Another Take On Takings

Imagine a federal law that prohibits people from “taking” something. No, it’s not the U.S. Constitution’s forgotten Takings Clause, which states, “nor shall private property be taken for public use, without just compensation.” That prohibition bars the government from taking private property. I’m talking about a law that bars private property owners from taking public property.

The property in question is animate wildlife, and the law at issue is the 1973 Endangered Species Act (ESA). The ESA prohibits “any person” from “taking” any endangered species. Unlike the Fifth Amendment’s caveat for “just compensation,” the ESA’s “takings” prohibition had no exceptions. The prohibition was absolute. No “takings” allowed, period.

Then something strange happened. In 1978, the Supreme Court halted construction of the nearly completed, $100 million Tellico Dam on the Little Tennessee River, because it would likely “jeopardize the continued existence” of a three-inch-long snail-eating fish. The snail darter decision, TVA v. Hill, prompted Congress to amend the ESA and create an exemption process whereby “jeopardy” could be allowed. But Congress failed to solve the problem.

Jeopardy has to do only with projects that are “authorized, funded, or carried out by” federal agencies. Purely private projects on private lands were not helped by the “reform.” Indeed, only three appeals for federal projects have ever made it through that 19 year-old exemption process, and the two that were granted were only partial exemptions.

Ironically, the impetus for the exemption, Tellico Dam, was the first to be rejected. But thanks to former Senator Howard Baker (R-TN) and the infamous then-Rep. Al Gore (D-TN), Congress enacted a separate law that specifically exempted Tellico Dam from the ESA. So the pork-barrel project was built. And, despite the environmental establishment’s plaintive assertions of assured extinction, the snail darter survived. In fact, the snail darter has shown up in so many places, bureaucrats now say it was never even endangered.

Moreover, Congress’ 1978 amendments left the prohibition against “taking” endangered species untouched and absolute. Not a single member of an endangered species could be “taken,” legally. Because several members of a species would generally have to be taken before its continued existence as a species could be “jeopardized,” the prohibition against “taking” is much more strict and onerous than the “jeopardy” proscription. Building a dam that would “take” only one endangered minnow could still be halted – even if the species (or population) as a whole would be unaffected.

That is why Congress amended the ESA again, in 1982, to allow takings that are “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” And that is how the “incidental take” permit was born. At last the ESA’s absolutism was attenuated, right? Wrong.

What was intended to be a reform that would alleviate the ESA’s regulatory burdens has, in fact, become one of the law’s greatest threats to private landowners. Under the guise of allowing landowners to “take” endangered species, the ESA allows the Interior Department to prevent landowners from using their own private property without the government’s permission. The grand irony of it all is that now, landowners must compensate the government to use their own land.

Because Congress allowed Interior to redefine “take” in such a way as to prohibit “habitat modification,” a landowner can be prohibited from using his own private property on the slightest pretense. Interior’s Fish & Wildlife Service (FWS), for example, has held that harvesting privately owned timber can “take” northern spotted owls nesting as far away as 2.7 miles. A person can legally “take” only what they have a permit for taking. No permit, no dice.

This is where the extortion comes in. To get a permit, a landowner must submit a “conservation plan,” which people now call “habitat conservation plans” (HCP). The applicant must “minimize and mitigate” the taking, provide “funding” to implement the plan, and comply with “such other measures that the Secretary may require as being necessary or appropriate for the purposes of the plan.” This last requirement gives the Interior Secretary a license to extort.

First, the landowner must hire a biologist to determine where, if any, endangered species reside on the property. If no species are found, but “suitable habitat” is, then the landowner can still be forced to get a permit. No one is allowed to “take” without “mitigation.” Mitigation is just another word for compensation. Mitigation ratios are typically 2:1 or 3:1 – that is, landowners must buy or give up two or three acres of land for every acre they are allowed to modify. There are numerous instances where mitigation ratios have reached 10:1. The highest ratio I’m aware of was 127.5:1, when the Sacramento Municipal Utility District had to set aside 25.5 acres for “taking” 0.2 acres of habitat.

Sometimes landowners have the option of mitigating with cash. In Travis County, Texas, for example, landowners must pay up to $5,500 per acre to use their land – even when no endangered species are there to be “taken.” This is where things really get crazy.

When Congress amended the ESA in 1982, it failed to check the Interior Department’s new definition of “take.” That definition included habitat destruction. Even Interior’s Solicitor said the definition was “inconsistent with the intent of Congress,” that take included “only those actions that are directed against, and likely to injure or kill, individual wildlife.” But enviros came unglued when Interior proposed to narrow its regulatory definition. So Interior backed off, saying that take “is not limited to direct physical injury to an individual member” of a species.

Without having to prove that habitat modification “takes” individual animals, enviromentalists can get away with claiming that any habitat modification is likely to “take.” Through threats and intimidation, landowners are cowed into thinking they can’t do anything with their property without an “incidental take” permit. And the Interior Department feeds this perception. According to Interior Secretary Bruce Babbitt: “When a species is listed, there is a freeze across all of its habitat for two to three years while we construct a habitat conservation plan which will later free up the land.” Secretary Babbitt has no authority to do this, but he does it anyway.

An HCP may take eight years to “construct,” as it did in Travis County, Texas. Some of the land will never be freed up. The Travis County HCP will permanently lock up 30,000 acres. As drafted, the HCP for the southern portion of San Diego County, California, will permanently lock up 172,000 acres – 64,000 acres of that land is private property that will be taken through “mitigation,” without a dime of compensation, “just” or otherwise. And Bruce Babbitt calls this HCP a “national model.”

This is the cruel irony of the ESA’s “take” prohibition. The federal government is taking private property without paying for it, because the rightful owners must “mitigate” for using their own land. If they don’t, they don’t get a permit. If they do, they must compensate the government. Either way, the government takes without compensation.

The ESA has turned takings jurisprudence on its head. And the Republican-led Congress is doing nothing about it. To add insult to injury, Senators Dirk Kempthorne (R-ID) and John Chafee (R-RI) are proposing legislation to codify this protection racket. So much for the “revolution.”

Ike C. Sugg is CEI’s Fellow in Wildlife and Land-Use Policy.