Muddle or muddle through? Takings jurisprudence meets the Endangered Species Act.

• Author: Sagoff, Mark
• Position: Defining Takings: Private Property and the Future of Government Regulation

TABLE OF CONTENTS

1. INTRODUCTION

   1. Two Sides to a Controversy

   2. Slippery Slopes

   3. The Thesis of This Article

2. INTRUSIVE, COUNTERPRODUCTIVE, AND INEQUITABLE

   1. A Nation of Zoo-Keepers

   2. Politics as Usual

   3. Do Supreme Court Decisions Matter in Environment Policy

3. THE POINTLESSNESS OF THEORY

   1. The Search for a Theoretical Fix

   2. Is Law Deducible

   3. A Collision of Views, Not a Conflict of Interests

4. THE END OF THE ECOSYSTEM

   1. What is Bad for the Marsh Is Bad for Mankind

   2. Ecology as a Comprehensive View

   3. The Historization of Nature

   4. The Problem of Classification

   5. The Problem of the Baseline

   6. The redundancy of Species

5. LOGOS AND TELOS IN THE NATURAL ENVIRONMENT

   1. Everything Is Connected to Everything Else

   2. Ecology as a Normative Science

   3. The Non-Equilibrium Paradigm

   4. The Keystone Species

   5. Does Nature Know Best?

   6. Theory in Ecology

   7. Theory Against History

   8. Everything Can Connect with Everything Else

1. Design in Ecology

   10. The "Rivet-Popping" Analogy

6. THE WARS OF RELIGION

   1. The Gospel of Efficiency

   2. Preference Satisfaction as the True and Only Heaven

   3. Why Protect Species?

7. CONCLUSION

   "When landowners find an endangered animal on their property, Chuck Cushman says, the best solution under current law is to `shoot, shovel and shut up'."(1) So the Arizona Republic newspaper reported the response of one landowner to the decision of the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon.(2) At issue in Sweet Home was section 9 of the Endangered Species Act (ESA), which makes it a crime to "take" an endangered or threatened species.(3) The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."(4) Interior Department regulations extended the definition of "harm" to include "significant habitat modification or degradation [that] actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(5) In Sweet Home, the Supreme Court by a six to three majority upheld this extension of the meaning of "harm" in section 9 of the ESA.(6)

   Cushman, executive director of the American Land Rights Association, based in Battle Ground, Washington, identified civil disobedience as a rational response to the Court's decision. He explained, "[a] private-property owner is thinking to himself, `I find a spotted owl on my property, I'm going to lose everything I've worked for all my life.'"(7) A property owner may find immediate recourse in shooting and burying the bird before federal agents discover it.(8) A more general political remedy, Cushman observed, must be sought from Congress.(9) "I think you're going to see an eruption in Congress. It's obvious to everyone now that the Endangered Species Act is broke [sic] and it's gotta be fixed."(10)

   Newspaper editorials condemned the Sweet Home decision as a confiscation of property rights. "The U.S. Supreme Court in a 6-3 decision yesterday trampled property rights in granting federal regulators broad control of private land to protect endangered species," declared the Detroit News.(11) "No worse environmental decision has come from the high court in two decades. The harm can only be undone by Congress, which must overhaul the Endangered Species Act."(12)

   In a syndicated editorial, James J. Kilpatrick wrote that the small landowners who brought suit in Sweet Home rely on logging for their livelihoods, which is the only economically viable way that they can use their land.(13) "Now comes the government saying that timber may not be cut in forests supporting the owl and the woodpecker--not if the cutting involves significant habitat modification that actually kills or injures wildlife...."(14) Even if most Americans wish to prevent the extinction of species like the red cockaded woodpecker or the spotted owl, "that does not establish that the Oregon landowners alone can be compelled to pay for their preservation."(15) On the contrary, as Kilpatrick reminded his readers, "private property may not be `taken' by the government without payment of just compensation" under the Fifth Amendment.(16)

   This Article examines the question of whether the government should compensate landowners when it requires them to maintain their property as a habitat for an endangered species, thus preventing them from developing it profitably. The Article is organized as follows: Part I introduces two contending positions--first, the libertarian position that would require compensation for all regulatory takings not preventing a nuisance or harm cognizable at common law and, second, the position of environmentalists who believe that the loss of species does constitute such a nuisance or harm because it undermines the functioning of ecosystems beneficial to human beings.

