The Injustice of Jumping Mice

Stephen Moore:

"Here in Colorado, the hottest political issue of the day may not be the war in Iraq or the out-of-control federal budget, but rather the plight of a tiny mouse. Back in 1998, a frisky eight-inch rodent known as the Preble's meadow jumping mouse gained protective status under the 1973 Endangered Species Act (ESA). What has Coloradans hot under the collar is that some 31,000 acres of local government and privately owned land in the state and stretching into Wyoming--an area larger than the District of Columbia--was essentially quarantined from all development so as not to disrupt the mouse's natural habitat. Even the Fish and Wildlife Service concedes that the cost to these land owners could reach $183 million.

What we have here is arguably the most contentious dispute over the economic impact of the ESA since the famous early-'90s clash between the timber industry and the environmentalist lobby over the 'endangered' listing of the spotted owl in the Northwest. That dispute eventually forced the closure of nearly 200 mills and the loss of thousands of jobs. Last week the war over the fate of the Preble's mouse escalated when a coalition of enraged homeowners, developers and farmers petitioned the Department of the Interior to have the mouse immediately delisted as 'endangered' because of reliance on faulty data.

The property-rights coalition would seem to have a fairly persuasive case based on the latest research on the mouse. It turns out that not only is the mouse not endangered, but it isn't even a unique species."

Mr. Moore tells an interesting story. I haven't followed the plight and politics of the jumping mouse myself, so I won't offer an evaluation of the story he tells.

I do get nervous when I hear that government has decided to tell land owners that they cannot develop land that belongs to them, especially when the reason given for forcing such a restriction in choice involves a mouse or any other critter. I think in such cases there is a fundamental question: Who owns the critter? I think there are probably only three answers to choose from.

One would be that the owner of the property the critter is on owns the critter. Certainly if the critter, or mouse in this case, is living on the property so that we would say the property is habitat for the critter, then we have to say the property owner at least owns the critter's habitat, and it might be sensible to say the property owner therefore owns the critter. Of course, if this is the answer to the question, then the property owner can, according to the usual meaning of property rights, do with her property as she wants, including destroying her own property, which in this case would be either the critter or the critter's habitat. Now, in general, a person cannot use what they own to harm the person or property of another. But, in the case at hand, if the property owner owns the critter, then killing the critter cannot be said to harm anyone else. The critter belongs to the property owner, and not to anyone else.

A second possible answer I think many have given in such circumstances as these is that no one owns the critter. Such an answer will not save the critter from its demise. After all, if the property owner doesn't own the critter, but no one else owns the critter either, then killing the critter harms no one else. Add to this the clear observation that the property owner owns the land the critter uses for habitat, and it is even more clear that this answer to the question cannot save the critter. The property owner can develop her land, and thereby destroy the critter habitat, and no one else can claim harm. To claim harm, I believe someone else would have to be able to assert a well-defined property right that could be enforced.

A third possible answer to the question might be that government owns the critter. This has some potential for saving the critter from its demise. If government owns the critter and the property owner kills the critter, then the property owner has acted in a way that harms the person or property of another (in this case government). This would then provide the classic role for government in protecting private property from harm by the actions of others. But, there is much more to this story. We may say the government owns the critter, but clearly, the government does not own the critter's habitat. Some other property owner owns the critter's habitat. Government's critter has been gaining free "room and board"from the property owner. Since government does not own the habitat, it cannot tell the owner of the habitat how to use the property. If the property owner decides to develop the property and thus destroy the "room and board" services enjoyed by the critter, it seems to me government cannot simply declare that it will use force to stop such a decision from being carried out. Instead, if the government wants to continue to have its critter utilize the "room and board" services of the property owner's property, then it is going to have to buy or lease those services. Actually, it seems to me the government should all along have been paying for the "room and board" services enjoyed by its critter.

So, this is why I get nervous when government says it will use force to stop a property owner from using her property as she wants in order to protect a critter. Either the critter is no one's critter, and the property owner's choice to develop harms no one else. Or the critter actually belongs to the property owner, and the owner can destroy her property if she wants. Or, government owns the critter, but not the habitat. To protect government's critter then, government should either buy or lease the habitat services from the property owner. I think all three views point to the same conclusion. If government chooses to use force to stop property owners from developing, then government is trying to force a lease or purchase of habitat at zero expense. I think doing this is wrong, even unjust. And, this brings us to the Constitution.

Specifically the Takings Clause of the 5th Amendment, which probably says in this case that government can take private property because it is habitat for government's critter. I suspect that such a taking of private property would be for a public use, i.e., housing for publicly owned critters. But, such a taking is constitutional only if government also pays just compensation. If government chooses to forcibly take a lease (or outright take the habitat), then constitutionally this should only be allowed when government also pays just compensation. Therefore, it seems that government has in the past been trying to unconstitutionally gain something for nothing.

Which brings me to this final question. If government had to pay to save its jumping mouse, or more generally any of its critters, would government choose to do so? My answer is that government would simply say it could not afford to make such a choice very often. Therefore, the choice to forcibly take property without just compensation in order to protect government's critters seem a flagrant injustice.