Species Survival or the “3S Method”? How the Endangered Species Act Disincentivizes Landowner Cooperation and Threatens the Species It Supposedly Saves

Abstract

The Endangered Species Act (ESA) places restrictions on landowners when their property harbors endangered species. Though well-intentioned as a method of promoting species recovery, these restrictions actually have the reverse effect. Instead of accepting ESA regulations, landowners secretly eliminate endangered species from their property in what is colloquially known as “shoot, shovel, and shut up.” Collaboration between landowners and agencies is essential for species preservation. This Article illustrates the collaboration options, some within the limits of the ESA and others requiring its reform. The four options analyzed are (1) landowner peer review of species listing procedures, (2) congressional clarification of listing standards, (3) creation of a public trust for endangered species stewardship, and (4) formation of landowner-run regulatory entities with established standards reviewable by agencies.