. Although FWS bureaucrats were active in expanding the role of the agency by assisting in writing endangered species legislation, the agency was extremely cautious in enforcing the ESA before TVA v. Hill and often has been since.

Even so, the FWS seems to have thrived since the ESA. Its total budget was $160 million in 1974, but by 1995 had increased to a little over $1 billion. The budget for its endangered species programs similarly increased from $3.2 million in 1972 to $87.9 million in 1995. This represents an increase in the share of the budget devoted to endangered species from 2 percent in 1974 to 8.7 percent in 1995. Meanwhile the number of listed domestic species has risen from 109 species in 1973 to over 1,100 species, of which 702 are plants.

The structure of the agency has also changed since the ESA. For example, there are relatively more biologists working in the Office of Endangered Species than at regional offices and wildlife refuges since the ESA. The FWS emphasis on serving primarily a hunting-fishing constituency has clearly diminished and has shifted toward a nonhunting environmentalist constituent base. There are often close ties between Office of Endangered Species biologists and environmental groups, and many lawsuits forcing the agency to list or define critical habitat have been friendly suits initiated by its own biologists within the Office of Endangered Species.

Since enactment of the ESA, the agency has also seen the centralization of its bureaucracy, also as a result of the rising importance of endangered species. Before enactment of the ESA, the agency was highly decentralized among its seven regional offices and hundreds of refuges. Today, the agency is much more centralized because the Office of Endangered Species is headquartered in Washington, D.C. The FWS has been transformed from an agency almost exclusively concerned with migratory birds and wildlife refuges to one with a strong focus on the administration and enforcement of the ESA.

Public-land agencies have similarly been transformed by the ESA and its increasingly stringent interpretation. Since TVA v. Hill, federal agencies have been forced to enhance the conservation and restoration of listed species. This has meant that land uses and land management decisions have changed. Timber harvest has been reduced on national forests, grazing has been limited on public rangelands, water development projects have been eliminated or reduced in scale, and military bases have been modified to accommodate the habitat for listed species. It's not surprising that this has led to substantial increases in agency expenditures to study species and develop habitat conservation plans. From 1989 to 1993, annual expenditures for these purposes rose from $7.5 million to $38 million for the Forest Service, from $1.5 million to $14 million for the Bureau of Land Management, and from $5 million to $11 million for the Department of Defense. [18] Simultaneously, public land use has been diverted from revenue gen erating activities such as timber harvest, mineral extraction, and rangeland leasing and toward wildlife and recreational uses that do not generate revenues. As a result, lands that formerly provided a source of revenue for federal agencies, or at least offset the expense of maintaining these agencies, no longer do so, making these agencies more reliant on general revenue for their management.

Conservation, Past and Future

Many of the species driven to distressingly low numbers in the late 19th century have now recovered. For example, whitetail deer fell to just half a million by 1890 but are now estimated at 15 to 25 million and are often considered pests.

The pronghorn antelope, present in large numbers throughout the Great Plains during the Lewis and Clark Expedition, had been reduced to 26,600 in the United States and 30,320 in Canada in 1924. By 1964, just 40 years later, populations had increased more than 10-fold in both the United States and Canada and have increased steadily since then. Their numbers approach 600,000 in the United States today.

Similar recoveries have occurred for bison, bighorn sheep, and elk. And population recoveries for the bluebird, turkey, and wood duck have been at least as dramatic.

In all of these cases, similar forces were at work. State wildlife agencies and the FWS enforced season closures and restricted game trade. In addition, habitat was often enhanced through refuges, especially for migratory waterfowl. Animals were live-captured in the wild and raised in captivity before being transplanted to depleted areas.

Private landowners also cooperated in developing and protecting habitat. For example, conservation groups built nesting boxes for wood ducks and bluebirds on private land. In New Mexico, landowners who had opposed allowing game on economically valuable grazing lands consented to the reintroduction of elk and pronghorn on the condition of being able to control hunting regulations once populations increased. In most cases, there have been well-defined interest groups, such as Ducks Unlimited or the National Wild Turkey Federation, that have helped steer restoration by raising revenue and negotiating with wildlife agencies and landowners.

