THE ENDANDERED SPECIES ACT:
OVERVIEW AND PROPLEMS ASSOCIATED WITH PROPERTY RIGHTS
Amy Gerdes
May 1, 2008
I. Introduction
This article will examine the Endangered Species Act (ESA)1 including the general
procedures of the ESA and the effect these specific procedures have on the rights of property
owners in relation to the success of saving endangered species. Attention will be given to how
the ESA can substantially impact private property owner’s rights while failing to protect the
endangered species as intended. During recent years there has been much litigation focused on
protection of property rights by property owners suing in an attempt to protect their rights to
maintain and develop their land.
When the ESA procedures are followed and a species is listed as endangered the act then
prohibits the taking of that species.2 This prohibition on taking has had substantial impact on
property rights and has rendered some land essentially valueless.3
The ESA itself puts forth that protecting threatened and endangered species and the
ecosystems in which they live is a goal that must be achieved and is central to protecting our
world.4 In its current form the ESA arguably has not been successful in meeting the goals for
which it was designed.5 This is largely due to the reality that a large percent of endangered
species live on land owned by private citizens. When a private land owner’s property rights are
invaded or potentially made valueless this does not promote a desire for the individual to
participate in the process of protecting endangered species.6 This being the case the burden of
protecting endangered species as well as the environment as a whole should be placed upon
1
16 U.S.C. §§ 1531-1544 (2000).
16 U.S.C. § 1538(a)(1)(B).
3
See Sarah Foster, ‘Us Now, You’re Next,’ Say Desperate Farmers: Massive Bucket Brigade Demonstration to
Protest Court-ordered Water Shut-off, WORLD NET DAILY, May7, 2001,
http://www.wnd.com/news/article.asp?ARTICLE_ID=22718.
4
See 16 U.S.C. § 1531(b) (2000).
5
See Jonathan H. Adler, Bad for Your Land, Bad for the Critters, WALL ST. J., Dec. 31, 2003, at A8.
6
Id.
2
society not upon individual landowners whose land provides habitat for endangered or threatened
species.7 There has been an increasingly large focus on the environment and “going green” in
order to promote a cleaner earth. Perhaps this focus should spill over into the realm of protection
of endangered species in order to make it a societal challenge and not an individual land owner
burdon.
This article will focus on what seems to be the central issue between the competing interests
of personal property rights and protection of endangered species when it comes to the ESA and
how it is currently implemented. The issue simply comes down to whether the ESA is
realistically able to make a difference in preserving biodiversity while at the same time allowing
for the population to develop without serious economical implications to private property owners
when species are designated as being protected by the Act.
The focus will primarily be on the portions of the EPA which are relevant to private property
interests, the analysis of case law in relation to those property interests and finally a look at
differing views of how and if the Act as implemented is accomplishing its purpose.
II. Overall Purpose of the Endangered Species Act
The Endangered Species Act was enacted in 1973 when it became apparent that many
species in the country had already become extinct and many more were on the same path to
extinction.8 The specific “mission statement” was declared by Congress by acknowledging that:
“various species of fish, wildlife, and plants in the United States have been
rendered extinct as a consequence of economic growth and development
untempered by adequate concern and conservation; (2) other species of fish,
wildlife, and plants have been so depleted in numbers that they are in danger of or
threatened with extinction; (3) these species of fish, wildlife, and plants are of
7
See Armstrong v. United States, 364 U.S. 40, 49 (1960).
See 16 U.S.C. §§ 1531(a)(1)-(4) (2000). The findings and declarations of Congress in support of the ESA are set
forth in Section 1.
8
esthetic, ecological, educational, historical, recreational, and scientific value to the
Nation and its people; . . .”.9
The specific statement of the purpose of the act is as follows:
“The purposes of this Act are to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered species and threatened
species, and to take such steps as may be appropriate to achieve the purposes of
the treaties and conventions set forth in subsection (a) of this section.”10
The ESA is considered one of the most powerful and wide reaching environmental laws in the
United States.11 The fact that it is considered to be so powerful is due primarily to the prohibition
on the ‘taking’ of listed species contained in section 9 of the Act.12
The ESA has no immediate effect on property rights. Property rights are affected once a
species is listed as threatened or endangered pursuant to section 4 of the Act.13 The Act requires
that a specific species be listed as endangered if that species falls into one of four specific
categories.14 These factors are mostly related to development of land that has caused the species
to become endangered by changing the habitat of the species so that it is no longer supporting the
species’ viability.15 The responsibility in implementation of the ESA and determination of
whether a species should be listed as threatened or endangered is left to the Secretary.16 The
Secretary, in making the determination of whether or not to list a species as threatened or
endangered, can base his decision “solely on the basis of the best scientific and commercial data
9
16 USC 1531 §2(1)(2) & (3).
16 USC 1531 §2(4)(b).
11
See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174-76 (1978).
