OPINION/COMMENTARY

Endangered Species Act Finally Meets the Fifth Amendment

Last December, the Bush administration quietly settled a landmark lawsuit involving a federal trial court judgment that the government’s enforcement of the Endangered Species Act had violated the constitutionally-protected property rights of farmers in California’s Central Valley. The judge had ordered the government to pay $26 million in damages, including interest, for the undelivered water — under the settlement, the government agreed to pay $16.7 million. Even though settlement of a trial court judgment is not precedent-setting (only appellate court decisions establish precedent), we now have, for the first time since ESA became law, a court ruling that government’s ESA enforcement triggers the Fifth Amendment’s “just compensation” provision. In the 31 years since the Endangered Species Act became law, owners denied use of their property through its enforcement have filed numerous lawsuits charging the government with taking private property for public use (i.e., species protection) and seeking “just compensation” under the Fifth Amendment. Their claims seem clearly to be supported by the Act itself. Congress declared in its “findings” incorporated into the ESA — Section 2(a)(3) — that endangered or threatened “species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” Yet, despite this unambiguous statement of ESA’s purpose as serving a “public use,” no federal agency and no federal court — until now — has ever recognized ESA enforcement as serving a public use, or that the regulation of private property under ESA is a “taking” under the Fifth Amendment, or that the government should pay damaged property owners “just compensation.” At the heart of this case (Tulare Lake Basin Water Storage District v. United States) is the federal government’s Central Valley Water Project and California’s State Water Project — the natural and man-made systems of dams, reservoirs, pumping stations, and aqueducts that transport water from Northern California through the Central Valley to Southern California....