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Sunday, December 1, 1996

A Property Rights Parable for City Dwellers

Endangered Species Laws Have Ruined the Lives and Livelihoods of Property Owners

Representative Pombo of California is chairman of the task force charged with reforming the Endangered Species Act. Mr. Farah is former editor of the Sacramento Union and executive director of the Western Journalism Center. This article is adapted from This Land is Our Land, published September 1996 by St. Martin’s Press.

Imagine you have just purchased a two-bedroom condo in New York City. You had saved money for ten years to buy it. It is conveniently located and has a beautiful view. You plan to turn one of the bedrooms into a home office for your consulting business. You paid $300,000 for the condo, but you are thrilled to have it.

After signing the check for the down payment, you are about to move in your furniture, computer, and personal effects. You hear a knock at the door. Two armed agents from the U.S. Fish and Wildlife Service (FWS) want to talk to you about your condo and your plans to run a consulting business from that second bedroom. You see, your condo has been designated as critical habitat for the endangered Manhattan cockroach.

The Manhattan cockroach once roamed freely all over the island of Manhattan, but human activities like the construction of high-rise condominiums, subways, roads, and X-rated movie theaters have reduced the habitat of the cockroach by over 98.5 percent. Their numbers have fallen drastically, according to a study done by a New York University graduate student in his apartment on 43rd Street and Ninth Avenue. Last August, he discovered 20 roaches in a three-hour period. This year he could locate only ten. On the basis of these data, he requested that the roach be listed as an endangered species because of the 50 percent reduction in its population. Since no one submitted contrary claims to the FWS, it used these best available data and made the listing.

As a result, the FWS agents say that your second bedroom must be set aside for the cockroach. You are not allowed to put any furniture, clothes, or computer equipment in that room. You may not vacuum the floor in that room, as that might eliminate the roach’s food supply. If you enter the room, you must be careful not to step on, harass, or intimidate any roaches. Turning on the light suddenly, for instance, frightens the roach and causes it to scurry away. If you do any of these things, it will be considered an unauthorized taking of the roach and you will be prosecuted to the full extent of the law—a year in prison and a $100,000 fine for each harassed roach.

In addition to setting aside your second bedroom for the roach, you must also allow for a migration corridor through your kitchen so that the roach may move from one habitat (your bedroom) to its next nearest habitat (the bedroom of the family next door). The agents inform you that the family next door used a vacuum cleaner in the roach’s habitat, accidentally sucking up five roaches into the vacuum cleaner bag. The FWS brought charges, and when the family fought prosecution in court, the government subpoenaed their tax returns, immigration records, and old car rental receipts to see if they were good citizens. The family soon complied with all the provisions of the Endangered Species Act.

Being a good citizen yourself, you agree to the conditions, believing that you can live in harmony with one of God’s creatures. Weeks pass, and you notice that the roaches are not content to remain in their habitat or in their migration corridor, but tend to get up into your grocery shelves. Your children are afraid to move around in the condo and the smell from the second bedroom is getting pretty bad. Since you cannot operate your consulting business from home, you rent office space. But the rent is so high, you soon have to give it up.

You decide that your condo is not worth the trouble, and undertake to unload it. You go to a real estate agent to put it up for sale, but discover that because your condo was declared critical habitat for the Manhattan cockroach, no one wants to live there. The best available offer is $25,000 from the Save the Cockroach Association of Manhattan (SCAM), a nonprofit organization that buys up cockroach habitat. It bought your next door neighbor’s condo for $25,000 and sold it to the federal government the next day for the original pre-habitat price of $300,000.

You find this proceeding a bit on the unethical side, but just before you take the $275,000 loss, your upstairs neighbor’s waterbed bursts and floods your condo, completely annihilating the population of roaches. Believing it to be a sign from heaven, you begin to mop up in order to begin your life anew when you hear a knock at the door. There you find two armed agents of the U.S. Army Corps of Engineers. It appears your condo has just been designated a wetland.

Sound far-fetched? While admittedly a composite of government abuses and environmental horror stories, misfortunes very similar to those sketched above have actually happened to residents of western states. And while no cockroaches were involved, property owners and their families have had their lives and livelihoods ruined by endangered flies, beetles, rats, and shellfish.