The Endangered Species Act and Private Property (CRS Report for Congress)
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| Release Date |
March 7, 1993 |
| Report Number |
93-346 |
| Report Type |
Report |
| Source Agency |
Congressional Research Service |
Summary:
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.
