The Endangered Species Act (ESA) is the nation’s most popular and powerful environmental law. There has been much discussion (and disagreement) over whether the law is a success or failure. On the one hand, almost no protected species have gone extinct since the ESA was enacted. On the other hand, equally few species have fully recovered. In fact, less than 3% of protected species have achieved recovery.
So why have so few animals recovered under the ESA? Too little regard for property rights.
By respecting property rights more, this 45-year-old law can better serve landowners and wildlife advocates alike.
The ESA imposes burdensome regulations on property owners whose land provides habitat for rare species and threatens massive fines or criminal prosecution for many ordinary land-use activities. Instead of incentivizing landowners to help recover an endangered species, the ESA punishes them for accommodating species. According to scholars across the political spectrum, this encourages landowners to preemptively destroy habitat when we should be encouraging habitat restoration.
To understand how the ESA creates these perverse incentives, we must understand what happens when a species is listed under the Act.
July 10, 2019: Today the Ninth Circuit Court of Appeals vacated the conviction of Navy veteran Joe Robertson, who was sentenced to 18 months in prison and ordered to pay $130,000 in fines after he dug fire-fighting ponds near his home in Montana. Sadly, Joe passed away in March, but his wife, Carri Robertson, continued his legal battle.
“We are very pleased that the Ninth Circuit agreed that Joe’s convictions should be vacated and very pleased for Carri, who will no longer have a $130,000 federal judgment hanging over her head,” said Tony Francois, a senior attorney at Pacific Legal Foundation. “It has been an honor to represent Joe and now to be able to complete his vindication on behalf of his wife, Carri.”
Federal regulators said that Robertson polluted a “navigable water” — a small ditch with a trickle of water — when he dug the ponds. The Environmental Protection Agency said the ditch was a federally protected waterway under the Clean Water Act and required a federal permit — even though his home is 40 miles from the nearest navigable waterway.
In April, the U.S. Supreme Court granted Joe Robertson’s petition to review his Clean Water Act convictions, and immediately vacated the Ninth Circuit’s judgment in the case and sent it back to the Ninth Circuit for further review.
Pacific Legal Foundation Press Release
New Orleans; July 3, 2019:Today, the U.S. District Court for the Eastern District of Louisiana ruled that Louisiana property owners Edward Poitevent and his family, along with Weyerhaeuser Co., are the winners in a long-running national battle over property rights and the reach of the Endangered Species Act.
The plaintiffs’ victory represents the ultimate resolution of a case that reached its climax in November with the U.S. Supreme Court’s unanimous rulingin Weyerhaeuser Co. v. U.S. Fish and Wildlife Service in favor of private property rights.
Today’s settlement marks the complete capitulation of the U.S. Fish and Wildlife Service and invalidates its wrongful 2012 decision to designate the family landowners’ and Weyerhaeuser Co.’s property as critical habitat for the endangered dusky gopher frog, a species that did not even live on their property. Continue reading
When it comes to conservatives and the U.S. Supreme Court, abortion and labor rights are often considered among their prime targets. Brett Kavanaugh’s ascension to the court last fall, though, opened the road for a host of other challenges for which conservatives have quietly been laying the groundwork for years. This month, the Pacific Legal Foundation, a conservative law firm based in California, made moves on one of those fronts, asking the Supreme Court to take up a case challenging the constitutionality of inclusionary zoning — a popular tool cities and states employ to increase affordable housing and promote residential integration.
Inclusionary zoning generally works by requiring real estate developers to reserve a certain number of units in new housing complexes for tenants who live on more modest incomes; some jurisdictions also allow developers to alternatively pay a fee so the city can construct more affordable housing elsewhere. Conservatives argue that the policy effectively violates a provision of the Fifth Amendment that says private property cannot be taken without just compensation. Continue reading
Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.
Mr. Pakdel is a small business owner in Ohio. In 2009 he bought what’s known as a “tenancy in common” (TIC) apartment in San Francisco and leased it to a residential tenant. As part of the purchase, Pakdel signed an agreement with the other owners to convert the building’s six units into condominiums. But the City of San Francisco requires that property owners doing this conversion must offer lifetime leases to any tenants. Rather than allow the city to trample his property rights by dictating the use of his own property, Pakdel is fighting the unconstitutional mandate in federal court. Continue reading
What started as artistic expression in Mount Dora, Florida, escalated into a bureaucratic nightmare for Nancy Nemhauser and Lubomir Jastrzebski. When the couple painted a van Gogh-style “The Starry Night” mural on a wall outside their house, the city declared the art “graffiti” because it didn’t match the color of the house. But when Nancy and Lubomir responded by painting a similar mural on the house, the city branded both as illegal “signs,” and fined them hundreds of dollars per day with orders to paint over the mural. On behalf of Nancy and Lubomir, PLF is challenged the city. We argued that banning such artistic murals is an abusive interpretation of the city’s sign ordinance, and violates the First and Fourteenth Amendments. In July 2018, Nancy and Lubomir declared victory when the city council voted to settle the lawsuit and allow the mural to remain. Continue reading