Are Property Rights Facing Extinction?

Published August 17, 1995

On June 29, 1995, the United States Supreme Court upheld a government regulation that purports to protect endangered species. But what the Court really did was validate the government’s continued taking of millions of acres of private land as “habitat.”

At issue in Bruce Babbitt v. Sweet Home Chapter of Communities for a Great Oregon was whether the U.S. Fish and Wildlife Service could lawfully define “harm” in Section 9 of the Endangered Species Act (ESA) to include “habitat protection.” The Court’s decision in Sweet Home provides the government with a blank check with which it can destroy an individual’s entire investment in land or private enterprise. It can do so not because an endangered species lives on one’s land, but simply because the land is the kind on which an endangered species might one day want to live. For example:

  • A land owner off the Gulf Coast of Texas on South Padre Island planned to build a marina on his 3.7 acres. Since the area is considered prime habitat for the endangered piping plover, biologists spent nine days on the owner’s land. During that time, eighteen piping plovers were seen resting for a total of eleven minutes on adjacent property. After that, the birds flew off in another direction. Nevertheless, the man was told that he could not build his marina.

  • In Florida, a rancher was informed he could not clear his land of scrub brush to grow blueberries for his family. The reason was not because the Florida scrub jay currently lived on his land but because the bird might someday want to move there.

  • Twenty years ago, Margaret Rector bought fifteen acres of land as an investment for her retirement. Now she is seventy-three, and her land sits idle because her land is suitable habitat for the golden-cheeked warbler.

None of these property owners has been paid for losing the use of his or her land.

There are, moreover, no internal constraints requiring the government to respect private property rights. Indeed, the Clinton administration’s attitude toward property rights has been downright hostile. For example, in last year’s case of Florence Dolan v. City of Tigard, the government argued that Mrs. Dolan should not be paid for the city’s taking of her land to build a public bike path. Associate Attorney General John Schmidt reiterated that in his testimony before the Senate Environment and Public Works Committee.

He argued that if a community decides that it wants to take private property, then the community’s needs or desires should supersede any constitutional duty there may be to pay the owner for the taking of that property. In short, according to Schmidt, the Fifth Amendment only has meaning if the government does not take your land!

The Sweet Home decision, written by Justice Stevens, indicates only too clearly that courts are simply not curtailing the wholesale destruction of private property rights occurring in this country. Indeed, Sweet Home is not the first anti-property rights decision Stevens has authored. In 1985, he wrote a concurring opinion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, in which the Court placed extremely high hurdles in the path of property owners wishing to file takings claims against the government.

Given that neither the courts nor the executive branch is doing much to protect private property rights, it is not surprising that the property rights community is now looking to Congress for sensible solutions. That may appear to be an oxymoron, but there are in fact some good proposals under consideration. Senator Slade Gorton (R-Wash.) has introduced ESA legislation that addresses some key problems with the Sweet Home decision, but still fails to require government to pay property owners if their land is taken. The Omnibus Property Rights Act of 1995 (S. 605) pending in the Senate provides comprehensive property rights protection, including the requirement that government pay for what it takes.

Only time will tell whether such proposals will become law. If not, private property appears to be the next “species” headed for extinction.

Written for The Heartland Institute by Nancie G. Marzulla, president and chief legal counsel of the Washington, D.C.-based Defenders of Property Rights. Nothing in her Heartland Perspective should be construed as expressing the views of The Heartland Institute or as an attempt to aid or hinder the passage of any legislation.