The Endangered Species Act and Private Property: A Legal Primer

If the 103rd Congress embarks upon an effort to reauthorize the Endangered Species Act
(ESA), it will run into an old acquaintance: the property rights issue. As now written, the ESA has
at least the potential to curtail property rights (whatever its actual impact as implemented may be).
This report explores the legal repercussions of those impacts, especially whether they constitute
takings of property under the fifth amendment of the U.S. Constitution.
The first type of possible impact occurs when the ESA directly bars an activity on private land
because it might adversely affect an endangered or threatened species. ESA section 9 bans the
"taking" of a listed species, a term that includes significant habitat modification -- even on private
land. On the other hand, the act seeks to accommodate economic pressure by allowing "takes" of
listed species that are merely incidental to a proposed activity. ESA section 7 orders federal agencies
to insure that their actions, including permitting, are unlikely to jeopardize the continued existence
of a listed species. Like section 9, section 7 allows incidental "takes," and can be bypassed entirely
by action of an Endangered Species Committee.
While the possibility of direct land-use prohibitions under the ESA sparks most of the
congressional debate, there appears to be not a single constitutional taking decision from the courts
based on such restrictions.
The second type of theoretical impact occurs when the ESA limits one's ability to protect
property from the depredations of listed species. ESA section 9 contains no defense for protection
of private property, though importantly, "special rules" allow government agents to deal with
nuisance animals. One ESA case has been decided in this category, finding no constitutional taking,
and most non-ESA depredation cases have yielded the same result. Instances where the protected
species exists on private land through government relocation, however, may offer better prospects
for the taking plaintiff.
The third type of possible impact occurs when the ESA limits commercial dealings in members
of species that were acquired before the species was listed. ESA section 9 contains the pertinent
language. Supreme Court taking decisions suggest that constitutional relief in these circumstances
is particularly unlikely.
A key reason why courts are not finding constitutional takings is because until now they have
deemed the restrictions in wildlife statutes to be land-use controls, rather than to effect permanent
physical occupations by the protected animals. The former type of government interference with
property is more rarely held to be a taking than the latter. For this and other reasons (but stressing
the difficulty of prediction in this area), it seems that few ESA impacts on private property are likely
to be constitutionally compensable.
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I. A PROPERTY-RIGHTS WALK THROUGH THE ESA...........................2
LISTED SPECIES.................................................4
ESA Provisions....................................................4
Case Law........................................................6
HARM CAUSED BY LISTED SPECIES...............................9
ESA provisions...................................................10
Case law........................................................10
LISTING ....................................................... 14
ESA provisions.......................................................14
Case law........................................................14
ESA provisions...................................................16
Case law........................................................16
III. FURTHER ANALYSIS..................................................16
IV. LEGISLATIVE OPTIONS................................................19
V. SUMMARY AND CONCLUSION..........................................20
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If the 103rd Congress embarks upon an effort to reauthorize the Endangered Species Act1
(ESA), it will run into an old acquaintance: the property rights issue.
As now written, the ESA has at least the potential to curtail private property rights in various
ways -- whatever its actual impact as implemented may be. The act'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'3
concerns. 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. Where they are, the ESA may pit private economic activity
against national concern for aesthetic, ecological, scientific, and recreational values. The landowner,
in theory, may suffer economic loss -- immediate, concrete, and quantifiable -- while the benefits he
reaps from the act as a member of the public are delayed, uncertain, and noneconomic. Moreover,
if the land is not formally purchased by government, the public shares in the claimed benefits without
Of course, the ESA is but one face of the tension between government regulation and private
property rights. In recent decades, federal programs, like state and local ones, have increasingly
sought to curtail uses of private property deemed inconsistent with environmental and other public
goals. Along with wildlife protection, wetlands and surface mining regulation are the salient federal
examples. The reaction has been a burgeoning grassroots property-rights movement, and more
Supreme Court attention to clarifying, and occasionally strengthening, the safeguards of private
property in the fifth-amendment taking clause.4 Both the Reagan and Bush Administrations made
protection of property rights an explicit agenda item, the former issuing an executive order
instructing federal agencies to set up procedures for considering, and minimizing, the property5
impacts of their proposed actions.
Even looking solely at government protection of wildlife, the government- versus-property-
rights issue has taken many forms. Analyzing the property impacts of such protections in terms of
1 16 U.S.C. §§ 1531-1544.
2 See, e.g., Greve, The Endangered Species Act (1991), printed in Takings and the Environment: The
Constitutional Implications of Environmental Regulation (Federalist Society, 1992); Somach, The Endangered
Species Act: How Great is the Threat?, 2 CAL. WATER LAW & POLICY RPTR. 153 (May 1992).
3 See, e.g., Hunt and Irvin, The Endangered Species Act: A Tough Law to Solve Tough Problems, 90 J. of
Forestry 17 (Aug. 1992).
4 U.S. Const. amend. V: "Nor shall private property be taken for public use without just compensation."
5 Exec. Order No. 12630, 3 C.F.R. 554 (1988), reprinted at 5 U.S.C. § 601 note.
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whether there exists a constitutional taking is merely today's fashion; such conflicts have also been
challenged as due process violations, government torts, or exceedances of the police power. And
the ESA is not the only source of government wildlife protection affecting property. Other federal
wildlife statutes that have spawned property-related challenges are the Migratory Bird Treaty Act,
Eagle Protection Act, and Wild Free-Roaming Horses and Burros Act.
This report sketches the ESA provisions most likely to fix the act's impact on private property
rights. It then reviews three ways in which the act may -- in theory at least -- constrain the use of
private property, noting under each (a) pertinent ESA provisions, and (b) the case law, particularly
on the constitutional taking issue. A fourth category, federal purchase of private property, is briefly
noted. Finally, the report surveys past congressional legislation and future options. Because
property-related case law under the ESA is so sparce, we cast our net broadly to include cases under
other wildlife statutes as well.
Though Congress first adopted endangered-species legislation in 1966, the property-rights
issue did not emerge until 1973 when it enacted the ESA. The ESA considerably broadened federal
management authority over endangered and threatened species, including those on private land.
Under the modern act, the possibility of property-rights conflicts begins when the Secretary
of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered
or threatened. (The Secretary of Commerce, through the National Marine Fisheries Service (NMFS),
administers the act for marine species.) Any species or subspecies of fish, wildlife, or plants may
be listed, and separate populations of vertebrate species as well. Significant here, listing is to be6
done "solely on the basis of the best scientific and commercial data" -- i.e., without reference to
property rights impacts.
Along with the listing determination, the appropriate Secretary is required when possible to
designate the "critical habitat" of the species -- areas essential to the conservation of the species that
may require special management or protection. In sharp contrast with listings, a critical habitat
designation is to be based both on scientific data and "economic impact and any other relevant
impact"7 -- presumably allowing impacts on property rights to be weighed. Indeed, the Secretary
may even exclude an area from critical habitat if the benefits of exclusion outweigh those of
inclusion (unless exclusion for this reason will cause species extinction). This ESA distinction
between listing and habitat designation, allowing property-impacts analysis only with the latter, was
made by Congress quite deliberately.8
6 ESA § 4(b)(1)(A); 16 U.S.C. § 1533(b)(1)(A).
7 ESA § 4(b)(2); 16 U.S.C. § 1533(b)(2). See 50 C.F.R. § 424.19.
8 Explains the pertinent committee report:
Whether a species has declined sufficiently to justify listing is a biological, not an
economic, question. For this reason, the [House Committee on Merchant Marine and
Fisheries] eliminated all economic considerations from the species listing process.
