Takings Cause

THE CREATION of a desert wilderness area in California has been near the top of the environmentalist wish list for almost a decade. During the Reagan and Bush years, Republicans thwarted the proposal. But this year Senator Dianne Feinstein (D., Calif.) succeeded in pushing a desert bill through Congress, defeating a Republican filibuster in the closing days of the fall session. The California Desert Protection Act will turn nearly eight million acres, including about 700,000 acres of private land, into a federal wilderness area bigger than Maryland. Environmentalists have hailed the new law, their one significant accomplishment in 1994, as a vital step in the preservation of the American landscape.

But a funny thing happened on the way to locking up eight million acres of desert. Representatives Billy Tauzin (D., La.) and James Hansen (R., Utah) offered an amendment to ensure that property owners receive just compensation for land designated an endangered-species habitat. Without the amendment, the government could take land for the wilderness area on the cheap by, say, declaring it to be desert-tortoise habitat, thereby prohibiting development and slashing the property’s value. Under the amendment, the government could still use eminent domain, but it would have to pay compensation as if the tortoise listing, and the consequent land-use restrictions, had never been imposed.

About the Author

Jonathan H. Adler

Jonathan H. Adler is a professor at William & Mary Law School.

Featured Tags

Manage following

Environmentalism

Endangered Species Act

THE CREATION of a desert wilderness area in California has been near the top of the environmentalist wish list for almost a decade. During the Reagan and Bush years, Republicans thwarted the proposal. But this year Senator Dianne Feinstein (D., Calif.) succeeded in pushing a desert bill through Congress, defeating a Republican filibuster in the closing days of the fall session. The California Desert Protection Act will turn nearly eight million acres, including about 700,000 acres of private land, into a federal wilderness area bigger than Maryland. Environmentalists have hailed the new law, their one significant accomplishment in 1994, as a vital step in the preservation of the American landscape.

But a funny thing happened on the way to locking up eight million acres of desert. Representatives Billy Tauzin (D., La.) and James Hansen (R., Utah) offered an amendment to ensure that property owners receive just compensation for land designated an endangered-species habitat. Without the amendment, the government could take land for the wilderness area on the cheap by, say, declaring it to be desert-tortoise habitat, thereby prohibiting development and slashing the property’s value. Under the amendment, the government could still use eminent domain, but it would have to pay compensation as if the tortoise listing, and the consequent land-use restrictions, had never been imposed.