12
16 U.S.C. § 1538(a)(1)(B) (2000).
13
See 16 U.S.C. § 1533 (2000); ROBERT MELTZ, THE ENDANGERED SPECIES ACT AND CLAIMS OF PROPERTY RIGHTS
“TAKINGS” 2 (CRS Report for Congress, 2005).
14
16 USC 1531 §4(b).
15
Id.
16
16 U.S.C. § 1533(a)(1). Secretary, as defined by the ESA, includes the Secretary of the Interior, the Secretary of
Commerce, and, in limited circumstances, the Secretary of Agriculture. 16 U.S.C § 1532(15) (2000).
10
available to him.”17
Once the Secretary makes the determination that a species should be listed the species
critical habitat must be identified. The Secretary should, “to the maximum extent prudent and
determinable,” designate its critical habitat.18 The determination of what constitutes critical
habitat ties closely into the listing aspect of the ESA. The designation of critical habitat is made
at the same time as the listing of the species and is defined as and geographical area that is
“essential to the conservation of the species,” whether or not it is actually inhabited by the
species at the time.19 Unlike the criteria not allowed to be considered in the listing of a species
(i.e. economic impact) the Secretary in the determination of critical habitat may consider “the
best scientific data available and after taking into consideration the economic impact, and any
other relevant impact, of specifying any particular area as critical habitat.20 The Secretary may
exclude any area from critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical habitat, unless he determines,
based on the best scientific and commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species concerned.” 21 This difference in
criteria consideration has been seen as a primary reason for the ESA’s controversial effects on
property owners.22
Only after a species has been listed as threatened or endangered does the ESA have an
effect property rights.23 Pursuant to section 9 of the Act the listing of a species makes it illegal to
17
16 U.S.C. § 1533(b)(1)(A).
16 U.S.C. § 1533(3)(A)(i).
19
16 U.S.C. §§ 1532(5)(A)(i)-(ii).
20
16 U.S.C. § 1533(b)(2).
21
16 USC 1531 §4(b)(2) (emphasis added).
22
Family Business First, Issue Brief: The Endangered Species Act, http://www.woodcom.com/fbf-esa.html (last
visited May 1, 2008).
23
See MELTZ, supra note 18.
18
effectuate any unlawful taking of the listed species.24 This provision of the Act has the effect on
property rights because any taking of a listed species is punishable by a wide range of civil and
criminal penalties25 except in limited circumstances, such as when the killing of a listed animal is
done in defense of a person.26 ‘Take’ is defined by the Act to include “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect.27 This broad definition of the term ‘take’ is seen as
main cause of the problems associated with the taking of property under the ESA.28
It is up to the Secretary to define the term “harm” in regulations, the term has been
defined as “any act which actually kills or injures wildlife.”29 The interpretation of “harm” also
applies to any habitat modification, which has prompted lawsuits in regard to the ESA and the
Fifth Amendment takings clause.30 The definition of the term harm in the context of precluding
habitat modification has been taken all the way to the Supreme Court. The term was upheld by
the Court in Babbit v. Sweet Home Chapter of Communities for a Great Oregon31 by articulating
three reasons that the definition of the term was acceptable.32
Section 10 of the ESA allows the Secretary to permit “any taking otherwise prohibited by
section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity.”33 This section is very important to the ESA’s effect
on property rights. The reality is that the incidental take permit could possibly be obtained on
24
16 U.S.C. § 1538(a)(1)(B) (2000).
See 16 U.S.C. § 1540 (2000).
26
16 U.S.C. § 1540(a)(3) (emphasis added). (This section, nor any other, provides an exception for defense of
property.)
27
See 16 U.S.C. § 1532(19) (2000).
28
See MELTZ, supra note 18, at 3.
29
See 17 C.F.R. § 17.3 (2000) (emphasis added).
30
See generally Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002); Sieber v. United States, 364
F.3d 1356 (Fed. Cir. 2004) (holding that prohibitions on logging to prevent habitat modification did not violate the
Takings Clause of the Fifth Amendment).
31
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
32
Id. at 697-700. (the court listed the reasons to include: 1) the ordinary meaning of the word, 2) the broad purpose
of the ESA, and 3) the legislative history of the ESA).
33
16 U.S.C. § 1539(a)(1)(B) (2000).
25
any privately owned land that supported a threatened or endangered species if the land owner
constructed a structure (such as a home) or improved upon the property (such as landscaping)
and that activity affects a taking.
