August 24, 2015

Did the raisin case silently insulate the Endangered Species Act from the Constitution?

By Jonathan Wood Attorney

A recent article in Greenwire, reports that opponents of robust Constitutional protections for property rights and limits on federal power are finding a kernel of hope in the Supreme Court’s opinion in the raisin case decided last term. They contend that the opinion insulates regulations to protect wildlife — like those adopted under the Endangered Species Act — from the Takings Clause and, perhaps, other constitutional restrictions. How? By declaring (at least some) wildlife state property. However, the Court’s recognition of state ownership of wildlife doesn’t go nearly as far as these commentators would have it.

First, a note on what the raisin case — Horne v. USDA — was about. As readers may recall, this was a challenge to an unbelievably stupid federal program that requires farmers to hand over some of the food they grow to the government so that it can be destroyed, dumped overseas, or used for government purposes. What’s the government’s goal? It’s to make food more expensive!

The Court held that when the government demands that a property owner handover her property to the government for its own use that’s a taking, regardless of whether the property is land, raisins, or money.

In reaching that conclusion, it distinguished the case from an earlier one that required people who harvest oysters to remit ten percent of the harvest to the state. The oysters, the Court explained, were the state’s property, not the people who harvested them, under an old doctrine of state ownership of wildlife, particularly wildlife on state lands. Consequently, demanding the return of some in exchange for permitting the harvest couldn’t violate the Takings Clause (because the oysters weren’t private property in the first place).

So what does this doctrine of state ownership of wildlife have to do with the Endangered Species Act? The answer is: not much. To the extent it’s relevant, it actually weighs against the constitutionality of the federal statute. As we recently explained in the prairie dog case, state ownership of wildlife makes its protection a traditional responsibility of state government. This weighs heavily against federal authority to regulate it under the Commerce Clause.

The main thrust of the article is the implication of state ownership of wildlife for takings claims . Because the wildlife isn’t private property, the argument goes, it can’t be a taking when the federal government restricts how people use their private property to protect wildlife.

This doesn’t make any sense, and certainly can’t be derived from state ownership of wildlife. When someone brings a takings claim against endangered species regulation, they aren’t claiming a property interest in the species that’s being taken (the situation in the oyster case).

Instead, the claim is that the restrictions on the use of property caused by endangered species regulation takes the underlying property. On that question, ownership of the wildlife is irrelevant. If, in the oyster case, the state had taken the oyster harvester’s boat, that would have been a taking, regardless of who owns the oysters. The same is true for endangered species regulation generally. Ultimately, state ownership of wildlife will have no effect on takings claims, except rare cases that allege the wildlife itself has been taken.

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