Fairy Shrimp and Delta Smelt

I did a fair amount of work on the Endangered Species Act before moving to the Valley. My Ph.D. dissertation was the first study to empirically test the theory of "preemptive habitat destruction" caused by the threat of ESA restrictions on private land. Indeed, there was evidence of habitat destruction, and the study has become one of the most widely cited sources by conservative voices (like the Pacific Legal Foundation) who want to reform the ESA. I did that work a decade ago, but it is still frequently cited. Last year, Rush Limbaugh himself even said my name and cited the research in a segment on his radio show on the ESA.

This article in today's Stockton Record reminds me of the many problems of the ESA as applied to private lands. Brad Goehring has had numerous problems with various federal wildlife authorities, because he owns land that is Fairy Shrimp habitat. The frustrations have motivated Goehring to run for Congress. I don't know all the details of his case, but I have a lot of sympathy for Goehring on this issue.

In my opinion, the ESA often fails when it comes to protecting habitat on private lands. I also think that we must consider costs when preserving endangered species, and that it doesn't make sense to try and protect everything.

With that background, it is surprising to some people that I have been supportive of Delta pumping restrictions to protect the endangered Delta Smelt. I must admit, I never thought I would write declarations in support of Earth Justice on an ESA case, but a few months ago I did just that.

In the case of the Delta, the endangered species habitat are public water resources, not private property like Goehring's farm, so the problem with the ESA creating perverse incentives for private landowners doesn't exist. The Delta water is provided to private interests with generous taxpayer subsidies, especially the Central Valley Project. In this case, it is the artificially cheap water that is creating the incentive problem and inefficientl use of the resource. Although both the Fairy Shrimp and Delta Smelt are ESA cases affecting Central Valley farmers, they are very, very different.