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<br />around, you can exclude the world from it--you have that right.
<br />That is something you do not question. In addition, most of you
<br />take for granted that the benefits from the use of that property
<br />are yours and yours alone to enjoy. That, too, is something tbat
<br />we assume. You have the right to build a house on that property
<br />if you want, or to do whatever it is you would like to do with it,
<br />because you Own the property. You probably also assume that
<br />you should be free to transfer that property to another in what
<br />ever manner you choose: sell it to another, give it to another,
<br />lease it to anotber. This also is considered to be a right that
<br />COmes with property ownership.
<br />Having made decisions to carve up land and tbe resources
<br />on tbat land and, particularly here in the West, tbe water
<br />resources, into little units called "property," we now face tbe
<br />problem that such divisions have neglected some very important
<br />environmental values that are being increasingly recognized.
<br />These are probably most easily expressed in the idea of
<br />ecosystems. We now understand that the health and diversity of
<br />species depend on functional habitats and tbat tbose species
<br />interact within those babitats to create an ecosystem. Damaging
<br />or destroying one part of a habitat wiI1 have effects that spread
<br />widely throughout the ecosystem. Out here in tbe West we
<br />probably appreciate that more than anywhere else--because we
<br />value our natural environment so much. We don't take our
<br />environment for granted--it's not hidden in a canopy of trees, as
<br />it is in the East. Since we can easily see our environment here in
<br />the West, we are more sensitive to it. At tbe same time, it is a
<br />more sensitive environment, and we see the effects of what we
<br />do more rapidly. Our abuses are not as easily disguised here;
<br />they don't disappear into that canopy of trees as they do in the
<br />East.
<br />So today we are in a situation where people bave a lot of
<br />well-intentioned, well-premised, well-meant expectations about
<br />their rights as owners of a particular piece of property (these
<br />may be land, water, and/or mineral resources), which are coming
<br />bead-on against a much broader set of environmental values
<br />regarding ecosystem and habitat preservation, endangered species
<br />protection, and the like.
<br />Tbe nature of environmental conflict bas changed since tbe
<br />early 1970s, when I fIrst got involved in these issues. Then you
<br />were either "for" the environment or you were "against" it. You
<br />believed that the environment was a good thing and you were
<br />going to protect it and save it, or you were a corporate polluter
<br />that could care less. Most of the conflicts of tbat day were cast
<br />in those terms, and it was often assumed that conflicts could not
<br />be resolved because the values were so fundamentally different.
<br />A lot of tbe environmental dispute resolution literature seems to
<br />focus on this problem of irreconcilable values over the "goodness"
<br />or importance of the environment.
<br />My sense of the problem, bowever, isdifferent. Over the last
<br />30 years our values have changed considerably. Most people now
<br />bave a much greater understanding of the importance of
<br />environmental values. Today, even George Busb says be is an
<br />environmentalist. We no longer line up on one side of an
<br />"enviroomentalline" or another--things are much more complex.
<br />Now, particularly here in the West, tbe critical questions are:
<br />To wbat degree can you affect someone's property interests in
<br />tbe pursuit of environmental values? To wbat dcgree can you
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<br />intrude on my expectations as a holder and owner of a
<br />property right to achieve otber agreed-upon benefits for
<br />society?
<br />One of tbe hottest grOl.1h areas for la"Yers today is
<br />litigation concerning Fifth Amendment "taking" arguments.
<br />Tbe Fifth Amendment of the U.S. Constitution probibits tbe _
<br />federal government from taking private property without
<br />payment of just compensation. Reasonable government
<br />regulation of private property doesn't constitute such a
<br />taking under tbe Constitution. But there has been an
<br />enormOl,lS amount of litigation in'this area in recent years
<br />testing the limits of tbe government regulation. The federal
<br />court of claims has been fIDding such taking by government
<br />action in some cases and are awarding rather substantial
<br />claims.
<br />The endangered species question is unique in some
<br />ways, yet at tbe same time, it has clarified this issue more
<br />than any otber single environmental issue has. On one hand,
<br />we have made judgments, expressed through law, tbat it is in
<br />our interest as a society to provide protection to species
<br />which are approaching extinction. We have created very
<br />strong strictures, as a matter of law, against governmental
<br />action that would further jeopardize species tbat are On tbe
<br />threatened or endangered-species lists. Further, in tbe
<br />Endangered Specics Act, we bave even set out limitations on
<br />private actions. Eacb one of us is prohibited by tbe terms of
<br />tbe Endangered Species Act from actions that would have
<br />the effect of killing, barming, or even taking the habitat that
<br />could cause the death of or tbe harm to a protected species.
<br />This is a unique law--I know of nothing else that is of this
<br />nature in our legal system.
<br />This conflict truly has all the elements of an intractable
<br />conflict. On tbe one hand, we are expressing, as a matter of
<br />societal interest, that we cannot tolerate the extinction of
<br />these species, while on tbe other hand, we are declaring to
<br />private individuals tbat they cannot use their land as the)LSee
<br />fit. In Texas, for instance, if you own land on which you
<br />want to cut trees, you can be told, "Well, I'm sorry, but tbe
<br />red cockaded woodpecker uses those trees, so even if they
<br />are on your private land, and you need to cut those trees to
<br />maintain your own economic livelihood, you can't do that
<br />because that is the habitat for this endangered species."
<br />This is an issue that is before us today in our society.
<br />You are familiar, of course, with the conflict over the
<br />spotted owl wbere it is more a public lands issue--it is not so
<br />much a matter of private property rights. But private rights
<br />are affected, too, by the ESA.
<br />The work that John and Curt2 are involved is about
<br />water resources. There we see a similar type of thing: One
<br />person. migbt say, "I acquired water rigbts to irrigate my
<br />land; I obtained tbose water rights under state law. When
<br />tbose rights were given to me, I was .told I bad a property
<br />interest in the use of this water." Now John Hamill comes
<br />along, for example, and says, "But that ditch has a prior
<br />claim to tbat water--a fISh needs that water for its continued
<br />existence." And the water user says, "That's not my
<br />responsibility. I've got a private property rigbt to the use of
<br />this water resource. How can you come to me now and say
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