Desirous to restrict the Secretary's decision on species listing to biology alone, the
Committee nonetheless recognized that the critical habitat designation, with its attendant
economic analysis, offers some counterpoint to the listing of species without due
consideration for the effects on land use and other development interests. For this reason,
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Of course, species listing and habitat designation by themselves occasion no direct interference
with private property. Rather, it is the ESA provisions triggered by these events that may do so.
One such provision, section 9, lays out prohibited acts in connection with endangered
animals and plants.9 Section 9's prohibitions apply to private as well as public property, and apply
regardless of whether critical habitat is involved. For endangered animals, prohibited acts include
(a) the "taking" of any such species, (b) possessing, selling, or transporting any such animal obtained
by unlawful "take," (c) transporting an animal interstate in the course of commercial activity, and
(d) selling an animal interstate, or importing/exporting same. For endangered plants, the list is
narrower, deleting the general "taking" prohibition. The term "take," a key ESA concept not to be
confused with fifth-amendment takings, is generously defined to include almost any act adversely
affecting a species -- including "to harass, harm, pursue, hunt, ... capture, or collect" a listed animal.
Exceptions from section-9 prohibitions, aimed at accommodation of economic pressures, may be
authorized chiefly for "takings" incidental to otherwise lawful activities, and undue economic
hardship due to contracts made prior to federal consideration of a species as possibly endangered.
By general rule, the FWS has extended almost all the above prohibitions to threatened
animals and plants as well.10 "Special rules" have been promulgated for those threatened species
having atypical management needs, and for "experimental populations."
The other ESA provision with property-rights implications, section 7, sets out federal agency
obligations.11 Its sweeping mandate is that each federal agency "insure" that its actions are "not
likely to jeopardize the continued existence of any endangered species or threatened species," or
harm designated critical habitat. The only exemption to accommodate development is by action of
the Endangered Species Committee (popularly dubbed the "God Squad"), a time-consuming and
easily politicized process used to completion only three times since it was established in 1977.12
Stepping back, one can readily see that the ESA is neither absolutist in the protections afforded
covered species, nor at the other extreme sensitive to every property impact of those protections. For
example, the "incidental take" exception was added to the ESA in 1982 precisely to soften the
private-property impacts of the act -- yet, on the other hand, its availability is far from universal.
By definition, the "taking" can be excused only if it is incidental to, and not the purpose of, the
landowner's proposed activity, and an incidental-"take" permit may be issued only when the
landowner has submitted a "habitat conservation plan," an expensive proposition for some small
the Committee elected to leave critical habitat as an integral part of the listing process, but
to prevent its designation from influencing the decision on the listing of a species.
House Rep. No. 567, 97th Cong., 2d Sess. 12 (1982). See also House Conf. Rep. No. 835, 97th Cong., 2d Sess.
19 (1982).
9 16 U.S.C. § 1538. Violation of section-9 prohibitions is subject under the ESA to civil and criminal penalties.
10 50 C.F.R. § 17.31 (wildlife), § 17.71 (plants). The NMFS, on the other hand, adopts section 9 prohibitions for
threatened species only on a case-by-case basis. See, e.g., 50 C.F.R. § 227.21(a) (chinook salmon). The authority
for extending section 9 prohibitions to threatened species is in ESA section 4(d).
11 16 U.S.C. § 1536.
12 See generally Corn and Baldwin, Endangered Species Act: The Listing and Exemption Processes (CRS Report
90-242 ENR). Appendix C of the report also details three instances where the exemption process was begun but not
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landowners. This and other private-property escape valves in the ESA are discussed in more detail
Note: to avoid confusion, the "taking" of listed species under the ESA is indicated by
quotation marks; the taking of private property under the fifth amendment of the
Constitution is shown by absence of quotation marks.
Following are the principal ways in which the ESA might conflict with private property rights.
The focus, again, is on the act's legal potential; the extent of its impacts as actually implemented is
only touched upon.
When the ESA's relation to property rights arises in Congress, and when property-rights13
advocates level their criticisms, the debate typically centers on this type of impact.
ESA Provisions
ESA section 9, together with implementing rules, bars any person (or federal agency) from
"taking" endangered or threatened wildlife. The term "take" is defined by the act to include
"harming" a listed species. "Harm," in turn, is defined by FWS to include indirect harm by means
of certain habitat alterations:
Harm in the definition of "take" in the Act means an act which actually kills
or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding,
feeding, or sheltering.14
In bringing habitat modification within the definition of "harm," the FWS hardly lacked a
mandate. Loss of habitat is recognized in the ESA as a principal threat to endangered species, and
counteracting this trend is a key purpose of the act.15 Nonetheless, the interpretation of section 9 as
including habitat alterations is also a key reason why the ESA intersects with property rights.
13 See, e.g., Burling, Property Rights, Endangered Species, Wetlands, and Other Critters -- Is It Against Nature
to Pay for a Taking?, 27 LAND AND WATER L. REV. 309, 321-22 (1992); Williams, Landowners turn the Fifth into
sharp-pointed sword, High Country News, Feb. 8, 1993, at 1.
14 50 C.F.R. § 17.3 (second emphasis added). The NMFS has not yet promulgated a "harm" definition of its own.
15 Among the ESA's stated purposes is the conserving of "the ecosystems upon which endangered species and
threatened species depend ... ," ESA § 2(b), a goal embodied in the aforementioned device of designating "critical
habitat," ESA § 3(5). While considering the bill that became the ESA, Congress was informed that the greatest threat
to endangered species was destruction of natural habitats. TVA v. Hill, 437 U.S. 153, 179 (1978).
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Plainly, the habitat of listed species may overlap with private land (and, in the case of listed aquatic
species, with private water rights). With 749 domestic species listed as endangered or threatened
under the act and thousands more awaiting consideration, the spectre has been raised by some that
the ESA presents a ubiquitous threat to the institution of private property. Note also that habitat
modification may constitute a prohibited "take" under section 9 regardless of whether the land is16
designated critical habitat.
The key section-9 safety valve for development pressures is the "incidental take" provision,17
added in 1982. Permits for "incidental takes" -- i.e., "takes" of listed species that are incidental to,
and not the purpose of, a proposed activity -- may be issued by the Secretary after the landowner
submits a "habitat conservation plan" (HCP) on the impacts from the "taking," along with proposed
mitigation measures, why alternatives were rejected, and so on. If the Secretary finds that the
"taking" will in fact be incidental, satisfactorily mitigated, and will not appreciably reduce the
species' chances for survival and recovery, he must issue the permit. However, HCPs, without which
a permit cannot be issued, have been controversial. Their cost may be prohibitive for small
landowners not covered by regional or project HCPs funded by big developers or state and local
governments, and they allegedly impose delays on development.18 FWS reports that as of December,

1992, it has approved only 14 HCPs in the program's decade-long history.

ESA section 7, by contrast with section 9, operates directly on federal agencies only,
instructing them to avoid harm to listed species or critical habitat:
Each federal agency shall, in consultation with ... the Secretary, insure that
any action authorized, funded, or carried out by such agency ... is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of
habitat of such species which is determined by the Secretary ... to be critical
16 See, e.g., Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (logging practices of Forest Service harmed
habitat of endangered red-cockaded woodpecker, and thus effected "taking," even though habitat had not been
designated as critical).
17 ESA § 10(a)(1)(B); 16 U.S.C. § 1539(a)(1)(B).
18 States one commentator:
Only a handful of HCPs have been approved since 1982. Several others have failed
outright or have floundered in a seemingly endless attempt to reach consensus among
disparate interest groupos. There is growing environmental opposition to HCPs which
sanction the loss of habitat, and calls for instituting a "no net loss" policy for endangered
species planning efforts. .... The development community is growing increasingly
frustrated with the length of time required to resolve endangered species conflicts
through the HCP process and the inability of HCPs to remove legal risks associated with
the subsequent listing of species not addressed in the HCP.
Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered
Species Act of 1973, 21 ENV'L LAW 605 (1991). Recommendations for changing HCPs are contained in Bean et
al., Reconciling Conflicts Under the Endangered Species Act: The Habitat Conservation Planning Experience
(World Wildlife Fund 1991).
A prime factor contributing to the time taken by the FWS to approve HCPs is doubtless the preparation of an
environmental impact statement (EIS), which reportedly has accompanied every HCP approval to date except one.
EIS preparation is required by the National Environmental Policy Act, of course, not by the ESA.
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Once consulted under this provision, the Secretary must, if listed species might be affected by the
proposed action, do a "biological assessment" to determine the actual impact. If he finds the
proposed action "not likely to jeopardize ... " per the above language, he must specify the impact of
any "incidental taking" on the species, necessary mitigating measures, conditions that should be
imposed on the action, etc. The incidental-taking analysis under section 7 is the same as for19
incidental-taking permits under section 9.
Section 7's impact on the private landowner comes about most tangibly when an agency finds
that it cannot, consistently with section 7, issue a permit needed for land development.20 Probably
the most common example is denial of a wetlands fill permit under the Clean Water Act, which may
substantially curtail a landowner's development plans. As a practical matter, pursuit of an
Endangered Species Committee exemption from section 7 is an option only for the largest projects.
Section 7 approvals trump section 9's prohibitions. That is, when the Secretary has issued a
section-7 incidental "take" statement, "takings" that occur in compliance with that statement are not21
actionable under section 9.
Case Law
While the possibility of direct land-use prohibitions under the ESA sparks most of the
congressional debate, there has been curiously little activity in the courts. We find no ESA taking22
decisions in this category. Environmentalists infer from the lack of cases that the ESA/property
rights conflict has been vastly overstated -- that the act and its enforcing agencies are flexible
enough. Property-rights advocates argue that the high costs of taking litigation for the small
landowner may be what is discouraging resort to the courts, not any lack of impacts.
The environmentalist argument has some force, given that other federal environmental
programs caught up in the property rights debate, especially the wetlands protection effort of the
Corps of Engineers, have spawned a hefty number of taking claims. But one cannot infer, from the
absence of ESA taking suits alone, that the act is having universally insignificant impact on
property, since the daunting demands of taking law discourage suit in all but extreme instances of
property value loss. Moreover, property value loss is gauged by reference to the property as a
whole; total deprivation of economic use on only a portion of a private tract is not a taking if
19 Provision for incidental taking permits exempting landowners from section 9 was added to the ESA in order to
give landowners not requiring federal permits the same opportunity to develop their property as those proceeding
under section 7. House Conf. Rep. No. 304, 97th Cong., 2d Sess., reprinted in [1982] U.S. Code Cong. & Ad. News
2860, 2870.
20 Issuance of a federal permit notwithstanding failure of the proposed development to satisfy section 7 could also
be viewed as a violation by the agency of ESA section 9. Federal agencies fall within the definition of "person" under
section 9, and the issuance of the permit could be viewed as bringing about adverse habitat modification, thus
"taking" the species. See Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (Forest Service's management
practices resulted in precipitous decline of red-cockaded woodpecker on Forest Service lands, and hence violated both
ESA sections 7 and 9).
21 ESA § 7(o)(2); 16 U.S.C. § 1536(o)(2).
22 Indeed, at this writing there are no taking cases under the ESA pending in the U.S. Court of Federal Claims, the
forum where ESA/taking claims against the United States must be filed when the amount in controversy exceeds
$10,000. 28 U.S.C. §§ 1346, 1491.
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economic use of the unaffected portion remains feasible.23 Thus, as with property impacts from other
government programs, the large majority of any ESA impacts on private property that may be
occurring are likely to fall short of the constitutional taking threshhold.
For another thing, even meritorious suits must meet the Supreme Court's exacting ripeness
requirements. Generally, a taking claim is not ripe until a regulation has resulted in land-use24
prohibitions applied directly to plaintiff's specific parcel. Beyond that, any potential exceptions
from a land-use prohibition must have been applied for and denied,25 and, unless it would be futile,
the landowner must make further attempts to gain approval of scaled-down (but still profitable)26
For purposes of the ESA, these ripeness precepts mean that the mere listing of a species cannot
support a taking claim. Nor can the FWS' giving a landowner notice that his proposed activity
would be regarded by the agency as a "taking" under section 9, and prosecuted. Rather, it would
seem that to clear the ripeness hurdle the landowner must apply for and be denied an "incidental
take" permit for the proposed activity, and then perhaps do similarly for scaled-down versions
thereof. Under section 7, there is an issue whether denials of federal permits can give rise to a ripe
taking claim before the Endangered Species Committee exemption process has been exhausted.
Right now, the only federal-law case in the direct-limits category appears to be an old one not27
involving the ESA. Still, there are intimations of ESA/taking litigation to come. Taking suits
based on ESA-required timbering restrictions aimed at protecting the northern spotted owl, listed
as threatened, are rumored to be near filing, even though all of the owl's critical habitat is on federal28
land. And a taking action may be filed soon based on ESA property restrictions aimed at
protecting the kanab ambersnail in southern Utah.
ESA/taking litigation may also arise at some point in connection with government efforts to
maintain instream flows to avoid "taking" listed species of salmon, found in the Columbia and
Sacramento rivers. Such efforts have been argued to conflict with state-law water rights. And a
similar conflict with water rights might potentially arise from recent court injunctions against the
23 This doctrine, known as the rule against segmentation, was firmly endorsed by the Supreme Court in 1978.
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 127. Since then, however, a four-justice dissent in
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987), appeared to be accepting of segmentation,
and the Court has recently gone out of its way to indicate interest in revisiting the issue. Lucas v. South Carolina
Coastal Council, 112 S. Ct. 2886, 2894 n.7 (1992).
24 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
25 Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).
26 MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986).
27 In Bailey v. Holland, 126 F.2d 317, 324 (4th Cir. 1942), the court discerned no taking in application of a
Migratory Bird Treaty Act hunting ban to private land near a wildlife refuge, allegedly rendering the land "practically
worthless." The court explained, rather simplistically, that "[a]ny injury thus caused results from an exercise by the
Government of its police power and not of its power of eminent domain."
28 A private citizen suit recently filed in Oregon seeks to force a lumber company to obtain an "incidental take"
permit under the ESA before cutting timber on its own land -- based on potential disruption of spotted owls on nearby
federal land. Forest Conservation Council v. Rosboro Lumber Co., No. 92-1114-HO (D. Ore. filed Sept. 9, 1992).
If such a permit is judicially required, and then applied for and denied, a ripe constitutional taking claim would seem
to exist.
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operation of irrigation-district diversion facilities that suck listed salmon into their pumps.29 State-30
created water rights, by way of background, constitute property for taking-clause purposes, and the31
ESA has been held to provide no exception from compliance to persons possessing such rights.
At least one court decision in the direct-limits category has arisen under state law. In
Southview Associates, Ltd. v. Bongartz,32 the Second Circuit dealt with Vermont's denial of a
permit for a vacation home development that would overlap a "deeryard area" protected by state
law.33 The court saw no physical taking, explaining that the developer had not met U.S. Supreme34
Court criteria for a compensable permanent physical occupation. First, the developer had not lost
the right to possess the deeryard area, nor to exclude the deer. Second, it had not lost the right to
control the deeryard's use. For example, the developer, to the exclusion of others, could still walk,
camp, ski, or even hunt deer on the land -- irrespective of whether these activities cause the deer to
abandon the deeryard. Third, the availability of these uses to the deeryard owner meant that the right
to sell the deeryard area was far from worthless. Of course, it may have helped the court hold against
the developer that the physical invasion here was only seasonal, involving no more than 20 deer.35
Finally, Southview held that any regulatory taking claim was unripe due to the landowner's
failure to seek state approval of scaled-down development plans for the site that did not intrude upon36
deeryard, and its failure to seek compensation in the state courts.
