21 UALR L. Rev. 519 (1998-1999)
Denial of Permission to Take an Endancered Species Will Amount to a Taking under the Fifth Amendment in Limited Situations

handle is hein.journals/ualr21 and id is 529 raw text is: DENIAL OF PERMISSION TO TAKE AN ENDANGERED SPECIES
WILL AMOUNT TO A TAKING UNDER THE FIFTH AMENDMENT
IN LIMITED SITUATIONS
I. INTRODUCTION
Despite the fact that the Endangered Species Act' is over 25 years old,2
it has been reviewed by the Supreme Court in only a handful of cases. Thus,
many questions regarding application of the Act remain. As flora and fauna
are added to the list of endangered or potentially endangered species with
alarming frequency,3 the number of private citizens impacted by the Act is
also growing rapidly.4 With that fact in mind, one of the most pressing issues
left unanswered by the Supreme Court is whether, under certain circum-
stances, the Act can amount to a taking of private property without due
process of law and may be considered unconstitutional in those situations.'
In a recent note on United States v. Lopez,6 one student surmised that the
Endangered Species Act would be found invalid insofar as it is applied to land
use by private citizens because the Act cannot withstand a Commerce Clause
challenge under Lopez.7 The Supreme Court has not yet considered a
1. 16 U.S.C. §§ 1531-1544 (1994).
2. The Endangered Species Act was enacted in 1973. See id.
3. A total of 362 plants and animals were under the scrutiny of the Endangered Species
Act in 1997, exclusive of those already listed as endangered or threatened. This is an alarming
number of possible new listings considering that there are only 365 days in a year. See
Endangered & Threatened Wildlife & Plants; Final Listing Priority Guidance for Fiscal Year
1998 & 1999, 63 Fed. Reg. 25,502, 25,505-06 (1998). As of the end of fiscal year 1997, the
Fish and Wildlife Service had made tier two determinations on 156 species, with 145 added
to the list of endangered species, only 11 withdrawn, and another 100 proposed species
remaining for determination. There were also 207 candidate species at that time. See id.
The Fish and Wildlife Service uses a four tiered approach to listing species under the
Endangered Species Act. See id. The first tier, emergency listings, receives the highest priority.
There were no tier one listings in 1997. Tier two received the most attention from the Fish and
Wildlife Service in 1997, which is in charge of issuing final decisions on proposed listings, as
outlined above. Tier three is the candidate level for those species which the Service deems
there is sufficient information indicating a listing is appropriate, as required under 16 U.S.C. §
1533(b)(3)(B). Tier four receives the lowest priority and consists of preparation of proposed
or final critical habitat designations, delistings, and reclassifications from endangered to
threatened status. See id. See infra Part II for a general outline of the mechanics of the Act
mentioned here.
4. The Fish and Wildlife Service projects there will be 75 new habitat conservation plans
in 1998, bringing the current number of active plans to 300. See Final Listing Priority
Guidance, 63 Fed. Reg. at 25,507. For a discussion of habitat conservation plans under the
Endangered Species Act, see infra notes 43-61 and accompanying text.
5. This question is thoughtfully raised by Professor Robert R. Wright. See ROBERT R.
WRIGHT, LAND USE IN A NuT SHELL 286-87 (3d ed. 1994).
6. 514 U.S. 549 (1995).
7. See Gavin R. Villareal, Note, One Leg to Stand On: the Treaty Power and
Congressional uthorityfor the Endangered Species Act After United States v. Lopez, 76 TEx.
L. REv. 1125 (1998).

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