Before the issuance of an incidental take permit the applicant must submit a conservation
plan describing how the incidental effect on the species can or will be alleviated.34 The
conservation plan must include:
(i) the impact which will likely result from such taking; (ii) what steps the
applicant will take to minimize and mitigate such impacts, and the funding that
will be available to implement such steps; (iii) what alternative actions to such
taking the applicant considered and the reasons why such alternatives are not
being utilized; and (iv) such other measures that the Secretary may require as
being necessary or appropriate for purposes of the plan.35
The drafting of a conservation plan is very expensive and most private property owners can not
bear the burden of the cost. This has driven many private property owners to assert a takings
claim under the Fifth Amendment rather than put their money into the drafting of a conservation
plan.
III. Critical Habitat’s Important Role Under the Endangered Species Act
The implementation of the ESA despite substantial economic harm is best illustrated in
the case of first impression in the United States Supreme Court regarding the ESA. The case is
not brought by the landowner under the Fifth Amendment takings clause, but instead an action to
enjoin the construction of a damn under the ESA was brought by several environmental groups.
Even though the case is not directly on point to this article it is important to the overall argument
that the overly broad definitions of the terms take and harm (noted above) give the Secretary
almost unfettered power under the ESA to “take” property, even when the project that is causing
34
35
See 16 U.S.C. §§ 1539(a)(2)(A)(i)-(iv).
Id.
the harm and destroying the critical habitat of a threatened or endangered species is subsidized
by the government.
The case Tennessee Valley Authority v. Hill 36 was the first case in the realm of
Environmental Law to reach the Supreme Court of the United States. The case did not fall under
the purview of the ESA in the decisions of the lower courts. However, by the time the case
reached the Supreme Court the ESA had been implemented by Congress and the Court applied
the act to the facts of the case. The case showed that the Court was to take the ESA seriously and
make sure that it had the power to obtain the goals it was implemented to achieve. It is certainly
one of the most famous cases in regard to the ESA.
The case involved the Telco Dam and Reservoir Project in 1967 which Congress had
appropriated funds for development of the dam. The Tennessee Valley Authority (TVA) was the
entity that was constructing the project which was “project designed principally to stimulate
shoreline development, generate sufficient electric current to heat 20,000 homes, and provide
flat-water recreation and flood control, as well as improve economic conditions . . .” 37 What
turned out to be the controversy and issue for the courts in the case was the ultimate impact its
completion would have on the surrounding ecosystem. “When fully operational, the dam would
impound water covering some 16,500 acres-much of which represents valuable and productive
farmland-thereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30
miles in length.” 38 The local citizens had delayed the dam’s opening by claiming that the project
did not conform to the National Environmental Policy Act of 1969 (NEPA). The citizens brought
suit in District Court. “After finding TVA to be in violation of NEPA, the District Court enjoined
36
Id.
Id. at 157.
38
Id.
37
the dam's completion pending the filing of an appropriate environmental impact statement.” 39
“The injunction remained in effect until late 1973, when the District Court concluded that TVA's
final environmental impact statement for Tellico was in compliance with the law.” 40
The discovery of a previously unknown species of perch [the snail darter] was found in
the river. The snail darter had been a previously unknown species and ultimately was listed by
the Secretary as an endangered species on October 8, 1975. The Secretary was authorized to
identify the “critical habitat” 41 of the species. “Subsequent to this determination, the Secretary
declared the area of the Little Tennessee which would be affected by the Tellico Dam to be the
“critical habitat” of the snail darter.” 42 This decision by the Secretary in effect permanently shut
down the dam with obvious catastrophic economic loss to TVA. TVA argued that the legislative
background of the ESA could not possibly support the suspension of a nearly completed federal
project in lieu of the discovery of an endangered species. TVA’s main contention being that the
discovery of the snail darter was prior to the act being implemented by Congress.
After extensive analysis by the Supreme Court its ultimate decision was that the
legislative history behind the ESA was precisely what TVA was arguing it was not. The Court’s
decision weighed heavily on the language of the act, specifically §7. The Court relied strongly on
the plain language of the ESA.43 The ultimate outcome of the case was that the dam was not
39
Id. at 158.
Id.
41
The Act does not define “critical habitat,” but the Secretary of the Interior has administratively construed the
term:“ ‘Critical habitat’ means any air, land, or water area (exclusive of those existing man-made structures or
settlements which are not necessary to the survival and recovery of a listed species) and constituent elements thereof,
the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a
distinct segment of its population. The constituent elements of critical habitat include, but are not limited to:
physical structures and topography, biota, climate, human activity, and the quality and chemical content of land,
water, and air. Critical habitat may represent any portion of the present habitat of a listed species and may include
additional areas for reasonable population expansion.” 43 Fed.Reg. 874 (1978).
