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Consider the Bison

Karen Bradshaw likes wild animals—gamboling, galloping, burrowing, and flitting their way unmolested across wide vistas of pristine landscape. On this we are of one mind. Indeed, who in their right mind and heart would dissent? The question, as always, is how. How do we meaningfully, ethically, and freely achieve such a vision?

Bradshaw’s proposal in Wildlife as Property Owners is a purely legal one, creating (or rather, expanding) an existing mechanism—trusts—to give wildlife “rights to occupy space.” Fine, as far as it goes, and a sincere hat-tip for the novel approach. I’m even considering it on my own land. However, Bradshaw’s book is riven by a philosophical wedge that lovers of liberty will find troubling. On the one hand, the problem Bradshaw proposes to “solve” (habitat and biodiversity loss) is complicated at best, dubious at worst. On the other, her proposal isn’t really about allowing animals more autonomy, it is about creating a set of legal strictures, managed by ostensibly altruistic elites on animals’ behalf. It ends up feeling more like a cynical power grab than a major breakthrough in resource allocation.

To the extent that Bradshaw’s idea creates additional market mechanisms, it is a liberal and commendable thesis. But Bradshaw’s framing of the problem facing wildlife and her proposal for solving it leave me floundering, even to the point of suspecting we are speaking in different tongues. For instance, Bradshaw, along with Gary Marchant, wrote a few years ago of the deplorable “incentives for scientists and others to exaggerate impacts to motivate complacent citizens and policymakers.” They condemned such exaggeration for its pernicious effects, including undermining public support “if extreme predictions do not materialize.” Agreed. Which is why readers of Wildlife as Property Owners will be left perplexed when Bradshaw plunges gamely into the exaggeration thicket.

The problem starts at the beginning: “Human land uses are the leading source of habitat loss; habitat loss is the leading cause of species extinction.” This is recapitulated over and over, bolstering her argument that “there has never been a time more important for legal thinkers to reimagine how to reconcile humankind and nature.” This ‘reconciliation’ narrative permeates the entire work, highlighting a lapsarian philosophical position that feels more religious than rational: humanity has sinned, the end is nigh, and repentance is necessary for salvation.

Her sacrificial offering is thought-provoking, to be sure: expand the common-law tradition of individual property rights to animals—“the kind of rights that law has long afforded to ships, corporations, children, and the mentally incapacitated.” The problem isn’t in this proposal per se, but rather in the premise that undergirds it. Bradshaw is convinced that “anthropocentric property is a key driver of biodiversity loss, a silent killer of species worldwide.” Done. Shut. Fait accompli.

This premise, to put it mildly, is debatable.

Reports of Worldwide Species Death Have Been Greatly Exaggerated

A growing school within the field of dynamic ecology has begun to seriously question this dire, though popularly held, assessment. Maria Dornelas, Christine Lovelock, Robin Elahi, Daniel Botkin, and Dov Sax (to name just a few) have thoughtfully assessed humanity’s effect on biodiversity and found it to be, well . . . complicated. Mark Vellend, in the American Scientist, details meta-analyses that show “the net result of human activities in recent centuries thus appears on average to have been an increase, or at least no change, in species richness at the regional scale.” The clear and present Ehrlichean catastrophe of impending biodiversity collapse promulgated in graduate biology textbooks is neither particularly clear nor particularly present. The sky, it seems, remains aloft.

But Bradshaw doesn’t dwell long here. Bradshaw merely asserts variations on a theme that “habitat loss . . . makes much of American land unavailable for animal life.” Perhaps this is the technique of the jurist, but I suspect I am not the only reader to find this assertive pile-on grating. After all, it seems more than passingly important to get this first part right: Bradshaw is proposing nothing short of a major addition to the legal system to “solve” a problem we can’t be sure warrants solving in the first place. Bradshaw’s is like Jonathan Swift’s “Modest Proposal” without the satire.

Bradshaw leads us through an example on a 40-acre land parcel in Arizona to make her point. The narrative arc is predictable enough—the grandparents’ bucolic tract full of wildlife, converted over time into a housing subdivision through the generations, leading tragically to a situation in which “the wildlife has gradually gone—pushed out.” It sounds plausible, even familiar. There are two problems with this.

First, her point about wildlife isn’t really true. While it seems as if it ought to be, facts rather muddle the narrative. Arizona State Game and Fish wildlife surveys have had to grapple with the surprising rise of wildlife within city limits. National Geographic writes of the astonishing ways wild animals have been “hacking” city life. Counterintuitive as it may sound, per hectare wildlife numbers are probably greater in suburban Tucson today than they were when the Spanish settled in the 17th century.

Second, Bradshaw only addresses one side of the ledger book: she fails to offer remarks on the astonishing recovery of wild habitat as a result of technologically improved farming. Matt Ridley has pointed out that despite a quintupling in corn yields in the U.S., fewer acres are planted in corn than in 1940. Vast swaths of formerly-farmed America are “re-wilding” even as urban areas grow and become ever more wildlife-friendly. Out in Missouri, routine mountain lion sightings are reported in places where they’ve been “extinct” for a century.

This isn’t to suggest that everything is rainbows and lollipops for our furry friends. But to hang the justification for a major legal intervention on poorly understood, likely exaggerated doom-ecology seems mistaken.

