Twenty-five years ago, when the ESA was enacted with overwhelming support in the Congress and Senate, few legislators would have foreseen the controversy it would create. When signed into law there were believed to be only 109 species needing protection; however, in the interim this has grown to 1,177 species, with 60 percent being plants. Of these, approximately 90 percent are found on private lands. Only twenty-seven species have ever been delisted, sixteen of which have either disappeared or were originally listed by mistake. The ESA (ESA) of 1973 gives government the ability to restrict a landholder's activities on private lands if an endangered species is found upon them. Private landholder actions are restricted in two ways by this legislation. Under current interpretations of Section 9 of the Act, the landholder may not engage in activities that threaten a listed species directly, and landowners are forbidden to “take” without permit any endangered species on their land. Further, they also may not engage in any activity that significantly and adversely modifies the habitat of an endangered species (Innes, Polasky, and Tschirhart 1998). These restrictions have resulted in a number of legal confrontations and the Act has come to symbolize to some all that is wrong with “big government.”

Recent legal debate has concentrated on what these controls actually imply. On the one hand, by limiting the activities a landholder can engage in on their own land, the government has effectively “taken” the land even though private ownership is maintained.