{
  "id": "93-346",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "93-346",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 105382,
      "date": "1993-03-07",
      "retrieved": "2016-05-24T21:05:03.494941",
      "title": "The Endangered Species Act and Private Property: A Legal Primer",
      "summary": "If the 103rd Congress embarks upon an effort to reauthorize the Endangered Species Act (ESA),\nit will run into an old acquaintance: the property rights issue. As now written, the ESA has at least\nthe  potential  to curtail property rights (whatever its actual impact as implemented may\nbe). This\nreport explores the legal repercussions of those impacts, especially whether they constitute takings\nof property under the fifth amendment of the U.S. Constitution.\n  The first type of possible impact occurs when the ESA directly bars an activity on private land\nbecause it might adversely affect an endangered or threatened species. ESA section 9 bans the\n\"taking\" of a listed species, a term that includes significant habitat modification -- even on private\nland. On the other hand, the act seeks to accommodate economic pressure by allowing \"takes\" of\nlisted species that are merely incidental to a proposed activity. ESA section 7 orders federal agencies\nto insure that their actions, including permitting, are unlikely to jeopardize the continued existence\nof a listed species. Like section 9, section 7 allows incidental \"takes,\" and can be bypassed entirely\nby action of an Endangered Species Committee.\n  While the possibility of direct land-use prohibitions under the ESA sparks most of the\ncongressional debate, there appears to be not a single constitutional taking decision from the courts\nbased on such restrictions. \n  The second type of theoretical impact occurs when the ESA limits one's ability to protect\nproperty from the depredations of listed species. ESA section 9 contains no defense for protection\nof private property, though importantly, \"special rules\" allow government agents to deal with\nnuisance animals. One ESA case has been decided in this category, finding no constitutional taking,\nand most non-ESA depredation cases have yielded the same result. Instances where the protected\nspecies exists on private land through government relocation, however, may offer better prospects\nfor the taking plaintiff.\n  The third type of possible impact occurs when the ESA limits commercial dealings in members\nof species that were acquired before the species was listed. ESA section 9 contains the pertinent\nlanguage. Supreme Court taking decisions suggest that constitutional relief in these circumstances\nis particularly unlikely.\n  A key reason why courts are not finding constitutional takings is because until now they have\ndeemed the restrictions in wildlife statutes to be land-use controls, rather than to effect permanent\nphysical occupations by the protected animals. The former type of government interference with\nproperty is more rarely held to be a taking than the latter. For this and other reasons (but stressing\nthe difficulty of prediction in this area), it seems that few ESA impacts on private property are likely\nto be constitutionally compensable.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
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      "topics": []
    }
  ],
  "topics": [
    "American Law",
    "Constitutional Questions",
    "Environmental Policy"
  ]
}