{"id":2696,"date":"2023-04-11T11:00:16","date_gmt":"2023-04-11T15:00:16","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2696"},"modified":"2025-12-22T15:25:15","modified_gmt":"2025-12-22T19:25:15","slug":"of-takes-and-takings-how-the-endangered-species-act-interacts-with-the-fifth-amendment-takings-clause-kyle-eiswald","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/of-takes-and-takings-how-the-endangered-species-act-interacts-with-the-fifth-amendment-takings-clause-kyle-eiswald\/","title":{"rendered":"Of Takes and Takings: How the Endangered Species Act Interacts with the Fifth Amendment Takings Clause \u2013 Kyle Eiswald"},"content":{"rendered":"\n
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Of Takes and Takings: How the Endangered Species Act Interacts with the Fifth Amendment Takings Clause<\/h2>\n\n\n\n

Kyle Eiswald*<\/a><\/strong><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

In 1973, the Endangered Species Act (hereinafter \u201cESA\u201d or \u201cAct\u201d) was \u201cthe most comprehensive legislation for the preservation of endangered species ever enacted by any nation.\u201d[1]<\/a> Its stated purposes are broad: \u201cto provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved\u201d and to \u201cprovide a program for the conservation of such \u2026 species \u2026\u201d[2]<\/a> Through the listing of endangered and threatened species and the designation of critical habitat,[3]<\/a> the ESA protects over 1,300 species[4]<\/a> in an area of over 105 billion acres.[5]<\/a><\/p>\n\n\n\n

While conservation of wildlife is a worthwhile endeavor, it comes with costs. One extreme example was Tennessee Valley Authority v. Hill<\/em>.[6]<\/a> In that case, the Tellico Dam Project was enjoined after the Secretary of the Interior listed the snail darter as an endangered species.[7]<\/a> More than one hundred million dollars had been spent, and the dam was over 80% complete at the time of the injunction,[8]<\/a> but the Court found that it had no choice based on the clear text of the Act.[9]<\/a><\/p>\n\n\n\n

Though there was no takings claim raised in Tennessee Valley Authority<\/em>, this paper seeks to explore the feasibility of a Fifth Amendment takings challenge in situations where private land owners and development interests conflict with the ESA. Part I will provide an overview of the Court\u2019s takings jurisprudence. Part II will look at various provisions of the ESA and some cases to see how the Act affects private landowners. Part III will assess the interaction of the two areas of the law. Part IV will assess potential changes in the law in light of the Roberts Court\u2019s takings opinions. The paper will conclude by finding that there is no strong takings claim where private landowners come into contact with the ESA.<\/p>\n\n\n\n

I.               Constitutional Takings<\/h2>\n\n\n\n

The Fifth Amendment of the United States Constitution ends with the following language: \u201c[N]or shall private property be taken for public use, without just compensation.\u201d[10]<\/a> This provision ensures that the government cannot \u201cforc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.\u201d[11]<\/a> The government has to pay when it takes a person\u2019s private property.<\/p>\n\n\n\n

The Court\u2019s takings jurisprudence is largely divided into two categories. The first category is physical appropriations, which the Court has described as the \u201cclearest sort of taking.\u201d[12]<\/a> These takings, which can range from the government repeatedly flooding someone\u2019s property by building a dam,[13]<\/a> repeatedly flying military aircraft over a farm,[14]<\/a> or requiring a landlord to allow a cable company to install cables and a box on their roof,[15]<\/a> are assessed under a simple per se<\/em> rule: \u201cThe government must pay for what it takes.\u201d[16]<\/a><\/p>\n\n\n\n

The second category is regulatory takings. This category arose in Pennsylvania Coal Co. v. Mahon<\/em>.[17]<\/a> In that case, the Court articulated two principles to guide courts\u2019 thinking. First is the principle that, \u201cGovernment could hardly go on if to some extent values incident to property could not be diminished without paying for such change in the general law.\u201d[18]<\/a> In other words, the government must be able to regulate private parties\u2019 use of their property if society is to keep functioning. The second principle is that there are limits to the government\u2019s ability to regulate. Justice Holmes famously expressed it this way: \u201c[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.\u201d[19]<\/a> This limitation on the government\u2019s regulatory power must exist because \u201ca strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.\u201d [20]<\/a><\/p>\n\n\n\n

