Peter Bray, Measure 37, and the Endangered Species Act

Peter Bray's Land Use Watch blog is an indispensable bulwark against assaults on land use planning by Measure 37 property rights absolutists.  And against threats to the federal equivalent of Oregon's visionary land use laws, the Endangered Species Act. 

The responses to his post about 1000 Friends of Oregon support of  compensation for some property owners, however, reveal a disturbing ignorance about the role of government in protecting the "common good" through planning and environmental regulation. Governmental "takings", the catchword of the property rights movement, seems to be the main point of contention:

"I don’t understand why so many people can’t understand the fairness of compensation for public takings."

"Sorry to be so simple. I blame the whole being raised in a free country thing, unrealistic expectations of free-choice and property rights and all. I’ll let you get back to building a fence around Oregon and preventing any economic growth."

And then this from a frequent contributer to Blue Oregon, the progressive Democratic weblog:

"To have an on-going business and then to limit it causes economic damage. To somehow say that this is not important and to be dismissive is insensitivity in the extreme. This is not lost on rural people.

"The greatest problem with the Endangered Species Act is its lack of compensation. The greatest problem with Oregon’s land use laws is its lack of compensation when real losses take place."

The issue of "takings" by government regulation has been dealt with intelligently and comprehensively by Russell Sadler in this post for Blue Oregon.  So let me address the issue of the Endangered Species Act.

The greatest problem with the Endangered Species Act is not its lack of compensation.  The problem is that the law deals with species rather than habitat.  If the law had been passed as the Endangered Habitat (or ecosystem) Act, which is its real intention, there would be far fewer complaints about it today.    And Richard Pombo would not have the support he now has for his proposed legislation to "reform" the ESA.

The ESA is a classic example of the tail wagging the dog, where the dog is habitat and the tail the threatened species.  It would be much easier and more sensible to simply protect habitat.  And more effective, for two fundamental reasons.

First, most life species are still unknown to scientists, as this article on biodiversity clearly shows.  Only an estimated 12 percent of animal species, for example, have actually been identified.  Furthermore, the demise of one species usually signals trouble for several others. 

That phenomenon illustrates the second problem with the protection of species over habitat.  It ignores the the underlying principal of healthy ecosystems:  interdependence.  No single species, from bacteria or fungi, to the grizzly bear or the bald eagle, is more important than any other in the health of an ecosystem.

In that sense, the "loss" to rural property owners is outweighed considerably by the environmental damage to habitat that, say, ranching and logging cause.  Logging by definition destroys habitat by turnng forests-- ecosystems-- into tree farms.  Ranching similarly turns native grasslands--again ecosystems-- into cow pastures.  In the process, both have done untold damage to streams and watersheds.  Why should these economic interests be compensated by the government? 

The greater irony is that ranching and logging in rural Oregon occur largely on public  land.  They are in effect already subsidized by the public, just as farming is throughout the United States.

Isn't that compensation enough?

 

Comments

[activist kaza]

Terry:

Your penultimate sentence in today's posting is one that should be drilled, ingrained, memorized and recited over and over by conservationists and those of us who want to "stand by the land". Compensation enough? Absolutely! It's time for some organization to put a pricetag on the 200 yrs.+ of govt. giveaways (beginning with the Homesteading Acts of the mid-19th Century) and let's use this as a "down payment" against all these claims for restitution and compensation.

Your point about habitat vs. species is also made with laser-like precision. Once again, a certain "blinding by the science" has occurred, with resulting great detriment to our planet.

Thanks for a really good and vital post. With the first court victory overturning M37, the stakes have only been increased and those of us who want to remain good stewards of Oregon's gifts need to be ready to wage the war with intelligence, perservance and (where possible) good humor.

[ron ledbury]

Suppose there were no bill of rights; no bill of individual rights.

You could rule.

ANARCHY RULES.

http://www.gmu.edu/departments/economics/bcaplan/spain.htm

"It is to be expected that Communists, fascists, and the other bloodthirsty zealots of the 20th century would brutally murder people for their beliefs. One would be surprised if moderate Republicans, moderate Socialists, and moderate monarchists restrained themselves from widespread murder in the midst of a fratricidal civil war. But one would hope that a movement condemning the state for its age-old brutality, and advocating an end to all human domination, would have behaved differently. Instead, it is clear that Anarchist militants were at the vanguard of the murder squads on the Republican side."

Can you instead paint a picture of your utopia and where it is that people fit within it?

The set of freedoms that are guarded in the bill of rights are the last line of defense against the ambitions of other men (and women). The peculiarity of that ambition is not as important as the protection of individual liberties.

Without security as to one's property it is hard to envision any security as to one's person.

Suggested reading:
http://pdxnag.com/drupal/node/834
Zobel v. Williams, 457 US 55 (1982)
http://laws.findlaw.com/us/457/55.html
Plyler v. Doe, 457 U.S. 202 (1982)
http://laws.findlaw.com/us/457/202.html

It is just a belief, after all . . . mere words.

[Terry]

Ron,

I don't think I mentioned "utopia' in this post, not did I challenge property rights. I did imply, however, that the right to own property is not absolute. In other words, it's not a right above all others, and it should never trump the right of the people through government to provide for the "common good."

[ron ledbury]

The utpoia point was intended as an open ended question.

The common good and a more perfect union (or other glowing phrases) are more similar to one another than the phrases might at first imply.

The bill of rights are designed to protect against things that have in the past been empirically shown to reduce the common good. It is impossible to paint a complete picture but it is possible to describe a few categories of issues where any political body has a tendency to get carried away. Eg. A king may be infinitely benevolent but that benevolence itself cannot, in my mind, serve as complete rationalization of a scheme of having kings for the common good; though they may themselves make such an argument.

Individual rights really have no description except in the context of limits on government.