January 27, 2014

Can Fido be regulated under the Endangered Species Act?

By Jonathan Wood Attorney

Last week, the National Marine Fisheries Service announced its intention to grant a petition to regulate Lolita — an orca whale that has lived at Miami’s Seaquarium for more than 40 years — under the Endangered Species Act. As PLF’s Liberty Blog previously reported, PETA petitioned to have Lolita regulated under the act with a rather bizarre argument applying the species-wide standards for listing to a single animal. The Service ignored the substance of the petition, instead treating it as a challenge to whether it could exclude captive members of a species from the listing of a species as a whole. This is part of a broader policy to bring captive species within the ambit of the act. Last year, the Fish and Wildlife Service announced that captive chimpanzees and exotic species grown on private ranches would be regulated under the act, both of which the Service had previously expressly exempted from regulation.

Regulating captive species as if they were wildlife is bad for the continued existence of the species. The reason is a principle called the tragedy of the commons—when natural resources are owned in common and open for exploitation by anyone they will tend to be overused and possibly destroyed forever. This phenomenon explains why water and air may become overly polluted and why unowned wildlife can go extinct.

One of the most successful solutions to this problem is private ownership of natural resources. When an owner both enjoys the benefits of a resource and bears the costs of preserving it, she will respond to the incentives to conserve it.

This has proven to be a successful method to avoid species extinction both in the U.S. and abroad. For example, Namibia is one of the few places where African black rhinos are rebounding and poaching is declining. The reason: Namibia has conferred on local communities and tribes a property interest in protecting and promoting the species by allowing it to promote tourism and hunting. Similarly, Texas ranches have been raising exotic species for decades, financed largely by hunting part of the population. Federal regulation of these ranches under the Endangered Species Act threatens both these businesses and the continued existence of these species.

Perhaps that’s the point. In a 60 Minutes interview, the president of Friends of Animals, which challenged the exclusion of these ranches from the act admitted that she’d rather see the animal go extinct than have it preserved, if that preservation was made possible by human use of the animals. Thankfully, Congress intervened to exclude these ranches. But species-by-species legislation obviously makes it difficult for other species to be saved in this way. If the purpose of the Endangered Species Act is to prevent extinction, it simply makes no sense to frustrate conservation efforts utilizing private ownership of rare species.

The Service’s policy of regulating captive species also raises serious constitutional concerns. Although the proposed regulation suggests that the Service will likely decide not to, it indicates that the Service believes it can order the release of captive animals. But because these animals are private property, the takings clause would require compensation for this forced release.

The apparent reason for animal rights organizations to push for regulation of captive animals is that these animals may be being abused. This would explain why PETA’s Lolita petition was focused primarily on whether her tank was big enough and whether she’s lonely. As understandable as this concern is, it is best addressed through statutes regulating animal abuse — not the ESA, which is aimed at conservation on a species-wide basis. Other groups seem to object to any human ownership or use of animals. But this too is not the purpose of the ESA.

Comments on the proposal to regulate Lolita are due March 28th.

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