While Justice Holmes acknowledged that a determination of a regulatory taking \u201cdepends upon the particular facts,\u201d[21]<\/a> the Court provided a loose framework for analysis in Penn Central Transportation Co. v. City of New York<\/em>.[22]<\/a> The Court said that amidst \u201cessentially ad hoc, factual inquiries,\u201d \u201ceconomic impact of the regulation on the claimant\u201d particularly the extent of the regulation\u2019s interference with \u201cdistinct investment-backed expectations,\u201d and \u201cthe character of the governmental action\u201d were the primary factors to consider.[23]<\/a> This analytical framework has proven to be more friendly to the government as the Penn Central<\/em> Court pointed out that past cases had not found that even 75% or 87.5% diminution in economic value was alone sufficient to establish a taking.[24]<\/a><\/p>\n\n\n\n

One exception to the balancing test in the regulatory takings context came in Lucas v. South Carolina Coastal Council<\/em>.[25]<\/a> In that case, a South Carolina statute prevented the petitioner from erecting any permanent habitable structures on two parcels of land, rendering them \u201cvalueless.\u201d[26]<\/a> The Court concluded that when a landowner \u201chas been called upon to sacrifice all<\/em> economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.\u201d[27]<\/a> Thus, like physical invasions, this type of prohibition did not require balancing and was simply ruled a taking.<\/p>\n\n\n\n

The Court provided two important limitations to this Lucas<\/em>-style taking. First, the Court clarified in a footnote that Lucas<\/em>-style analysis was only available for complete deprivations of economic value.[28]<\/a> Second, the Court said that government could deprive a landowner of all economic value if the limitation \u201cinhere[d] in the title itself, in the restrictions that background principles of the State\u2019s law of property and nuisance already place[d] upon land ownership.\u201d[29]<\/a> Both these limitations are important in the assessment of the ESA\u2019s interaction with takings.<\/p>\n\n\n\n

II.             Endangered Species Act<\/h2>\n\n\n\n

Section 4 of the ESA instructs the Secretary of the Interior to determine whether any species is endangered or threatened.[30]<\/a> It also instructs the Secretary to, concurrent with the species designation, \u201cdesignate any habitat of such species which is then considered to be critical habitat.\u201d[31]<\/a> Then, subject to exceptions, the Secretary is to publish concurrently final regulations designating the species as threatened or endangered and designating critical habitat.[32]<\/a> And, the Secretary has to publish in the Federal Register a list of all endangered and threatened species that shall be reviewed every five years.[33]<\/a><\/p>\n\n\n\n

Once the Secretary designates a species as threatened or endangered and designates critical habitat, two other provisions of the statute kick into action: section 7\u2019s Interagency Cooperation provision[34]<\/a> and section 9\u2019s Prohibited acts provision.[35]<\/a> It is these provisions that have potential to affect landowners.<\/p>\n\n\n\n

The designation of critical habitat does not directly affect landowners.[36]<\/a> Rather, it requires federal agencies that authorize, fund, or carry out certain actions in critical habitats to consult with the Fish and Wildlife Service (FWS).[37]<\/a> However, landowners will still bear certain economic costs from the designation. First, in the period leading to a designation, a landowner needs to participate in the rulemaking process to present information that FWS should take into account as it decides on the designation.[38]<\/a> This requires expenditures of time and money to gather relevant information and present it to the agency. After a designation, landowners will often have restrictions placed on otherwise lawful uses of their land.[39]<\/a> Additionally, section 7 consultations can take significant amounts of time which can lead to additional project costs or destroy a project\u2019s economic viability.[40]<\/a><\/p>\n\n\n\n

Regarding section 9 and prohibited acts, the primary way this can affect landowners is in the Act\u2019s prohibition on \u201ctake[s].\u201d[41]<\/a> The Act defines \u201ctake\u201d as \u201cto harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.\u201d[42]<\/a> A regulation passed by the Secretary of the Interior further defines \u201charm\u201d to include \u201csignificant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.\u201d[43]<\/a> Thus, once the Secretary of the Interior designates a species as threatened or endangered, landowners will be fearful of developing land where an endangered species lives for fear that the habitat modification may \u201charm\u201d the species and the person would be guilty of a \u201ctake.\u201d Such a violation of the ESA can be met with civil penalties of up to $25,000, or criminal fines up to $50,000 and prison time.[44]<\/a> A landowner can apply for an Incidental Take Permit (ITP) under section 10 of the Act,[45]<\/a> but that can also lead to delay in planned projects and potential destruction of economic viability.[46]<\/a><\/p>\n\n\n\n

