Endangered Species Act: Part II

The ESA is broken. So what can we do to fix it? Ideally, privately owned lands should be removed from all applications of the Act. However, this would take an act of Congress. Good luck!

The Constitution of the United States Amendment V stated, “nor shall private property be taken for public use without just compensation.” The questions are what constitutes private property and what is a ‘taking’? Is preventing a landowner from performing a certain act (i.e. plowing, building a fence or road, etc.) on their private property a taking? The drafters of the ESA went to considerable lengths to define the word ‘take’. Section 3(19) says, “[t]he term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Most would agree that shoot, wound, kill, trap, capture, or collect constitutes a taking. However, the terms harass, harm, pursue, or hunt leave a lot to interpretation. Unfortunately, interpretation went wild to the point that any action or activity within a listed species’ range can be considered a “take”. Shouldn’t this liberal definition also apply to the taking of private property uses?

Wayne Hage, that brilliant Nevada rancher, first introduced me to the concept of property rights being like a bundle of sticks, each one representing a specific right. This is the foundation of the conservation easement craze that has been sweeping the west. A conservation easement takes a few sticks from your bundle (e.g. the right to plow native rangeland, subdivide, build a fence, etc.) and pays you for them. They are doing two things. First, they are affirming these actions or rights are your property and secondly, these properties have a value. Therefore, when a state or federal agency prevents you from performing an action on your private property (that does not negatively impact your neighbors) they are committing a ‘taking’. Your recourse is to take your claim to the US Court of Claims and request just compensation. The government can still prevent you from carrying out an activity they determine will be detrimental to a listed species but they have to pay you for taking away your right to use your private property.

Remember, your rights will exist and be defended only if you pursue the proper legal course of action. Maybe if enough of us request just compensation the federal and state agencies will think twice before imposing unnecessary and often meaningless restrictions on our use of our vested private lands.

To read the first half of Ron Stoneberg's column on fixing The Endangered Species Act, write to [email protected] or pick up a copy of the Courier, Oct. 4 issue.