by Jim Britell

A close look at the fallacious argument that  if you try to seriously enforce laws to protect endangered species, rural ranchers and others will quietly kill them and thus you will end up with less of what you are trying to protect. 

Sometimes in discussions about the difficulty of enforcing environmental laws in rural areas you hear the argument that if a private landowner was forced to accommodate endangered animals living on his land, he would probably just quietly go out and kill them to avoid being responsible for them. This response to getting rid of potential environmental problems is called "Shooting, shoveling and shutting up", (SSS).  Because of this phenomenon it is argued, a light touch with the law is probably better for the endangered species in the long run because, paradoxically, serious enforcement of laws to protect endangered species may result in fewer of them.

People who make these arguments do not of course generally endorse them but seem anxious to introduce every-day facts of life into the discussion. In fact, usually the argument purports to be made in defense of an animal and in furtherance of its protection, often by people who support endangered species. Well meaning people use this argument to save environmentalism and environmental laws from themselves by cautioning us not to undertake counterproductive measures which kill off members of a species rather than protecting them.

In one argument about the Sage Grouse the dilemma was posed like this: "if you want to save the Sage Grouse AT THIS TIME AND IN THIS POLITICAL CLIMATE, do you list, or do you withhold listing because the REAL consequences of listing may imperil the very animal you are trying to save."

But the “shoot & shovel” argument while creative, and perhaps well intentioned, is actually just one of a class of arguments called "false questions" or "logical fallacies".

Let's consider some fallacious aspects of the SSS argument:

1. It embeds a number of implicit assumptions about human nature; these are the “meta-arguments’ behind the issue.

2. The arguments are not about scientific facts or laws; they are predictions about some people's possible future reactions to future regulatory procedures - made by "interested" parties who may have a conflict of interest. Because, depending on the outcome of the argument, they may have to do unpleasant things that cost them money or make people mad at them personally. A forest service biologist or code enforcement officer who makes predictions about people’s likely reaction to laws and regulation he would have to enforce is often saying nothing more than he would like to avoid unpleasantness.   

In rural areas this issue comes up all the time with building code enforcement and ordinances against keeping junk cars on your property. Some counties take the view that new wiring has to be up to code, and you can’t store junk cars, period! Others believe that if you try to enforce codes too zealously people will simply do new wiring without asking for permits and you will end up with less safe houses overall.

But, In fact, where building codes are enforced, people obey them - where they aren’t, people don’t. In one rural Oregon county the Commissioners continually railed hysterically against and filed lawsuits to overturn the endangered species act all the while decrying the federal government’s telling them what they could do and vowing to oppose them. Alas, to their dismay they found when they tried to enforce a new ordinance against junked cars, the people resisted them so much, on the same grounds, they had to revoke the ordinance.

The problem with environmental enforcement or zoning and code enforcement about junk cars or building codes is the beneficiary is the public and the environment at-large. But the people who "suffer" from enforcement have a name and an address and get very, very angry - at code enforcement officers and elected officials if they think getting mad might let them off from obeying the laws.

So, once being a member of a rural planning commission I lived adjacent to one county where most of the federal, state and local laws were enforced, and another where they mostly weren’t. The only difference was in one, the citizens knew the government would enforce laws and in the other they were never sure. So while one county could not enforce a junk car ordinance the other one could. In fact in the latter, when a very wealthy landowner built a house without a permit, the county tore it down, and when a realtor put up a sign larger than a sign ordinance allowed he was forced to take it down. The fact of life in rural areas is this, when people know elected officials support and enforce the laws, and bitching gets you nowhere, the citizens simply go along with them.  

3. SSS arguments rely on anecdotal unverifiable data to make policy? It is hard to collect objective and quantifiable data about illegal behavior. Do 5% of ranchers shovel and shoot, is it 25%? We cannot know the facts. Yet this a basic premise for the argument against enforcement.

4. There no control for this kind of policy experiment. We cannot divide the range in half and establish strong regulations/enforcement on half of it and not on the other and see how Sage Grouse do.

5 There is a problem of setting precedents for other places where dire consequences can ensue.  Sometimes what appears to be a practical policy here (on the range) can be used elsewhere - to the detriment of the ocean for example. Or other countries might follow our policy lead to bad ends. The most serious problem with lax US enforcement is the example we set for the rest of the world that follows our lead on everything. When the US adopts a policy on almost anything from environmental rules to Olympic athlete training strategies, most of the whole rest of the world quickly follows our lead. So the biggest impact of any US policy is likely to be in Borneo or Indonesia. How would the legal equivalent of a lax Sage Grouse policy work in the Amazon if an equivalent policy was applied to illegal gold miners?

6. What has been the past experience of strong and weak enforcement policies applied to other areas of environmental regulation. The same arguments have been advanced and rejected for example for Stellar Sea lions where occasionally the bodies do wash up and bullet holes can be counted.

7. Any kind predictions about behavior can produce a circular or self-fulfilling prophecy.

8. What is the likelihood that over time, the average person, will follow the average law? Actually, quite high.

SSS is the argument that:
-    Non-enforcement of laws protect them from being repealed;
-    non-enforcement serves the "real" purpose of the law because the backlash from enforcement is more harmful than non-enforcement.
These two arguments are merely of a class of arguments called  "deep lobbying", interesting and creative arguments constructed to justify non- enforcement.

Some other SSS arguments are:

- Enforcement will hurt minorities and promote discrimination (chunk up).

- I know a particular place where we did so and so and such and such happened and this proves we should not enforce the laws. (chunk down) .

- 10,000 years ago such and such happened so we should not enforce the law (expand the time frame backwards.)

- Global warming, cooling, the rapture etc is coming and so pretty soon this will all become academic anyway, so we should not enforce the law (slide time frame forwards).

-  The experiment you depend on was done wrong, or the data mis-analyzed so there is no problem, so we should not enforce the law (reject the basic premises).

Final note: Recently a pregnant woman was confined to jail for a small shoplifting infraction and told the judge she intended to get an abortion because if she didn’t her life would be threatened by a blood disorder she had. The good Christian judge didn't want her to abort the child, so he enforced the shoplifting law so strictly that the poor woman was held in jail past the time she could have safely had the abortion And she was forced to deliver it. So, you see, some laws have no problem whatsoever being strictly enforced and rammed down some people’s throats.

Laws are enforced or not enforced based on what the voting public area wants or doesn’t and the guts of its public officials. As long as half to eighty percent or more of the folks who want environmental laws enforced don't bother to vote, you will hear this argument.  

©2008 Jim Britell
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May not be reproduced without permission.

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