The Endangered Species Act and Private Property: A Legal Primer

Robert Meltz
Legislative Attorney
American Law Division

March 7, 1993

93-346 A

SUMMARY

I. A PROPERTY-RIGHTS WALK THROUGH THE ESA

II. POSSIBLE TYPES OF ESA PROPERTY-RIGHTS IMPACTS

• 1. DIRECT LIMITS ON PROPERTY USES THAT MIGHT ADVERSELY AFFECT LISTED SPECIES
• • ESA Provisions
• • Case Law
• 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

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.

If the 103rd Congress embarks upon an effort to reauthorize the Endangered Species Act (1) (ESA), it will run into an old acquaintance: the property rights issue.

As now written, the ESA has at least the potential to curtail private property rights in various ways -- whatever its actual impact as implemented may be. The act'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. Where they are, the ESA may pit private economic activity against national concern for aesthetic, ecological, scientific, and recreational values. The landowner, in theory, may suffer economic loss -- immediate, concrete, and quantifiable -- while the benefits he reaps from the act as a member of the public are delayed, uncertain, and noneconomic. Moreover, if the land is not formally purchased by government, the public shares in the claimed benefits without cost.

Of course, the ESA is but one face of the tension between government regulation and private property rights. In recent decades, federal programs, like state and local ones, have increasingly sought to curtail uses of private property deemed inconsistent with environmental and other public goals. Along with wildlife protection, wetlands and surface mining regulation are the salient federal examples. The reaction has been a burgeoning grassroots property-rights movement, and more Supreme Court attention to clarifying, and occasionally strengthening, the safeguards of private property in the fifth-amendment taking clause.(4) Both the Reagan and Bush Administrations made protection of property rights an explicit agenda item, the former issuing an executive order instructing federal agencies to set up procedures for considering, and minimizing, the property impacts of their proposed actions.(5)

Even looking solely at government protection of wildlife, 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; such conflicts have also been challenged as due process violations, government torts, or exceedances of the police power. And the ESA is not the only source of government wildlife protection affecting property. Other federal wildlife statutes that have spawned property-related challenges are the Migratory Bird Treaty Act, Eagle Protection Act, and Wild Free-Roaming Horses and Burros Act.

This report sketches the ESA provisions most likely to fix the act's impact on private property rights. It then reviews three ways in which the act may --in theory at least -- constrain the use of private property, noting under each (a) pertinent ESA provisions, and (b) the case law, particularly on the constitutional taking issue. A fourth category, federal purchase of private property, is briefly noted. Finally, the report surveys past congressional legislation and future options. Because property-related case law under the ESA is so sparse, we cast our net broadly to include cases under other wildlife statutes as well.

I. A PROPERTY-RIGHTS WALK THROUGH THE ESA

Though Congress first adopted endangered-species legislation in 1966, the property-rights issue did not emerge until 1973 when it enacted the ESA. The ESA considerably broadened federal management authority over endangered and threatened species, including those on private land.

Under the modern act, the possibility of property-rights conflicts begins when the Secretary of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered or threatened. (The Secretary of Commerce, through the National Marine Fisheries Service (NMFS), administers the act for marine species.) Any species or subspecies of fish, wildlife, or plants may be listed, and separate populations of vertebrate species as well. Significant here, listing is to be done "solely on the basis of the best scientific and commercial data"(6) -- i.e., without reference to property rights impacts.

Along with the listing determination, the appropriate Secretary is required when possible to designate the "critical habitat" of the species -- areas essential to the conservation of the species that may require special management or protection. 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"(7) -- presumably allowing impacts on property rights to be weighed. Indeed, the Secretary may even exclude an area from critical habitat if the benefits of exclusion outweigh those of inclusion (unless exclusion for this reason will cause species extinction). This ESA distinction between listing and habitat designation, allowing property-impacts analysis only with the latter, was made by Congress quite deliberately.(8)

Of course, species listing and habitat designation by themselves occasion no direct interference with private property. Rather, it is the ESA provisions triggered by these events that may do so.