III.           Stopping a Take is Not a Taking<\/h2>\n\n\n\n

With the potential costs that lie in wait after the Secretary designates a species as endangered or threatened and designates critical habitat under section 4 of the ESA, are there realistic threats that a section 4 designation separately or combined with the section 9 take prohibition effects a taking under the Fifth Amendment? The short answer is no. There are three obstacles that a litigant would face in bringing a takings claim. These obstacles are individually challenging and cumulatively almost impossible to overcome. These obstacles provide such a roadblock that a takings challenge to the ESA is practically a dog that does not bark. At most, it is a dog that whimpers.<\/p>\n\n\n\n

A.    Ripeness<\/h3>\n\n\n\n

A litigant\u2019s first obstacle in bringing a takings claim against the ESA is that the claim must be ripe.[47]<\/a> Although the Court recently eliminated a state-litigation requirement to demonstrate ripeness,[48]<\/a> there remains a requirement that \u201cthe government entity charged with implementing the [law] has reached a final decision regarding the application of the [law] to the property at issue.\u201d[49]<\/sup><\/a> This is logical since a court cannot determine \u201cthe extent of permitted development\u201d and thus whether a taking has occurred until the government entity\u2019s action is final.[50]<\/sup><\/a> Thus, a challenger could only bring a takings claim once \u201cthe permissible uses of the property are known to a reasonable degree of certainty.\u201d[51]<\/sup><\/a> Ordinarily, this means that a challenger dealing with development obstacles either via ESA sections 7 or 9 must apply for an ITP under section 10 or seek a waiver to a prohibition resulting from consultation. Only after trying that route, would a court find the takings claim to be ripe.[52]<\/sup><\/a> And being denied one \u201cgrandiose development proposal\u201d would likely be insufficient as a governmental entity may permit lesser uses of the property.[53]<\/sup><\/a> Again, only a final decision from the agency would make the claim ripe.[54]<\/a><\/p>\n\n\n\n

B.     Statutory Challenges<\/h3>\n\n\n\n

A plaintiff\u2019s next obstacle is statutory flexibility. This is hinted at by the idea that courts require claimants to seek variances, waivers, or permits before bringing a takings claim.<\/p>\n\n\n\n

In the case of the ESA, sections 7 and 10 provide flexibility for agencies to work with landowners to reduce negative effects. One example of this flexibility is section 7\u2019s reasonable and prudent alternatives provisions.[55]<\/a> These provisions allow for the action agency to present alternatives that the Secretary can find will make it so the action does not violate the Act. The Secretary will also send a written statement to the agency and the applicant with \u201creasonable and prudent measures\u201d to minimize the impact of the proposal.[56]<\/a><\/p>\n\n\n\n

Similar results realize under section 10\u2019s permit provision. There, the Secretary may grant a permit \u201cunder such terms and conditions as he shall prescribe.\u201d[57]<\/a> In order to get a permit, the applicant must submit a conservation plan that specifies how they will minimize and mitigate negative impacts and alternatives the applicant considered.[58]<\/a> Going through this process alleviates concerns of incidental takes under the broad understanding of \u201charm\u201d ratified in Babbitt v. Sweet Home Communities for a Greater Oregon<\/em> and provides flexibility to minimize the chance of destruction of economic value.[59]<\/a><\/p>\n\n\n\n

This statutory flexibility is not good for private parties who would seek to bring a takings claim. What it means practically is that it is rare for the consultation requirement or take prohibition to completely stop a development project.[60]<\/a> Tellico Dam shutdowns are not the common result of section 7 consultations. And ITPs can alleviate the concerns of most landowners about violating the take prohibition while also allowing for some development. Therefore, even if a project is significantly pared down, it will likely not meet Lucas<\/em>\u2019 complete deprivation of economic value requirement. A court would thus analyze the takings claim under Penn Central<\/em>\u2019s balancing test, which is not friendly to private landowners.[61]<\/a><\/p>\n\n\n\n

C.    The Second Lucas<\/em> Exception<\/h3>\n\n\n\n

Even assuming that a landowner could prove that their claim was ripe by receiving a final agency action that prohibits development, and even assuming that prohibition resulted in a complete deprivation of economic value, a challenger is still unlikely to win a takings claim against the ESA. The second Lucas<\/em> exception blocks the way of such a claim.<\/p>\n\n\n\n

Recall that in Lucas<\/em>, the Court said that takings law permitted severe limitations that denied all economic value to a landowner if those limitations \u201cinhere[d] in the title itself\u201d as part of \u201cbackground principles of the State\u2019s law of property . . . .\u201d[62]<\/a> There is good reason to think that limitations on land development that the ESA would require are such as would inhere in titles as part of background principles of property law.[63]<\/a><\/p>\n\n\n\n

