Norton urged a weaker endangered-species law

Mark Obmascik / Denver Post 13jan01

Speeches by Gale Norton [1996 Speech | 1989 Speech]

Gale Norton once urged the U.S. Supreme Court to scale back the same Endangered Species Act protections she would enforce as interior secretary.

As Colorado attorney general in 1995, Norton signed a legal brief asking the high court to overturn broad protections that Interior Secretary Bruce Babbitt gave rare animals under the Endangered Species Act. The court ultimately ruled 6-3 for Babbitt, and against the argument signed by Norton.

At issue was whether the Endangered Species Act protected the habitat as well as the actual rare animal living on private and state land. Natural resource experts said it was the most important ruling in an environmental case in two decades.

If Norton's view had prevailed, "you could chop down a tree with an eagle nest on private land without it being (an illegal) take," said David Getches, a University of Colorado law professor and former Democratic natural resources official who hasn't taken a formal position on Norton's nomination.

"This is enormously significant. There would be a huge hole in the enforceability of the Endangered Species Act. It certainly raises doubts about the vigor with which she'll enforce the Endangered Species Act," he said.

However, Norton's defenders say the court action shouldn't be overemphasized.

Norton, who as interior secretary would be the main enforcer of the Endangered Species Act, has declined interviews while the Senate considers whether to approve her as a member of President-elect George W. Bush's cabinet.

Norton's former solicitor general in Colorado, Tim Tymkovich, said she signed the brief, written by Arizona Assistant Attorney General Mary Mangotich Grier, because of worries that the Endangered Species Act could unfairly limit the economic value of 3 million acres of land owned by the state government in Colorado.

"She didn't write the brief. She did sign on to it," Tymkovich said. "It would be a mistake to over-interpret it. Gale supports the Endangered Species Act. Gale will take a very balanced approach. She will listen to all of the affected groups."

On the legal brief, Norton listed her client as the state of Colorado, but the head of the Colorado Department of Natural Resources at that time, Jim Lochhead, said: "I don't recall any communications with her office on that case. I don't think the agency had a particular view that we took on that case."

Norton's former colleague, Tymkovich, said he couldn't recall how Norton became involved in the case. But it wasn't unusual for Norton, as attorney general, to sign Supreme Court amicus briefs without first consulting the state agency involved in the issue, he said.

The case, Babbitt vs. Sweet Home Chapter of Communities for a Great Oregon, arose over federal logging restrictions to protect the northern spotted owl.

The Norton-endorsed legal brief featured two themes that have proven controversial for the former Colorado AG - her belief in states' rights against the federal government, and her belief in compensation to people whose private property rights are curtailed by government regulation.

In the Sweet Home case, loggers protested how the federal government restricted logging on private and state land to protect the owl.

The federal government, led by Interior Secretary Babbitt, said the Endangered Species Act banned the "harm" of a protected animal, and that "harm" could include damage to the animal's habitat. But critics sought a more narrow definition of "harm," saying it should be limited to direct threats to a protected animal, such as the deliberate shooting or poisoning of a spotted owl.

Norton's brief supported a more limited definition of "harm."

"The worthiness of (the Interior Department's) goal cannot justify its unauthorized use of the "harm' regulation to criminalize ordinary land use in order to coerce states and other entities to make nonfederal lands available as wildlife habitat without compensating landowners for the use of those lands," the brief stated.

"This court should not permit a single-purpose federal agency to override the political process and usurp state authority over land uses, which are fundamental to the health and welfare of citizens," according to the brief.

The Norton-endorsed argument would have resulted in big changes for endangered species. More than eight of every 10 species now protected under the Endangered Species Act were pushed to the brink of extinction because of habitat destruction, not hunting, trapping or poisoning, said Jim Angell of the Earthjustice Legal Defense Fund.

And up to half of all federally protected species live almost exclusively on private or state land, not federal land, he said.

"Gale Norton seems to think that the only way to protect species is to buy up all their lands. That's an extremist view, and the Supreme Court didn't buy it," Angell said.

