The Endangered Species Act and Private Property: A Legal Primer

Robert Meltz
Legislative Attorney
American Law Division

March 7, 1993

93-346 A

2. LIMITS ON DEFENSIVE MEASURES AIMED AT PROTECTING PROPERTY FROM HARM CAUSED BY LISTED SPECIES

• • ESA provisions
• • Case law
• 3. LIMITS ON COMMERCIAL DEALINGS IN SPECIES ACQUIRED PRIOR TO LISTING
• • ESA provisions
• • Case law
• 4. FEDERAL ACQUISITION OF PROPERTY TO CONSERVE HABITAT
• • ESA provisions
• • Case law

III. FURTHER ANALYSIS

IV. LEGISLATIVE OPTIONS

V. SUMMARY AND CONCLUSION

2. LIMITS ON DEFENSIVE MEASURES AIMED AT PROTECTING PROPERTY FROM HARM CAUSED BY LISTED SPECIES

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 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 actually done harm to property.(44) 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 relocating the animals to a remote area.(45) The other special rule, quite similar, deals with experimental populations of red wolves.(46) 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 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 his property is the constitutional equivalent of an edict taking such property in the first place."(49)

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 to private farms and ranches, also found no taking.(52) Most state-court decisions, typically involving hunting bans on game animals, have denied relief to the property owner as well,(53) though owing to federal/state court doctrinal differences their precedent value for the ESA/taking issue seems limited.(54)

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 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. Plaintiffs 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 be held liable under that doctrine for the trespasses of animals in a state of nature, neither, under the FTCA, can the United States.(63)

3. LIMITS ON COMMERCIAL DEALINGS IN SPECIES ACQUIRED PRIOR TO LISTING

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 commercial dealer is the "hardship exemption."(64) 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

Only two federal-court decisions have dealt with limits on commercial dealings in previously acquired animals, each finding no taking.(67) 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. Allard (69) 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 plaintiffs.

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.

4. FEDERAL ACQUISITION OF PROPERTY TO CONSERVE HABITAT

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 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 Is 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 Conservation Act (74) and Migratory Bird Hunting Stamp Act.(75)

III. FURTHER ANALYSIS

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 minor extent of interference or the importance of the government interest to deflect the taking claim.(76)

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 as a whole.(77) 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 "destroys 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 the basis of the spectrum of property rights left to the plaintiff in the face of the invading animals.(80) 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 excluder devices" in their nets to protect endangered and threatened sea turtles, provoked a taking lawsuit dismissed on jurisdictional grounds.(81)

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 its people" that a state have broad power to regulate wildlife in the public interest.(84) 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 recover monetary damages for the loss of wildlife from pollution.(87)) Some have argued for recognition of a wildlife servitude in the federal government, comparable to its navigation servitude, under which federal wildlife protection would lie mostly beyond fifth-amendment reach.(88) 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 a unique desert fish, (89) found the "jeopardy" ban of ESA section 7 (as then worded) so absolute as to halt an almost complete dam that might endanger a listed species,(90) 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.

IV. LEGISLATIVE OPTIONS

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 threshold 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-property implications of agency actions (92) 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.

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 focused, 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, an idea first floated in 1991 by the Bush Administration,(94) 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, targeting 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.

V. SUMMARY AND CONCLUSION

It has been said that while property rights are well analyzed in our legal and moral tradition, our duties to endangered species, both legal and ethical, are novel and not universally accepted.(95) 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.

Endnotes

43. ESA § 11(a)(3) (protection of persons as civil defense); ESA § 11(b)(3) (protection of persons as criminal defense).

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).

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 (1991).

50. Mountain States Legal Fdn. v. Hodel, 799 F.2d 1423, 1430-31 (both 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.

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 (1Oth 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), aged on other grounds, 963 F.2d 275 (9th Cir. 1992). The taking issue was raised sea 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.

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 (both 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 ease 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.

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~cf)

67. By contrast state eases 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, ego 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.

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).

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. defied, 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 (both 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).

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. [It] 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 (both 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.

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.

93. Supra note 5.

94. Letter to Speaker of the House Foley from Attorney General Thornburgh and OMB Director Darman, July 10, 1991.

95. Rolston, Property Rights and Endangered Species, 61 U. COLO. L. REV. 283 (1990).

96. Id. at 283.