Memorandum: The Endangered Species Act and John Winesap's Property
This memo concerns the effect of the Endangered Species Act upon John Winesap's use of his property. Specifically, the memo will discuss whether Mr. Winesap may be forced to suspend the use of his property for the cultivation of apple orchids because of the existence of Least Bell Vireos on his property.
John Winesap has owned a piece of property since 1984, throughout which time he operated a small apple orchard on the property. This property is located next to the banks of the Santa Clara River, whose creek beds are home to the Least Bell Vireo bird. The Least Bell Vireo has been on the federal endangered species list since 1986. This bird builds its nests from plants located on and near Mr. Winesap's property. However, it has been discovered that the apple orchard activities are softening this plant, adversely affecting the ability of the bird to build its nests. As a result, the Department of the Interior has notified Mr. Winesap that his apple orchard activities are threatening the habitat of the bird.
Upon consulting with a biologist, Winesap discovered several things. First, there are at least five pairs of the bird living on his property, nesting in trees along the bank of the river. Second, there is no evidence of any dead birds on his property and all five pairs found appeared to be healthy. Third, since the bird was placed on the endangered species list in 1986, its population has increased from 300 breeding pairs to 550 breeding pairs.
Does Winesap's operation of an apple orchard on his property constitute a taking of the Least Bell Vireo under the Endangered Species Act?
The answer to this question is yes if it can be shown that his apple orchard activities will "harm" the bird, as this term is defined in the Endangered Species Act.
Section 1538 of the Endangered Species Act makes it unlawful for a person to "take any such s...