Congress passed the Endangered Species Act (ESA) in 1973 to protect species threatened or in danger of extinction. Federal judges have an especially difficult time dealing with it. In the ESA, they confront nasty conflicts between Congressional intent to save endangered species and our Bill of Rights.

In Saving All the Pieces, Rocky Barker notes that federal mandates generally require agencies to provide protection 'when practicable'. But the ESA is different. Protection of all species is absolute. There is no room for equivocation; no provision for tradeoffs among competing legitimate and important values. An endangered species trumps all other values.

The Fifth Amendment to our Constitution concludes with, "...nor shall private property be taken for public use, without just compensation." It's not in the Bill of Rights by accident. It was intended to preclude plundering by politicians and bureaucrats, what ever their justification. Americans' experience with the ESA demonstrates why the Founders were so concerned with uncompensated takings.

The application of the ESA demonstrates the mischief and unintended consequences which follow when we attempt to take value from individuals without "just compensation". When endangered species are found on private land, the owners lose opportunities to undertake legitimate actions. Land value is often reduced, sometimes eliminated. Consequences are bound to follow. Many of them harm habitat of endangered species.

Many well intentioned environmental activists discount, ignore or pretend these losses away. This seems intellectually and ethically irresponsible. But what if ecological integrity trumps both the ethics of the case and the value of logical consistency? Honorable people could hold this position.

The ecological goals which motivated the Act's creation maintain wide support. It's the commando approach, seize control of the land, which causes problems for species and people. Let's consider the environmental consequences of takings by the ESA's administrators. We will keep two ecological guidelines in mind; we can never do only one thing, and everything is tied to everything else. These principles are as valid in political economy as in ecology.

The Act commonly transforms harmless and inherently cute critters including the Spotted Owl and Red-cockaded woodpecker, into enemies of the landowner. Animals such as the gray wolf and grizzly bear, creatures which can pose genuine threats to people or property, carry a double burden. If we care to protect them (and I do), and if we were to name one group of individuals whom we should want to like an endangered species, it surely would be its host, the land owner. Why make them foes of ESA's goals?

The Act grants unprecedented powers to the U.S. Fish and Wildlife Service, some even greater than powers of the Department of Defense in wartime. The Third Amendment of our Bill of Rights states that: "No Soldier shall, in time of peace be quartered in any house without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law". Various creatures, some quite unappealing to most people, have greater rights. The government must pay for what it takes when supplying our military. This is why it is so difficult to close down a base. In contrast, the land owner suffers if The Fish and Wildlife Service finds a listed species on her land.

The exercise of these powers under the ESA has perverse but predictable consequences. The land owner has few incentives to protect habitat for the species and strong incentives to modify it preemptively to make it less attractive. Alternatively, he may simply "shoot, shovel and shut up". The Act encourages land owners to break the spirit and the letter of the law. This is not a sustainable policy for protecting endangered species. And it's not achieving its goals.

This is why an increasing number of environmental advocates believe it's time to rethink the Act. The ESA is one troublesome example of keeping our Progressive Era's "scientific management" approach in place long after it was found wanting. Many distinguished analysts are having second thoughts about the ESA and the entire scientific management, command-and-control approach which it represents.

Professor Robert Nelson teaches Public Policy at the University of Maryland after spending two decades as a senior researcher in the Department of Interior, the home agency of the Fish and Wildlife Service. He predicts that over the next twenty or thirty years new approaches will replace the failed system. Nelson believes the current period has many similarities with the Progressive Era. In his words, "A new set of ideas and a new institutional framework are required, just as the progressives saw such a need one hundred years ago."

A century ago American Progressives saw serious problems in America. Many of these came from the ability of business to neglect a public interest in favor of narrow self interest. Businesses could ignore costs imposed on others. The Progresives' solution was to impose regulation and management by wise and competent bureaucrats.

Today, the ESA follows this model to its logical but counterproductive conclusion. It clearly is time for serious second thoughts about better ways to protect endangered species. Reform requires that we acknowledge the importance of secure property rights and regulatory stability. As the Founding Fathers understood, it's too expensive to permit government to take things for free.