42
437 U.S.C. 153, 162 (1978).
43
One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the
Endangered Species Act. Its very words affirmatively command all federal agencies “to insure that actions
authorized, funded, or carried out by them do not jeopardize the continued existence” of an endangered species or
40
permitted to open and the snail darter was thus saved from possible extinction. Thus the ESA’s
case of first impression on the United States Supreme Court gave the act undeniable power. The
criticisms of the decision, outlined in the dissenting opinions, were the perceived enormous
economic effects of the permanent closure of the dam.
This case is a perfect example of the power behind the ESA and the dismissal by the Act
of the economic impact the implementation of the Act may have. In regard to regulation of
environmental altering of property this case demonstrates the importance the Court puts in the
ESA. If the Supreme Court upholds the injunction of a project which is subsidized by the
government it can be assumed that it would have no problem doing the same to a private land
owner.
IV. Takings Law in Regard to the Endangered Species Act
The Takings Clause of the Fifth Amendment has the general purpose “to bar Government
from forcing some people alone to bear public burdens which, in all fairness and justice, should
be borne by the public as a whole.”44 This purpose may be more generally stated by looking at
the relevant text of the Takings Clause of the Fifth Amendment which prohibits the Government
from taking private land owner’s property with out just compensation by specifically stating
“[n]o person shall be . . . deprived of . . . property, without due process of law; nor shall property
“ result in the destruction or modification of habitat of such species . . . .” 16 U.S.C. § 1536 (1976 ed.). (Emphasis
added.) This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot
reasonably be interpreted as applying to a federal project which was well under way when Congress passed the
Endangered Species Act of 1973. To sustain that position, however, we would be forced to ignore the ordinary
meaning of plain language. It has not been shown, for example, how TVA can close the gates of the Tellico Dam
without “carrying out” an action that has been “authorized” and “funded” by a federal agency. Nor can we
understand how such action will “ insure ” that the snail darter's habitat is not disrupted. Accepting the Secretary's
determinations, as we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite
effect, namely the eradication of an endangered species. 43 437 U.S. 153, 173 (1978).
44
Armstrong v. United States, 364 U.S. 40, 49 (1960).
be taken for public use, without just compensation.”45 The Constitution does not prohibit the
government from taking property; however the Fifth Amendment requires that the government
pay compensation when it does so.46 So long as compensation is available for property that is
taken, the government action is not considered unconstitutional.47 The Supreme Court has stated
that the Fifth Amendment “is designed not to limit the governmental interference with property
rights per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking.”48
In regard to government action under the ESA two types of actions constitute
compensable takings under the Fifth Amendment: physical takings and regulatory takings. 49 The
Supreme Court has held that the “government effects a physical taking only where it requires the
landowner to submit to the physical occupation of his land.”50 Permanent physical occupations
and temporary physical invasions are both generally considered to be physical takings.51
Permanent physical occupations are always held to be takings “without regard to whether
the action achieves an important public benefit or has only minimal economic impact on the
owner.”52 There is no need to take into account the gravity of the public interest the government
law or action may serve.53 One such case which illustrates how minimal the economic impact
can be is when a permanent physical taking is determined is Loretto v. Teleprompter Manhattan
45
U.S. CONST. Amend. V.
Id.
47
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 128 (1985).
48
Lingle, 544 U.S. at 537.
49
Rebecca E. Harrison, When Animals Invade and Occupy: Physical Takings and the Endangered
Species Act, 78 WASH. L. REV. 867, 875 (2003).
50
Yee v. City of Escondido, 503 U.S. 519, 527 (1992).
51
MELTZ, supra note 18, at 10. For an example of a permanent physical occupation see Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982). For an example of a temporary physical invasion see Boise
Cascade Corp. v. United States, 296 F.3d 1339, 1355 (2002) (holding that “[t]ransient, nonexclusive entries by the
Service to conduct owl surveys” is not a permanent physical occupation but “is more in the nature of a temporary
trespass”).
52
Loretto at 434-35 (1982).
53
Id. at 426.
46
CATV Corp.54. In Loretto, the Court found a taking by permanent physical occupation when the
owner of an apartment building was forced to allow a cable company to install its cable facilities,
which consisted of a cable box and wires, on the roof and side of her building.55 The Supreme
Court gave three reasons justifying the ruling of a taking under this minimal intrusion or
occupation. First, the owner has no right to possess the occupied property or exclude others from
it.56 Second, the owner no longer has control over the use of the property.57 Third, even though
the owner could theoretically still sell the property, this is unlikely since the purchaser will also
not be able to use the property.58 If a physical taking is temporary, it is judged under the
balancing test, described below, set forth by the Supreme Court in Penn Central Transportation
Company v. City of New York.59
Regulatory takings may also be compensable under the Takings Clause of the Fifth
Amendment. Early holdings by the courts implied “that the Takings Clause reached only a
‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the
owner’s] possession.’”60 However, it is now recognized that some regulations by the
government may be so extreme that they are compensable under the Fifth Amendment.61
“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.”62
Supreme Court decisions have outlined “two categories of regulatory action that will be
54
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
Id. at 419
56
Id.
