DATE: Friday, April 25, 1997 TAG: 9704250002 SECTION: LOCAL PAGE: B10 EDITION: FINAL TYPE: OPINION SOURCE: BY NANCIE G. MARZULLA LENGTH: 83 lines
For more than a decade, property owners near the Great Dismal Swamp in Southeastern Virginia and Northeastern North Carolina lived in fear of a rodent no larger than your pinky finger. The problem with the Dismal Swamp Southeastern shrew was not that it was infesting homes or eating crops; this varmint was destroying property rights.
The shrew was protected by the federal government under the Endangered Species Act. The U.S. Fish and Wildlife Service, however, just announced it has begun the process of removing the rodent from its list of ``threatened'' plants, insects and animals. A victory for federally imposed environmental protection? Hardly. A privately commissioned study discovered the shrew is actually plentiful and has a larger habitat than the government thought when the shrew was listed in 1986.
In the meantime, property owners with land on the protected shrew's habitat were forced to spend millions of dollars to alter their plans to accommodate the rodent. We are not just talking about private development, mind you. Several public projects were forced to spend hundreds of thousands of extra dollars to make sure they did not disturb the shrew - costs that are inevitably passed on to the taxpayers:
The city of Portsmouth was forced to spend $300,000 to replace shrew habitat disturbed to install a water line.
``Several good companies'' decided not to move to Chesapeake due to concerns about delays or complications resulting from the shrew's listing, according to Chesapeake Economic Development Director Donald Z. Goldberg.
The Virginia Department of Transportation is creating dozens of acres of habitat in order to upgrade two state highways.
Construction of a bridge in Virginia Beach was delayed for more than a year because construction might have affected a suspected shrew habitat.
Many affected property owners, along with the government, funded a scientific study to make sure that the listing of this shrew had merit. After years of slogging through swampland, researchers from the University of North Carolina at Wilmington and Old Dominion University found the rodent population in coastal North Carolina to be quite large. They even found that the habitat stretched inland more than 50 miles.
Although the abundance of the rodent has been all but confirmed since 1995, the Fish and Wildlife Service has only now funded the de-listing of the Dismal Swamp Southeastern shrew - a process that will take an additional 16 months to complete. But what will be done about the landowners who were denied the use of their property all these years? Sadly, unless they file a lawsuit seeking the compensation to which they are constitutionally entitled, the most they can expect from the federal government is an apology - and they will be lucky to get that!
These property owners have been unfairly forced to pay for a public good out of their own pockets. The fact that it was due to government error only makes matters worse. The government has an obligation to pay for the property it takes, even if it is only temporary. This duty has been disregarded for far too long.
The Fifth Amendment of the United States Constitution plainly states: ``nor shall private property be taken for public use, without just compensation.'' Despite this straightforward declaration - the only place in the entire document requiring the government to make payments - our modern federal government routinely enacts regulations that restrict the rights of landowners to make reasonable uses of their property. Since the existence of property rights is the cornerstone to safeguarding our other protected freedoms, something must be done to keep the Constitution from being reduced to a worthless scrap of paper.
The U.S. Supreme Court recently came down on the side of property owners in the case of Bennett vs. Spear, confirming that property owners could utilize a ``citizen's suit'' provision to challenge endangered-species listings that unfairly affect them. While this is a step in the right direction, more must be done. The Endangered Species Act itself must be reformed by Congress to include explicit guarantees of just compensation for the taking of property and more reliance on sound science.
A reasonable second look ``tamed the shrew'' in the Great Dismal Swamp. Property owners across America, however, are still waiting for the government to start taming its appetite in general for taking private property without payment of just compensation. MEMO: Nancie G. Marzulla is the president and chief legal counsel of
Defenders of Property Rights, a Washington, D.C.-based legal-defense
foundation. She is also the co-author of ``Property Rights:
Understanding Government Takings and Environmental Regulation,''
published by Government Institutes Press.
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