Though Southview does not involve the ESA, it is important as the only modern federal-court
ruling on the taking implications of direct private land-use control in the name of wildlife protection.
29 United States v. Glen-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) (ESA compels issuance of
injunction against the district's pumping from the Sacramento River during the winter-run chinook salmon's
downstream migration); Dep't of Fish & Game v. Anderson-Cottonwood Irrigation Dist., 8 Cal. App. 4th 1554, 11
Cal. Rptr. 2d 222 (1992) (similar injunction issued under California Endangered Species Act to protect winter-run
salmon). See generally Trager and Staples, Water, Water Everywhere But ... : Species Protection Regulations as
Water Rights Takings after Nollan and Lucas, CALIF. WATER LAW & POLICY RPTR. 23 (Nov. 1992).
30 United States v. Gerlach Live Stock Co., 339 U.S. 725 (1975); Ball v. United States, 1 Cl. Ct. 180 (1982).
31 United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1134 (E.D. Cal. 1992). ESA § 2(c) makes
it congressional policy that federal agencies "cooperate with State and local agencies to resolve water resource issues
in concert with conservation of endangered species." This exhortation, of course, does not qualify the act's mandate.
32 980 F.2d 84 (2d Cir. 1992).
33 "Deeryard area" is defined in the opinion as "winter habitat for white-tailed deer," as identified on a state-
prepared deeryard map. The deeryard in question, consisting of 280 acres, was found by the state to be the sole
remaining, active deeryard within a 10.7 square mile area.
34 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982).
35 On the other hand, the Southview court seems to have erred in holding that the developer did not satisfy the
government-compulsion prerequisite for compensability articulated in Supreme Court physical-taking cases. This
prerequisite states, rather unremarkably, that only those physical invasions to which the property owner does not
assent can be takings. The Second Circuit saw no government compulsion here in that the developer had voluntarily
proposed the vacation home development. But of course, it is the voluntariness of the landowner's accepting the deer
on his property, not that of his development proposal, that is the crux.
36 Writing only for himself, the chief judge opined that if the merits had been reached, he would find no regulatory
taking. For one thing, it appeared that the developer's proposal could be fit into the non-deeryard portion of the tract.
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Moreover, if the three-factor analysis adopted in Southview becomes standard, physical takings
would seem almost impossible for landowners to demonstrate.
As background on when habitat alteration amounts to a prohibited "take" under ESA section
9, one can do no better than read Palila v. Hawaii Dep't of Land and Natural Resources, the
leading case. Palila I announced the simple proposition that habitat modification, without more,
may constitute a "take."37 After the FWS promulgated new regulations clarifying that "harm" means38
"actual" harm, Palila II blessed the agency view that not all modification of listed-species habitat
is a "taking." Rather, section 9 bans only those activities that modify habitat to an extent that
essential behavioral patterns are disrupted, or which cause a significant decline in species
population.39 Thus, as is true under section 7, protection of habitat under section 9 is limited. The
district court in Palila II, however, held expansively that habitat modification merely preventing
the recovery of a species also constitutes "harm."40
The concept of habitat modification as a prohibited "take" in and of itself has been a favorite
topic of commentators. According to one:
The Palila decisions have stimulated vigorous and, indeed, creative
administration of section 9 by certain FWS offices. In California, the FWS
has convinced a number of city and county officials that they will violate the
ESA, and be subject to civil and criminal penalties, if the city or county41
approves development within the listed species' habitat.
Another commentator argues that since Congress left the relevant ESA sections unchanged through
several amendments to the act since Palila, it must not disapprove of the definition of "harm" set
out in that litigation.42
Of older vintage than type-one impacts are instances when a person is legally barred from
using certain measures to protect his property from the depredations of protected wild animals. A
typical scenario, arising under the Migratory Bird Treaty Act and state hunting bans, involves
37 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981). The issue recently has been resurrected
in Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 35 Env't Rptr. (Cases) 1264 (D.D.C. 1992)
(habitat modification may constitute "harm"), appeal docketed, No. 92-5255 (D.C. Cir. July 9, 1992).
38 46 Fed. Reg. 54748 (1981), quoted on page 5.
39 649 F. Supp. 1070 (D. Haw. 1986), affirmed, 852 F.2d 1106 (9th Cir. 1988).
40 649 F. Supp. 1070, 1075-77 (D. Haw. 1986), affirmed on other grounds, 852 F.2d 1106 (9th Cir. 1988).
41 Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the
Endangered Species Act of 1973, 21 ENV'L LAW 605, 613 (1991).
42 Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENV'L LAW 811, 847
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protected birds that feed on private crops or forage. Another situation, arising under the ESA,
involves protected predators (wolves, grizzly bears) that on occasion kill private livestock.
ESA provisions
ESA section 9 and associated regulations against "taking" a listed species appear to admit
of no defense based on protection of private property. The Act creates a defense based on good-faith
belief that one was protecting persons from bodily harm, but no mention is made of protecting
property. 43
On the other hand, two FWS "special rules" allow government agents, but not private
individuals, to "take" members of threatened species and experimental populations that have actually44
done harm to property. One special rule speaks to grizzly bears, a threatened species: grizzlies
"committing significant depredations to lawfully present livestock, crops, or beehives" may be
humanely "taken" by such agents when it has not been possible to end the depredation by relocating45
the animals to a remote area. The other special rule, quite similar, deals with experimental46
populations of red wolves. If other threatened species and experimental populations come to harm
property, there will presumably be more special rules. However, the ESA cannot easily be read to
allow the FWS a similar freedom to abate property injuries in connection with species designated
as endangered.
Direct action by the property owner against a nuisance animal could not qualify for an
"incidental take" permit, since the resultant "taking" plainly would be the very aim of the property
owner's response, and not merely "incidental" thereto.
Case law
To date, most taking litigation over federal wildlife laws falls into the defense-limitation
category, and almost all of it has been resolved against the property owner.47 Prominent in the
federal-court decisions is endorsement of the common-law doctrine of ferae naturae -- the rule that
no one is liable for injuries wrought by animals existing in a state of nature, until they have been
reduced to possession by skillful capture. The doctrine has been consistently endorsed despite
government's contributory role in such injuries by thwarting the landowner's defenses or failing to
properly manage the species.
In the only ESA case, the statute's ban on "taking" grizzly bears, a threatened species, was
found to cause no taking as applied to bar a rancher from killing grizzlies that ultimately ate 84 of
43 ESA § 11(a)(3) (protection of persons as civil defense); ESA § 11(b)(3) (protection of persons as criminal
44 In limiting removal authority to government agents, rather than individuals, these special rules track the Wild
Free-Roaming Horses and Burros Act, which requires the United States to remove wild horses and burros from
private land when requested. 16 U.S.C. § 1334.
45 50 C.F.R. § 17.40(b).
46 50 C.F.R. § 17.84(c)(5).
47 See generally Note, The Watchtower Casts No Shadow: Nonliability of Federal and State Governments for
Property Damage Inflicted by Wildlife, 61 UNIV. COLO. L. REV. 427 (1990).
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his sheep. The United States, said the court in Christy v. Hodel,48 neither owns nor controls the
wildlife it protects; the rancher's loss is merely the "incidental" byproduct of the challenged ban. In
lone dissent from the denial of certiorari, however, Justice White posed a question much repeated
by property rights advocates: "whether a government edict barring one from resisting the loss of his49
property is the constitutional equivalent of an edict taking such property in the first place."