57
Id. at 436.
58
Loretto, 458 U.S. at 436 (1982).
59
See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978); MELTZ, supra note 18, at 10.
60
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992).
61
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005).
62
Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
55
deemed per se takings for Fifth Amendment purposes.”63 The first type of per se regulatory
takings claims are those “where government requires an owner to suffer a permanent physical
invasion of her property-- however minor--it must provide compensation.”64 The facts in Loretto
would fall into this taking category.65 Another case that sets forth criteria for a per se taking is
Lucas v. South Carolina Coast Council66, which requires that the regulation completely deprives
an owner of “all economically beneficial use” of her property.67 However, this per se economic
rule only applies when a regulation “(1) permanently deprives, (2) the whole property, (3) of all
its value.”68
If the regulatory action does not fall within one of the two above categories, then the
takings claim is evaluated under the balancing test set forth by the Supreme Court in Penn
Central.69 The balancing test was described by requiring the deciding court to ask “whether a
particular restriction will be rendered invalid by the government’s failure to pay for any losses
proximately caused by it depends largely ‘upon the particular circumstances [in that] case.’”70
Three factors were listed to determine if there is a compensable taking under this category of
regulation.71 First, it must be determined how much the regulation reduce the value of the
claimant’s land. Second, whether the purchaser of the land had prior notice of the regulatory
restriction.72 Third, the character of the governmental action must be assessed, to include,
among other things, determining the importance of the public interest that is being served by the
63
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005).
Id.
65
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 419 (1982)
66
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).
67
Lucas at 1019.
68
Seiber v. United States, 364 F.3d 1356, 1368 (Fed. Cir. 2004).
69
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
70
Id.
71
Id.
72
Penn Cent. Transp. Co.at 124.
64
regulation.73
Courts require that a claim be ripe before a party it can be brought under Takings Clause.
When determining if a claim is ripe and therefore actionable in regard to a regulation, such as an
incidental take permit, the courts require that the permit has been applied for and denied.74 The
Supreme Court, in United States v. Riverside Bayview Homes, Inc.75, held that “only when a
permit is denied and the effect of the denial is to prevent ‘economically viable’ use of the land in
question can it be said that a taking has occurred.”76 The denial of a permit, however, does not
necessarily constitute a taking because there may still be other viable uses for the land.77
V. Unsuccessful Attempts to Claim a Taking Under the Endangered Species Act
An important case concerning the ESA, private property rights and the Takings Clause is
Boise Cascade Corporation v. U.S..78 The case concerns a landowner who possessed a 65-acre
tract of old-growth forested land in Oregon.79 Until late 1996, the land was inhabited by a pair of
northern spotted owls, which are listed under the ESA as a threatened species.80 In early 1997,
the female spotted owl was found dead and the male moved to a new area.81 When the owls
moved, Boise intended to log the land because the state restriction that protected the owls was
lifted.82
In spite of the ban removal, however, the state informed Boise that it should consult with
the U.S. Fish and Wildlife Service (“FWS”) because FWS might consider logging the land to be
73
Penn Cent. Transp. Co. at 124.
See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985).
75
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
76
Id.
77
Riverside Bayview Homes, Inc., at 127.
78
Boise Cascade Corp. v. U.S, 296 F.3d 1339 (2002).
79
See generally Boise Cascade Corp. v. U.S., 296 F.3d 1339 (2002).
80
Id.
81
Id.
82
Id.
74
a violation of the ESA.83 The FWS inspected the land at Boise’s invitation and informed it that,
although currently there were no owls present on the land, logging the land could harm spotted
owls that might otherwise move there.84 As such, Boise needed to file an application for an
incidental take permit (“ITP”) if it still wished to conduct logging on the land.85
Boise filed suit seeking a declaratory judgment that the logging operation would not take
any spotted owls, and the United States filed a counterclaim requesting an injunction to prevent
Boise from logging the land.86 Boise’s claim was dismissed because it was not ripe (it had not
applied for an ITP); however, because the injunction was granted the claim became ripe, and
Boise was allowed leave to file a counterclaim seeking the relief it originally sought.87
Subsequently, another spotted owl was discovered on Boise’s land and Boise was
permanently enjoined from logging the land without an ITP.88 Boise applied for an ITP in
November of 1998, but in May of 1999, the spotted owl was found dead, and the FWS informed
Boise in July that an ITP was no longer needed.89 The injunction was lifted in August of 1999.90
Boise filed a complaint for the “temporary taking of merchantable timber, which it was
prevented from logging” because of the injunction.91 Boise’s complaint advanced four
theories.92 First, Boise claimed a physical taking under Loretto because it was denied its right to
exclude owls from its property, and it was required to allow government personnel onto the
property to conduct owl surveys.93 As to the claim that Boise was denied its right to exclude
83
Id.