The colonies relied heavily on English common law in determining property rights.[64]<\/a> Property in England operated under a principle that uses could be restricted by the sovereign that were not in the public interest.[65]<\/a> Property rights were also burdened with \u201csocial, economic, and political obligations owed to others.\u201d[66]<\/a> One such encumbrance was the fact that the Crown had complete authority to determine a landowners rights respecting wildlife and land management.[67]<\/a> This idea passed into the colonies and eventually the States. It largely exists in the form of the State Wildlife Trust and Public Trust Doctrines that are still in use today.[68]<\/a><\/p>\n\n\n\n

As applied in a potential Lucas<\/em>-style situation, this history suggests that a sovereign has the prerogative to limit a landowner\u2019s use of property, even to the extent of complete deprivation of economic value when the rationale for the limitation is wildlife protection and management. The exception left by the Lucas<\/em> Court provides a \u201cgolden opportunity\u201d to protect wildlife under the ESA in the face of a takings claim.[69]<\/a><\/p>\n\n\n\n

IV.           The Roberts Court\u2019s Recent Trend and What it Portends<\/h2>\n\n\n\n

Given the obstacles that a litigant who wants to bring a takings claim against the ESA would face, is there any concern about such a claim succeeding? While the Roberts Court has been rather aggressive in its takings cases, this trend likely leaves the ESA unassailable on takings grounds. This section will briefly discuss three recent opinions and how the obstacles discussed in the previous section still protect the ESA from attack.<\/p>\n\n\n\n

A. Knick<\/em> and the Weakening of Ripeness Requirements<\/h3>\n\n\n\n

In Knick v. Township of Scott<\/em>, [70]<\/a><\/strong> a local ordinance required that \u201c[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.\u201d[71]<\/a> After a Township officer notified the petitioner that she had violated the ordinance by not keeping a cemetery on her property open during the day, petitioner sought declaratory and injunctive relief in state court.[72]<\/a> In response, the Township withdrew the violation notice and stayed enforcement,[73]<\/a> and the state court denied declaratory and injunctive relief.[74]<\/a> Petitioner then filed a 42 U.S.C. \u00a7 1983 suit in Federal District Court, which was dismissed because petitioner did not pursue a state remedy first.[75]<\/a> The Court held, in an opinion by Chief Justice Roberts, that the state-litigation requirement was untenable and overruled part of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City<\/em>, 473 U.S. 172 (1985).[76]<\/a><\/p>\n\n\n\n

The ruling in Knick<\/em> removed a partial obstacle from a claimant\u2019s path. However, the Court did not address a second holding in Williamson County<\/em>, which required a developer to seek a variance before an agency action was final and a claim was ripe.[77]<\/a><\/p>\n\n\n\n

What this means for the ESA is that the ripeness obstacle for a takings claim against the ESA remains intact.[78]<\/a> Cases like Palazzolo v. Rhode Island<\/em>[79]<\/a> and Schooner Harbor Ventures, Inc. v. United States<\/em>[80]<\/a> remain good law for now, and parties need to seek permits and waivers and arrive at a final agency action before bringing a takings claim.<\/p>\n\n\n\n

B. Cedar Point<\/em> and the Expansion of Physical Invasions<\/h3>\n\n\n\n

In Cedar Point Nursery<\/em> v. Hassid<\/em>,[81]<\/strong><\/a> Chief Justice Roberts writing for the Court held that an access regulation under California law was a per se<\/em> taking.[82]<\/a> As part of its rationale, the Court stated that \u201c[t]he access regulation appropriates a right to invade the growers\u2019 property and therefore constitutes a per se<\/em> physical taking. . . . Rather than restraining the growers\u2019 use of their own property, the regulation appropriates for the enjoyment of third parties the owners\u2019 right to exclude.\u201d[83]<\/a> The Court also stated that the right to exclude is \u201cone of the most treasured\u201d parts of ownership,[84]<\/a> and, given its centrality to property ownership, it was unsurprising that government-authorized physical invasions are takings.[85]<\/a> Addressing the Ninth Circuit\u2019s finding that the access regulation was regulatory and not a physical taking, the Chief eschewed overly formalist assessments by stating, \u201cThe essential question is not . . . whether the government action . . . comes garbed as a regulation\u201d but rather \u201cwhether the government has physically taken property for itself or someone else . . . or has instead restricted a property owner\u2019s ability to use his own property.\u201d[86]<\/a><\/p>\n\n\n\n

