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