Does preventing "take" constitute an unconstitutional "taking"? An analysis of possible defenses to Fifth Amendment taking claims based on the Endangered Species Act.

AuthorFoley, Stephen P.


The conflict over Humboldt County's Headwaters Forest ("Headwaters") represents a classic battle between environmental protection and private property rights. The five hundred to one thousand year-old redwoods of the Headwaters support an. incredibly diverse, delicate, and beautiful ecosystem, and serve as a defining symbol of California.(1) However, the enormous redwood trees also garner a high price in the patio, paneling, hot tub, and furniture markets.(2) The three thousand acre Headwaters was appraised at $500 million in 1993.(3) Moreover, the fate of the Headwaters, in particular, evokes strong feelings because the landowner, the Pacific Lumber Company ("PLCO"), is a major employer of Humboldt County's residents. Also, PLCO is a subsidiary of the much-maligned finance company, MAXXAM, Inc. (MAXXAM).(4)

In this paper, I analyze a legal conflict involving the Headwaters that, although not yet ripe, looms on the horizon. Considering their economic value, PLCO is almost surely going to attempt to harvest the old growth redwoods of the Headwaters. However, harvesting will destroy. the habitat, and possibly the existence, of species protected by the federal Endangered Species Act ("ESA").(5) Under the ESA, the Secretary of the Interior, through the U.S. Fish and Wildlife Service ("FWS"), has identified five inhabitants of the Headwaters worthy of protection: The marbled murrelet, the northern spotted owl, the chinock salmon, the peregrine falcon, and the bald eagle.(6) In all likelihood, additional threatened and endangered species of the Headwaters will continue to be identified. Because of the threat to so many species, any attempt to harvest the Headwaters will be met with an ESA-based lawsuit-initiated by the FWS or an environmental group. If these challenges are successful and PLCO's right to harvest the Headwaters is prevented, PLCO will claim that the ESA regulation constitutes a Fifth Amendment taking.(7)

The PLCO case highlights the policy conflicts between the Fifth Amendment's guarantee against taking without compensation and society's need to protect biodiversity. These issues are bound to arise in future ESA taking claims.(8) This paper analyzes these conflicts and describes possible defenses to PLCO's claim and future ESA taking claims.

I conclude, based on the Supreme Court's decision in Lucas v. South Carolina Coastal Council, that a total restraint on timber harvesting imposed by the ESA would constitute an unconstitutional taking claim.(9) However, I analyze five possible defenses to a "total taking" claim: (1) wildlife protection inheres in the "bundle of rights" granted to landowners under the theory of public trust; (2) an expanded definition of public nuisance includes species destruction; (3) the Christy-Flotilla(10) defense which absolves the government of responsibility because it does not control where protected species live; (4),a defense based on the Andrus v. Allard(11) personal versus real property distinction; and (5) the legislative solution defense.

I conclude that the public trust and public nuisance defenses will probably fail.(12) The Christy-Flotilla defense, although approved by some courts, lacks merit(13) The Andrus defense has potential to succeed, because of its logical consistency, but it is based on antedated property law.(14) Finally, legislative solutions, such as the Headwaters Forest Act, may preempt a Lucas "total taking" claim, because they demonstrate that, despite regulation, the land still possesses value.(15)


    PLCO, the largest producer of high grade redwood lumber in the world, owns 195,000 acres of redwoods and Douglas firs, including the Headwaters.(16) Prior to MAXXAM's 1986 acquisition of PLCO, the 124 year old lumber company harvested its redwoods moderately, under a sustained-yield policy which allowed new trees to grow faster than those cut. In addition, the company never engaged in clear-cutting.(17) However, low overhead and under-utilized assets attracted MAXXAM to buy out PLCO's stock through junk bond financing.(18) To cover interest payments on its high interest junk bonds, PLCO doubled its harvest rate and began clear-cutting.(19) MAXXAM has since refinanced PLCO's bond debt from a twelve percent to an eight percent interest rate, but it is unclear whether or how this has affected PLCO's harvesting rate.(20)

