June 10, 2013

Can the Endangered Species Act’s “take” prohibition take an animal under the Fifth Amendment?

By Jonathan Wood Attorney

As a result of a recent decision from the Fish and Wildlife Service, the answer is more likely to be yes. Organizations representing owners of exotic wildlife and hunters petitioned the Service to make clear that the provisions of the Endangered Species Act don’t apply to animals that are in captivity, and thus privately owned. The Service hasn’t been very consistent in the past; sometimes regulating this private property as if the animals were in the wild, other times recognizing this vital difference. With its most recent decision, the Service has announced its view that privately owned animals can never be exempt from the provisions of the act.

The petitioners were concerned about how the provisions apply to foreign species that only exist in the U.S. as private property. Many applications of the take prohibition in these circumstances make no sense. Sure, the federal government can promote the conservation of a species by prohibiting the illegal importation of a poacher’s trophy. But what about a privately owner wildlife reservation designed to prevent a species’ extinction by providing a place outside of its habitat for it to flourish? Many such places are financed through controlled hunting of the species. Can this hunting continue? It’s a clear win-win: the risk that the species will be extirpated declines dramatically and every person involved benefits (the hunters get a recreational opportunity that would otherwise be denied and the conservationists are rewarded for protecting the animals).

The Service’s new interpretation frustrates these efforts. Recognizing that nothing in the language of the Endangered Species Act answers this question, the Service appeals to the broad purposes of the statute to find that it applies to species wherever found and regardless of status. One of these arguments is that it would make no sense for the ESA provisions to apply only to individuals in the wild because if a species went extinct in the wild, and only the specimen in captivity remained, the ESA would provide no security against extinction. Although this argument has some force, it ignores the effects of the interpretation on whether or how many animals will be in captivity. Because applying the provisions of the act reduces the incentives for environmental entrepreneurs to privately conserve species, the Service’s position has the perverse result that it is less likely that a species that goes extinct in the wild will be thriving in captivity.

For example, extending the take prohibition to animals held on private reserves would make financing these projects through controlled hunting a colossal headache. Before every hunt, the property owner would have to go through the costly and time-wasting process of obtaining permission from the federal government, with no guarantee that these efforts would bear fruit.

In addition to being bad policy, the interpretation threatens to take private property. A person who legally obtains an animal and creates a refuge where it can proliferate has a protected property interest in the animal and its progeny, much like ranchers have a protected property interest in their cattle or other farm animals. This concern doesn’t arise when the government regulates species in the wild because wildlife are owned by the state. But animals in captivity have been converted into someone’s private property. And if a regulation prevents the owner from using or enjoying the benefits of that property, the government should have to compensate him for that taking, just as it would if it confiscated livestock.

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