Of course, the ESA does not literally bar one from "resisting the loss of his property"; by its
terms, it prohibits only "takes." Any means of protecting property that causes no "take" is lawful
under the ESA. Still, it is certainly possible that in specific instances such ESA-consistent modes
of defense (fencing, watchdogs, etc.) may not be effective, affordable, or legal under other laws.
Most non-ESA depredation cases in the federal courts have reached the same no-taking
conclusion as Christy, again despite government constraints on private defensive efforts. No taking
was found based on private livestock forage consumed by feral horses protected under the Wild Free-
Roaming Horses and Burros Act (WFHBA),50 or based on crops damaged by geese that were
protected from hunting under the Migratory Bird Treaty Act.51 Not surprisingly, a federal case where
no limits were placed on private defense, involving prairie dogs migrating from public land to52
private farms and ranches, also found no taking. Most state-court decisions, typically involving53
hunting bans on game animals, have denied relief to the property owner as well, though owing to
48 857 F.2d 1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989).
49 See Comment, The Endangered Species Act and Ursine Usurpations: A Grizzly Tale of Two Takings, 58
UNIV. CHI. L. REV. 1101 (1991). More broadly, see Note, The Right to Protect Property, 21 ENV'L LAW 209
50 Mountain States Legal Fdn. v. Hodel, 799 F.2d 1423, 1430-31 (10th Cir. 1986) (4-3), cert. denied, 480 U.S.
851 (1987). The United States did not appeal the trial court's grant of mandamus, ordering the Secretary of the
Interior under the WFHBA to remove all wild horses from the plaintiffs' land, and to reduce the wild horse population
on adjacent public lands.
51 Bishop v. United States, 126 F. Supp. 449, 452 (Ct. Cl. 1954), cert. denied, 349 U.S. 955 (1955).
52 American Farm Bureau Federation v. Block, 14 Env'l Law Rptr. 20763 (D.S.D. 1984). The failure of the
federal-agency defendants to control the size of the prairie dog population on federal lands was seen by the court to
be merely tortious, rather than a taking. Alternatively, the court cited ferae naturae.
53 The seminal state case finding no taking appears to be Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917)
(government-reintroduced beavers destroyed hundreds of trees on valuable private woodland). Later no-taking
rulings include Maitland v. People, 93 Colo. 59, 23 P.2d 116 (Colo. 1933) (protected deer alleged to have increased
in number, causing crop damage); Platt v. Philbrick, 8 Cal. App. 2d 27, 47 P.2d 338 (1935) (wild animals in game
refuge might proliferate as result of year-round hunting ban, causing damage to private garden in refuge); Cook v.
State, 192 Wash. 602, 74 P.2d 199 (1937) (beaver trapping ban resulted in damage to private lake used as
commercial skating rink); and Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981) (goose hunting ban inflated
goose population, causing crop losses). See also Leger v. Louisiana, 306 So.2d 391, 393 (La. Ct. App.) (deer hunting
ban resulted in crop damage; compensation claim denied on nonconstitutional grounds), review denied, 310 So.2d
640 (La. 1975).
On the opposite side of the ledger, state decisions finding a taking include State v. Herwig, 17 Wis.2d 442,
117 N.W.2d 335 (1962) (waterfowl hunting ban led to "unnaturally concentrated foraging" on plaintiff's crops), and
Shellnut v. Arkansas, 222 Ark. 25, 258 S.W.2d 570 (1953) (deer hunting ban resulted in damage to orchards and
crops). In both cases, a factor pointing toward a taking was the state's departure from its general practice of
purchasing easements over tracts, such as those of plaintiffs, situated so as to be valuable as a game refuge.
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federal/state court doctrinal differences their precedent value for the ESA/taking issue seems54
The one federal case that did find a taking involved unusual facts. In Fallini v. Hodel,55
plaintiffs had a state-granted stockwatering right at a federal site, and a federal Range Improvement
Permit to build a well there. After the "costly" well was completed, however, the United States
forbade plaintiffs from building guardrails around it, out of concern for the safety of wild horses
protected under the WFHBA. As a result, wild horses consumed "practically all" of the well water.
The district court found a taking because the burden on plaintiff was seen to be greater than in the
foregoing cases, and because of the frustration of investment-backed expectations resulting from the
well construction pursuant to government permit.
At first blush, Fallini has limited relevance to ESA-protected species, since by historical
practice Range Improvement Permits for federal water sources include a requirement that wildlife
access be assured.56 Moreover, the taking ruling in the case was dictum and not reached on
appeal.57 Still, Fallini does show that under certain circumstances, as here where valuable
improvements were rendered worthless, federal curtailment of private defenses against wildlife may
be deemed a taking.
Another scenario with potential for takings, one likely to be heard from increasingly, is when
protected animals are introduced into an area by the government. Recall above some real-life
instances: the introduction of red wolves into North Carolina and the proposal to introduce gray
wolves into the Yellowstone ecosystem. Whether introduced animals thereby become
"instrumentalities of the government" for taking purposes was an issue expressly left open in
Christy.58 In this regard, might it matter also whether the animal is being reintroduced into its
historic range, as opposed to a completely new area? And even in the absence of government
introduction, could it be argued that government intervention merely increasing the population of
54 Many state cases (including those in note 53) have recognized a state constitutional right to defend one's
property from wild animals even when contrary to state conservation laws, or, in Maitland, involved a statute
providing for compensation to persons whose property is damaged by protected wild animals. See, e.g., Cross v.
State, 370 P.2d 371, 376, 377 (Wyo. 1962) (due process clause in state constitution read to guarantee "the inherent
and inalienable right to protect property"). See generally Mountain States Legal Fdn. v. Hodel, 759 F.2d 1423, 1428
n.8 (10th Cir. 1986) (collecting cases), cert. denied, 480 U.S. 851 (1987); Annot., Right to Kill Game in Defense
of Person or Property, 93 A.L.R.2d 1366 (1964) (noting that property protection right has been found both in states
having constitutional provisions guaranteeing the right of acquiring, possessing, and protecting property, and those
that do not).
As noted in text, no such rights have been judicially acknowledged under the federal constitution or ESA,
arguably altering the taking analysis for the ESA.
55 725 F. Supp. 1113 (D. Nev. 1989), aff'd on other grounds, 963 F.2d 275 (9th Cir. 1992). The taking issue
was raised sua sponte by the district court.
56 The government did not consider the feral horses congregating at the Fallinis' water source to be "wildlife"
within the meaning of their Range Improvement Permit.
57 The Fallinis have since refiled their taking claim in the U.S. Court of Federal Claims, where it is now pending.
No. 92-809 (filed Nov. 24, 1992).
58 857 F.2d at 1335 n.9. One might argue that the relocated animals, having been "reduced to possession" during
capture and transit to their new home, are no longer in ferae naturae status, but rather have become the property or
agents of the relocating government.
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a listed species undercuts the Christy rationale?59 Or that an animal that is heavily managed within
its critical habitat (immunized, fed, tagged, etc.) is "controlled" by the federal government, and hence
not under Christy?
The "government introduced" issue left dangling in Christy has received scant judicial
attention in the past.60 Quite recently, however, it has been raised in a suit contending that a state
took plaintiff's ranch through its relocation nearby of a band of Tule Elk, which now allegedly
occupy the ranch almost continuously, eat crops raised for the rancher's livestock, cause stream bank
erosion, and damage fences -- while the rancher is prevented from taking adequate protective
measures. Plaintiff asserts both a regulatory and physical taking.61
Undeniably, taking actions have become the landowner's weapon of choice in the depredations
category. Still, other legal swords have been drawn. The Christy court also found no due process
violation, discerning no "fundamental right" in the U.S. Constitution to protect livestock from
protected predators that would subject the ESA "taking" ban to strict scrutiny. Though relying
chiefly on the Supreme Court's reluctance to enlarge the list of fundamental rights under due process,
the court also noted that nothing in the ESA prevents the rancher from fencing out grizzlies or
driving them away by nonharmful means, and that as a last resort, the FWS special rule allows
government agents to "take" nuisance bears.62
A suit based on another alternative, the Federal Tort Claims Act (FTCA), met the same fate.
