DEATH BY A THOUSAND CUTS: REGULATORY TAKINGS UNDER THE ENDANGERED SPECIES ACT.
By Annemarie Monique Taylor Community Liaison Editor 26 San Joaquin Agricultural L. Review (2017)
San Joaquin Agricultural Law Review
The Endangered Species Act (ESA) is considered one of the most powerful and controversial legislations in the United States. In 2016, it was expanded to include the listing of an additional 1100 species, and changes were made to key definitions. The changes signify an exponential expansion in both the reach and power of the ESA over privately owned lands. Policy changes and reform of the ESA are necessary to restore the balance between the protection of endangered plants/animals and the ability of small landowners and agricultural businesses to utilize their lands for profit.
In an effort to increase voluntary compliance with the Endangered Species Act the Department of the Interior, in conjunction with the United States Department of Fish and Wildlife, have implemented a number of voluntary programs in which a landowner can enroll his/her land. Although the programs vary, most require advance planning for the use of the land and provisions for funding for the plans implementation. In return the landowner obtains an incidental take permit (ITP) giving them the right to “takes” of identified protected species on the property which would otherwise constitute a violation of the ESA. Gaining an ITP can be very involved, is difficult for small agricultural enterprises to afford financially, and may include restrictions in the use of the lands in question. If the landowner chooses not to stay enrolled in the program(s), legal action can be taken against them for any ESA violations that take place after disenrollment including the continued incidental takes that were previously approved. Violations of the ESA can subject the landowner to fines and a possible jail sentence.
This comment focuses on how the landowner’s limited use of their lands and inability to protect their livestock under the Endangered Species Act constitutes a regulatory taking for which compensation is due. However, due to the limited number of successful regulatory takings cases, very few challenges to these takings are filed in courts. The difficulty that potential challengers would face is demonstrated in the Legal Analysis of this Comment, examining the Penn Central Balancing Framework, initially established in Penn Central Transportation Company v. New York, 438 U.S. 104 (1978), and applying it to two ESA cases: Christie v. Hodel, USCA 9Cir. F2d 1324 (1988), and Tulare Lakes Water Basin Storage District v. U.S. 49 Fed. Claims 313, 2001. Christie v. Hodel demonstrates the difficulties faced by rancher’s predation of stock by ESA protected species whose populations have surpassed the recovery point and are still protected. Tulare Lakes Water Basin Storage differs in that it demonstrates conflicting interests and questions priorities between contractual obligations of delivering water contracts versus avoiding detrimental effects to salmon. The analysis demonstrates the complexities of the vying interests and the difficulties faced in winning a regulatory takings claim.
The Comment concludes by recommending needed policy changes to the ESA, including limitations on citizen’s suits to reduce excess litigation, and the redirection of tax payer’s dollars used to fund the litigation and operate the massive bureaucracy the ESA encompasses. The funds should be redirected towards educational programs for farmers and ranchers demonstrating best practices that both increase wildlife and agricultural production. Educational programs have been used successfully to protect birds nesting in hay fields and in modification of cattle grazing to increase natural plant populations. The money should also be used to fund compensatory programs such as one operated by The Wolf Compensation Trust. The Trust pays ranchers for losses in their herd by listed predators which allows for a peaceful coexistence between the species in question while avoiding the rancher being forced to operate at a loss. Opposing sides working together will lead to successful implementing of the ESA while achieving the goals of all parties and avoiding endless litigation.