The ESA has been in effect only since 1973, so its success at species restoration is difficult to assess fully. We do not know, of course, what might have happened to certain species without the ESA, yet the evidence thus far does not suggest any dramatic recoveries for listed species like those mentioned above. Of the more than 1,200 domestic species that have been listed as endangered or threatened, only 24 were delisted as of February 1997. Of these, seven were extinct and nine were delisted because of "data error," indicating that the original listing was based on mistaken population estimates. The remaining eight species were considered recovered, although there is debate over the ESA's role in that success.

One study of the FWS contends that none of these recoveries is the result of the ESA. [19] For example, the improving status of the bald eagle is now mostly attributed to the ban on DDT and enforcement against poaching, neither of which are specifically ESA-based policies. Thus far, the ESA's success record is still quite limited compared with some of the impressive restorations that occurred without the ESA. No dramatic species recovery can be claimed as a result of the ESA; indeed such species as the red-cockaded woodpecker, which has been listed for 30 years, have declining populations.

Wildlife restoration policy before the ESA used season closures and game trade restrictions to limit open-access killing. Moreover, it used pay-to-protect methods to enhance wildlife habitat, by either purchasing or leasing land for refuges, and landowners were never penalized for altering habitat. Thus the preemption incentive was completely absent.

Under the ESA, the prohibition on taking amounts to a year-round season closure. This ban, combined with existing game trade restrictions, would make the ESA equivalent to pre-ESA approaches. But the broad definition of take, which includes harm to habitat, makes a crucial difference. Because of this, the ESA creates the incentive for preemption and also limits the potential for using the land market to allocate habitat.

The main distinction between the two approaches is how each alters the incentives of landowners to provide and enhance habitat. Under a pre-ESA policy, the landowner has an incentive to both provide and enhance habitat. Under the ESA, the landowner instead has an incentive to reduce or even eliminate habitat. Thus, the ESA will be most successful where habitat development is not important or where the landowner's ability to manipulate habitat is limited.

It's the Incentives...

Although the ESA had the nearly unanimous support of Congress and the president in 1973, it has become one of the most controversial environmental laws in the United States. It has been lauded by environmentalists and vilified by landowners. Congressional authorization for the ESA expired in 1992, and gridlock has ruled since. All students of the ESA recognize that it was a major shift in federal wildlife law, dramatically altering the property rights to habitat that sustains endangered species. In the nearly 30 years that have passed, there have been so many adjustments to and investments in the ESA property regime that strong vested interests have been established. Thus the current gridlock is not a surprise.

Current dissatisfaction with the ESA reveals growing concern about some of the incentive problems with the current ESA that are becoming increasingly important. While landowners tend to be uniformly opposed to the ESA unless they can be sure they will avoid its force, the ESA has been a double-edged sword for environmental groups. On one hand, the ESA has allowed environmentalists to have great sway in the use and management of public lands and to attack large-scale federal development projects. [20] On the other hand, habitat is being destroyed, and species are losing ground on private land, most likely because of the ESA. These combined forces seem to be generating pressure to change the ESA, especially as it affects private landowners. Indeed, the FWS has recently implemented more-flexible policies for private landowners.

Lessons Learned

Two lessons can be drawn. First, a focus on the property rights to land clarifies issues and motives of various groups in supporting or opposing various policies. Specific attention to the incentives of landowners, both private and public, is crucial in understanding the performance of various wildlife preservation policies.

Second, because of the discretion of agencies and the courts' deference to them, the passage of seemingly benign legislation can evolve into a set of largely unintended consequences. Along the way, institutions may become quite permanent, regardless of their merits, as vested interests also evolve to take advantage of the new regime.

More than anything, however, the ESA needs a dose of systematic empirical analysis of its impacts on landuse, its costs, and its success at achieving its own goals of species conservation. About all that is known for sure now is that the ESA has altered landuse on federal lands, crippled some development projects--including some that were "pork"--caused landowners to destroy habitat to avoid regulations, expanded the FWS's bureaucracy, fostered costly litigation, and spawn-ed lobbyists and consultants. Has it been worth it?

