Federal Supreme Court supports our conservation work

The Federal Supreme Court has ruled that it is legal for the Swiss Ornithological Institute to purchase parcels of farmland to dedicate to the conservation of Eurasian Scops-owl. The Swiss Ornithological Institute can now continue its efforts to protect this threatened species.

In Switzerland, the endangered Eurasian Scops-owl is found almost exclusively in the Valais, which is why conservation measures in that part of the country are so important.
Photo © Marcel Ruppen

The parcels acquired by the Swiss Ornithological Institute in Grimisuat can now be managed to suit the needs of Scops-owls.
Photo © Jean-Nicolas Pradervand

The Eurasian Scops-owl came close to extinction in Switzerland. Twenty years ago, a single breeding pair and a few unpaired singing males remained. The drastic decline was related to increasing landscape homogeneity, intensive agriculture and loss of orchards to urban sprawl. Thanks to extensive protection efforts, the population has since grown to 30–40 breeding pairs, most of them in the Valais. Scops-owls require structured, semi-open landscapes with a mix of old trees and insect-rich meadows where the birds hunt for grasshoppers, their main source of food. They breed in old tree cavities or suitable nest boxes.

In spring 2017, the Swiss Ornithological Institute planned to purchase a few small parcels of farmland in the Valais municipality of Grimisuat to make targeted habitat improvements for Scops-owls. The institute was responding to a recommendation by the Valais Office for Forest, River Engineering and Landscape, our partner with whom we review and coordinate conservation measures for threatened bird species. Two parcels were slightly larger than 2,500 m², which meant that a change of ownership needed to be authorised based on the Federal Act on Rural Land Law. The Cantonal Legal Department for Economic Affairs denied the authorisation to purchase, and the appeal against that decision to the Valais Council of State was rejected. A new appeal brought before the Cantonal Court of Valais, however, upheld the decision in favour of the Swiss Ornithological Institute and authorised the purchase of both parcels. This judgement was then challenged before the Federal Supreme Court by the Federal Department of Justice and Police (FDJP).

The Federal Supreme Court has now rejected the FDJP’s appeal and has definitively confirmed the institute’s purchase of the parcels. In their judgement (ATF 2C_1069/2020 of 27 October 2021), the judges point out that the main purpose of the Federal Act on Rural Land Law (RLLA) is to avoid speculation on agricultural land and to ensure that these parcels remain in the hands of farmers. The RLLA should not, however, interfere with public responsibilities of equal importance, such as the protection of nature. For this reason, the Act provides for exceptions allowing the acquisition of agricultural land by non-farmers, as long as it is in the public interest. The protection of nature is one reason that justifies an exception to acquisition by a farmer in a personal capacity, provided that the parcels are formally protected or that their acquisition enables the conservation of a threatened species or rare biotope.

In the present case, the parcels are dedicated Scops-owl habitat, and the purchase is therefore legitimate. In fact, it is doubtful whether the parcels would have been preserved as farmland in the spirit of the RLLA. The previous owner, as the Federal Supreme Court took care to note, was not a farmer but a society planning to build a golf course on the land!

The ruling is a fundamental one, because it clarifies the application of the RLLA in cases where farmland parcels are acquired for the purpose of nature conservation. It is the first ruling on this issue. The Federal Supreme Court clearly stated that the purchase of land in the agricultural zone is an appropriate and proper instrument of conservation where threatened species and their habitats are involved.