A Legal Morass: Overlapping Takings Law With the Endangered Species Act

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court's recent decision in Horne v. Dep't of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer's raisin crop qualified as a "clear physical taking" requiring compensation under the Fifth Amendment to the U.S. Constitution.  Writing the decision for the majority, Chief Justice Roberts distinguished the raisin farmer's situation from the oyster farmer's situation addressed in Leonard & Leonard v. Earle, 279 U.S. 392 (1929), explaining that unlike the raisins at issue in Horne, the oysters at issue in Leonard belonged to the state, and therefore requiring the oyster farmer to turn over a percentage of the shucked shells did not result in a taking of private property requiring compensation under the Fifth Amendment.  Mr. Jacobs' article focuses on this aspect of Horne, and asks whether Chief Justice Roberts breathed new life into a potential takings defense for ESA determinations and regulations.  Specifically, did Chief Justice Roberts' decision resuscitate the concept of public ownership of wild animals?  If it did, at least one individual quoted in the article opines that the concept could be used to justify regulating activities on private property (e.g., prohibiting construction that directly impacts a listed species), or limiting use of a related resource (e.g., regulating the flow of water for the benefit of ESA protected fish species), all without running afoul of the Fifth Amendment.  Notably, however, the majority of those quoted in the article caution that Chief Justice Roberts' statement should not be read to apply beyond its limited facts.  While I personally find the latter position to be the more compelling of the two, I also anticipate that the Government will be raising the defense in the not too distant future.

  • Benjamin Z. Rubin
    Partner

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

Stay Connected

RSS RSS Feed

Categories

Archives

View All Nossaman Blogs
Jump to Page

We use cookies on this website to improve functionality, enhance performance, analyze website traffic and to enable social media features. To learn more, please see our Privacy Policy and our Terms & Conditions for additional detail.