Prairie Dog Lessons: Bad Law + Federal Overreach = Bad Conservation

Brian Seasholes Policy Analyst, Reason
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In the ongoing debate about how to reform the Endangered Species Act, an obscure rodent in southern Utah holds some important lessons, especially that a bad law combined with federal overreach results in lousy conservation.

Just ask Dean and Kathy Lamoreaux. In 1990 they purchased a 200-acre farm near Cedar City, Utah. At the time, the property contained no Utah prairie dogs, one of five species of the rodent native to North America, which lives entirely within the borders of Utah. Then in the mid-1990s problems started when prairie dogs began occupying their property. Prairie dog mounds and burrows have caused thousands of dollars of damage to the Lamoreaux’s farm equipment. But in order for Dean and Kathy to be eligible for an exemption under the Endangered Species Act to have some prairie dogs killed or moved off their land, they must first construct a fence, which would cost them additional thousands of dollars.

The Lamoreaux’s are two of the many landowners who have lost millions of dollars to the Utah prairie dog, including farmers who lose $1.5 million a year in crop and equipment damage, according to a 1984 estimate by the U.S. Fish and Wildlife Service. Since then, as the prairie dog population increased by about 30 percent, property losses and damage have also increased. Dean and Kathy Lamoreaux, like many landowners who harbor endangered species, are not anti-environment. In fact, like most rural landowners, they take great pride in conserving their land. They just think they alone should not have to shoulder the financial burden of harboring imperiled species.

The basic unfairness of the Endangered Species Act is readily apparent to most. “If I’m a landowner and someone is running a highway through my land, I may not like it, but at least I’m being compensated for it,” according to William Ruckelshaus, the first administrator of the Environmental Protection Agency, in a radio interview. “If I’m forced to put buffers alongside streams that run through my land in order to protect [endangered] salmon, sometimes those buffers take a significant amount of my land, and I think they should be compensated for that. If that’s a public good and it’s being asserted against a private property owner, then why shouldn’t the public pay for it the same way they do with a highway? But we don’t.”

Frustration over the federal government’s refusal to compensate landowners for costs incurred harboring Utah prairie dogs, and to remove prairie dogs that are desecrating graveyards and making playgrounds unsafe for kids, has led the Lamoreauxs and other property owners in southern Utah to sue the federal government. Represented by Jonathan Wood of the Pacific Legal Foundation, these landowners, who formed the appropriately-named People for the Ethical Treatment of Property Owners (PETPO), argue that because the Utah prairie dog exists only in one state and is not involved in any interstate commerce, the federal government cannot assert authority over it by using the Constitution’s Commerce Clause, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Last November, PETPO won their case in federal district court in Utah, a ruling that is currently under appeal to the Tenth Circuit Court. Some states are so fed-up with the Endangered Species Act that nine have filed a brief in support of PETPO; Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota and Wyoming.

In addition to the important Constitutional questions at stake in the Utah prairie dog case, is that the Endangered Species Act is a lousy way to conserve the very species it’s supposed to help. According to a 2007 scholarly survey of landowners in the Utah prairie dog’s range, 34 percent have tried to discourage prairie dogs from residing on their land in order to avoid the Act’s regulations. Furthermore, 70 percent of landowners stated that their fear of the Endangered Species Act’s regulations “hindered their willingness to receive aid or assistance” to conserve the prairie dog.

Another key aspect of the 2007 survey assessed landowners’ preferences for working with various groups to address problems caused by prairie dogs.  About half of landowners were very willing to work with the Utah Farm Bureau and the Utah State University Extension, one of the agriculture and natural resource departments and services located in many U.S. state universities that typically provide technical education and advice for landowners. Those very willing dropped to 19-28 percent for federal and state land and wildlife regulatory agencies, and bottomed-out at 10 percent for The Nature Conservancy and Environmental Defense Fund, two groups involved in helping the federal government implement prairie dog regulations.

The sad thing is that most landowners, such as those in southern Utah harboring prairie dogs, would be willing to help conserve endangered species were it not for the Endangered Species Act’s penalty-based approach. “The fear generated by ESA regulation is a poor motivator for species conservation on private lands,” the 2007 study concludes. “Rather, incentive based approaches that consider the needs of landowners are more likely to result in species conservation over the long term.”

The study is based on the PhD research of Dwayne Elmore, who is currently a professor in the Department of Natural Resource Ecology and Management at Oklahoma State University. “Cooperative Extension is an ideal facilitator for volatile wildlife issues such as endangered species management on private lands,” according to Elmore. “Often, lack of trust in government agencies or fear of Endangered Species Act regulations hinders conservation efforts on these private lands. Extension personnel have close ties to local affected communities and thus can be instrumental in educating landowners regarding options that may be available to them in regards to sensitive, candidate, threatened, or endangered species.”

Unfortunately, the refusal of the Endangered Species Act’s proponents in the federal government and non-profit pressure groups to chart a more productive approach to conserve imperiled species predictably results in backlash, distrust and even landowners in southern Utah feeling they have no recourse but to sue the federal government to recover use of their lands, protect their communities and preserve their dignity. After ignoring landowners’ concerns for decades, proponents of the Endangered Species Act are now facing the prospect of hundreds of species losing protection under the Act if the Utah prairie dog lawsuit is ultimately successful.

Yet as the work of Dwayne Elmore and his colleagues strongly suggests, much of this was entirely avoidable but for a bad law and overreach by the federal government and pressure groups — the combination of which has likely done more harm than good to the Utah prairie dog. The November court decision spurred Utah to take the lead on prairie dog conservation, including finalizing a new conservation plan that is much more sensitive to landowners’ concerns. “In fact we think the plan will speed the recovery of the species,” states Kevin Bunnell of the Utah Division of Wildlife Resources.

There is a widespread view that the Endangered Species Act’s penalties, or the threat of them if a species were to be listed, are necessary to spur action to conserve species. But as the Utah prairie dog shows, the Act’s penalties are counterproductive, and the lack of penalties forces regulatory agencies to engage in the type of open, honest, landowner-friendly, cooperative conservation that is ultimately more successful and sustainable. The Utah prairie dog and so many other species could have much brighter futures were it not for the Endangered Species Act.