Supreme Court Allows Landowners Hurt by ESA to Sue

Published June 1, 1997

In a landmark victory for farmers, ranchers, and other private property owners, the U.S. Supreme Court ruled on March 19 that persons adversely affected by the Endangered Species Act (ESA) can sue the government. Until the high court’s ruling, that privilege had been reserved to people, mostly environmentalists, who wanted sue the government in the name of protecting species.

The 9-to-0 decision levels the legal playing field between environmental lobbyists and landowners in their ongoing battle over the ESA. Justice Antonin Scalia wrote the court’s opinion, which overturns a 9th U.S. Circuit Court’s ruling that said only people with an interest in preserving endangered species could use the ESA to challenge federal regulation of scarce land and water resources.

Justice Scalia noted that the U.S. Justice Department never tried to defend the lower court’s ruling limiting the classification of people who can sue under the ESA. In effect, the ESA’s specific language that “any person” may go to court under the Act now also includes those who have been harmed by the controversial law.

The high court’s ruling strengthens the hand of the nation’s burgeoning private property rights movement, which had expected–unrealistically, as it turns out–that a Republican-controlled Congress would aggressively pursue private property protection legislation. After a promising start at the beginning of the 104th Congress, property rights legislation, together with ESA reform efforts, bogged down after it became clear that the Clinton administration would veto anything fundamentally at odds with current Federal regulatory policy regarding endangered species.

Chenoweth Bill Boosted

Despite polls showing broad support for property rights legislation, GOP leadership in both the House and Senate has yet to regroup and renew the fight on a broad front. However, earlier this year, House Republicans, led by Representative Helen Chenoweth (R-Idaho), did introduce legislation, the “Citizen’s Fair Hearing Act of 1997” (H.R. 752), that would specifically recognize the rights of property owners to file citizens suits under the ESA. The bill had cleared the House Resource Committee by voice vote even before the Supreme Court handed down its decision.

Majority Leader Dick Armey (R-Texas), has said he will bring the Chenoweth bill to the House floor for a vote after the Easter recess. Essentially, H.R. 752 would codify in law the Supreme Court’s interpretation of who has legal standing to take the government to court over the ESA.

The far-reaching court decision, which will affect ESA implementation throughout the country, arose from conditions unique to the West. In the midst of a drought in the Pacific Northwest in 1992, the Fish & Wildlife Service (FWS) ruled that two Oregon irrigation districts would have to divert water to Clear Lake and Gerber Reservoir to shore up populations of the Lost River sucker and the shortnose sucker, two fish the FWS says are endangered. The water that went to the suckers was denied ranchers, who suffered $75 million in damages as a result of the diversion.

The ranchers and irrigation districts then sued the government, alleging that a report issued by the FWS, urging the water reallocation, was scientifically flawed, and that the FWS had failed to consider the economic impact of the water cutbacks. But the 9th Circuit Court of Appeals ruled that the plaintiffs lacked judicial “standing” because their grievance was economic rather than environmental.

“Avoid Needless Economic Dislocation”

In rejecting the lower court’s ruling, Justice Scalia embarked on a discussion of the ESA’s requirement that sound science be used when the Federal government makes decisions on species. “The obvious purpose of the requirement that each agency ‘use the best scientific and commercial data available’ is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise,” he wrote. “While this no doubt serves to advance the ESA’s overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation produced by agency officials zealously, but unintelligently pursuing their environmental objectives.”

Property rights advocates were jubilant over the court’s decision. “Property owners now have access to the courts to sue under the ESA,” commented Barry Hodge, general counsel for Defenders of Property Rights. “They shouldn’t be precluded from bringing a suit even though their objective wasn’t to preserve species.” Environmentalists were clearly not pleased (or surprised) by the ruling but generally abstained from criticizing the decision. It would be difficult for them to object to the court’s confirmation of a citizen’s right to sue, a tool environmental groups have made ample use of for years.