Text of Gale Norton's 1989 property rights speech

Symposium of the Independence Institute (a Golden-based think tank)

"Taking Analysis of Regulations"

Because the panel already has discussed why property is both an enemy and an ally of regulation, I will move immediately to a discussion of how to protect property from excessive regulation. How do we restore a regime of property rights? I would like to discuss a few things happening on that front.

This Symposium occurs at an appropriate time: March 15, 1989, is the first anniversary of the issuance of President Reagan's Executive Order 12,630 dealing with takings. It is surprising that the Executive Order has received so little publicity because it is a unique approach to the issue. It asks the federal agencies to move beyond their environmental and regulatory impact analysis, and to perform a takings impact analysis. The agencies are asked to examine their regulations and determine whether the regulations are likely to cause takings of property and, if so, to estimate what effect the regulations will have on the federal budget. As might be expected, the agencies are not wildly enthusiastic about performing takings impact analyses. The agencies tend to believe that they are not taking anything and that they should never have to pay compensation. Nevertheless, it appears that the agencies are beginning to develop plans for performing analyses in accordance with the Order.

Compensation is the key issue in any analysis under the Takings Clause. First, of course, compensation provides fairness to the person who is harmed by the regulation or other government action. The classic rationale for compensation is that, in fairness and justice, one individual should not be forced to bear the burden that ought properly to be borne by society as a whole. Second, compensation tends to limit government action. Even though bureaucrats enjoy the benefit of spending other people's money, their actions are constrained by their agency's budget. If the government must pay compensation when its actions interfere with private property rights, then its regulatory actions must be limited. This constraint also results in a limitation to transfer activity. If compensation is paid, the political system must take into account some financial costs. Therefore, some brakes are applied on political redistribution as compared with a system that puts everyone's property rights up for grabs.

Finally, the payment of compensation helps encourage the resolution of social problems by private, voluntary contractual arrangements rather than by regulation. It may appear cost-free to work out conflicts by regulation because the costs are off-budget. But when regulations impose burdens on private individuals, the costs are borne by the private sector and are not considered in the democratic decision making process. As those costs are returned to the budget by payment of compensation, we will start looking at alternatives to regulation that may in the long run be more beneficial.

President Reagan's Executive Order on takings has generated significant disapproval from the environmental community, including criticism from Jerry Jackson, a former attorney for the National Wildlife Federation. He said the Executive Order mandates an impossibility because it requires the agencies to determine under the current takings law what actions might be unconstitutional takings. I agree with him on this point. The takings case law is currently such a mess that it is difficult to ascertain what is and is not a taking. The Supreme Court has not provided clear guidance in this area.

I, however, disagree strongly with Mr. Jackson about the role of the Constitution in executive agency decision making. He seems to believe that the only way the Constitution figures into an executive agency's decision is that, long after the fact, a court finally addresses the issue and decides that there was indeed a taking. Before a court's decision, the agency should be oblivious to the takings implications. Mr. Jackson says, "Whether a permit denial might be construed by a court to effect a taking is not a relevant factor in an agency's decision to grant or deny the permit absent express legislative authority making it a factor." I would be very interested to see that legislative authority. It would have to say something like, "In this case, the Constitution applies." Mr. Jackson also notes that the Executive Order on takings may have a chilling effect on regulation. I view that as something positive.

I consider next the formulations that might be used in deciding when an environmental regulation is a taking and ought to result in compensation. An exception to the compensation requirement has been recognized when the government acts pursuant to the police power or restrains public nuisances. The exact scope of this exception is not clear. Because we are looking at alternatives, I will act like a good bureaucrat and look at the extreme alternatives.

Let us first assume that there is absolutely no police power or nuisance exception to the takings rule. The government pays whenever it regulates in a way that interferes with private property rights. In a way, this regime would be easy to administer. One would simply look at the property values before and after the regulation is imposed to determine the amount of compensation. But under this regime, the government would have to pay for all types or regulations- even those that halt the worst criminal offenses. (One wonders what the compensation to criminals would be for closing down a crack house- probably mind-boggling.) In such a case, we have little justification for taking money from the taxpayers to pay someone not to engage in socially inappropriate or criminal behavior. Such cases also pose the danger of someone coming back time and time again with, "Well, last time you paid me to close down a crack house. Now it's time to pay me to close down the bordello, and next week you can pay me to close down whatever I dream up next time." The model is open to exploitation by repeat offenders.

