Property Rights Case Law and the Challenge to the Endangered Species Act

Congress is poised to initiate what could be a lengthy debate over the U.S. Endangered Species Act. In anticipation, proponents of strong Fifth Amendment private property rights guarantees have begun an aggressive campaign pitting those rights against those granted other species in the Act. Little case law exists that considers both property rights and wildlife protection, but inference can be drawn from Supreme Court opinions regarding property rights which may provide insight into likely judicial contributions to resolving tension between property rights and endangered species. We review key legislative history, provisions of the Endangered Species Act, relevant case law, and the implications of recent judicial trends that pertain to property and imperiled species. We then make recommendations that may improve implementation of this critical piece of environmental legislation.