A White Paper: Endangered Species Act of 1973

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33 -?73 -3113 ESEE CE 1 731 P13 MAR 31 a Act's implementation often constitutes a "taking' of private property. Implementation, when stopping commercial activities on private land, constitutes a "taking" of the value of that land and violates the Constitution's Fifth Amendment which declares "private property (shall not) be taken for public use without just compensation." From The Strange Case of the Glancing Geese Forbes, Sept. 2, 1 When does regulation amount to confiscation? If the government wants to preserve a species of owl, can it tell an owner of timberland that he can't touch the trees he owns? Or must it buy him out? An increasing number of lawsuits by private landowners protesting environmental regulations which prohibit use of their lands and receiving full value for that use have been upheld. A bill called the Private Property Rights Act, passed by the Senate on .tune 12 as an amendment to the highway funding bill, seeks to restore some sanctity for private property. its purpose is to ensure that when authorities issue rules that damage property values, they must at least consider treating the rules as a "taking" under the Constitution. If a taking is there, the property owner would be compensated - just as he would be if the government took his land outright. The bill requires federal agencies to assess the regulations a second time before regulating a property to the point of uselessness. There is nothing andenvironmental in the bill. It puts no limits on environmental protection measures. But it does impose a cost. It would simply require the government to compensate property owners fora significant loss they incur from environmental restrictions imposed upon their property. Environmentalist's Viewpoint of Private Property The Use of Land. published by the Rockefeller Brothers Fund and edited by William K. Reilly, outlines the environmentalist's viewpoint of private property: "The courts should 'presume' any change in existing natural ecosystems is likely to have adverse consequences difficult to foresee. The proponent of the change should therefore be required to demonstrate, as well as possible, the nature and extent of any changes that will result. Such a presumption would build into common law a requirement that a prospective developer who wishes to challenge a governmental regulation prepare a statement similar to the environmental impact statements now required of public agencies under federal programs. "It is time that the U.S. Supreme Court re- examine its earlier precedents that seem to require a balancing of public benefit against land value loss in every case and declare that when the protection of natural, cultural, or aesthetic resources or the assurance of orderly development are involved, a mere loss in land value will never be justification for invalidating the regulation of land use. " - 11 -