As the name suggests, the Florida scrub jay lives exclusively in the scrublands of the Sunshine State. A medium-sized, long-tailed, blue-and-gray songbird, its call when perched on scrubs is a screechy scold that sends its tail up like a Roman catapult launching a rock. One of 15 bird species native to the continental U.S.—and allegedly threatened by loss of habitat—it is protected under the Endangered Species Act (ESA) of 1973.
But should protecting the bird take precedence over a citizen’s property rights when his land isn’t habitat suited to the bird? And doesn’t the arbitrary development fee that Florida counties imposed—a scrub jay fee, supposedly for offsetting the environmental impact of building on a property—amount to an exorbitant ransom?
These are among the questions raised in a federal lawsuit filed by Michael Colosi, a tech entrepreneur who hopes to build a house on a five-acre plot he recently bought in Punta Gorda, Charlotte County, Florida. Though he believes that his land, thick with pine and saw palmetto, is unsuited to the scrub jay, he is happy to adhere to the county’s habitat conservation plan (HCP) requirements, such as planting scrub oaks to encourage bird visits and avoiding land clearance during nesting season. But he refuses to pay the hefty $120,000 scrub jay fee for allowing him to build on his plot, for he plans to use only an acre or so for a house and garage, leaving the rest in its natural state.
The Florida scrub jay by Sandhillcrane. CC BY-SA 4.0.
The lawsuit—in which Charlotte County, the U.S. Fish and Wildlife Service (FWS), and the U.S. Department of the Interior are defendants—is in the U.S. District Court for the Middle District of Florida (Fort Myers Division). The Pacific Legal Foundation (PLF) is representing Colosi pro bono in a suit challenging the fee as an unconstitutional infringement of Colosi’s right to develop and use his property. It also challenges the unconstitutional regulation under federal law—in this case, the ESA—of an intrastate species of no commercial or economic value, and hence not under the Commerce Clause’s purview.
Before discussing the precedents that the PLF cites in the lawsuit, some background on the ESA is in order. The act, which the FWS and U.S. NOAA Fisheries Services administer, is not only the most wide-ranging in the U.S. but is one that unaccountable bureaucrats in the administrative state rampantly abuse through overreach.
For example, without a holistic look at the causes, farmers in California’s fertile San Joaquin Valley and cities in southern California were made the scapegoats for the decline in the population of the once plentiful Delta smelt, a three-inch fish that lives in brackish water. After a 2015 U.S. Supreme Court ruling upheld protections for the so-called endangered fish, they faced damaging restrictions on pumping water for irrigation or human use.
Under the ESA, animal or plant species may be designated as endangered or threatened based on “the best scientific and commercial data available (16 U.S.C. §1533(b)(1)(A)).” But behind this “science charade,” there is no transparency. There is no recourse to challenge the designations or have them changed. The anonymous scientists certifying the listings don’t have to release their data, and economic factors aren’t to be considered. There are no time frames for reevaluating a species’ endangered or threatened status. The government punishes statute violations with hefty fines or imprisonment, while it offers rewards for reporting actual or potential violations.
On paper, there are three ways to challenge an ESA ruling: a biological challenge, a species challenge, and a hearing before the Endangered Species Committee (ESC). But successful challenges are virtually nil.
The biological challenge is rendered ineffectual by an established testing methodology that makes no allowance for changes in habitat or migratory patterns over the years. If independent researchers provide different data, courts generally defer to the FWS.
The species challenge is nullified because the ESA allows species to be categorized into dubious sub-species based on population, localization, etc. Thus, even plentiful species across the U.S. may be recategorized as several endangered or threatened sub-species with a specific geographic region.
The third option is to go before the Endangered Species Committee (ESC) or the “God squad.” This seven-member, cabinet-level committee may remove a species from the endangered/threatened lists with a five-vote majority. However, the committee rarely meets—it has met only six times since 1978—and its complex procedures have allowed only one change in 46 years.
In the Colosi lawsuit, the PLF’s salients, or points of attack, are the infringement of property rights, the rational nexus test, and the proportionality principle. It cites three precedent rulings, all from the Supreme Court of the United States: Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St Johns River Water Management District (2013).
In 1982, Marilyn and Patrick Nollan sought permission to add a story to their one-story beach house in Ventura County, California. This pitted them against the California Coastal Commission (CCC), which demanded they give away one-third of their property to the state for public access because their expanded home would be a “psychological barrier” to the ocean view for passing motorists. The PLF represented the Nollans.
The court ruled that exaction without just compensation was unconstitutional and an “out-and-out plan of extortion” because building another story did not directly harm anyone. The ruling established the “rational nexus” test: Is there a direct connection between the government demand and the effect of the proposed property use?
In the Dolan case, Florence Dolan of Tigard, Oregon, wanted to expand her store and pave her parking lot. To permit this, the city demanded that she give up land for a public greenway and a pedestrian/bicycle path. The city authorities said these measures were necessary to reduce flooding and relieve traffic congestion.
The case reached the Supreme Court, which ruled in her favor. The court held that the city could not require property owners to give up constitutional rights in exchange for discretionary benefits. Drawing on the Fifth Amendment, the court reinforced the concept of “rough proportionality”: Is the government’s demand reasonably proportional to the impact of the proposed land use? The ruling limits the use of zoning and land-use regulations to force property owners to make public improvements.
While these two cases related to land exactions, the Koontz case extended the idea to permit denial and condition imposition. In 1972, Coy Koontz, Sr., purchased undeveloped property in Florida that was later designated a wetland. He decided to develop part of it in 1994. Still, the St. Johns River Water Management District refused to allow this unless he reduced his development area and funded improvements to district-owned land.
Koontz refused, and PFL eventually took up the case. After his death, his son, Coy Koontz, Jr., continued the fight until it reached the Supreme Court. The court affirmed that the government cannot require someone to surrender a constitutional right in exchange for a government benefit. This gave property owners the right to challenge permits that government agencies denied or conditioned on monetary contributions.
Hopefully, the Colosi case will prove another win for property owners and check administrative overreach. John A. Baden and Douglas S. Noonan write that the “command-and-control approach” of the ESA is counterproductive, for it pits landowners against endangered species. They cite the irony of “Cone’s folly”: a landowner took such good care of his land that he attracted ESA action that reduced its value. Colosi’s folly is that he chose to buy a wooded property and take care of it, building only on a fifth of it. But the ESA will neither let him do that nor work actively to protect the scrub jay where it does thrive.
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