The main concern as pertains to the ESA is that a property owner could claim in an ESA section 4 or 9 context that the government is using the private property for itself via the use by animals as a habitat. The argument would go that the government, by not allowing the property owner to develop her land as she sought fit was burdening the right to exclude. Just as the California law forced property owners to allow union workers on property, the ESA forces property owners to allow wildlife on their property.<\/p>\n\n\n\n

This argument suffers from two issues. First, it is generally accepted that the presence of wild animals on someone\u2019s property is not a taking.[87]<\/a><\/p>\n\n\n\n

The second insufficiency rests on an assumption that a court would continue the Supreme Court\u2019s eschewal of formalism in Cedar Point<\/em>, and find that the government requiring a property owner to allow certain species of wildlife to remain on his property amounted to a physical taking. A litigant would face two hurdles in arguing this theory. The primary hurdle is that current case law, though sparse, supports the opposite conclusion.[88]<\/a> The more important hurdle is that Supreme Court precedent suggests that even if this were a physical invasion or occupation, it would not be a taking.<\/p>\n\n\n\n

Lucas<\/em> provides the first suggestion that a forced occupation of wildlife is an acceptable limitation.[89]<\/a> There, the Court stated that \u201cwe assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the land owner\u2019s title.\u201d[90]<\/a> This makes the ESA unlike the restrictions at issue in Lucas<\/em> that prevented development of coastal property or the easement in Cedar Point<\/em> for union workers. A requirement to permit wildlife on your property is arguably older than the country itself.[91]<\/a> Therefore, an easement for wildlife is permissible.<\/p>\n\n\n\n

Cedar Point<\/em> does nothing to upset this understanding. As part of assuaging the respondent\u2019s and dissent\u2019s fears that finding the access regulation to be a per se<\/em> physical taking would \u201cendanger a host of state and federal government activities involving entry onto private property\u201d[92]<\/a> the Court cited to Lucas<\/em> for the principle that some physical invasions are not takings because they \u201care consistent with longstanding background restrictions on property rights.\u201d[93]<\/a> The Court adds that these limitations encompass traditional common law privileges.[94]<\/a> As stated above, sovereign control over property uses with regard to wildlife is a longstanding common law principle, so it would likely fall within the Cedar Point<\/em> exceptions as well.<\/p>\n\n\n\n

In the end, the Court\u2019s more substance-based approach in Cedar Point<\/em> portends no major worries for the application of the ESA to property owners.<\/p>\n\n\n\n

C. The Chief\u2019s Dissent in Murr<\/span><\/em><\/h3>\n\n\n\n

Murr v. Wisconsin<\/em>[95]<\/a> largely deals with the denominator problem in takings cases that came to issue in Penn Central<\/em>[96]<\/a> and about which the Court had concerns in Lucas<\/em>.[97]<\/a> The Chief, joined by Justices Thomas and Alito dissented from the Court\u2019s approach of considering the denominator question by assessing \u201ctreatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.\u201d[98]<\/a> Of vital interest for ESA purposes, the Chief\u2019s dissent set up a thought experiment where a property owner has two separate lots of land. A turtle nesting habitat is found on one of the lots that abuts a beach. The Chief stated that if a state regulation prevented development on this lot, the purchaser \u201cwould have a strong case for a per se <\/em>taking.\u201d[99]<\/a> This is a troubling statement that suggests the Chief might find that a prohibition on development to protect wildlife would be a taking, notwithstanding Lucas<\/em> and Cedar Point<\/em>.<\/p>\n\n\n\n

However, no one should put too much emphasis on the Chief\u2019s statement. For one thing, it was in a dissent joined by only two other Justices. Second, the worrisome suggestion was in the context of a thought experiment that focused more on the denominator problem than the issue of whether such a limitation was permissible. And finally, the Chief made this claim without the benefit of briefing and oral argument about the history of such limitations based on wildlife protection. It is plausible that the Chief would decide oppositely if the issue was squarely before the Court<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

Protecting our country\u2019s wildlife is a meaningful endeavor. The ESA does great work in achieving that goal. And while it comes with costs to property owners, there should be no fear of takings challenges being brought against ESA enforcement. There are substantial obstacles in a challenger\u2019s way that collectively are almost impossible to overcome. And despite more aggressive moves by the Roberts Court in takings jurisprudence, none of those obstacles have fallen. The government can protect wildlife under the ESA without having to worry about the Takings Clause substantially hindering its efforts.<\/p>\n\n\n\n

*<\/a> J.D. Candidate, Harvard Law School 2023.<\/p>\n\n\n\n

[1]<\/a> Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).<\/p>\n\n\n\n

[2]<\/a> Endangered Species Act of 1973 \u00a7 2, 16 U.S.C. \u00a7 1531(b).<\/p>\n\n\n\n