Plaintiff's theory was that by assuming the protection of migratory waterfowl under the Migratory
Bird Treaty Act, the United States became responsible for their feeding on privately owned crops.
The court disagreed, relying on ferae naturae. And, the court held, since a private person cannot
59 Under ESA section 7, it has been held that at least the Secretary of the Interior has "an affirmative duty to
increase the population of protected species." Defenders of Wildlife v. Andrus, 428 F. Supp. 167 (D.D.C. 1977).
In Mountain States Legal Fdn. v. Hodel, 799 F.2d 1423 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987), the
Bureau of Land Management acknowledged that there had been an "overpopulation" of wild horses since it assumed
control of them, but the majority's taking analysis does not address the point.
60 An old state case is Barrett v. State, supra note 53. There, the state reintroduced beavers to a region of the
Adirondack Mountains, where they destroyed hundreds of trees on plaintiff's valuable woodland. The court found
no violation of the police power, explaining that the state justifiably believed that its actions would promote the public
good. Nor was reintroduction seen to be different in legal contemplation from increasing the beaver population by
banning their destruction -- as the state, the court believed, could surely do. However, by virtue of its age, police-
power focus, and strong deference to government, Barrett probably has little precedent value for a latter-day taking
challenge to the ESA.
61 Moerman v. California, No. 57221 (Mendocino Cty. Super. Ct. Feb. 25, 1992) (summary judgment for state),
appeal docketed, Civ. A057389 (Cal. Ct. App. 1st Dist.). See also Hage v. United States, Civ. No. 91-1470 (Fed.
Cl. filed Sept. 26, 1991) (claiming that non-indigenous elk introduced by state onto federal land with Forest Service
permission are impairing stockwatering rights).
62 As with the circuit court's no-taking holding, Justice White's dissent from the denial of certiorari takes exception.
Justice White argues that a person's right to protect his property -- "long recognized at common law ... and deeply
rooted in the legal traditions of this country" -- may indeed be a fundamental one under substantive due process. 490
U.S. at 1115.
As noted, certain state courts have construed state constitutions to confer a right to protect property from
protected wildlife. Supra note 54.
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be held liable under that doctrine for the trespasses of animals in a state of nature, neither, under the63
FTCA, can the United States.
If an animal or plant, or item made therefrom, is acquired prior to listing under the ESA, the
fact of listing may well frustrate commercial expectations based on projected sale of those species
or items. Exotic animals imported pre-listing for commercial resale are an obvious example.
ESA provisions
ESA section 9 includes among its prohibitions many that bar commercial dealings in
endangered species. For example, it is made unlawful to import or export, or transport interstate in
the course of commercial activity, any listed animal or plant.
The rub, from the property owner's point of view, is that the ESA contains no explicit authority
for a general grandfathering from its section-9 prohibitions on species or items acquired before
listing. Moreover, the insertion of several narrowly defined grandfather provisions in the act
supports the view that Congress intended no broader authority be granted. The absence of general
grandfathering authority creates the potential for property impacts when species acquired pre-listing
lose most of their commercial value.
Of the limited grandfathers in the ESA, the one most likely to prove useful to the commercial64
dealer is the "hardship exemption." A person may apply for this exemption following government
publication of notice that a species is being considered for listing as endangered, if he has previously
entered into a contract regarding such species and listing will cause him "undue economic hardship."
Granting of the exemption by the Secretary is discretionary, however, and limited to one year from
the aforementioned publication. Other grandfathering authorities are provided for animals held on
the date of listing not in the course of commercial activity,65 and for sperm whale oil and scrimshaw
lawfully held as of the 1973 enactment of the ESA.66
Case law
63 Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S. 939 (1951). In another case
involving the spread of prairie dogs from federal to private lands, the FTCA claim was defeated by a procedural
oversight: plaintiffs' failure to first present their claim to a federal agency, as required by the FTCA. American Farm
Bureau Federation v. Block, 14 Env'l Law Rptr. 20763 (D.S.D. 1984).
64 ESA § 10(b); 16 U.S.C. § 1539(b).
65 ESA § 9(b); 16 U.S.C. § 1538(b).
66 ESA § 10(f); 42 U.S.C. § 1539(f).
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Only two federal-court decisions have dealt with limits on commercial dealings in previously67
acquired animals, each finding no taking. As noted below, it is likely that future taking challenges
under this rubric will fare no better.
In the only ESA case, United States v. Kepler,68 no taking was found in the ESA's ban on
interstate transport of a listed species, as applied to animals allegedly held lawfully as of the ESA's
enactment. The court reasoned that the ESA barred sales of the animals in question only in interstate
and foreign commerce, allowing sales in intrastate commerce and (when approved by the Secretary)
for scientific and species-propagation purposes. Thus, listing did not completely destroy the value
of the animals and no taking was effected.
More important, this category includes the only Supreme Court taking decision in the wildlife-
protection area. Andrus v. Allard69 hinged on a federal ban on commercial transactions in bird
parts covered under the Eagle Protection Act and Migratory Bird Treaty Act, as applied to bird parts
lawfully acquired by the plaintiffs before the ban's effective date. The Court found the ban to work
no taking, explaining that while it foreclosed the most profitable use of the bird parts, other uses of
them -- possession, transport, donation, or exhibition for an admissions charge -- remained to
Andrus is one of the Supreme Court's most government-friendly taking decisions, so its
precedent value in a conservative Court has been questioned. Indeed, the justices themselves once
debated its vitality.70 Nonetheless, the Court gave Andrus a ringing endorsement in its most recent
foray into the regulatory taking area in Lucas v. South Carolina Coastal Council.71 Lucas
asserted in dictum that by virtue of government's traditionally high degree of control over commercial
dealings, the owner of personal property, in contrast with land, must be aware of the possibility that
new regulation might even render such property worthless. The clear suggestion is that regulation
of commercial dealings in personal property is rarely a taking. Most important, the case cited as
illustrative was Andrus. In light of Andrus and Lucas, it is arguable that ESA restraints on
commercial trading in animals acquired before listing can never effect a taking.
So far, we have dealt only with preserving protected species from private activities through
command and control: enjoining actions of land owners, livestock/forage owners, or commercial
67 By contrast, state cases appear to deal solely with state efforts to limit before the fact the property rights acquired
when wildlife is reduced to capture. Cases upholding such efforts against taking challenge are of no relevance here,
however, since in such circumstances there is no interference with investment-backed expectations. See, e.g., Smith
v. State, 155 Ind. 611, 613 (1900).
68 531 F.2d 796 (6th Cir. 1976).
69 444 U.S. 51 (1979).
70 Hodel v. Irving, 481 U.S. 704, 718-19 (1987).
71 112 S. Ct. 2886, 2899-00 (1992). What is particularly interesting about the endorsement of Andrus v. Allard
by the majority opinion in Lucas is that the latter was written by Justice Scalia. Just five years earlier, the very same
justice asserted that by branding as a taking a federal law abolishing descent and devise of certain Indian property,
the Court had "effectively limit[ed] Allard to its facts." Hodel v. Irving, supra note 70.
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traders. We now turn to the very different, and far less contentious, approach of preserving species
on private property through land acquisition.
