“The value of this genetic heritage is quite literally, incalculable. * * * From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are possible resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask. * * * Sheer self interest impels us to be cautious.” - Report by the House Committee on Merchant Marine Fisheries (July 27, 1973).
I'm sure all of you have marked this day on your calendar to celebrate Endangered Species Day with the Fish and Wildlife Serivce, which recognizes the efforts in place to protect the Nation's threatened and endangered species. Well, maybe you didn't, but it's important to note the process and species that are protected under the Endangered Species Act (ESA) and other states' individual programs, including Michigan. While we are aware of the more public efforts involving the grey wolf and bald eagle, the ESA and its state counterparts serve to keep all animal and plant species from becoming extinct, sometimes to the chagrin of developers and landowners.
In 1973, Congress almost unanimously passed the ESA. Under the ESA, it is illegal to "take" threatened or endangered species. It obviously includes the actually killing of the protected species, but also includes things like harassing the critter or negatively impacting its habitat, which is often on private property. It becomes obvious then that there is a conflict between the duties of a landowner under the ESA and the "Takings" Clause of the Fifth Amendment of the United States Constitution.
The most famous instance of the ESA controlling land use involves not private property, but a federal project - a multi-million dollar dam that was well under construction by the Tennessee Valley Authority. What creature stopped this project in its tracks? The rather modest snail darter caused the United States Supreme Court to derail the dam project in the case of Tennessee Valley Authority (TVA) v. Hill.
The Telico Dam was well under construction when a small fish whose habitat would be completely destroyed, the snail darter, was discovered. Previous development destroyed its former range and habitat and while attempts were made to find a place to transfer the fish and allow the dam to go forward, those efforts were unsuccessful. The case made it all the way to the Supreme Court where a majority found that the ESA permitted no exceptions to protecting endangered species and halted the project, even though it was almost complete.
At the time, some commentators guessed that the Supreme Court anticipated that such a hardline decision would result in Congress reevaluating the Act to allow for certain exceptions. Much to just about everyone's surprise, Congress left the Act intact. In 1978, the Act was amended to add a "God Squad" of specific cabinet members who consider allowing certain exceptions, but the Act remains pretty much as it was when the Court saved the snail darter from extinction.
Recent attempts to dull the impact of the ESA through legislation in 2005 fell short of passage. Also, the Bush Administration passed new regulations, but they were reversed by the Obama Administration. Given the absolute protection of endangered species required by the ESA, it is doubtful whether those regulations would have withstood judicial challenge, in any event.
In light of Endangered Species Day, the efforts to resolve some of the conficts with the ESA and private rights continue. There is an ongoing discussion about how to balance private property rights and the protection of endangered and threatened species. For example, under the 2008 Farm Act, those who incur costs implementing plans for the protection of federally protected endangered or threatened species may receive a tax deduction. It is unlikely that anytime soon the actual ESA will be changed, either through legislation or regulation. However, some accomodation is possible between the Act's goals and private property rights that can serve both sometimes opposed positions.