Private Rights, Public Interests

posted in: April 1991 | 0

One of the most heated aspects of the debate over saving the `alala has centered on the perception of a conflict between property rights and federal and state laws protecting endangered species. Constitutional protections against illegal searches and seizures of private property are firmly established. Laws against trespass protect privacy.

However, since passage of the federal Endangered Species Act, a growing body of court precedent has strengthened the legal rights of protected animals and plants. One of the most important of those court decisions was crafted here in Hawai`i, when the palila, a rare bird inhabitating the mamane trees on Mauna Kea, was granted standing to sue (and prevailed in court) over the loss of its habitat as a result of grazing by feral ungulates.

Implied Authority

On October 31, 1990, Michael Sherwood and Skip Spaulding, attorneys with the Sierra Club Legal Defense Fund, gave notice to Interior Secretary Manuel Lujan Jr. of intent to sue over the Fish and Wildlife Service’s failure to enforce the Endangered Species Act in the case of the `alala. (The fund is the law firm representing the National Audubon Society and the Hawai`i Audubon Society.)

The Endangered Species Act mandates the Service to conserve endangered species by, among other things, developing and implementing a recovery plan, Spaulding wrote. “[A]lthough the ESA does not expressly grant authority to enter private property, such authority must necessarily be implied by the express statutory duties to conserve endangered species and to implement recovery plans where such duties cannot reasonably be carried out in the absence of such entry.”

Whenever government agents enter private land to carry out a duty or authority imposed by law, Spaulding wrote, that entry is “privileged” — in other words, it is not trespassing – and thus it is not subject to legal challenge. “If state or federal game wardens can enter private property to enforce mere hunting laws, then surely federal agents must be able to do so to enforce the laws relating to the protection and recovery of endangered species,” he noted.

In any event, Spaulding argued, the need to protect a public interest has long given government agents the right to enter private property “without statutory or any other authority.” Spaulding wrote: “In the present case, it is undisputable that a manifest public necessity exists: if the Service does not immediately enter the McCandless Ranch and implement recovery actions, the `alala will become extinct. This is a textbook emergency situation for application of the doctrine of public necessity.”

In a footnote, Spaulding wrote that the state of Hawai`i’s equally authorized under the public necessity doctrine to enter the McCandless Ranch property, and also has obligations to conserve the `alala arising from the Hawai`i endangered species law… To the extent that the State (through DLNR) has been delegated responsibilities under the ESA by the Service, it is jointly liable for the violations set forth in this letter.”

The State’s Position

In 1989, William Paty, chairman of the Board of Land and Natural Resources, asked the state Department of Attorney General the same question raised by the SCLDF lawsuit: What right does the state have to enter private land to enforce its endangered species law? “If endangered birds are considered state property,” he wrote, “the state should be able to recover such property assuming due process is followed and the landowner’s rights are observed.” On the other hand, Paty noted that “if landowner’s permission is required before action is taken, it is unlikely the conservation measure will be allowed, given the landowner’s present stance.”

The Attorney General responded December 20, 1989, with a letter from deputy attorney general Randal Y.K. Young. Young told Paty that the “theory” of wildlife being owned by the state had been explicitly rejected in 1969 by the Supreme Court. (Actually, the court did not overturn the notion of state ownership of wildlife so much as it rejected the notion that wildlife could be owned at all.)

Young went on to state that with respect to searches of private property, Hawai`i law permits them only “on probable cause.” “Although we appreciate DLNR’s concerns for the `alala,” Young wrote, “we do not have before us any evidence that the state endangered species act is being violated by the private landowner.”

‘No Authority’

The Justice Department, with the assistance of the office of the U.S. Attorney, will be representing the federal Fish and Wildlife Service in the pending SCLDF lawsuit. Its formal response to the SCLDF lawsuit, setting forth the legal tack it will take, has not been made yet. However, a letter from the Service’s former Pacific Islands Administrator, Allan Marmelstein, to Michael Sherwood, an attorney for the Sierra Club Legal Defense Fund, suggests the federal government’s position. In that letter, dated July 31, 1989, Marmelstein wrote: “The Service has no authority to impose recovery actions on private land owners whose lands happen to encompass a population of a species, even where that population is the sole remaining population.”

Volume 1, Number 10 April 1991

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