ESA provisions
ESA section 5 directs the Secretary of Interior and Secretary of Agriculture (as to the national
forests) to set up a program for conserving wildlife and plants, including those listed as endangered
or threatened. To carry out the program, each secretary is directed to use land acquisition authorities
in existing statutes, and beyond that is given broad land-acquisition authority "to acquire by
purchase, donation, or otherwise, lands, waters, or interest therein ...." While this phrase explicitly
embraces only non-coercive modes of property acquisition, sound argument points to its inclusion
of condemnation authority as well.72
Case law
Section 5 has received judicial attention only as regards whether states and their political
subdivisions may condition federal acquisition of land under that provision. In Sierra Club v.
Marsh, the court said no, at least where the conditions would prevent the federal acquisition or, if
allowing it to occur, would render it meaningless.73 Similar holdings have been rendered by the U.S.
Supreme Court as to federal land acquisition authorities under the Migratory Bird Conservation7475
Act and Migratory Bird Hunting Stamp Act.
A few issues reach beyond the bounds of any one category above, and are discussed here. Like
the case law already discussed, these issues have been resolved in ways that by and large cut against
the ESA being found to effect takings.
Physical taking or land-use regulation? Taking plaintiffs often argue that the ESA should
be viewed as causing a permanent physical occupation of land by members of the listed species, or
as causing an appropriation of consumed livestock and forage. Were courts to agree, it would
plainly be a gain to property owners. Constitutional taking law has long been intolerant of
government occupations and appropriations of property, allowing little room for factors such as the
72 First, there is the term "otherwise." Should this term be viewed as limited to other non-coercive measures, there
remains the argument that under the General Condemnation Act, 40 U.S.C. § 257, a federal agency's power to
condemn has been held as broad as its power to purchase. See, e.g., Swan Lake Hunting Club v. United States, 381
F.2d 238, 240 (6th Cir. 1967).
73 692 F. Supp. 1210, 1214-15 (S.D. Cal. 1988) (voluntary transfer to U.S. of 178 acres to be used as mitigation
land in connection with Corps of Engineers flood control/highway project).
74 United States v. Little Lake Misere Land Co., 412 U.S. 580, 594-97 (1973) (state law inapplicable where it
would negate terms of prior land acquisition).
75 North Dakota v. United States, 460 U.S. 300, 318-19 (1983) (state law authorizing landowners to drain
wetlands contrary to terms of easement acquired by U.S. may not be applied).
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minor extent of interference or the importance of the government interest to deflect the taking76
By contrast, if the ESA is viewed as merely a kind of land-use regulation, taking law raises the
daunting hurdle for the landowner of proving near-total reduction in the value of his tract viewed as77
a whole. Moreover, a dictum in a recent Supreme Court taking decision asserts that even with total
value loss, government measures "perhaps" cannot be a taking where they "destroy[] the value of
land without being aimed at land" -- as contrasted with regulation "specifically directed to land
use."78 If so, ESA limitations on private defensive measures, not being "aimed at land," may be
constitutionally noncompensable as a matter of law.
So far, courts wrestling with taking challenges to the ESA and other federal wildlife statutes
have spurned the physical taking approach, opting to use the more government-friendly test for land-
use regulation.
Courts have differed, however, on precisely why physical taking theory is inappropriate. The
defense-limitation cases, one involving the ESA, target the extent of government management or
protection over the injury-causing animals -- finding it insufficient on the facts presented to impute
the animals' conduct to the United States.79 In sharp contrast, the direct-control case bypassed
entirely the extent of species management, analyzing whether a physical taking existed solely on the80
basis of the spectrum of property rights left to the plaintiff in the face of the invading animals.
Query whether the divergent approaches of these cases can be explained entirely by the different
nature of the challenged government actions.
Requirements for affirmative action. For purposes of taking analysis, it should make little
difference whether the ESA impact is prohibitory or mandatory -- that is, whether it takes the form
of a prohibition against harmful activity by the property owner, or a mandate that the property owner
take action aimed at lessening the harm caused by his otherwise lawful activity. Each scenario asks
the property owner only to avoid a harm that his own activity would create, arguably satisfying the
fairness element of taking jurisprudence.
A common example of affirmative requirement is the mitigation conditions in habitat
conservation plans. Another affirmative requirement, demanding that shrimp trawlers use "turtle
76 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical
occupation of land is per se taking).
77 See, e.g., Mountain States Legal Fdn. v. Hodel, 759 F.2d 1423, 1430-31 (10th Cir. 1986), cert. denied, 480
U.S. 851 (1987).
78 Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 n.14 (1992) (emphasis added).
79 Mountain States Legal Fdn. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) (control of wild horses under the
WFHBA was no greater than under many other federal and state wildlife protection laws), cert. denied, 480 U.S. 851
(1987); Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) (ESA protections for threatened grizzly bears do not make
them agents of the United States), cert. denied, 490 U.S. 1114 (1989).
80 Southview Associates, Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992).
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excluder devices" in their nets to protect endangered and threatened sea turtles, provoked a taking81
lawsuit dismissed on jurisdictional grounds.
Whether government "owns" wildlife. Courts, as noted, have declared that the United
States does not "own" the wildlife on federal lands,82 and more generally that wildlife is never the
private property of those whose lands it occupies.83 Rather, the ownership language employed by
the Supreme Court until recently has been called a legal fiction "expressive of the importance to its84
people" that a state have broad power to regulate wildlife in the public interest. These two facets,
nonownership and special relationship, are discussed in turn.
As to nonownership, we have seen in the federal wildlife/taking cases that the absence of
traditional government ownership has facilitated the judicial embrace of ferae naturae --
nonresponsibility for acts of wildlife. Nonownership, however, may not excuse all governmental
sins, as we have noted in connection with government relocation of protected species. Supreme
Court taking decisions dealing with physical invasions have never insisted that the invading agent
be government property.85 It is only the existence of a sufficient causational nexus between
government act and property impact that the taking clause requires.
The rule that land ownership does not extend to the wildlife thereon has a further consequence:
the marauding grizzly bear does not become the property of the rancher when it runs onto his land.
Thus, the rancher cannot argue that the ESA brings about a taking by denying the rancher free use
of his property interest in the bear.86
The second facet of the government/wildlife relation, government's special duty to manage
wildlife for the public good, has ancient roots in English common law. Notwithstanding, this factor
has played only a diffuse role in the federal taking cases. (The special relationship with wildlife has
been given express treatment, however, in federal cases in which governments have sought to recover87
monetary damages for the loss of wildlife from pollution.) Some have argued for recognition of
81 Concerned Shrimpers of America v. Mosbacher, No. CA C-90-39 (S.D. Tex. Mar. 8, 1990) (unpublished). The
current turtle excluder device regulations were promulgated at 57 Fed. Reg. 57348 (Dec. 4, 1992).
82 [I]t is pure fantasy to talk of "owning" wild fish, birds, or animals. Neither the States nor
the Federal Government ... has title to these creatures until they are reduced to possession
by skillful capture.
Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977). Shortly after Douglas, the Supreme Court sounded
the death knell for the state ownership doctrine, under which the wildlife within a state used to be regarded as owned
by that state. Hughes v. Oklahoma, 441 U.S. 322 (1979), overruling Geer v. Connecticut, 161 U.S. 519 (1896).
83 See, e.g., Mountain States Legal Fdn. v. Hodel, 799 F.2d 1423, 1426 (10th Cir. 1986) (en banc).
84 Hughes v. Oklahoma, 441 U.S. 322, 334 (1979).
85 See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979) (taking caused by federal order that owners of
exclusive private lagoon grant access to boating public).
86 Along the same lines, the right to hunt wild game on one's own land has been judicially denied property status.
Rather, the right to hunt has been deemed a privilege against the state. See, e.g., Collopy v. Wildlife Comm'n, 625
P.2d 994, 999-1000 (Colo. 1981).
