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Taking Jurisprudence Meets the Endangered Species Act William & Mary Law Review Volume 38 (1996-1997) Issue 3 Institute of Bill of Rights Symposium: Defining akinhs:T Private Property and the Article 3 Future of Government Regulations March 1997 Muddle or Muddle Through? Taking Jurisprudence Meets the Endangered Species Act Mark Sagoff Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Environmental Law Commons, and the Property Law and Real Estate Commons Repository Citation Mark Sagoff, Muddle or Muddle Through? Taking Jurisprudence Meets the Endangered Species Act, 38 Wm. & Mary L. Rev. 825 (1997), https://scholarship.law.wm.edu/wmlr/vol38/iss3/3 Copyright c 1997 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr MUDDLE OR MUDDLE THROUGH? TAKINGS JURISPRUDENCE MEETS THE ENDANGERED SPECIES ACT MARK SAGOFF TABLE OF CONTENTS I. INTRODUCTION .......................................................................... 831 A. Two Sides to a Controversy.............................................. 833 B. Slippery Slopes ................................................................. 840 C. The Thesis of This Article................................................ 844 II. INTRusivE, COUNTERPRODUCTIVE, AND INEQUITABLE...; .... 852 A. A Nation of Zoo-Keepers ................................................... 852 B. Politics as Usual............................................................... 856 C. Do Supreme Court Decisions Matter in Environmental Policy?............................... ....................... 860 III. THE POINTLESSNESS OF THEORY ......................................... 865 A. The Search for a TheoreticalFix ..................................... 866 B. Is Law Deducible?.................................. ... .. ............ .......... 869 C. A Collision of Views, Not a Conflict of Interests............ 873 IV. THE END OF THE ECOSYSTEM ............................................... 877 A. What Is Bad for the Marsh Is Bad for Mankind............ 878 B. Ecology as a Comprehensive View ................................... 883 C. The Historizationof Nature............................................. 888 D. The Problem of Classification........................................... 893 * Senior Research Scholar at the Institute for Philosophy and Public Policy in the School of Public Affairs at the University of Maryland. The author gratefully acknowl- edges support in writing portions of this Article from the National Science Foundation (Grant No. SBR-9422322), the National Endowment for the Humanities (Grant No. RO- 22709-94), and the Pew Scholars Program in Conservation and the Environment. 825 826 WILLIAM AND MARY LAW REVIEW [Vol. 38:825 E. The Problem of the Baseline............................................. 899 F. The Redundancy of Species .............................................. 902 V. LOGOS AND TELOS IN THE NATURAL ENVIRONMENT ........... 912 A. Everything Is Connected to Everything Else................... 913 B. Ecology as a Normative Science ...................................... 917 C. The Non-Equilibrium Paradigm...................................... 921 D. The Keystone Species........................................................ 925 E. Does Nature Know Best? ............................ ... .. ............ .. ... 932 F. Theory in Ecology ............................................................. 936 G. Theory Against History.................................................... 941 H. Everything Can Connect with Everything Else ............... 948 I. Design in Ecology ............................................................. 954 J. The "Rivet-Popping"Analogy........................................... 961 VI. THE WARS OF RELIGION ........................................................ 968 A. The Gospel of Efficiency ................................................... 972 B. Preference Satisfaction as the True and Only Heaven...980 C. Why Protect Species?............................... ..... ............... ..... 985 VII. CONCLUSION .......................................................................... 989 'When landowners find an endangered animal on their prop- erty, Chuck Cushman says, the best solution under current law is to 'shoot, shovel and shut up'."' So the Arizona Republic newspaper reported the response of one landowner to the deci- sion of the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon.2 At issue in Sweet Home was section 9 of the Endangered Species Act (ESA), which makes it a crime to "take" an endangered or threatened species.3 The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, 1. Martin van der Werf, Endangered Species Act 'Gotta Be Fixed,' Foe Says, ARIZ. REPUBLIC, July 1, 1995, at B1. 