In 1973, the U.S. Congress passed the Endangered Species Act. Its goal was to protect plants and animals that were in danger of going extinct.
In the United States, the passenger pigeon, which at one time numbered millions, if not billions, was last seen in the early 1900s, having been hunted to extinction. The American bison (sometimes called buffalo) had come perilously close to disappearing after it was hunted extensively in the western U.S. in the late 1800s. However, it managed to survive. Less-known examples of actual disappearance are the Bachman’s warbler and the ivory-billed woodpecker.
With those examples in mind, environmentalists became worried about the loss of species. The 1973 act authorized the federal government to make a list of endangered and threatened species and populations (that is, groups of animals or plants that were not distinct species but were in danger of disappearance). The act authorized special rules to protect them.
Unfortunately, some of these rules had unintended consequences. And North Carolina became a widely reported illustration of the problems of the act.
Ben Cone’s Story
Born in Greensboro, North Carolina, Ben Cone, Jr., inherited about 7200 acres of tree-covered land in Pender County, North Carolina, near Wilmington. A hunter, Cone managed the land for wildlife. He is said to have brought back the wild turkey to Pender, and he kept areas around trees clear to attract quail and deer. Periodically, he would cut down select trees for sale.
Thus, he had some old timber on his property. That attracted an endangered bird, the red-cockaded woodpecker (different from the ivory-billed woodpecker, which had gone extinct). This woodpecker builds its nests in the cavities of old trees. Although Cone knew he had some red-cockaded woodpeckers in the 1970s, they didn’t pose a problem since he wasn’t cutting that part of his land.
But in 1991, Cone wanted to cut down some trees on that portion of his land. He and a colleague counted red-cockaded woodpeckers, finding 29 in 12 colonies (or families). However, the Fish and Wildlife Service had rules about cutting trees near the woodpecker were. As economist Richard Stroup has written, “a circle with a half-mile radius had to be drawn around each colony, within which no timber could be harvested. If Cone harvested the timber, he would be subject to a severe fine, and/or imprisonment under the Endangered Species Act.”[1]
A half-mile circle around 12 colonies meant that Cone lost the use of about 1580 out of the 7200 acres. Cone estimated that the value of his property had been reduced by $1,500,000. If the government had taken over his land, it would have had to pay him proper compensation under the constitutional right of eminent domain. But not when regulation alone cost him money.
So what to do? He started clearcutting—that is, removing all the trees—on another portion of his land. Without old trees, the woodpeckers would not be attracted to his property and he wouldn’t have to follow the strictures of the Fish and Wildlife Service
In other words, a law that was designed to save species was spurring a man to cut down all the trees on part of his property to keep out additional woodpeckers! And undoubtedly he influenced other nearby landowners.
He eventually settled out of court,” wrote Terry Anderson, “but his famous case worried other landowners with forested property in North Carolina. They didn’t shoot woodpeckers, but many pre-emptively cut down their trees. The result was that old-growth timber, which might have become habitat, was turned into pulpwood.”[2]
Cone (who died in 2024) became rather famous for his decision, because it illustrated a paradox: a law made to save species held incentives for their destruction. As indicated above, he worked out a settlement with the Fish and Wildlife Service.
And gradually, the Fish and Wildlife Service found a way to keep its rules from being so onerous. It created a rule called the Safe Harbor Agreement (SHA). The government can enter into agreements with landowners who act to benefit endangered species (as Cone did by keeping old trees) without being required to take actions that cause severe reduction in land values.
This is an improvement and it quieted some of the hostility that was growing among landowners. Yet not everyone was happy, for several reasons: A Safe Harbor Agreement is not legally binding, it involves many months of negotiation, and it requires a landowner to take beneficial action without being compensated for the action.
Even today, landowners and environmentalists and government officials are looking for ways to make finding an endangered species an attraction, not a penalty.
[1] Richard Stroup, The Endangered Species Act: Making Innocent Species the Enemy, Property and Environment Research Center, April 1, 1995, https://perc.org/1995/04/01/the-endangered-species-act-making-innocent-species-the-enemy-2/#N_6_.
[2] Terry Anderson, “When the Endangered Species Act Threatens Wildlife,” Hoover Daily Report, October 20, 2014, https://www.hoover.org/research/when-endangered-species-act-threatens-wildlife.