At the other extreme, let us assume that the government does not have to pay at all unless it chooses to label its action condemnation. Again, such a regime would be easy to administer. In fact, it would be facile. The government never would have to worry about what it takes, but individual rights clearly would not be protected. One formulation that actually has been adopted by the courts is a nuisance exception: No compensation is due if a taking is performed pursuant to the police power in regulating a nuisance. Unfortunately, this is often expressed as a broad police power exception: Compensation need not be paid for government actions undertaken pursuant to the police power. The problem with this approach is defining the police power. The police power may be interpreted very broadly, as it was, for example, in the License Cases of 1847: "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." This definition covers far too much. No regulatory taking would ever be compensated. Furthermore, there is no textual support in the Constitution for an exception to the takings rule for police powers. A further problem with a broad police-power exception to the compensation requirement is that the public-use requirement in the Takings Clause has been interpreted as being "coterminous" with the police power.

Combining a policepower exception to the compensation requirement with a policepower definition of what is a public use leaves an empty box as to when compensation would be awarded. A taking would be appropriate if performed pursuant to the police power and pursuant to public use, but no compensation would be necessary because it falls within the police-power exception.

A much better formulation focuses on the extent of the property rights involved. Presumably, there is no actual property right in maintaining a nuisance. Thus, government is not involved in a taking when it halts a nuisance because there is no property right to take. The Keystone decision states this rule, but the analysis in the opinion proceeds to ignore it. There was clearly a property right under state law in that case, but the Supreme Court proceeded as if there were no such right. Another crucial step in the analysis is defining a nuisance, including determining whether a nuisance is to be interpreted by the common law, and deciding whether nuisance is synonymous with a negative externality. It they are synonymous, then aesthetic harms are problematic. Let me give you an example. I am from Denver. I am a Broncos fan - at least I watch about half of every Super Bowl game in which they are involved. A few years ago, when we were in our first Super Bowl, there was a craze to paint one's house Bronco orange. If I lived across the street from one of those houses, I would view the aesthetic harm to myself as an interference with my right to use my property, but I doubt that we want to regulate such aesthetic harm.

A different way of identifying a nuisance is to require a physical invasion of neighboring property. A physical invasion test eliminates the problem of aesthetic harm. But physical invasion standing alone is not necessarily a nuisance. There must be some additional element of harmfulness, undesirability, or inappropriateness.

Another alternative is to consider some kind of reasonable right to use our property. In the Nollan case, Justice Scalia, writing for the Court, noted that the right to build on one's property was an actual right and not a government-granted privilege. Regulation of this right may have very significant repercussions in future land-use litigation. Interestingly, we might even go so far as to recognize a homesteading right to pollute or to make noise in an area. This approach would eliminate some of the theoretical problems with defining a nuisance. Moving beyond the question of defining the nuisance exception to the just compensation requirement, I would like to summarize a few other key components of current takings analysis. In evaluating regulatory takings, particularly in the land-use context, the Court often employs a diminution in value test.

Under this test, if a regulation goes too far, it is a taking. The question, as phrased by the courts, is whether the regulation denies the owner all economically viable use of the property. Under this test, the courts have found that diminutions in value of seventy-five percent to almost ninety percent are not sufficiently severe to constitute takings. Another question is whether a regulation substantially advances a legitimate state interest. This is similar to the requirement of having a public use for the taking under the Fifth Amendment, and therefore it does not provide us with a satisfactory test of what should and should not be compensated. It focuses on what the government is properly empowered to do, not at what it can do on the condition that it pay compensation. Although this test has been frequently reiterated by the Court, it has seldom been used to strike down an uncompensated taking. One other approach if the bundle of rights test. An interference with a particularly important strand in the bundle of rights may constitute a taking. This test has not yielded particularly enlightening results. A right to exclude others and a right to pass to one's heirs are significant and denial of these rights will be deemed a taking. On the other hand, ownership of a support estate as part of a mineral interest or the right to sell property, are not considered significant and compensable.

