GOVERNMENTS CAN BEHAVE in extreme ways when it comes to sacred animals. In Ancient Egypt, anyone who caused the death of a cat, even accidentally, was put to death. In India today, 20 of 28 states prohibit the killing or sale of cows, which in Hinduism are considered a sacred symbol of life. (The laws were upheld in 2005 by the Supreme Court of India.)
In the United States, the bald eagle is the closest we have to a sacred animal. It holds a place that no other animal does. The Founding Fathers chose the bird for the national seal in 1782. (Benjamin Franklin wasn’t wild about the choice—in a letter to his daughter, he called the bald eagle “a bird of poor moral character” because it steals food from other birds.)
For almost two and a half centuries, the eagle has been an American symbol: It’s on dollar bills, military insignia, government documents, and public buildings.
Environmental officials told Ed his land couldn’t be developed because it contained a single bald eagle nest in a pine tree.
And from the 1970s until 2007, landowners with a single bald eagle nest on their property were prevented from developing their own land. That’s because the bald eagle was on the Endangered Species list—initially for good reason: The eagle had almost disappeared in the lower 48 states. But in 1999, President Bill Clinton celebrated the bird’s recovery and announced the U.S. Fish and Wildlife Service would take the bald eagle off the Endangered Species list. There was no longer a rational reason to protect the bird as endangered.
But the agency never removed the bald eagle from the list. No one in the government, it seemed, was willing to actually remove legal protections for America’s national bird, even if it no longer needed those protections.
And even if some landowners were paying a high price.
Property Owners in the Crosshairs
ED CONTOSKI HAD a problem.
He was a 69-year-old urban planner who loved the outdoors, and he wanted to retire. He owned 18 lakeside acres in Central Minnesota. If he sold half to developers to turn into residential lots, it would bring him a good amount of money.
But environmental officials told Ed his land couldn’t be developed because it contained a single bald eagle nest in a pine tree. True, the nest was empty—but an eagle might return one day, the officials said.
This was back in 2005. At the time, the Endangered Species Act (ESA) discouraged human activity within 330 feet of bald eagle nests. “Disturbing” a bald eagle came with a $100,000 fine and/or a year in jail, with the potential to double or triple for any combination of eagles, eggs, and chicks. (The law was vague: What counted as “disturbing” a bald eagle was hard to determine, but the penalties alone discouraged anyone from finding out.)
In other words, Ed had land but couldn’t use it. “I can’t even cut firewood,” he later told The Washington Post. “I can’t trim a tree. I can’t do anything.” The government had effectively turned his property into a bald eagle reserve—over one empty nest.
The Not-So-Endangered Eagle
BY THIS POINT, the bald eagle had been on the Endangered Species list for more than 30 years. When Congress passed the ESA in 1973, the bald eagle was among the first species listed under the new law’s protections. It made sense at the time: When the bird was chosen as the symbol of the United States in 1782, there were an estimated 100,000 bald eagles in the lower 48 United States. But over the years, the population dwindled to almost nothing. (Poaching was one cause of the precipitous decline: Bald eagles prey on chickens and other domestic livestock and can wreak havoc on ranchers’ inventories. The eagles were once openly considered such a nuisance that in 1917 the government offered a bounty of a dollar per dead eagle. This resulted in over 120,000 confirmed kills.)
By 1963, only a few hundred bald eagles remained in the lower 48 (though they remained plentiful in Alaska). So, when Congress and federal regulators went looking for a “poster child” for the newly enacted ESA, the eagle was a no-brainer. After all, who could argue against enhanced protections for one of our most cherished national symbols?
The protections seemed to work: Through a combination of public and private efforts, the bald eagle population made a miraculous comeback. By the late 1990s, the recovery effort had been so successful that the U.S. Fish and Wildlife Service (FWS) was ready to delist the bird.
But despite setting deadlines, the agency didn’t follow through. Year after year, the bird remained on the list.
