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The Endangered Species Act and Claims of Property Rights "Takings"

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Publication Date: October 2005

Publisher(s): Library of Congress. Congressional Research Service

Series: RL31796

Topic: Environment (Animals)
Law and ethics (Real estate and property law)

Abstract:

The federal Endangered Species Act (ESA) has long been one of the major flash points in the "property rights" debate. This report first outlines the ESA provisions most relevant to the act's impacts on private property, and then surveys the major ESA-relevant principles of Fifth Amendment takings law. The report then proceeds to its core topic: the court decisions adjudicating whether government measures based on the ESA effect a taking of property under the Fifth Amendment. The cases address four kinds of ESA measures: (1) restrictions on land uses that might adversely affect species listed as endangered or threatened; (2) reductions in water delivery to preserve lake levels or instream flows needed by listed fish; (3) restrictions on the defensive measures a property owner may take to protect his/her property from listed animals; and (4) restrictions on commercial dealings in members of listed species. To date, only one of the 14 ESA-based takings decisions revealed by research has found a taking.