Where the wild things are: the Endangered Species Act and private property.

• Author: Meltz, Robert
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

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

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

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

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

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

1. A PROPERTY-RIGHTS WALK THROUGH THE ESA

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

   Under the modern ESA, the possibility of property use constraints begins when the Secretary of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered or threatened.(17) The Secretary of Commerce, through the National Marine Fisheries Service (NMFS), administers the ESA for marine species.(18) Any species or subspecies of fish, wildlife, or plants may be listed.(19) Significantly, listing is to be done "solely on the basis of the best scientific and commercial data,"(20) without reference to economic costs or private property impacts.

   Along with the listing determination, the Secretary is required, when "prudent and determinable," to designate the "critical habitat' of the species--areas essential to the conservation of the species that may necessitate special management or protection.(21) 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,"(22) presumably allowing impacts on property interests to be weighed. The Secretary may even exclude an area from critical habitat designation if the benefits of exclusion outweigh those of inclusion (unless exclusion will cause species extinction).(23) This ESA distinction between listing and habitat designation, allowing analysis of property impacts only with the latter, was made by Congress quite deliberately.(24)

   Of course, species listing and habitat designation by themselves do not directly interfere with private property. Rather, the ESA provisions triggered by these events may do so. One such provision, section 9, delineates prohibited acts in connection with endangered animals and plants.(25) Section 9's prohibitions apply to both private and public land, and apply regardless of whether critical habitat has been designated.(26) For endangered animals, prohibited acts include (a) the |taking' of members thereof, (b) possessing, selling, or transporting an 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.(27) For endangered plants, the list is narrower, replacing the general "taking" prohibition with more limited strictures.(28) The term "take," a key ESA concept not to be confused with Fifth Amendment takings,(29) 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 growth, may be authorized chiefly for "takings" incidental to otherwise lawful activity (allowing a project to go forward even if it harms some individuals of a listed species),(30) and undue economic hardship due to contracts made prior to federal consideration of a species as possibly endangered.(31)

   Permits for incidental "takes" may be issued by the Secretary after the landowner submits a "habitat conservation plan" (HCP).(32) The HCP must address the impacts of the "taking," along with proposed mitigation measures and alternatives to the proposed course of action.(33) If the Secretary finds that the "take" will be incidental, satisfactorily mitigated, and will not appreciably reduce the species' chances for survival and recovery in the wild, the permit must be issued.(34)

   By general rule, the FWS has extended all of the endangered species prohibitions to threatened animals and plants.(35) Special rules," withdrawing particular threatened species from aspects of the general regime, have been promulgated for those species with atypical management needs and for "experimental populations."(36)

   The other ESA provision with obvious property rights implications affects private development with a federal nexus.(37) Section 7 calls upon each federal agency to consult with the FWS or NMFS, depending on the species involved, to ensure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of" designated critical habitat.(38) Once consulted, the Secretary must, if listed species might be affected by the proposed action, prepare a "biological assessment" to determine the actual impact.(39) If the Secretary makes a finding of "no jeopardy," he must specify among other things the impact of any incidental "taking" on the species and necessary mitigating measures.(40) The incidental "taking" analysis under section 7 is the same as for incidental "taking" permits issued under section 10.(41)

   While section 9 encompasses threats to both individual species members and arguably the species itself, the "jeopardy" language above indicates a section 7 focus solely on threats to the species. However, section 7 is similar to section 9 in seeking to accommodate economic pressures by allowing incidental "takings," where not likely to jeopardize a protected species or adversely affect designated critical habitat.(42) As a last resort, an Endangered Species Committee (popularly dubbed the "God Squad") may allow a project to proceed despite a threat of extinction.(43)

   Finally, passing mention should be made of the species recovery plans required under section 4(f).(44) Recovery plans are just that: plans enumerating those measures needed to achieve the recovery of endangered and threatened species to the point where they can be delisted.(45) The ESA is notably vague, however, as to just how far the mandated "site-specific management actions"(46) in recovery plans can go. It is unclear whether they can directly regulate activities on private land or authorize entry by federal agents without the owner's consent.(47) Because no recovery plan

   under the ESA has ever sought to do either of these things and because the United States disavows that they may,(48) this article will leave the issue as a lingering question mark.

   Stepping back, one can see that the ESA is neither absolutist in the protections afforded covered species, nor, at the other extreme, sensitive to...