Meanwhile, the resurgent bald eagle population vastly increased the amount of potential habitat lands that would be subject to ESA regulations. A 2007 paper from the Reason Foundation estimated that the amount of land that was “stringently regulated” due to the presence of bald eagles was 5.6 million acres—roughly the size of New Jersey.
Members of Congress who supported the ESA were unhappy to see the law used as a weapon preventing regular people from using their own land.
This dynamic pretty much guaranteed ongoing conflicts between private property owners and federal wildlife regulators. In fact, members of Congress who supported the ESA were unhappy to see the law used as a weapon preventing regular people from using their own land.
“Our concept of the Act and what it was supposed to do, was, fundamentally, deal with a site-specific problem—a road, a bridge, or a dam,” said Senator Mark Hatfield of Oregon, who had voted for the ESA. “We never conceived of it being applied to millions of acres of public and private land that involves literally tens of thousands of people.”
Filing a Federal Lawsuit
TO ED, WHO CAME TO Pacific Legal Foundation with his story in 2005, it was a matter of fundamental property rights.
His lakefront land had been in his family since 1939—and his family, including him, had been diligently paying property taxes on the land every year.
“It’s unfair that we pay taxes all these years and now we can’t recoup that,” he told The Washington Post. “If it’s public benefit, let the federal government or the state pay us for it.”
Even ESPN reported on the lawsuit, accusing PLF of “wag[ing] war against environmental regulation” by trying to delist the “eagle with the piercing stare [that] has symbolized America and freedom itself in almost every imaginable way.”
Ed passed away in 2020. Back when we met him, he was a strong-willed libertarian who’d been writing and speaking about government overreach since the 1970s. (When he met with The Washington Post, the newspaper noted that Ed refused to buckle his seatbelt. Seatbelt laws infuriated him. “I’ll be [expletive] if I’ll wear it if the government insists,” he told the Post.)
Ed was determined to defend his rights as a landowner, and PLF was determined to help him—despite knowing we’d draw backlash from people who felt it was un-American to remove legal protections for the bald eagle.
“It’s the national symbol,” an endangered species advocate for the Environmental Defense Fund reminded The New York Times after PLF filed a lawsuit against the U.S. Fish and Wildlife Service on Ed’s behalf. Even ESPN reported on the lawsuit, accusing PLF of “wag[ing] war against environmental regulation” by trying to delist the “eagle with the piercing stare [that] has symbolized America and freedom itself in almost every imaginable way.”
When PLF took up Ed’s case, we found the FWS was ignoring the deadlines they’d been given. Bureaucracies are slow-moving by nature—especially with something they don’t want to follow through on.
But with tens of thousands of bald eagles now making a home in the lower 48 states, landowners like Ed were bearing the costly burden of the government’s delinquency. They had a right to use their property. The Constitution protects individual property owners from government takings, Ed told the Post. “It doesn’t say, ‘unless eagles need a home.’”
By filing a lawsuit, we could force the government to follow its own deadlines—and get rid of an irrational restriction.
The Result of the Case…
IN AUGUST 2006, WE SCORED A VICTORY: A district court judge ruled the government needed to remove the bald eagle from the Endangered Species list by February 16, 2007, or provide reasoning why further delays were necessary.
With the delisting now unavoidable, environmentalist groups moved to declare the recovery of the bald eagle population a success story. Some even gave a nod to Ed Contoski for getting the government to finally recognize the bald eagle was no longer endangered. A lawyer for the National Wildlife Federation said Ed deserved credit “for getting a deadline imposed.“
Meanwhile, PLF took on other Endangered Species Act cases. A decade after we represented Ed Contoski, we sued the U.S. Fish and Wildlife Service on behalf of Louisiana landowner Edward Poitevent, whose land had been declared a “critical habitat” for the endangered dusky gopher frog—despite the frog not being spotted in the entire state of Louisiana, let alone on Edward’s land. In 2018, we won that case at the Supreme Court. It was yet another victory for property rights, and another reminder to the government that it can’t use the Endangered Species Act to reserve private property for animals who don’t even need it.