An emerging way of looking at the question is the nexus requirement that is set forth in the Nollan decision and that is discussed extensively in Executive Order 12,630. This analysis requires that conditions put on permits have the same health and safety objectives, and substantially advance the same objectives, as the denial of a permit would serve. A good example of such an approach is the case of wetlands dredge and fill permits. The purpose of the wetlands regulatory program is to protect water quality. Its application has been judicially and administratively expanded to protect wetlands values. Frequently, conditions are placed on dredge and fill permits that have no relationship to the overall purpose of the regulatory program, such as providing recreational boat ramps and docks. It will be interesting to watch how these issues are treated as the Executive Order analysis develops.

In this discussion, I have not examined a number of other formulations in the takings context - compensating benefits and so forth - that further complicate the whole analysis. As the preceding discussion indicates, the analysis at this point is very confused and inconsistent. This confusion, however, creates an opportunity for a major shift in takings jurisprudence, toward a greater protection of property rights.

Text of Gale Norton's 1996 speech on the 10th Amendment

Stevinson Center's Annual Institute in Vail

"Rediscovering the 10th Amendment"

Gale Norton, Colorado Attorney General

The issue of the 10th Amendment is something that even with a Republican Congress in place, it is still alive and well as an issue.

Just a couple of days ago I met with the Assistant Attorney General for the Department of Justice, who is in charge of land and natural resource issues. She quite explicitly threatened the State of Colorado and other states because we had the audacity to adopt something in environmental area that we in Colorado think makes sense but the Federal government doesn't agree. We'll have the opportunity to do battle once again on the issue of the state being able to make its own decisions. This is not something that is a battle that we have won and we can forget about. This is a battle where we are still very much in the trenches in trying to make a difference.

The 10th Amendment is part of our Constitution. It says the powers that are not delegated to the Federal government by the Constitution are reserved to the states respectively, or to the people. It is, unfortunately, an amendment that through time has not been given the power that one would think that it should be entitled to. The courts have not been strong defenders of that amendment. We've seen the cases sort of ping pong back and forth, with the states very often losing the ground that we've managed to gain. Part of that has been because we seem to be plagued by bad facts in these cases; bad facts make bad law.

Not too long ago what we thought we had a tremendous 10th Amendment case to bring for the State of Colorado, and some of my attorney's were very excited about this case. It seems the Federal government had a specific directive that the state was being required to follow that dealt with the construction of the state capitol building. Now, what could be more part of the state's own decision making then how it's own state capitol is going to be constructed? Great, terrific, we could take that to court, we might be able to win. Expect it has to do with this really ugly addition to the state capitol; it's the wheel chair ramp required by the Americans with Disabilities Act. Cooler heads less excited about legal theory prevailed and said no, we really don't want to be fighting this one. Time and again we see that the states end up on the losing side in having to say we fight against this Federal policy when all the Feds have to say is this is a great idea.

I recall my very first battle on the 10th Amendment. It was dealing with the states vs. the Environmental Protection Agency. Colorado was one of a number of states that stood up against the first version of envirotest. The first time we started with automobile inspection and maintenance, one of our Colorado legislators, who was an engineer, had an idea of how to deal with automobile emissions inspections in the state. But it wasn't what EPA wanted, and the EPA said unless you adopt exactly what we want we're holding $240 million dollars of Federal highway funds hostage. They said we would not get that money unless you adopt exactly what we want.

Well, we went to court and I represented the Colorado legislator. And when went in for our oral arguments in front of the 10th Circuit. As it would happen that day, we awoke for the day of the oral argument, looked out the window and it was one of those days you'll remember when we could barely see across the street because the smog was so bad. I said, I think we're in trouble. We managed to prevail in the court, which gave us 90 days in which to resolve the issue. As the end of those 90 days came near, the legislature finally lost its resolve and said we can't just risk $240 million dollars in funding so we have to pass EPA's version.

If the state had prevailed, if every state around the country had been able to look at its own way of dealing with automobile emissions, we might not have gone through this last two years of having envirotest as this untested new mechanism being forced down the throats of the people of Colorado. We'd have 50 different experiments for trying to deal with the issue of air pollution. We might have had much better experiments that would have gotten us much further along in solving those problems. I think one of the examples we need to remember is that we can use the issue of Federalism as a way of solving problems in a better way.