Boise Cascade Corp. at 1341-42.
85
Id. at 1342.
86
Id.
87
Id.
88
Id.
89
Id.
90
Boise Cascade Corp. v. U.S., 296 F.3d 1342 (2002).
91
Id.
92
Id. at 1342-43.
93
Id.
84
owls, the court stated that the government had no control over the spotted owls and did not force
them to occupy Boise’s land.94 Also, the court found that government personnel coming on the
property was only a temporary physical invasion that did not amount to a physical taking.95
Second, Boise claimed a per se taking under Lucas.96 However, because Boise was not
denied all economically viable use of its land due to the temporary nature of the restriction, this
claim failed.97 Additionally, the court noted that Boise was never denied an ITP: therefore, the
claim was not ripe.98 The “third”99 claim was for a temporary regulatory taking under Penn
Central.100 However, this claim was not ripe under the Supreme Court’s holding in Riverside
Bayview Homes as Boise was never denied an ITP.101
A second important case in the context of the ESA and the Takings Clause is Seiber v.
United States.102 The facts of the case are similar to those in Boise. The Seibers owned a 200acre parcel of land which they wished to log.103 However, forty acres of the parcel was a nesting
habitat for the spotted owl.104 In November of 1999, the Seibers applied for an ITP in an effort
to log the regulated forty acres of land.105 The application was denied in July of 2000 and the
Seibers appealed to the Regional Director of the FWS.106 Their appeal was denied in November
of 2000.107 The Seibers brought suit, and subsequently, in June of 2002, the FWS informed the
94
Id. at 1354
Boise Cascade Corp., 296 F.3d at 1355 (2002).
96
Id. at 1343.
97
Id. at 1350.
98
Id. at 1346
99
Boise also asserted a claim based on the Supreme Court’s holding in Agins v. City of Tiburon, 447 U.S. 255
(1980). However, the Boise court never discussed this claim. Furthermore, the Agins holding was later overruled by
the Supreme Court’s holding in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).
100
Id. at 1352.
101
Id. at 1346.
102
Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004).
103
Id. at 1359.
104
Id. at 1360.
105
Id.
106
Id. at 1361.
107
Id.
95
Seibers that an ITP was no longer needed because of a “change” in landscape conditions.
Furthermore, there were no longer owls present on the land.108
The Seibers alleged four theories in support of their takings claim.109 First, the Seibers
alleged a physical taking under Loretto.110 Like the plaintiff in Boise, the Seibers claimed that
they were denied their right to exclude owls.111 As in Boise this claim was easily dismissed.
Next, the Seibers argued that, under the test set forth by the Supreme Court in Agins, the
logging ban did not substantially advance a legitimate state interest.112 The Court in Agins stated
that compensation must be paid when a regulation that restricts property “does not substantially
advance legitimate state interests.”113 The court found “it is indisputable in this case that the
ESA and the ITP process serve a legitimate public purpose.”114
Using the precedent set forth in Lucas, the Seibers argued they had been denied all
economic use of the forty acres at issue.115 The Seibers argued “that each tree presents a separate
property interest, and that they lost all economically beneficial or productive use of individual
trees.”116 The court concluded that the timber must be considered as a whole, and the Seibers
could only claim a loss of value on forty acres of the timber, not the entire two hundred acres.117
Finally, the Seibers argued that they had suffered a regulatory taking under Penn
108
Seiber at 1362.
Id. at 1361-62.
110
Id. at 1366.
111
Id.
112
Seiber at 1367.
113
Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). As noted in supra note 136, Agins was later overruled by
the Supreme Court’s holding in Lingle. Also, there seemed to be some confusion among the courts as to whether
Agins presented a separate takings test to begin with. See Seiber, 364 F.3d at 1367-68.
114
Seiber at 1368.
115
Id.
116
Id. at 1369.
117
Id. at 1370.
