Due to the Supreme Court's recent decision on the matter, a great deal of attention has been focused recently on the "taking clause" of the Fifth Amendment.
"nor shall private property be taken for public use, without just compensation."
I have argued that the phrase "for public use" is not very helpful, because there are not clear constitutional principles that can be applied across the board for deciding what is and what is not public use. But "just compensation is another matter. My friend Ronald Bailey, writing in Reason, explains why.
[Consider] the case of Ben Cone, a tree farmer in North Carolina. Cone owns 7,200 acres on which he raises southern pines in an 80 to 100 year rotation—that is, once he harvests an area, he allows new trees to grow for 80 to 100 years before harvesting them. This kind of forest management is very favorable to wildlife and his woods attracted and sustained a wide variety of animals, including 29 red cockaded woodpeckers. The woodpeckers were listed as endangered in 1970, three years before the ESA was enacted. Red cockaded woodpeckers prefer to make nesting holes in pine trees that are about 80 years old.
Suspecting that Cone's woods might be home to the woodpecker, the U.S. Fish and Wildlife Service (FWS) which administers the ESA, required Cone to pay a biologist $8,000 to find woodpeckers in his forests. In 1991, once the woodpeckers had been identified, the FWS prohibited Cone from harvesting timber on 1,560 acres of his land in order to protect woodpecker habitat. The cost to Cone: $1.8 million. Note that the Fish and Wildlife Service paid nothing and the taxpayers in whose names the woodpecker was being protected paid nothing; the only person out any money was Ben Cone. Between 1983 and 1991, Cone had been harvesting 919 tons of timber annually.
Cone, trying not to lose more money and control over his land, increased his rate of harvest on the land he could still access more than 10-fold. His goal was to prevent his pine trees from maturing into trees suitable for nesting woodpeckers. Obviously, this was not good for the woodpeckers the FWS was supposedly trying to help. Later researchers found that as Cone's problems became widely known among North Carolina foresters, many also feared that the feds would some day prohibit them from harvesting their timber. They began to cut their trees on a faster 30 to 40 year rotation in order to prevent woodpeckers from inhabiting their woods. Ultimately, Cone had enough money to hire lawyers to sue the Fish and Wildlife Service for compensation. Afraid that they would lose the case, the feds eventually settled with Cone.
In this case, the Fish and Wildlife Service, by trying to weasel out of the "just compensation" clause, actually compelled landowners to act in ways prejudicial to the very animals they were trying to protect. I share Ron's view that the Endangered Species Act is a mess. When its application interferes with sound forest management by private parties, not much more needs to be said. Just compensation leads to reasonable policy.
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