But to go back to the issue of bad facts and bad law. I recall, after I had just gone through this massive battle with the EPA on state sovereignty and states rights, visiting the east coast. For the first time, I had the opportunity to wander through one of those Civil War graveyards. I remember seeing this column that was erected in one of those graveyards. It said in memory of all the Virginia soldiers who died in defense of the sovereignty of their state. It really took me aback. Sure, I had been filing briefs and I thought that was pretty brave. And then there were times we looked beyond the substance. When we looked at the decision making process.

And understood the 10th Amendment was part of that separation of powers. It was part of what was supposed to guarantee that our government would remain limited. What would guarantee our freedom? Again, we certainly had bad facts in that case where we were defending state sovereignty by defending slavery.

But we lost too much. We lost the idea that the states were to stand against the Federal government gaining too much power over our lives. That is the point I think we need to reappreciate. We need to remind ourselves and remind the political debate that part of the reason the states need to be able to make their own decisions is to provide that check in our Federal system against too much power going to Washington.

As I've talked with people all over Colorado, so many times I hear people talking about their cynicism. They don't trust government anymore. They don't think government makes decisions that serve their interests. Too often it's because its viewed as Washington, where all the decisions are made. We need to return power back to states, back to local communities, so we can restore that citizenship we talked about earlier. We must restore the idea that people can have control over their own governments. How do we go about doing that? What is our strategy?

First of all, I need to enlist all of you in helping us fight that battle. There are countless examples of the ways in which the Federal government has passed rules that have become goofy by the time they get to our level. We know that the Federal Government has imposed, at last count, according to the U.S. Conference of Mayors, $54 billion dollars in mandates on cities. That the simple issue of asbestos removal in schools is estimated to cost local school districts $200 billion dollars by the time it is all put into effect. There are examples after examples of the issues that are ruled on by the Federal government that don't make sense here. We fight on a daily basis, in my office against those mandates.

We have, for example, the Fair Labor Standards Act. Who could object to Fair Labor Standards? The idea that somebody works 40 hours you should pay them for 40 hours. If they work overtime you ought to pay them for overtime - except when it gets in the way of decisions that we have made ourselves, that are based on our own understanding of common sense. Did you know that for a local government official, a government employee, to go volunteer for the volunteer fire department for that community violates the Fair Labor Standards Act? They can't volunteer, they have to be paid. Does that make sense? Of course not. But that's one of those directives that comes across the board from Washington that doesn't make sense here. We have to fight this battle not just in Washington, not just in the U.S. Supreme Court, but time after time in our local communities, telling people how it impacts our local communities for those decisions to be made in Washington. We need to collect up those horror stories so we can communicate those and really make a difference. This is a battle that is going to have to be fought for the long term.

On the Federal side, there are actions that we can take. Having Congress simply identify the source of their constitutional power before they take action is something that can make a tremendous difference. Let's imagine, for example, the debate on something that none of us can object to from a policy perspective: the Violence Against Women Act. The Federal government decided it really needs to step in and do what the states haven't fully done, which would protect us from those who would do violence to women. What Federal power are we talking about? Commerce power? Is it interstate commerce when you're talking about domestic violence? I don't think so! Is it national defense? Not exactly. You can go through the whole checklist. When you start having that kind of debate again on the floor of Congress, it will start making a difference to shift that power back to where it belongs.

We must talk about what our Constitution says. It's talking about how we can empower local communities to respond to national crisis. We need to look at the identity of those who judge the 10th Amendment, our judges. That's a whole other lecture I could give you, but that is an incredibly important issue to focus on during this Presidential election cycle. Who is it that is appointing our judges, and what values do they reflect and what position on the Constitution do they reflect?

How do we deal with unfunded mandates? Most of the discussion so far has talked about new mandates, not about going back to existing mandates. To start reeling those back in, to start returning money as well as responsibility back to states and local communities, are decisions we have to make, that we have to fight for. Just as free markets triumphed over communism, we are in a time when the intellectual debate is shifting; when we are part of the framework that will make these things happen; when we can be part of the intellectual battle that shift power from Washington back to states and local communities.