It's time to reform ESA.

There is probably no hotter topic on the environmental scene today than the Endangered Species Act (ESA) and its implementation. The act, which prohibits the "taking" of species found to be threatened or endangered, seldom runs into fire on the basis of its objectives. Few people seriously argue that species don't matter, or that people should have full freedom to cause extinction without caution. Although there are disagreements over data, most people recognize that with five-plus billion humans on earth today, the competition for space is hastening the demise of species at a rapid rate. So most people recognize that species extinction is a problem that is continuing to accelerate.

But now comes the rub: How does a responsible society reduce the rate of species extinction in today's world? In looking at the growing controversy over implementation of the ESA, one must conclude that we haven't yet found an acceptable or effective way.

The problem, it seems to me, goes well beyond the political and economic arguments being hurled back and forth on the issue. ESA today is not only failing in too many instances, it is creating incentives for landowners to actively destroy habitat! When a law designed to protect something results in its destruction, the need for a new approach becomes compelling. That's where we stand today with ESA.

A recent Associated Press story datelined Atkinson, North Carolina, illustrates an increasingly common situation. A local timber owner, known for responsible forest management and careful harvesting, has begun liquidating timber stands as rapidly as possible to prevent them from becoming a potential home for red-cockaded woodpeckers. According to the story, he has almost 1,000 acres of forest where the birds already exist, and since he is unable to harvest timber from those forests, his losses run into the millions of dollars. He has paid $8,000 to biologists to insure that he's following the rules, which threaten a $25,000 fine and five years in jail for each colony of woodpeckers threatened by a violation.

The bottom line is that this landowner has felt compelled to prevent his remaining forest land from being converted into a "woodpecker preserve," so he is clearcutting the forest before it can become an attractive habitat. Under the existing rules, if the woodpeckers move in, he'll lose the income-producing potential of the land but will realize no lowering of his property taxes and no other income to help cover the costs or losses.

Under such a warped set of incentives and disincentives, his actions are understandable. But in reality those actions are deplorable, and he'd probably be the first to say so. No sane person seeking to increase the amount of habitat available for endangered woodpeckers would chart such a course. Neither would any responsible forest landowner whose goal was a sustainable, healthy, productive forest. From every public policy viewpoint I can imagine, this whole picture is wrong.

As I sat and pondered this editorial, a new court decision that could have enormous impact crossed my desk. A three-member federal appellate court panel in Washington, DC, ruled on March 11 that the U.S. Fish and Wildlife Service went farther than the ESA allows "when it told property owners they could be punished for destroying the habitat of the northern spotted owl." The court has determined that "taking" of an endangered species under the ESA occurs only when "a direct physical injury to an actual member of the species" is involved. The ruling has been portrayed in the media as a "stunning victory" for the timber industry and a "major blow" to federal wildlife-protection efforts.

But is it? Or is it a blessing in disguise to the future of the Endangered Species Act, and to the national effort to maintain biological diversity? I believe--prematurely, to be sure--that if handled properly, it can be the latter. It seems clear that the threat to private rights and ecosystem-management options involved in the "do not disturb habitat" approach might, in practice, have worked to reduce habitat rather than increase it, so seeking a better way seems rational. Maybe this court case will so disrupt the previous approach that it forces everyone to look for ways that really work.

However, any new management ideas will have to be based on an entirely different viewpoint about how ecosystems function, and about how they can best be managed. A place to begin is suggested in the feature article "How Nature Really Works" (American Forests, March/April 1993). The idea that the habitat for an endangered species is best protected by leaving it alone stems from the idea that nature left untouched by humans regulates itself to the benefit of all species.

Most ecologists today won't buy that theory. Nature left untouched by humans changes. Period. Whether or not those changes help or hurt a particular species is a matter of chance. Today virtually no square foot of earth is totally unaffected by human actions or impacts. In many instances, in fact, conditions have been altered to the point where natural forces may be enormously destructive. There are many places where proactive human management is required for species protection.

Obviously, past management methods, often based on commodity production rather than maintaining the full integrity of the forest ecosystem, didn't protect bio-diversity as much as we today wish it had. But that doesn't mean tomorrow's management must mirror those methods. In many cases, we know how to do it differently, and can do it differently. There are functioning forests today--almost all under private management--where the forest is very successfully meeting the needs of endangered species. If we can find a way to encourage and expand such management instead of punish and discourage it, ESA's objectives can be realized. The other option is to continue to force landowners to avoid any contact with or support for endangered species and, on the public lands, to take our chances on nature and its unpredictable impacts on protected areas that are often ill-suited in terms of size and current condition to guarantee good results.

So the question remains: What kind of incentives would it take for our North Carolina forest landowner to begin managing his forest so that it always contains areas of good habitat for red-cockaded woodpeckers? Instead of seeing those good habitat areas "fixed" permanently on the landscape, maybe we will begin to see them shifting slowly over time, under cautious but intentional manipulation. Trees can be harvested, and prescribed fire used, to keep forests in shape for the woodpeckers. The forest might be as productive and profitable as the owner needs in terms of meeting his goals, and still be an inviting home for woodpeckers--and turkeys, bear, deer, picnickers, and a host of other critters in the process.

There's not much argument that such an outcome, if it can be achieved, would be preferable to the situation described above. Forest owners and managers would rejoice, and if the results were more habitat, improved species survival, and less strife and confrontation, it's hard to see how the federal wildlife managers and the environmental community would object.