One such provision, section 9, lays out prohibited acts in connection with endangered animals and plants.(9) Section 9's prohibitions apply to private as well as public property, and apply regardless of whether critical habitat is involved. For endangered animals, prohibited acts include (a) the "taking" of any such species, (b) possessing, selling, or transporting any such 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. For endangered plants, the list is narrower, deleting the general "taking" prohibition. The term "take," a key ESA concept not to be confused with fifth-amendment takings, 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 pressures, may be authorized chiefly for "takings" incidental to otherwise lawful activities, and undue economic hardship due to contracts made prior to federal consideration of a species as possibly endangered.

By general rule, the FWS has extended almost all the above prohibitions to threatened animals and plants as well.(10) "Special rules" have been promulgated for those threatened species having atypical management needs, and for "experimental populations."

The other ESA provision with property-rights implications, section 7, sets out federal agency obligations.(11) Its sweeping mandate is that each federal agency "insure" that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species," or harm designated critical habitat. The only exemption to accommodate development is by action of the Endangered Species Committee (popularly dubbed the "God Squad"), a time-consuming and easily politicized process used to completion only three times since it was established in 1977.(12)

Stepping back, one can readily see that the ESA is neither absolutist in the protections afforded covered species, nor at the other extreme sensitive to every property impact of those protections. For example, the "incidental take" exception was added to the ESA in 1982 precisely to soften the private-property impacts of the act -- yet, on the other hand, its availability is far from universal. By definition, the "taking" can be excused only if it is incidental to, and not the purpose of, the landowner's proposed activity, and an incidental-"take" permit may be issued only when the landowner has submitted a "habitat conservation plan," an expensive proposition for some small landowners. This and other private-property escape valves in the ESA are discussed in more detail below.

Note: to avoid confusion, the "taking" of listed species under the ESA is indicated by quotation marks; the taking of private property under the fifth amendment of the Constitution is shown by absence of quotation marks.

II. POSSIBLE TYPES OF ESA PROPERTY-RIGHTS IMPACTS

Following are the principal ways in which the ESA might conflict with private property rights. The focus, again, is on the act's legal potential; the extent of its impacts as actually implemented is only touched upon.

1. DIRECT LIMITS ON PROPERTY USES THAT MIGHT ADVERSELY AFFECT LISTED SPECIES

When the ESA's relation to property rights arises in Congress, and when property-rights advocates level their criticisms, the debate typically centers on this type of impact.(13)

ESA Provisions

ESA section 9, together with implementing rules, bars any person (or federal agency) from "taking" endangered or threatened wildlife. The term "take" is defined by the act to include "harming" a listed species. "Harm," in turn, is defined by FWS to include indirect harm by means of certain habitat alterations:

Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.(14)

In bringing habitat modification within the definition of "harm," the FWS hardly lacked a mandate. Loss of habitat is recognized in the ESA as a principal threat to endangered species, and counteracting this trend is a key purpose of the act.(l5) Nonetheless, the interpretation of section 9 as including habitat alterations is also a key reason why the ESA intersects with property rights. Plainly, the habitat of listed species may overlap with private land (and, in the case of listed aquatic species, with private water rights). With 749 domestic species listed as endangered or threatened under the act and thousands more awaiting consideration, the spectre has been raised by some that the ESA presents a ubiquitous threat to the institution of private property. Note also that habitat modification may constitute a prohibited "take" under section 9 regardless of whether the land is designated critical habitat.(l6)

The key section-9 safety valve for development pressures is the "incidental take" provision,(l7) added in 1982. Permits for "incidental takes" -- i.e., "takes" of listed species that are incidental to, and not the purpose of, a proposed activity -- may be issued by the Secretary after the landowner submits a "habitat conservation plan" (HCP) on the impacts from the "taking," along with proposed mitigation measures, why alternatives were rejected, and so on. If the Secretary finds that the "taking" will in fact be incidental, satisfactorily mitigated, and will not appreciably reduce the species' chances for survival and recovery, he must issue the permit. However, HCPs, without which a permit cannot be issued, have been controversial. Their cost may be prohibitive for small landowners not covered by regional or project HCPs funded by big developers or state and local governments, and they allegedly impose delays on development.(18) FWS reports that as of December, 1992, it has approved only 14 HCPs in the program's decade-long history.