   The introductory section also states this Article's thesis, namely, that the Court is correct in sticking to an ad hoc or per se jurisprudence that avoids both of these theoretical extremes. Rather than erect into law either ideology, the courts wisely have deferred to the political process, which provides a suitable arena in which landowners and environmentalists may butt heads until they learn that they may gain more by working with than by fighting against each other.

   Part II of this Article reviews the enforcement of the ESA and asks in the wake of Sweet Home how much of a federal landgrab one may expect. Landowners worry that the Fish and Wildlife Service (FWS) will bankrupt American farmers, loggers, and other small landowners to coddle minor varieties of gophers, beetles, and squirrels. This Article argues that these landowners, when politically organized, have little to fear from the government. As far as one can assess the balance of economic and political power, it lies with the landowners and not with the federal agencies.

   The Article then inquires in Part III why the penchant to theorize in the area of property rights seems overwhelming in spite of the apparent lack of any relationship between this theorizing and the practice of courts and agencies. Here, the Article compares the spate of theorizing about the doctrine of legal standing with the explosion of theory about takings in view of the irrelevance of both kinds of speculation to the decisions courts in fact make. The Article also notes that Supreme Court decisions affecting property rights, from Pennsylvania Coal Co. v. Mahon(17) to Sweet Home, act as only one factor among many in determining land use. In fact, these judicial decisions often make little difference in what actually happens, as it were, on the ground.

   Part IV of the Article examines a particular theory of environmental regulation that stretches from Aldo Leopold's "Land Ethic"(18) to more contemporary conceptions of the ecological connectedness of the land community.(19) On the basis of this general ecological approach, environmentalists argue that the extinction of species so threatens the stability or integrity of ecosystems that regulations requiring landowners to maintain habitat prevent a nuisance or public harm. The Article then proposes that although this theory confronts insuperable conceptual and empirical difficulties--indeed, it offers hardly more than a secularized version of "Great Chain of Being" cosmology(20)--it remains enormously popular. In spite of overwhelming evidence otherwise, most Americans believe that nature exemplifies a chain, pyramid, or other intelligible design.(21)

   Ecologists in their scientific endeavors largely have abandoned the idea that an order exists in nature--a balance, harmony, homeostasis, integrity, or whatever--in which each species plays a role.(22) Yet the temptation to ascribe a purpose, order, or design to nature remains strong in spite of all the Darwinian objections against doing so.(23) Ecologists themselves are loathe to let go of the notion that Nature has a nature.(24) As ecologists throw teleology out the front door, they smuggle it in by the back.(25)

   This Article continues in Part V to describe the relevance of the ecosystem concept to takings jurisprudence in view of the widely accepted "non-equilibrium" approach ecologists now apply to biological communities. This section of the Article questions whether ecology as a theoretical science offers credible grounds for believing that changes human beings make to nature tend to upset ecological structures or functions important to our economy.

   The Article concludes in Part VI by acknowledging that Americans are broadly sympathetic both to the importance of property rights and to the claims of an environmental or ecological ethic. The former commitment may be traced to the Enlightenment faith that property rights ground material progress and that greater material prosperity is the portal to social happiness. At the same time, Americans share an ecological commitment to the unity of all things, all creatures great and small, under God. We may owe this view in part to a variety of creation myths, such as the stories of Genesis and Noah, along with strong cultural currents of neoplatonic pantheism and transcendentalism.

   Where two such fundamentally different theologies, one antinomian, the other pantheistic, confront each other, what is the Court to do? Dither. Mumble. Muddle through. Equivocate. Keep everyone guessing. It should be no surprise, indeed, it should be a relief, that the Court has taken refuge in an ad hoc, per se jurisprudence.

1. INTRODUCTION

   Several academic experts have joined editorial writers in speculating that section 9 of the ESA might trigger the Takings Clause of the Fifth Amendment.(26) They point out that the ESA does not raise the question of whether protecting species is a good idea--of course it is--but rather the question who should pay for protecting them. If the public wishes to preserve the habitat of a warbler, lousewort, or toad, that is well and good, these commentators say, but then the public...