Dean Lueck is a professor of agricultural economics and economics at Montana State University in Bozeman. [21]

NOTES

(1.) The National Marine Fisheries Service administers the ESA for marine species. For the details of the history of the ESA and its implementation, see Michael J. Bean and Melanie J. Rowland, The Evolution of National Wildlife Law, 3rd ed. (Westport, CT: Preager, 1897); Daniel J. Rohlf, The Endangered Species Act: A Guide to its Protections and Implementation (Stanford, CA: Stanford Environmental Law Society, 1998); and Steven Lewis Yaffee, Prohibitive Policy: Implementing the Federal Endangered Species Act (Cambridge, MA: MIT Press, 1982).

(2.) This history is examined in detail in Dean Lueck, "The Law and Politics of Federal Wildlife Preservation," in Terry L. Anderson, ed., Political Environmentalism (Stanford, CA: Hoover Press, 2000).

(3.) 437 U.S. [sections] 153 (1978).

(4.) The ESA, however, does not prevail in issues of national security.

(5.) 40 Fed. Reg. 44412, 44416 (1975).

(6.) Palila v. Hawaii Department of Land and Natural Resources, 471 F. Supp 985(D. Hawaii 1979), aff'd 639 F.2d 495 (1981).

(7.) This policy was further solidified by the Supreme Court in Babbitt v. Sweet Home Communities for a Greater Oregon, 515 U.S. 687 (1995).

(8.) For an analysis of the economics of wildlife law, see Dean Lueck, "The Economic Nature of Wildlife Law," Journal of Legal Studies 18 (1989), pp. 291-323.

(9.) Quoted in "NWF Seeks Prairie Dog Listing: Action Will Save Wildlife and Grassland Habitat" [less than]http://www.nwf.org/prairiedogs/ prairied.html[greater than]. To date, the prairie dog has not been listed, but the FWS gave a preliminary ruling in 1999 that it would be listed within a couple of years.

(10.) The Center's actions are described by Nicholas Lemann, "No People Allowed," New Yorker (November 22, 1999), pp. 101-113.

(11.) Daniel J. Rohlf, in The Endangered Species Act: A Guide to its Protections and Implementation (Stanford, CA: Stanford Environmental Law Society, 1988), finds over 40 federal cases by 1988. From 1973 to 1998, the Environmental Law Reporter (various issues) shows 24 cases reaching the Supreme Court, 360 reaching a federal appellate court, and 488 reaching a federal district court.

(12.) For some of these cases, see Richard Epstein, " Babbitt v. Sweet Home: The Law and Economics of Habitat Preservation," Supreme Court Economic Review 5 (1997), pp. 1-57; Charles C. Mann and Mark L. Plummer, Noah's Choice: The Future of Endangered Species (New York: Alfred A. Knopf, 1995); and H. Barton Thompson, Jr., "The Endangered Species Act: A Case Study in Takings and Incentives," Stanford Law Review 49 (1997), pp. 305-380.

(13.) Developers Guide to Endangered Species Regulation (Washington DC: National Association of Home Builders, 1996), p. 109.

(14.) Cone also used the threat of logging and a fifth amendment lawsuit to limit the enforcement of the timber harvest restrictions.

(15.) Dean Lueck and Jeffrey A. Michael, "Preemptive Habitat Destruction under the Endangered Species Act," working paper, Montana State University (April 2000).

(16.) Ibid.

(17.) Lueck and Michael, "Preemptive Habitat Destruction under the Endangered Species Act."

(18.) For example, Eglin Air Force Base in Florida and Fort Bragg Army Base in North Carolina are home to numerous populations of the endangered red-cockaded woodpecker.

(19.) Robert E. Gordon et al., "Conservation under the Endangered Species Act," Environment International 23 (1993), pp. 277-370.

(20.) In remarks celebrating the 25th anniversary of the ESA, Michael Bean, chair of Environmental Defense's Wildlife Program, notes the ESA "has sparked long-overdue changes in the management of our Federal forests. It has helped bring an end to the era of pork-barrel dam building." He is remarkably silent on the ESA's species recovery record. See "The 25th Anniversary of the Endangered Species Act," EDF Column 30(1), January 1999 at [less than]http://www.environmentaldefense.org/pubs/newsletter/1999/Jan/j_e ndsp.html[greater than].

(21.) This article was written while the author was an Olin Fellow in Law and Economics at Cornell University, Ithaca, New York.

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