ESA section 7, by contrast with section 9, operates directly on federal agencies only, instructing them to avoid harm to listed species or critical habitat:

Each federal agency shall, in consultation with ... the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical ....

Once consulted under this provision, the Secretary must, if listed species might be affected by the proposed action, do a "biological assessment" to determine the actual impact. If he finds the proposed action "not likely to jeopardize ... " per the above language, he must specify the impact of any "incidental taking' on the species, necessary mitigating measures, conditions that should be imposed on the action, etc. The incidental-taking analysis under section 7 is the same as for incidental-taking permits under section 9.(l9)

Section 7's impact on the private landowner comes about most tangibly when an agency finds that it cannot, consistently with section 7, issue a permit needed for land development.(20) Probably the most common example is denial of a wetlands fill permit under the Clean Water Act, which may substantially curtail a landowner's development plans. As a practical matter, pursuit of an Endangered Species Committee exemption from section 7 is an option only for the largest projects.

Section 7 approvals trump section 9's prohibitions. That is, when the Secretary has issued a section-7 incidental "take" statement, "takings" that occur in compliance with that statement are not actionable under section 9 (21)

Case Law

While the possibility of direct land-use prohibitions under the ESA sparks most of the congressional debate, there has been curiously little activity in the courts. We find no ESA taking decisions in this category.(22) Environmentalists infer from the lack of cases that the ESA/property rights conflict has been vastly overstated -- that the act and its enforcing agencies are flexible enough. Property-rights advocates argue that the high costs of taking litigation for the small landowner may be what is discouraging resort to the courts, not any lack of impacts.

The environmentalist argument has some force, given that other federal environmental programs caught up in the property rights debate, especially the wetlands protection effort of the Corps of Engineers, have spawned a hefty number of taking claims. But one cannot infer, from the absence of ESA taking suits alone, that the act is having universally insignificant impact on property, since the daunting demands of taking law discourage suit in all but extreme instances of property value loss. Moreover , property value loss is gauged by reference to the property as a whole; total deprivation of economic use on only a portion of a private tract is not a taking if economic use of the unaffected portion remains feasible.(23) Thus, as with property impacts from other government programs, the large majority of any ESA impacts on private property that may be occurring are likely to fall short of the constitutional taking threshold.

For another thing, even meritorious suits must meet the Supreme Court's exacting ripeness requirements. Generally, a taking claim is not ripe until a regulation has resulted in land-use prohibitions applied directly to plaintiffs specific parcel.(24) Beyond that, any potential exceptions from a land-use prohibition must have been applied for and denied,(25) and, unless it would be futile, the landowner must make further attempts to gain approval of scaled-down (but still profitable) proposals.(26)

For purposes of the ESA, these ripeness precepts mean that the mere listing of a species cannot support a taking claim. Nor can the FWS' giving a landowner notice that his proposed activity would be regarded by the agency as a "taking" under section 9, and prosecuted. Rather, it would seem that to clear the ripeness hurdle the landowner must apply for and be denied an "incidental take" permit for the proposed activity, and then perhaps do similarly for scaled-down versions thereof. Under section 7, there is an issue whether denials of federal permits can give rise to a ripe taking claim before the Endangered Species Committee exemption process has been exhausted.

Right now, the only federal-law case in the direct-limits category appears to be an old one not involving the ESA.(27) Still, there are intimations of ESA/taking litigation to come. Taking suits based on ESA-required timbering restrictions aimed at protecting the northern spotted owl, listed as threatened, are rumored to be near filing, even though all of the owl's critical habitat is on federal land.(28) And a taking action may be filed soon based on ESA property restrictions aimed at protecting the kanab ambersnail in southern Utah.

