March 26, 2014

PLF files comment on regulation of privately-owned animals under the ESA

By Jonathan Wood Attorney

This week, PLF filed a comment on a USFWS proposal to remove an exemption for captive orcas from regulation under the ESA. You may recall that this began with a PETA petition to list Lolita, an orca who entertains at Miami’s Seaquarium.

The Service decided that the petition demonstrated that Lolita should be regulated under the act as a member of the Southern Resident population of the killer whale, the subject of PLF’s delisting petition, which was denied last year.

As our comment letter explains, regulating private owned members of endangered species raises a series of problems. First, it threatens to violate the Takings Clause, which requires the government to pay just compensation whenever it takes private property. If the Service orders the release of Lolita, as animal rights groups demand, the government must pay Seaquarium for her. Even if the Service doesn’t order her release but limits whether and how she can perform, the effect on her commercial value may be sufficient to trigger the compensation requirement.

The comment is not limited to concerns about property owners’ interests. It also explains that regulating privately owned members of species can be bad for the species. Consider the scenario that the Service has identified:

If wild populations and captive-held specimens could qualify as separate listable entities, and it was determined that captive-held specimens do not qualify as endangered or threatened, captive-held specimens would receive no assistance or protection under the Act even in cases where wild populations continue to decline, even to the point of the species being extirpated in the wild, with the specimens in captivity being the only remaining members of the species and survival of the species being dependent on the survival of the captive-held specimens. This would not be consistent with the purposes of the Act.

As the comment letter explains, this concern is illogical. If members of a species in the wild disappear while regulated under the ESA at the same time that privately-owned members thrive without regulation, this wouldn’t be evidence that the privately owned members should be regulated. It would suggest, rather, that private ownership is superior to regulation.

Private ownership is an important means of preventing species extinction. It allows us to overcome the “tragedy of the commons” — the notion that public resources available to all will be overexploited because users have no incentive to use it sustainably. When animals are privately owned, the owner has a financial incentive to ensure that they survive and propagate. Yet the Service’s push to regulate this private property undermines the incentives to own and sustain these animals. Recently, the Service attempted to extend regulation to ranches in Texas which raised large populations of nearly extinct African antelopes for hunting. If Congress hadn’t reversed the Service’s decision, the regulatory burden may have caused some of these ranches to stop growing or shut down and would have given pause to anyone thinking about starting a hunting ranch to save other species.

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