109
Central.118 The Seibers argued on appeal that their timber had decreased in value and suffered
root rot during the temporary takings period.119 However, they did not provide any evidence of
economic loss during that period and the court ruled that reduction in value must be shown for a
claim to succeed.120
Boise and Seiber both illustrate the frustration in the process that landowners have to go
through in order to obtain possible redress through the courts. In both cases a essentially a single
owl prohibited the parties from the economic value of their land. Additionally the owls were not
permanently residing on the land which created a kind of on again off again regulation under the
ESA. A further frustration from an Environmental standpoint is that ultimately the regulation did
not save the owl.
VI. Successful Case under the Takings Clause in Regard to the Endangered Species Act
The only case that has found a taking under the Endangered Species Act is Tulare Lake
Basin Water Storage District v. United States,121 which dealt with water rights. In that case, the
plaintiffs had contracts with the government to receive water from areas in northern
California.122 The federal government imposed water use restrictions under the ESA because
two species of fish, the delta smelt and the winter-run chinook salmon, would be in jeopardy of
survival if the water was withdrawn.123 The court characterized the plaintiffs’ contract rights as
property.124 The court went on to state that generally, if title has not passed to a person, they can
only sue for frustration of the contract.125 The plaintiffs in that instance, however, had more than
118
Id. at 1370.
Seibe at 1371.
120
Id.
121
Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001).
122
Id. at 314
123
Id.
124
Id.
125
Id.
119
an expectation--they had “an identifiable interest in a stipulated volume of water.”126
The court held that the government’s appropriation of the plaintiffs’ water use rights
amounted to a physical taking.127 The court stated that “[i]n the context of water rights, a mere
restriction on use--the hallmark of regulatory action--completely eviscerates the right itself since
the plaintiffs’ sole entitlement is to the use of the water.”128 The court went on to say that when
the government limited the plaintiffs right to use a quantity of water to which they would
otherwise be entitled, the “government essentially substituted itself as the beneficiary of the
contract rights with respect to that water and totally displaced the contract holder.”129
The court supported its holding with a prior Supreme Court holding,130 citing
International Paper Co. v. United States.131 In that case, the Supreme Court stated that the
“petitioner's right was to the use of the water; and when all the water that it used was
withdrawn from the petitioner's mill and turned elsewhere by government requisition for the
production of power it was hard to see what more the Government could do to take the use.”132
The government attempted to distinguish this case by stating that it involved the government
diverting water for its own use, not just regulating the plaintiffs’ use. 133 However, the court
found that the government had decreased the water to which the plaintiffs were entitled, and
therefore, that was “a distinction without a difference.”134
This case was eventually settled by
the government for 16.7 million dollars.135
In Tulare, the holding that the government affected a physical taking even though it
claimed it was not diverting the water for its own use, provides a promising foundation for those
126
Id. at 318.
Tulare at 319.
128
Id.
129
Id.
130
Id.
131
Int’l Paper Co. v. United States, 282 U.S. 399 (1931).
132
Id. at 407.
133
Tulare at 320.
134
Id.
135
MELTZ, supra note 18, at 16.
127
similarly situated. Thus, cases involving actual parcels of land could be resolved in much the
same way. For instance, the government in Tulare would not let the plaintiffs use the water
because of the danger it posed to two different species of fish. As noted above, it has often been
stated that the government does not control or possess wildlife it protects. The outcome in Tulare
could carry over to land where endangered or threatened species happen to residing. In
restricting land use the government could be seen as taking of an owner’s land rights for there
own purpose taking over the land owner’s contractual rights.
The court in Tulare apparently recognized the fallacy of this argument. Even though the
government in Tulare was not taking the water for its own use, it was taking it for the use of the
endangered wildlife. As the Tulare court noted, this is a “distinction without a difference.”136
Therefore, if the government restricts water or land for the purpose of protecting wildlife, that is
a governmental use of the property for which an owner should be compensated. Protecting
wildlife is something the nation should bear as a whole rather than forcing the burden upon
individual land owners. For who can better bear the economic burden of the protection.
VII. Is the Environmental Species Act Effective As it Stands
The ESA has been, at least in some instances, ineffective in achieving its goals.137 The
goal of the ESA, as stated by the Supreme Court in Tennessee Valley Authority v. Hill, “[is] to
halt and reverse the trend toward species extinction, whatever the cost.”138 Therefore, the best
way to judge whether or not the ESA has been effective is to determine how many species of
animals that were endangered or threatened have been saved as a result of it.139
As of 2003, thirty years after the enactment of the ESA, fewer than thirty species have
136
Tulare Lake Basin Water Storage Dist., 49 Fed. Cl. at 320.
Id.
138
Tenn.Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).
139
Adler, supra note 8.