ESA/taking litigation may also arise at some point in connection with government efforts to maintain instream flows to avoid "taking" listed species of salmon, found in the Columbia and Sacramento rivers. Such efforts have been argued to conflict with state-law water rights. And a similar conflict with water rights might potentially arise from recent court injunctions against the operation of irrigation-district diversion facilities that suck listed salmon into their pumps.(29) State-created water rights, by way of background, constitute property for taking-clause purposes,(30) and the ESA has been held to provide no exception from compliance to persons possessing such rights.(31)

At least one court decision in the direct-limits category has arisen under state law. In Southview Associates, Ltd. v. Bongartz,(32) the Second Circuit dealt with Vermont's denial of a permit for a vacation home development that would overlap a "deeryard area" protected by state law.(33) The court saw no physical taking, explaining that the developer had not met U.S. Supreme Court criteria for a compensable permanent physical occupation.(34) First, the developer had not lost the right to possess the deeryard area, nor to exclude the deer. Second, it had not lost the right to control the deeryard's use. For example, the developer, to the exclusion of others, could still walk, camp, ski, or even hunt deer on the land -- irrespective of whether these activities cause the deer to abandon the deeryard. Third, the availability of these uses to the deeryard owner meant that the right to sell the deeryard area was far from worthless. Of course, it may have helped the court hold against the developer that the physical invasion here was only seasonal, involving no more than 20 deer.(35)

Finally, Southview held that any regulatory taking claim was unripe due to the landowner's failure to seek state approval of scaled-down development plans for the site that did not intrude upon deeryard, and its failure to seek compensation in the state courts.(36)

Though Southview does not involve the ESA, it is important as the only modern federal-court ruling on the taking implications of direct private land-use control in the name of wildlife protection. Moreover, if the three-factor analysis adopted in Southview becomes standard, physical takings would seem almost impossible for landowners to demonstrate.

As background on when habitat alteration amounts to a prohibited "take" under ESA section 9, one can do no better than read Palila v. Hawaii Dep't of Land and Natural Resources, the leading case. Palila I announced the simple proposition that habitat modification, without more, may constitute a "take."(37) After the FWS promulgated new regulations clarifying that "harm" means "actual" harm,(38) Palila II blessed the agency view that not all modification of listed-species habitat is a "taking." Rather, section 9 bans only those activities that modify habitat to an extent that essential behavioral patterns are disrupted, or which cause a significant decline in species population.(39) Thus, as is true under section 7, protection of habitat under section 9 is limited. The district court in Palila II, however, held expansively that habitat modification merely preventing the recovery of a species also constitutes "harm."(40)

The concept of habitat modification as a prohibited "take" in and of itself has been a favorite topic of commentators. According to one:

The Palila decisions have stimulated vigorous and, indeed, creative administration of section 9 by certain FWS offices. In California, the FWS has convinced a number of city and county officials that they will violate the ESA, and be subject to civil and criminal penalties, if the city or county approves development within the listed species' habitat.(41)

Another commentator argues that since Congress left the relevant ESA sections unchanged through several amendments to the act since Palila, it must not disapprove of the definition of "harm" set out in that litigation.(42)

Endnotes

l. 16 U.S.C. §§ 1531-1544.

2. See, e.g., Greve, The Endangered Species Act (1991), printed in Takings and the Environment: The Constitutional Implications of Environmental Regulation (Federalist Society, 1992); Somach, The Endangered Species Act: How Great is the Threat?, 2 CAL. WATER LAW & POLICY RPTR. 153 May 1992)

3. See, e.g., Hunt and Irvin, The Endangered Species Act: A Tough Law to Solve Tough Problems, 90 J. of Forestry 17 Aug. 1992).

4. U.S. Const. amend. V: "Nor shall private property be taken for public use without just compensation."

5. Exec. Order No. 12630, 3 C.F.R. 554 (1988), reprinted at 5 U.S.C. § 601 note.

6. ESA § 4(b)(1)(A); 16 U.S.C. § 1533(b)(1)(A).

7. ESA § 4(b)(2); 16 U.S.C. § 1533(b)(2). See 50 C.F.R. § 424.19.

8. Explains the pertinent committee report:

Whether a species has declined sufficiently to justify listing is a biological, not an economic, question. For this reason, the [House Committee on Merchant Marine and Fisheries] eliminated all economic considerations from the species listing process. Desirous to restrict the Secretary's decision on species listing to biology alone, the Committee nonetheless recognized that the critical habitat designation, with its attendant economic analysis, offers some counterpoint to the listing of species without due consideration for the effects on land use and other development interests. For this reason, the Committee elected to leave critical habitat as an integral part of the listing process, but to prevent its designation from influencing the decision on the listing of a species.

