My Problem with Eagles

Actually, my problem is not with the eagles but with the government. I own a piece of property, about 7 acres, in northern Minnesota, which has been in my family—and on which we have paid taxes—since the 1930s. Roughly half of the property is wetland and so cannot be developed because of government regulations to preserve wetlands. The remainder of the land is physically suitable for development, and I prepared a plan to plat five lots there. But government has prevented me from going through with the plan because of an eagle nest in the center of the property. The Endanger Species Act protects not only the eagles themselves but prohibits any habitat modification within 330 feet of an eagle nest. This encompasses all of the otherwise-buildable area of the proposed lots. Thus I am prohibited from using any of my property. I cannot cut firewood or plant corn or do anything whatever with the property. Still, I have to continue paying taxes on it.

In 1963 there were only 417 nesting pairs of eagles in continental U.S. Today there are well over 7,000. The population has been doubling every seven years since 1972, and there are now more than 1,400 nesting pairs in Minnesota alone. In 1999 the U.S. Fish & Wildlife Service determined that the eagle had made such a comeback that it should be taken off the endangered list. Under the law, once that determination is made, the government must remove the species from the endangered list within one year or formally state why it still needs to be on that list. It would be very difficult for the government to maintain the bird needed to remain on the list when its own Fish & Wildlife Service said the opposite and when eagles were continuing to proliferate. In 1999 President Clinton got a lot of political mileage by appearing on the White House lawn with an eagle named Challenger, claiming it as a symbol of his administration's success with the Endangered Species Act, and announcing the eagle was being delisted from the ESA.

But the delisting never occurred. For six years the federal government continued to violate the Endangered Species Act by failing to do what it was required to do within one year of the F&W's report. Both the Clinton and then the Bush administration delayed in order to appease environmental groups that wanted to maintain the restrictions as a tool to stop development, rather than to protect a species that no longer needed it.

To stop the government from continuing to violate its own laws, I sought help from the Pacific Legal Foundation and brought suit against the government. In August we won the case in District Court in Minneapolis. The judge gave the government six months to comply, which its attorneys have said they will do by the February deadline. But they have stated that they intend to impose the same regulations under a different law that has been on the books for 65 years. So the battle is not over yet, and I can still do nothing with my property.

The government has been in violation of not only its own law but of the Constitution itself. Article V of the Bill of Rights of the Constitution states that private property shall not be taken for public use without payment of just compensation. If housing the eagles on my property is a public use, if their welfare is a public benefit appropriate for government action that precludes my use of my own property, then government should pay me just compensation. Yet the federal government, which is supposed to support and defend the Constitution, is denying me my Constitutional rights—and doing the same to thousands of other individuals similarly affected by the Endangered Species Act and other environmental regulations.

I am sometimes asked what will happen to the eagles on my property if it is subdivided and sold. My answer is, “Probably nothing.” According to the F&W Service, eagles typically have 3 to 5 nests in their territory and rotate among them every few years. So my proposed development would create no hardship for the local eagles, who would simply move to one of their other nests. They certainly aren't going to commit suicide by going down with the tree on my property if it were cut down.