87 See, e.g., In re Stewart Transportation Co., 495 F. Supp. 38, 40 (E.D. Va. 1980) ("Under the public trust
doctrine, ... the United States [has] the right and the duty to protect and preserve the public's interest in natural wildlife
resources ...."). Importantly, this decision came after the demise of the state ownership doctrine in Hughes.
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a wildlife servitude in the federal government, comparable to its navigation servitude, under which88
federal wildlife protection would lie mostly beyond fifth-amendment reach. Though a few state-
court decisions support something akin to a state wildlife servitude, there seems to be no federal case
even broaching the idea of a federal counterpart.
Supreme Court endorsement of wildlife protection generally. In construing federal
wildlife-protection statutes, the high court in recent decades has consistently embraced the more
wildlife-protective of the arguments advanced before it. In addition to Andrus v. Allard, noted
earlier, the Court held that creation of a national monument reserved sufficient water to preserve a89
unique desert fish, found the "jeopardy" ban of ESA section 7 (as then worded) so absolute as to90
halt an almost complete dam that might endanger a listed species, and upheld the WFHBA
protecting feral horses and burros on both public and private lands.91 At a minimum, these cases
indicate that the Court accepts wildlife protection as a legitimate governmental objective that can
support reasonable interference with private rights.
Though this report deals with law rather than policy, we note in broadest of broad outline what
seem to be major congressional options for addressing the property rights issue. Of course, this
threshhold is reached only if Congress finds during ESA reauthorization that the real-world collision
between the ESA and landowner aspirations is significant. If so, the major options are fairly plain.
Option one is to do nothing, impliedly embracing the fifth-amendment standard of
compensation as adequate. Under this option, the landowner remains in the same position under the
ESA as under other federal statutes that have figured prominently in the property-rights debate --
none of which now provides for extraconstitutional compensation of landowners.
Option two is to leave the ESA's substantive species protections unchanged, but lower the
compensation threshold -- that is, provide monetary relief to offset property-value losses occasioned
by the act even where not constitutionally compelled. Option three is to tinker with how existing
ESA mechanisms are administered, as by mandating formal evaluations of the private-property92
implications of agency actions or encouraging more aggressive use of the developmental safety
valves already in the ESA. And option four, the most substantively major, is to adjust the act's
listing or protection standards so as to strike a balance more favorable to private property interests.
88 See Hoobler, No Taking: The Endangered Species Act and the Fifth Amendment 48 (student paper, 1991)
(available from R. Meltz).
89 Cappaert v. United States, 426 U.S. 128 (1976).
90 TVA v. Hill, 437 U.S. 153 (1978).
91 Kleppe v. New Mexico, 426 U.S. 529 (1976).
92 Executive Order No. 12630, supra note 5, already requires preparation of "taking impact assessments" of
proposed agency actions, but the Order's future under the Clinton Administration is reportedly in doubt.
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Several of these options were embodied in ESA-amending bills of the 102nd Congress, which
may presage the debates of the 103rd. Two of the 102nd-Congress bills would have amended the
ESA comprehensively, and three were narrowly focussed, as follows.
S. 3159, a comprehensive bill, was introduced by now-retired Senator Symms. Mentions of
property rights pervade its opening provisions -- stating, for example, the policy of Congress that
federal species-protection efforts "minimize adverse effects on ... private property." More concretely,
the bill proposed that ESA regulations not become effective until the issuing agency is certified by
the Attorney General to be in compliance with the "federal taking" executive order.93 This provision
was a pared-down version of Senator Symms' S. 50, which imposed the same prerequisite on all new
federal regulations.
Of potentially seismic impact is the bill's declaration that once the Judgment Fund pays a
taking judgment against the United States based on agency action under the ESA, that agency must
reimburse the fund out of agency appropriations. Partisans of Judgment Fund reimbursement, an94
idea first floated in 1991 by the Bush Administration, typically speak in terms of promoting the
fiscal accountability of agencies, and greater sensitivity to property rights. Opponents, not
surprisingly, point to the potential for chilling agency program efforts.
The other comprehensive ESA bill, H.R. 6134 (Tauzin), offered an array of provisions to
ensure that ESA "procedures and standards for private landowners ... are not more burdensome ...
than those applicable to federal agencies." Most notably, the bill sought to aid property owners
denied permits under the ESA for "economically viable use" of their property, affording them the
right to either have the property bought by the United States at market value, or to receive
compensation in the amount of the value loss. Plainly, this approach would often mandate
compensation even when it was not compelled under the fifth amendment.
Other bills of the 102nd Congress were much narrower, targetting solely the ratio of costs and
benefits resulting from ESA actions. H.R. 3092 (Hansen) would have barred any ESA action the
economic benefits of which did not outweigh the economic costs. H.R. 4058 (Dannemeyer) and
H.R. 6123 (Thomas, Cal.) similarly blocked ESA actions whose benefits did not outweigh costs,
but went further to make explicit that determination of real-property value losses was to be part of
that analysis. These bills also demanded federal compensation for economic loss resulting from a
species being listed as endangered or threatened, including "any diminishment in the value of
tangible or intangible property."
None of these bills was acted on, beyond committee referrals.
It has been said that while property rights are well analyzed in our legal and moral tradition,95
our duties to endangered species, both legal and ethical, are novel and not universally accepted.
93 Supra note 5.
94 Letter to Speaker of the House Foley from Attorney General Thornburgh and OMB Director Darman, July 10,
95 Rolston, Property Rights and Endangered Species, 61 U. COLO. L. REV. 283 (1990).
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Foregoing development of private land that might harm a public drinking-water source is a sacrifice
most landowners might accept; having one's livelihood disrupted in order to preserve an endangered
bird is a tougher call. The Endangered Species Act "is visionary, and implementing it is forcing
seminal rethinking in both law and ethics."96
Given this ongoing debate, and the paltry number of ESA/taking cases, prediction of how the
act may fare in any future taking litigation might seem premature. Adding to the difficulty, one
might well argue, is the case-by-case nature of taking adjudication and, quite pivotal, the flexibility
with which the FWS and NMFS execute their charge. Despite these question marks, one can expect
that as with government impacts on property generally, the large majority of ESA-caused impacts
are likely to be constitutionally noncompensable.
To recap why: For direct limits on land use under the ESA, the property owner has the
daunting hurdles of proving ripeness and almost total elimination of economic use on the entire
parcel. Near-total loss of economic use, when considering a tract of land as a whole, may rarely
occur under ESA restrictions -- again assuming agency flexibility. For ESA limitations on defending
property against animal depredations, Christy v. Hodel finds no taking and most cases under other
federal wildlife statutes hold similarly. Persuading a court to see a per se taking owing to a
permanent physical occupation by the harmful animals seems unpromising. The only solid prospects
for property-owner compensation may be in narrow, special circumstances -- as when property
damage would not have occurred but for government introduction of the species into the area. And
finally, for transactional restraints on species members obtained prior to listing, the decisions in
Andrus and Lucas suggest an almost absolute rule against compensation.
To be sure, imponderables could alter this government-friendly picture. For one thing, the
Supreme Court's recent hint that it might qualify its current rule that parcels be viewed as a whole
could significantly enhance a property owner's prospects. (A taking might then result from
regulatory elimination of use on only a portion of one's land.) But so far, recent Supreme Court
decisions favorable to the property owner notwithstanding, the Court of Federal Claims has
continued to resolve the large majority of taking claims for the United States.
Whether to supplement this constitutional balance between ESA-protected wildlife and the
property owner, through legislation giving added protection to the latter, is the question to which the

103rd Congress may have to turn.

96 Id. at 283.
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