House Rep. No. 567, 97th Cong., 2d Sess. 12 (1982). See also House Conf. Rep. No. 835, 97th Cong., 2d Sess. 19 (1982).

9. 16 U.S.C. § 1538. Violation of section-9 prohibitions is subject under the ESA to civil and criminal penalties.

10. 50 C.F.R. §17.31 (wildlife), §17.71 (plants). The NMFS, on the other hand, adopts section 9 prohibitions for threatened species only on a case-by-case basis. See, e.g., 50 C.F.R. § 227.21ia) (chinook salmon). The authority for extending section 9 prohibitions to threatened species is in ESA section 4(d).

11. 16 U.S.C. § 1536.

12. See generally Corn and Baldwin, Endangered Species Act: The Listing and Exemption Processes (CRS Report 90-242 ENR). Appendix C of the report also details three instances where the exemption process was begun but not completed.

13. See, e.g., Burling, Property Rights, Endangered Species, Wetlands, and Other Critters -- is It Against Nature to Pay for a Taking?, 27 LAND AND WATER L. REV. 309, 321-22 (1992); Williams, Landowners turn the Fifth into sharp-pointed sword, High Country News, Feb. 8, 1993, at 1.

14. 50 C.F.R. § 17.3 (second emphasis added). The NMFS has not yet promulgated a "harm" definition of its own.

15. Among the ESA's stated purposes is the conserving of "the ecosystems upon which endangered species and threatened species depend ... ," ESA § 2(b), a goal embodied in the aforementioned device of designating "critical habitat," ESA § 3(5). While considering the bill that became the ESA, Congress was informed that the greatest threat to endangered species was destruction of natural habitats. TVA v. Hill, 437 U.S. 153, 179 (1978).

16. See, e.g., Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex.1988) (logging practices of Forest Service harmed habitat of endangered red-cockaded woodpecker, and thus effected "taking," even though habitat had not been designated as critical).

17. ESA § 10(a)(1)(B); 16 U.S.C. § 1539(a)(1)(B).

18. States one commentator:

Only a handful of HCPs have been approved since 1982. Several others have failed outright or have floundered in a seemingly endless attempt to reach consensus among disparate interest groups. There is growing environmental opposition to HCPs which sanction the loss of habitat, and calls for instituting a "no net loss" policy for endangered species planning efforts. ...... The development community is growing increasingly frustrated with the length of time required to resolve endangered species conflicts through the HCP process and the inability of HCPs to remove legal risks associated with the subsequent listing of species not addressed in the HCP.

Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENV'L LAW 605 ( 1991). Recommendations for changing HCPs are contained in Bean et al., Reconciling Conflicts Under the Endangered Species Act: The Habitat Conservation Planning Experience (World Wildlife Fund 1991).

A prime factor contributing to the time taken by the FWS to approve HCPs is doubtless the preparation of an environmental impact statement (EIS), which reportedly has accompanied every HCP approval to date except one. EIS preparation is required by the National Environmental Policy Act, of course, not by the ESA.

l9. Provision for incidental taking permits exempting landowners from section 9 was added to the ESA in order to give landowners not requiring federal permits the same opportunity to develop their property as those proceeding under section 7. House Conf. Rep. No. 304, 97th Cong., 2d Sess., reprinted in [1982] U.S. Code Cong. & Ad. News 2860, 2870.

20. Issuance of a federal permit notwithstanding failure of the proposed development to satisfy section 7 could also be viewed as a violation by the agency of ESA section 9. Federal agencies fall within the definition of "person" under section 9, and the issuance of the permit could be viewed as bringing about adverse habitat modification, thus "taking" the species. See Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (Forest Service's management practices resulted in precipitous decline of red-cockaded woodpecker on Forest Service lands, and hence violated both ESA sections 7 and 9).