    PLCO's forestry practices have already been the subject of one lawsuit based on the ESA. During the 1992 Thanksgiving holiday, PLCO secretly harvested part of Owl Creek, a 220-acre parcel of old growth redwoods separate from the Headwaters. This secret harvest prompted an investigation by the FWS as it appeared that PLCO had failed to comply with ESA requirements.(21) After the FWS's failure to prosecute PLCO for ESA violations, the Environmental Protection Information Center ("EPIC"), a private, non-profit organization, obtained a temporary injunction which blocked any further harvesting of Owl Creek.(22) Then, on February 24, 1995, the court in Marbled Murrelet v. Pacific Lumber Co. granted a permanent injunction which blocked PLCO from harvesting Owl Creek.(23)

    Because PLCO intends to harvest the Headwaters,(24) it is likely the FWS or an environmental group will attempt to obtain an injunction against PLCO.(25) Assuming the injunction is successful, PLCO will probably argue that it is entitled to just compensation under the Fifth Amendment.(26)


    Recognizing the ecological and scientific importance of protecting biodiversity, Congress enacted the ESA to protect endangered and threatened species from the ill effects of land use.(27) In Tennessee Valley Authority v. Hill, the Supreme Court stated that Congress intended the ESA to protect species "whatever the cost."(28) The ESA prevents persons(29) from "taking" an endangered or threatened species.(30) To "take" means to kill or harm.(31)

    In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court upheld the Secretary of Interior's definition of harm.(32) In that case, harm included significant habitat modification or degradation which actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.(33) In Marbled Murrelet v. Pacific Lumber Co., the Ninth Circuit held that Sweet Home did not limit killed" a protected species.(34) Rather than a showing of past harm, the court only required a showing of "a reasonably certain threat of imminent harm to a protected species" before issuing a protective injunction.(35) Thus, to enjoin PLCO from harvesting the Headwaters, the FWS or environmentalists must show that a protected species, most likely the marbled murrelet, is in imminent danger of being actually killed by the modification of its habitat.(36)

    Humans, plants and animals are all components of an interdependent ecosystem, and as a result of one species' extinction, numerous other species also disappear.(37) The ESA can protect an "indicator species" which reflects on the health of an entire forest, desert, or lake.(38) In other words, the protection of one species' habitat is vitally linked to the protection of biodiversity.(39)

    Some critics argue that the interests of private property owners outweigh the benefits of protecting species such as the marbled murrelet.(40) However, supporters of the ESA note that species protection ensures the biodiversity necessary for the overall health of society.(41) For example, the timber industry almost harvested the Pacific Yew tree into extinction before researchers discovered that it may be helpful in treating breast cancer.(42) Also, penicillin, used to cure bacterial infections, was originally discovered in a fungus growing on oranges.(43) The Supreme Court justified the ESA as follows:

    From the narrowest point of view, it is in the best interests of

    mankind to minimize the losses of genetic variation. The reason is

    simple: They are potential resources. They are keys to puzzles which

    we cannot solve and may provide answers to questions which we

    have not learned to ask.(44)

    The government's ability to protect biodiversity, however, is limited by its budget. If Fifth Amendment taking claims such as PLCO's are successful, they will force an already debt-ridden federal government to pay landowners just compensation. Budget restraints are likely to force the government to relax its enforcement of the ESA and risk the loss of valuable biodiversity.(45) Alternatively, Congress may legislate to repeal the ESA altogether.(46)


    Until relatively recently, Americans have failed to recognize the need to protect biodiversity, but the United States has long adhered to theories supporting the protection of property rights.(47) In recognizing these theories of property rights, the Fifth Amendment of the United States Constitution states: "[n]or shall property be taken for public use, without just compensation."(48) Thus, private property rights are not absolute. The government may take property, but if it does, it must pay for it.

    The right to just compensation is subject to limits. Through its police powers, government restrains property use through, inter alia, residential(49) and environmental(50) zoning and regulations without compensation. Though beneficial, the efficient use of property achieved through private property protection sometimes conflicts with goals of coordinated urban development and environmental protection. With respect to property rights, the Supreme Court has stated:

    While the meaning of constitutional guaranties never varies, the

    scope of their application must expand or contract to meet the new

    and different conditions which are constantly coming within the

    field of their operation. In a changing world, it is impossible that it

    should be otherwise.(51)

    Thus, changing conditions and new knowledge may motivate...

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