A Top-Down View

To be fair, Bradshaw is tentative in her proposals. Wildlife as Property Owners leaves plenty of room for honest debate and acknowledges the “open questions” her prescription generates. At the end of the day, however, it is difficult to shake the telegraphed dirigiste undercurrent. The primary mechanism for managing her vision of wildlife property rights is a form of paternalistic oversight—a system of “trusteeship” in which enlightened managers “would weigh the competing interests of wildlife constituencies within the ecosystem.” If only it were so simple.

Bradshaw suggests that wildlife “prefer” public land, but as any private landowner will tell you, this is generally untrue.

Bradshaw spends a good deal of time fetishizing public lands management in contrast to private lands, implying the model is one that ought to be expanded via her legal framework. For a work that notes aspects of Public Choice theory and the pernicious incentives of centralized management, Wildlife as Property Owners is strangely unconcerned with the inevitable conflicts this engenders. This is not just an “open question,” but a core concern. The real-life running experiment on public lands should give us pause. The sort of “qualified representatives” she proposes that would “satisfy fiduciary duties to animal clients appropriately” have been clumsily attempting to do precisely that on 640 million acres of public lands for over a century. Public lands, especially in the West, are not howling wastelands of bureaucratic mismanagement, but neither are they exemplars of especially good results. And at a net annual cost to taxpayers, neither are they particularly efficient at achieving these mediocre results.

Bradshaw suggests that wildlife “prefer” public land, but as any private landowner will tell you, this is generally untrue. Our ranch lies just up the road from Sandra Day O’Connor’s childhood ranch, the formative springboard for her spectacular career (her name adorns, ironically enough, the College of Law where Bradshaw teaches). Yet as anyone can tell you, if one seeks wildlife, it is the private lands of the Lazy B where you find the game, not the public lands abutting it. This is partly a function of private lands centering around water sources, partly a function of exclusion, partly a function of management, but the fact speaks to a larger truth: private, atomistic allocation of resources is generally more effective, or at least more diverse (an important distinction), than top-down, expert-driven, singularly-focused policies formulated in an ever-shifting kaleidoscope of competing preferences and uses. It’s a Hayekian heyday out here.

Bradshaw makes the age-worn mistake of placing undue faith in a clerisy: “universities across the country teach land management to generations of Foresters, farmers, and rangeland managers. Wildlife and conservation biologists have similar expertise in how to shape a habitat to maximize animal interests.” As the son of one of these “trained managers” (turned rancher) who has been thoroughly mugged by reality on this subject, I think a bit more humility is warranted. The capacity of anyone, let alone an “expert,” to effectively manage the stochastic ecosystems under their “control” is a tenuous claim at best.

At the end of the day, despite her academic and professional pedigree, it doesn’t appear that Bradshaw fully trusts the power of emergent order—she doesn’t quite believe that society’s changing collective values (like appreciation for wildlife) can be left to the traditional system of property allocation. And perhaps she’s right. But the facts as I observe them seem to point the other way: traditional property rights adjudication is actually a deeply organic, fundamentally natural process—a check of sorts on the caroming of individuals through an ecosystem—akin, in its way, to the snarl and nip of the mother to her cub, checking the more flagrant transgressions of one body against another. And to that extent, the disaggregated system of individual property rights seems, in important ways, to be working for wildlife.

All this, I should say, does not mean that Bradshaw’s book is bad or bereft of new or interesting ideas. Her summary of developments in cooperative ecology is well worth a read, and her literature reviews of property rights history and animal rights philosophy are succinct and useful. Yes, there are niggling errors: David Hume published his Treatise in 1739, not 1978, and at one point Thomas Nagel’s name is spelled three ways on the same page. My main critique stems from a spirited resistance to the framing of her proposal, rather than the proposal itself—I object to the pitch, not the product.

In the broadest sense, I share Bradshaw’s concern over habitat loss. European visitors to my ranch, who typically live in far denser human populations than we Americans, are ecstatic when they see the wildlife we consider utterly mundane. That they react to a bobcat the way I react, say, to a Dutch castle, tends to bolster Bradshaw’s point—maybe we really are in a serious crisis that requires a major reappraisal of our fundamental precepts on property. I just haven’t been persuaded yet.

If Wildlife as Property Owners tried harder to explain that wildlife trusts were merely an additional tool in the bag of market-transaction options, I would be mollified. Yet the broadest currents carry the reader away from this otherwise commendable angle. The book instead reads like a screed against the status quo, and a tract in favor of putting “smart” or “caring” people in charge. And this, I admit, raises my hackles.

Where Buffalo Roam…

My copy of Wildlife as Property Owners is adorned with a lovely sepia photo of a bison bull trudging (dolefully, perhaps?) through tawny range grass. The photo was taken on Antelope Island, in the Great Salt Lake of Utah. Oddly enough, my kids and I camped there a few summers ago and the bison herd there has an interesting story: there is no known record of bison naturally being there. The herd was instead introduced in 1893 from a private bison herd in Texas. An enterprising duo, sensing a profitable opportunity, hauled twelve animals by boat (somehow!) to the rich island grasslands. There they flourished, ultimately featuring in The Covered Wagon, the highest-grossing box-office hit of 1923.  

It’s entirely unsportsmanlike to pick on a book’s conclusions over cover art that is most probably out of the author’s control. But in this case, it’s a useful assessment. Bradshaw would have us accept uncritically that “preserving wildlife requires preserving habitat, which means leaving land undeveloped.” Yet the very frontispiece of her book, exhibit A, if you will, seems to point to a deeper truth. Private property and private ownership, with its myriad opportunities for individual preference, experimentation, and management might actually be the best thing going for biodiversity protection. Perhaps we ought to leave “anthropocentric property” well enough alone.

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