137
been removed from the endangered or threatened species list.140 This is significant because,
while thirty species may have been removed from either list, there are over 1000 different
species that are listed as endangered or threatened.141 Unfortunately, more than half of the
threatened or endangered species that have been removed from the lists were removed, not
because they have been restored or saved, but because they are now extinct.142 In other words,
the ESA has saved approximately 1.2 percent of the species that are currently on the list.143
An article published by the environmental group, The Sierra Club, however, found that
the ESA works, stating that: “Species recovery plans average 30 to 50 years, and the average
number of years a given species has been listed under the act is only 15.5 years.”144 However,
this article states that the one thing endangered species need most to survive is land.145 This
brings to light the main issue this paper has discussed that land is and will be the primary savior
of endangered and threatened species. So long as land is needed for species to survive private
land owners will be called upon, or forced by regulation, to ensure survival of such species.
In an effort to make the ESA more effective Congressman Richard Pombo (R-Calif.) and
Representative Dennis Cardoza (D-Calif.) introduced legislation that will drastically change the
ESA.146 Pombo says it will improve the law.147 Sierra Club wildlife expert Bart Semcer insists
that the effect of the proposed legislation will ‘gut’ the ESA.148 Semcer argues that “What
endangered species need most to recover is land—federally-recognized “critical habitats”
140
Id.
Id.
142
Id.
143
Graves: ESA Needs Strengthened, Congressman Wants to Work with Landowners,
http://www.house.gov/graves/newsroom/091505a.htm (last visited May 1, 2008).
144
Timothy Lesle, Why the Endangered Species Act Works…and Why We Need to Keep It Strong, SIERRA CLUB,
http://www.sierraclub.org/planet/200602/endangeredspecies.asp (last visited May 1, 2008).
145
Id.
146
Timothy Lesle, Why the Endangered Species Act Works…and Why We Need to Keep It Strong, SIERRA CLUB,
http://www.sierraclub.org/planet/200602/endangeredspecies.asp (last visited May 1, 2008).
147
Id.
148
Id.
141
carefully managed to promote recovery.149 Semcer points out that “analysis of the U.S. Fish and
Wildlife Service’s own data shows that species that have had their critical habitat designated are
twice as likely to be heading towards recovery than species without critical habitat.” 150 The law
as proposed would remove habitat protections as well as:
“Pay developers, agribusiness, and polluters whatever they demand to obey the
law and not kill fish and wildlife; Give special interests access to government
decision-makers by creating a mechanism for them to interfere with efforts to
recover species and allowing them—but not citizens—to supply information; Let
politicians tell professional wildlife scientists how they should do their research
and what kind of information they can and can’t use when making their
conclusions.”151
Semcer says the bill is “all about funneling taxpayer subsidies to big developers and has nothing
to do with protecting America’s fish and wildlife heritage.”152
Supporting Semcer’s designated critical habitat argument is Jon D. Holst. Holst argues
that, in order for the ESA to be more effective, it needs to take a more preemptive approach in
protecting wildlife.153 He argues that the ESA does not protect biological diversity “because it
does nothing to prevent species from becoming threatened or endangered in the first place.”154
The article goes on to recognize that “acquiring sufficient habitat to avoid leaving perpetual
management as the only means to ensure long-term survival” could be a way to better protect
149
Id.
Id.
151
Timothy Lesle, Why the Endangered Species Act Works…and Why We Need to Keep It Strong, SIERRA CLUB,
http://www.sierraclub.org/planet/200602/endangeredspecies.asp (last visited May 1, 2008).
152
Id.
153
Jon D. Holst, The Unforeseeability Factor: Federal Lands, Managing for Uncertainty, and the Preservation of
Biological Diversity, 13 PUB. LAND L. REV. 113, 125 (1992).
154
Id. at 123.
150
species.155 This would be a realistic result if section 5 of the ESA were used by the government
to acquire habitats.
VIII. Conclusion
As the above views demonstrate the debate will likely go on until the end of time. There
will always be endangered or threatened species, just as there will always be landowners who are
concerned with the ESA’s economic impact upon their individual property rights. Perhaps the
answer is to amend the ESA to compensate landowners when their property rights are infringed
on due to regulations under the ESA. This has been addressed to some extent in Congress;
however no proposals have made it past the discussion phase. It can certainly be argued that the
act has its flaws. Until society as a whole pays attention not only to the environmental damage
that has been done to the earth, but how the environmental damage affects endangered and
threatened species there are likely no sweeping changes that will be made in the near future.
Certainly the overall goals of the ESA are admirable. The point of this paper is not to
suggest that the Act should be abandoned. To the contrary the Act needs to be embraced for what
it has accomplished thus far and be analyzed critically for changes that can be made to ensure
future generations have a variety of species to enjoy.
155
Id. at 125.