Where the Wild Things Are: The Endangered Species Act and Private Property

Article excerpt

The future of the Endangered Species Act(1) (ESA) lately has come under intense scrutiny both within and outside the federal government. Probably the most intractable aspect of the debate is that perennial lightning rod: the property rights issue. As currently written, the ESA has at least the potential to curtail private property use in various ways--whatever its actual impact as implemented may be. The ESA's detractors brand it absolutist in commanding the protection of every endangered species regardless of private property impacts or the species' ecological role,(2) while its partisans find in it ample accommodation of landowners' concerns.(3) At times, the emotions generated by the debate have been extreme.

One can see why. To no one's surprise, the hundreds of species protected by the ESA are sometimes found on private property. When they are, the ESA may pit private economic activity against national concern for aesthetic, ecological, scientific, and recreational values.(4) The landowner may suffer economic loss-immediate, concrete, and quantifiable--while the benefits reaped from the ESA as a member of the public are delayed, uncertain, and noneconomic.(5) Moreover, if the land is not formally purchased by government, the public enjoys the claimed benefits without cost.

Of course, the ESA is but one locus of the tension between government regulation and private property rights. In recent decades, federal, state, and local programs have increasingly sought to curtail uses of private property deemed inconsistent with environmental and other public goals. The reaction has been a burgeoning property rights movement and more Supreme Court attention to clarifying private property safeguards in the Fifth Amendment's Takings Clause.(6) Both the Reagan and Bush Administrations made property rights protection an explicit agenda item,(7) the former issuing an executive order instructing federal agencies to establish procedures for considering and the takings implications of their proposed actions.(8)

Even if one looks solely at wildlife protection, the government-versus-property-rights issue has taken many forms. Analyzing the property impacts of such protections in terms of whether there exists a constitutional taking is merely today's fashion; they have also been challenged as due process violations,(9) government torts,(10) or exceedances of the police power.(11) Nor is the ESA the only source of government wildlife protection affecting private property. Other federal wildlife statutes also have spawned property-related court challenges, such as the Migratory Bird Treaty Act,(12) Eagle Protection Act,(13) and Wild Free-Roaming Horses and Burros Act.(14)

This article offers a descriptive rather than prescriptive overview of the legal intersection between the ESA and private property to provide some focus for the ongoing debate. First, the article sketches the provisions most likely to determine the ESA's impact on private property rights. Second, it details three ways in which the ESA may constrain the use of private property, noting pertinent ESA provisions and case law, particularly on the constitutional takings issue. The ESA authority for formal acquisition of private property also is briefly noted. Finally, the article analyzes cross-cutting legal issues and outlines congressional options and pending legislation. Because property-related case law under the ESA is so sparse, the net is cast broadly to include cases under other wildlife statutes.

I. A PROPERTY-RIGHTS WALK THROUGH THE ESA

Although Congress first adopted endangered species legislation in 1966,(15) the foundation for the property rights issue was not laid until 1973 when the ESA was enacted.(16) The ESA considerably broadened federal management authority over endangered and threatened species, including those on private land.

Under the modern ESA, the possibility of property use constraints begins when the Secretary of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered or threatened. …