[3]<\/a> Id.<\/em> \u00a7 1533.<\/p>\n\n\n\n

[4]<\/a> Environmental Protection Agency, https:\/\/www.epa.gov\/endangered-species\/endangered-species-species-informationfactsheets#:~:text=There%20are%20over%201%2C300%20species,under%20the%20Endangered%20Species%20Act. (last visited Dec. 20, 2022).<\/p>\n\n\n\n

[5]<\/a> U.S. Fish & Wildlife Service, https:\/\/ecos.fws.gov\/ecp\/report\/critical-habitat (last visited, Dec. 20, 2022). According to FWS, there are an additional 3.6 million acres of proposed critical habitat designation.<\/p>\n\n\n\n

[6]<\/a> 437 U.S. 153 (1978).<\/p>\n\n\n\n

[7]<\/a> Id.<\/em> at 172.<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> at 167, 172.<\/p>\n\n\n\n

[9]<\/a> Id<\/em>. at 173.<\/p>\n\n\n\n

[10]<\/a> U.S. Const. amend. V.<\/p>\n\n\n\n

[11]<\/a> Armstrong v. United States, 364 U.S. 40, 49 (1960).<\/p>\n\n\n\n

[12]<\/a> Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).<\/p>\n\n\n\n

[13]<\/a> United States v. Cress, 243 U.S. 316, 327\u201328 (1917).<\/p>\n\n\n\n

[14]<\/a> United States v. Causby, 328 U.S. 256 (1945).<\/p>\n\n\n\n

[15]<\/a> Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).<\/p>\n\n\n\n

[16]<\/a> Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (citing Tahoe-Sierra Pres. Council v. Tahoe Regional Plan. Agency, 535 U.S. 302, 322 (2002).<\/p>\n\n\n\n

[17]<\/a> 260 U.S. 393 (1922).<\/p>\n\n\n\n

[18]<\/a> Id.<\/em> at 413.<\/p>\n\n\n\n

[19]<\/a> Id.<\/em> at 415.<\/p>\n\n\n\n

[20]<\/a> Id.<\/em> at 416.<\/p>\n\n\n\n

[21]<\/a> Id.<\/em> at 413.<\/p>\n\n\n\n

[22]<\/a> 438 U.S. 104 (1978).<\/p>\n\n\n\n

[23]<\/a> Id.<\/em> at 124.<\/p>\n\n\n\n

[24]<\/a> Id.<\/em> at 131 (citing Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (75% diminution); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (87.5% diminution)).<\/p>\n\n\n\n

[25]<\/a> 505 U.S. 1003 (1992).<\/p>\n\n\n\n

[26]<\/a> Id. <\/em>at 1007.<\/p>\n\n\n\n

[27]<\/a> Id.<\/em> at 1019 (emphasis in original).<\/p>\n\n\n\n

[28]<\/a> Id.<\/em> n.8 (stating that 95% diminution would receive Penn Central<\/em> analysis). Interestingly, such a question came up in Palazzolo v. Rhode Island<\/em>, 533 U.S. 606 (2001). There, the Court held that there was no Lucas<\/em> taking because the landowner retained $200,000 in buildable land compared to his estimated value of the entire land at $3,150,000 (approximately a 94% diminution of value).<\/p>\n\n\n\n

[29]<\/a> Id.<\/em> at 1029.<\/p>\n\n\n\n

[30]<\/a> Endangered Species Act of 1973 \u00a7 4, 16 U.S.C. \u00a7 1533(a)(1).<\/p>\n\n\n\n

[31]<\/a> Id.<\/em> \u00a7 1533(a)(3)(A)(i).<\/p>\n\n\n\n

[32]<\/a> Id.<\/em> \u00a7 1533(b)(6)(C).<\/p>\n\n\n\n

[33]<\/a> Id.<\/em> \u00a7 1533(c)(1), (2).<\/p>\n\n\n\n

[34]<\/a> Id.<\/em> \u00a7 1536.<\/p>\n\n\n\n

[35]<\/a> Id.<\/em> \u00a7 1538.<\/p>\n\n\n\n

[36]<\/a> U.S. Fish & Wildlife Service, https:\/\/www.fws.gov\/project\/critical-habitat (last visited, Dec. 20, 2022) (\u201cCritical habitat designations do not affect private landowners if there is no federal \u2018nexus\u2019\u2014that is, no federal funding or permits are required to carry out the activity.\u201d); see also<\/em> NOAA Fisheries, https:\/\/www.fisheries.noaa.gov\/national\/endangered-species-conservation\/critical-habitat (similar language) (last visited Dec. 20, 2022).<\/p>\n\n\n\n