2. 115 S. Ct. 2407 (1995). 3. See 16 U.S.C. § 1538(a) (1994); Sweet Home, 115 S. Ct. at 2407. 1997] MUDDLE OR MUDDLE THROUGH? 827 kill, trap, capture, or collect." Interior Department regulations extended the definition of "harm" to include "significant habitat modification or degradation [that] actually kills or injures wild- life by significantly impairing essential behavioral patterns, in- cluding breeding, feeding, or sheltering."5 In Sweet Home, the Supreme Court by a six to three majority upheld this extension of the meaning of "harm" in section 9 of the ESA.' Cushman, executive director of the American Land Rights As- sociation, based in Battle Ground, Washington, identified civil disobedience as a rational response to the Court's decision. He explained, "[a] private-property owner is thinking to himself, 'I find a spotted owl on my property, I'm going to lose everything I've worked for all my life.'" A property owner may find immedi- ate recourse in shooting and burying the bird before federal agents discover it.' A more general political remedy, Cushman observed, must be sought from Congress.' "I think you're going to see an eruption in Congress. It's obvious to everyone now that the Endangered Species Act is broke [sic] and it's gotta be fixed.""0 Newspaper editorials condemned the Sweet Home decision as a confiscation of property rights. "The U.S. Supreme Court in a 6-3 decision yesterday trampled property rights in granting fed- eral regulators broad control of private land to protect endan- gered species," declared the Detroit News." "No worse environ- mental decision has come from the high court in two decades. The harm can only be undone by Congress, which must overhaul the Endangered Species Act." 2 In a syndicated editorial, James J. Kilpatrick wrote that the small landowners who brought suit in Sweet Home rely on log- ging for their livelihoods, which is the only economically viable 4. 16 U.S.C. § 1532(19). 5. 50 C.F.R. § 17.3 (1994). 6. See Sweet Home, 115 S. Ct. at 2418. 7. van der Werf, supra note 1, at B1. 8. See id. 9. See id. 10. Id. 11. Editorial, Endangered Property Rights, DETROIT NEWS, June 30, 1995, at A8. 12. Id. 828 WILLIAM AND MARY LAW REVIEW [Vol. 38:825 way that they can use their land.13 "Now comes the government saying that timber may not be cut in forests supporting the owl and the woodpecker-not if the cutting involves significant habi- tat modification that actually kills or injures wildlife .... "4 Even if most Americans wish to prevent the extinction of species like the red cockaded woodpecker or the spotted owl, "that does not establish that the Oregon landowners alone can be com- pelled to pay for their preservation."15 On the contrary, as Kilpatrick reminded his readers, "private property may not be 'taken' by the government without payment of just compensa- tion" under the Fifth Amendment. 6 This Article examines the question of whether the government should compensate landowners when it requires them to main- tain their property as a habitat for an endangered species, thus preventing them from developing it profitably. The Article is organized as follows: Part I introduces two contending posi- tions-first, the libertarian position that would require compen- sation for all regulatory takings not preventing a nuisance or harm cognizable at common law and, second, the position of en- vironmentalists who believe that the loss of species does consti- tute such a nuisance or harm because it undermines the func- tioning of ecosystems beneficial to human beings. The introductory section also states this Article's thesis, namely, that the Court is correct in sticking to an ad hoc or per se jurisprudence that avoids both of these theoretical extremes. Rather than erect into law either ideology, the courts wisely have deferred to the political process, which provides a suitable arena in which landowners and environmentalists may butt heads until they learn that they may gain more by working with than by fighting against each other. Part II of this Article reviews the enforcement of the ESA and asks in the wake of Sweet Home how much of a federal land- grab one may expect. Landowners worry that the Fish and Wild- life Service (FWS) will bankrupt American farmers, loggers, and 13. See James J. Kilpatrick, Takings Clause Takes Beating in This Ruling, BUFF. NEWS, July 22, 1995, at 3C. 14. Id. 15. Id. 16. Id. 19971 MUDDLE OR MUDDLE THROUGH? 829 other small landowners to coddle minor varieties of gophers, beetles, and squirrels. This Article argues that these landown- ers, when politically organized, have little to fear from the gov- erinent. As far as one can assess the balance of economic and political power, it lies with
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