On October 1, 2018, the United States Supreme Court began its 2018-19 term. Overshadowed by the hearings regarding the Brett Kavanaugh appointment, the U.S. Supreme Court will be considering some important cases this term, which include two cases impacting private property rights. The first case will determine the scope of the “critical habitat” designation under the Endangered Species Act. The second is a case that will decide which obstacles property owners must face when challenging a government taking of their property.  

Scope of "critical habitat" designation

Under the federal Endangered Species Act, private property can be designated as “critical habitat” for an endangered species if the Secretary of the Interior determines the property to be “essential to the conservation of the species.” If designated as critical habitat, a property is effectively prohibited from being developed. While the secretary has broad authority to designate property as critical habitat, the limits of this authority are unknown. For example, could land be designated as critical habitat even if the endangered species does not and cannot inhabit the land?

In Weyerhaeuser Company v. U.S. Fish and Wildlife Service, the U.S. Fish and Wildlife Service designated more than 1,500 acres of private property in southeastern Louisiana as critical habitat of the endangered dusky gopher frog. However, this species of frog has not been found outside Mississippi for over 50 years and, in fact, the frog has never been seen within 70 miles of the subject Louisiana property. Moreover, the frog could not survive on the subject land if it wanted to without significant and costly changes to the property, such as conducting yearly burnings, planting different trees and digging new ponds. In other words, if someone drove the frog from Mississippi to Louisiana and placed the frog on the subject property, the frog would not survive. 

As acknowledged by the U.S. Fish and Wildlife Service, the designation of the subject property as critical habitat has made the property virtually undevelopable and could cost property owners approximately $34 million in lost revenues over the next 20 years.

The property owners filed a lawsuit in a federal district court, and the court upheld the designation but called it “remarkably intrusive.” On appeal, the U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision, finding that the U.S. Fish and Wildlife Service’s critical habitat determination was entitled to deference by the court, despite the fact that the frog does not inhabit the land. 

At the U.S. Supreme Court, the owners argued that the Endangered Species Act unambiguously requires habitability for critical habitat designation and that the lower court’s ruling expanded the scope of the act by making it easier to designate uninhabited land as critical habitat. The case is significant because a ruling by the Supreme Court that upholds the lower court’s decision could result in any property being classified as potential critical habitat for endangered species even if the species does not live nor could ever live on the property.

Government taking of property 

One of the fundamental rights of property ownership is the right to exclude others from entering onto your property. Like other property rights, this right is supposed to be protected by the Fifth Amendment of the U.S. Constitution, which requires the government to fairly compensate you if it takes your property. The Knick v. Township of Scott, Pennsylvania case explores the issue of government taking of property.

In Scott Township, Pennsylvania, some property owners lost this fundamental right. The township enacted an ordinance that broadened the definition of “cemetery” to include suspected cemeteries and requires all cemeteries on public or private land to be open and accessible to the public during the day. The ordinance also authorizes law enforcement officials to enter and inspect private property within the township to determine if a cemetery exists, and the ordinance established a penalty up to $600 per violation. 

Scott Township resident Rose Knick owns a 90-acre farm in the township, and her property, like many other rural properties, has various piles of rocks located throughout the property. According to Knick, the property is surrounded by a stone fence, and farmers who have rented her land have created several piles of rocks they dig up while plowing. The property has no records of ever being a burial site. 

Nevertheless, law enforcement officials entered onto her property, found the rock piles and believed them to be burial sites. Based on this determination, the township declared her property a cemetery and then issued a notice requiring Knick to allow the public to enter onto her property during daylight hours or face the threat of paying daily fines. 

Knick filed a complaint in state court for a taking of her property, but the court declined to rule until the township actually prosecuted her. She then filed a similar claim in federal court, but the federal court dismissed her claim based upon a 1985 case, Williamson County v. Hamilton Bank, which prevents property owners from filing takings claims in federal court until they exhaust all options at the state level. Knick filed an appeal with the U.S. Supreme Court, asking the court to overturn the Williamson case, and the court agreed to hear her case. 

In essence, the Williamson case treats takings claims, and thus private property rights, differently than other constitutional claims. For example, if the township had entered onto Ms. Knick’s farm without a warrant, she could file a Fourth Amendment search and seizure claim in federal court. The same is true if she wanted to file a First Amendment free speech claim if she were prohibited from placing political signs in her yard. Thus, the Williamson case has resulted in very few takings cases decided by federal courts. 

Impact of a Kavanaugh-less court

With the retirement of Justice Anthony Kennedy who was considered a swing-vote justice, and the recent confirmation of Justice Brett Kavanaugh who is considered a conservative member of the court, it’s easy to believe these cases present an opportunity for favorable outcomes in the area of protecting property rights. However, the Supreme Court heard the Weyerhaeuser case on October 1, 2018, and the Knick case on October 3, 2018 — several days before Brett Kavanaugh was confirmed by the U.S. Senate. This timing means that Justice Kavanaugh is unable to participate in the cases, according to Supreme Court rules, leaving only eight justices to decide the outcome of both cases. If the court ends up in a four-to-four tie, the lower court decisions will be upheld, which would be unfavorable for private property rights interests. 

The cases will likely be decided in spring 2019.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.