[37]<\/a> Endangered Species Act of 1973 \u00a7 7, 16 U.S.C. \u00a7 1536.<\/p>\n\n\n\n

[38]<\/a> 50 C.F.R. Part 424.<\/p>\n\n\n\n

[39]<\/a> Andrew J. Turner & Kerry L. McGrath, A Wider View of the Impacts of Critical Habitat Designation<\/em>, 43 Envtl. L. Rep. News & Analysis 10678, 10680 (2013).<\/p>\n\n\n\n

[40]<\/a> Id.<\/em> at 10681; see also<\/em>, e.g.<\/em>, Tennessee Valley Auth v. Hill, 437 U.S. 153 (1978).<\/p>\n\n\n\n

[41]<\/a> Endangered Species Act of 1973 \u00a7 9, 16 U.S.C. \u00a7 1538(a)(1)(B)\u2013(C).<\/p>\n\n\n\n

[42]<\/a> Id.<\/em> \u00a7 1532(19).<\/p>\n\n\n\n

[43]<\/a> 50 C.F.R. \u00a7 17.3. In Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Oregon<\/em>, the Court found this definition of \u201charm\u201d to be reasonable under Chevron<\/em> Step two. 515 U.S. 687.<\/p>\n\n\n\n

[44]<\/a> Endangered Species Act of 1973 \u00a7 11, 16 U.S.C. \u00a7 1540(a)\u2013(b).<\/p>\n\n\n\n

[45]<\/a> Id.<\/em> \u00a7 1539(a).<\/p>\n\n\n\n

[46]<\/a> See, e.g.<\/em>, Nat\u2019l Ass\u2019n of Homebuilders v. Babbitt, 130 F.3d 1041 (CADC 1997) (suggesting development and construction of $470 million hospital ceased because of designation of Delhi Sands Flower-Loving Fly as endangered and no seeking of incidental take permit).<\/p>\n\n\n\n

[47]<\/a> Palazzolo v. Rhode Island, 533 U.S. at 618.<\/p>\n\n\n\n

[48]<\/a> Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2179 (2019).<\/p>\n\n\n\n

[49]<\/a> Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) (overturned by Knick<\/em>, 139 S.Ct. 2162 (2019), on other grounds).<\/p>\n\n\n\n

[50]<\/a> Palazzolo<\/em>, 533 U.S., at 618 (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351 (1986)) (internal quotations omitted).<\/p>\n\n\n\n

[51]<\/a> Id.<\/em> at 620.<\/p>\n\n\n\n

[52]<\/a> See, e.g.<\/em>, Schooner Harbor Ventures, Inc. v. United States, 92 Fed. Cl. 373, 383 (2010), aff\u2019d <\/em>418 F. App\u2019x 920 (Fed. Cir. 2011) (holding plaintiff\u2019s claim not ripe because did not apply for IPT, so agency action not final).<\/p>\n\n\n\n

[53]<\/a> Palazzolo<\/em>, 533 U.S. at 619.<\/p>\n\n\n\n

[54]<\/a> Id.<\/em> at 621 (\u201cAs a general rule, until these ordinary process [of seeking variances or waivers] have been followed, the extent of the restriction on property is not known and a regulatory taking has not yet been established.\u201d).<\/p>\n\n\n\n

[55]<\/a> Endangered Species Act of 1973 \u00a7 7, 16 U.S.C. \u00a7 1536(b)(4)(A), (C)(ii).<\/p>\n\n\n\n

[56]<\/a> Id.<\/em> \u00a71536(b)(4)(C)(ii).<\/p>\n\n\n\n

[57]<\/a> Id.<\/em> \u00a7 1539(a).<\/p>\n\n\n\n

[58]<\/a> Id.<\/em> \u00a7 1539(a)(2)(A)(i)-(iii).<\/p>\n\n\n\n

[59]<\/a> 515 U.S. 687.<\/p>\n\n\n\n

[60]<\/a> Amy Sinden, The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat Designations<\/em>, 28 Harv. Env\u2019t. L. Rev. 129, 141 (2004) (\u201cwhile biological opinions under Section 7 have the power to stop development projects in their tracks and have sometimes done so, it is important to recognize that such dramatic results are not the norm.\u201d); see also<\/em>, Proceedings of National Academy of Sciences, https:\/\/www.pnas.org\/doi\/10.1073\/pnas.1516938112 (last visited Dec. 22, 2022) (\u201cNone of the 88,290 actions consulted on with FWS [from 2008\u20132015] has been stopped or extensively altered as a result of FWS finding jeopardy or destruction\/adverse modification.\u201d).<\/p>\n\n\n\n