21. ESA § 7(o)(2); 16 U.S.C. § 1536(o)(2).

22. Indeed, at this writing there are no taking cases under the ESA pending in the U.S. Court of Federal Claims, the forum where ESA/taking claims against the United States must be filed when the amount in controversy exceeds $10,000. 28 U.S.C. §§ 1346, 1491.

23. This doctrine, known as the rule against segmentation, was firmly endorsed by the Supreme Court in 1978. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 127. Since then however, a four justice dissent in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987), appeared to be accepting of segmentation, and the Court has recently gone out of its way to indicate interest in revisiting the issue. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 n.7 (1992).

24. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

25. Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).

26. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986).

27. In Bailey v. Holland, 126 F.2d 317, 324 (4th Cir. 1942), the court discerned no taking in application of a Migratory Bird Treaty Act hunting ban to private land near a wildlife refuge, allegedly rendering the land "practically worthless." The court explained, rather simplistically, that "[a]ny injury thus caused results from an exercise by the Government of its police power and not of its power of eminent domain."

28. A private citizen suit recently filed in Oregon seeks to force a lumber company to obtain an "incidental take" permit under the ESA before cutting timber on its own land -- based on potential disruption of spotted owls on nearby federal land. Forest Conservation Council v. Rosboro Lumber Co., No. 92-1114-HO (D. Ore. filed Sept. 9, 1992). If such a permit is judicially required, and then applied for and denied, a ripe constitutional taking claim would seem to exist.

29. United States v. Glen-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) (ESA compels issuance of injunction against the district's pumping from the Sacramento River during the winter-run chinook salmon's downstream migration); Dep't of Fish & Game v. Anderson-Cottonwood Irrigation Dist., 8 Cal. App. 4th 1554, 11 Cal. Rptr. 2d 222 (1992) (similar injunction issued under California Endangered Species Act to protect winter-run salmon). See generally Trager and Staples, Water, Water Everywhere But ...: Species Protection Regulations as Water Rights Takings after Nollan and Lucas, CALIF. WATER LAW & POLICY RPTR. 23 (Nov. 1992).

30. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1975); Ball v. United States, 1 Cl. Ct. 180 (1982).

31. United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1134 (E.D. Cal. 1992). ESA § 2(e) makes it congressional policy that federal agencies "cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species." This exhortation, of course, does not qualify the act's mandate.

32. 980 F.2d 84 (2d Cir. 1992).

33. "Deeryard area" is defined in the opinion as "winter habitat for white-tailed deer," as identified on a state-prepared deeryard map. The deeryard in question, consisting of 280 acres, was found by the state to be the sole remaining, active deeryard within a 10.7 square mile area.

34. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982).

35. On the other hand, the Southview court seems to have erred in holding that the developer did not satisfy the government-compulsion prerequisite for compensability articulated in Supreme Court physical-taking cases. This prerequisite states, rather unremarkably, that only those physical invasions to which the property owner does not assent can be takings. The Second Circuit saw no government compulsion here in that the developer had voluntarily proposed the vacation home development. But of course, it is the voluntariness of the landowner's accepting the deer on his property, not that of his development proposal, that is the crux.

36. Writing only for himself, the chief judge opined that if the merits had been reached, he would find no regulatory taking. For one thing, it appeared that the developer's proposal could be fit into the non-deeryard portion of the tract.

37. 471 F. Supp. 985 (D. Haw. 1979), afford, 639 F.2d 495 (9th Cir. 1981). The issue recently has been resurrected in Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 35 Env't Rptr. (Cases) 1264 (D.D.C. 1992) (habitat modification may constitute "harm"), appeal docketed, No. 92-5255 (D.C. Cir. July 9, 1992).

38. 46 Fed. Reg. 54748 (1981), quoted on page 5.

39. 649 F. Supp. 1070 (D. Haw. 1986), affirmed, 852 F.2d 1106 (9th Cir. 1988).

40. 649 F. Supp. 1070, 1075-77 (D. Haw. 1986), affirmed on other grounds, 852 F.2d 1106 (9th Cir. 1988).

41. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENV'L LAW 605, 613 (1991).

42. Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENV'L LAW 811, 847 (1990).