[61]<\/a> See, e.g.<\/em>, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (no Penn Central<\/em> taking despite roughly 94% diminution in value).<\/p>\n\n\n\n

[62]<\/a> Lucas v. South Carolina Costal Council, 505 U.S., at 1029.<\/p>\n\n\n\n

[63]<\/a> See generally<\/em> Hope M. Babcock, Should <\/em>Lucas v. South Carolina Coastal Council Protect Where the Wild Things Are? Of Beavers, Bob-o-Links, and Other Things that Go Bump in the Night<\/em>, 85 Iowa L. Rev. 849 (2000).<\/p>\n\n\n\n

[64]<\/a> Id.<\/em> at 862.<\/p>\n\n\n\n

[65]<\/a> Id. <\/em>at 862\u201363.<\/p>\n\n\n\n

[66]<\/a> Id.<\/em> at 865\u201366.<\/p>\n\n\n\n

[67]<\/a> Id.<\/em> at 880\u201381.<\/p>\n\n\n\n

[68]<\/a> See<\/em> id.<\/em> at 881-898 for thorough discussion of the two doctrines.<\/p>\n\n\n\n

[69]<\/a> Id.<\/em> at 856.<\/p>\n\n\n\n

[70]<\/a> 139 S. Ct. 2162 (2019).<\/p>\n\n\n\n

[71]<\/a> Id.<\/em> at 2168 (quoting App. 21\u201323) (internal quotations omitted).<\/p>\n\n\n\n

[72]<\/a> Id.<\/em><\/p>\n\n\n\n

[73]<\/a> Id.<\/em><\/p>\n\n\n\n

[74]<\/a> Id.<\/em><\/p>\n\n\n\n

[75]<\/a> Id.<\/em> at 2168\u201369. The district court relied on Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City<\/em>, 473 U.S. 172 (1985).<\/p>\n\n\n\n

[76]<\/a> Knick<\/em>, 139 S. Ct. at 2167.<\/p>\n\n\n\n

[77]<\/a> Id.<\/em> at 2169.<\/p>\n\n\n\n

[78]<\/a> See<\/em> supra<\/em> III, a.<\/p>\n\n\n\n

[79]<\/a> 533 U.S. 606 (2001).<\/p>\n\n\n\n

[80]<\/a> 92 Fed. Cl. 373, 383 (2010), aff\u2019d<\/em> 418 F. App\u2019x 920 (Fed. Cir. 2011).<\/p>\n\n\n\n

[81]<\/a> 141 S.Ct. 2063 (2021).<\/p>\n\n\n\n

[82]<\/a> Id.<\/em> at 2074.<\/p>\n\n\n\n

[83]<\/a> Id<\/em>. at 2072.<\/p>\n\n\n\n

[84]<\/a> Id.<\/em> (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (internal quotations omitted)).<\/p>\n\n\n\n

[85]<\/a> Id.<\/em> at 2073.<\/p>\n\n\n\n

[86]<\/a> Id<\/em>. at 2072.<\/p>\n\n\n\n

[87]<\/a> Cajon Productions Corporation v. Petera, 854 F. Supp. 843, 853 (D. Wyo. 1994) (basing conclusion on principle that prerequisite to such invasion would be ownership of wildlife and no one owns wildlife) (referencing Missouri v. Holland, 252 U.S. 416, 434 (1920)). See also<\/em> Seiber v. United States, 364 F.3d 1356, 1366 (Fed. Cir. 2004) (finding government denial of permit to log not a taking because allowing northern spotted owl to nest on landowner\u2019s property did not infringe right to exclude).<\/p>\n\n\n\n

[88]<\/a> See supra<\/em>, note 87.<\/p>\n\n\n\n

[89]<\/a> 505 U.S. 1003 (1992).<\/p>\n\n\n\n

[90]<\/a> Id.<\/em> at 1028\u201329.<\/p>\n\n\n\n

[91]<\/a> See supra<\/em>, text accompanying notes 63\u201368.<\/p>\n\n\n\n

[92]<\/a> Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2078 (2021).<\/p>\n\n\n\n

[93]<\/a> Id.<\/em> at 2079.<\/p>\n\n\n\n

[94]<\/a> Id.<\/em><\/p>\n\n\n\n

[95]<\/a> 137 S. Ct. 1933 (2017).<\/p>\n\n\n\n

[96]<\/a> 438 U.S. at 130 (\u201cTakings jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely destroyed.\u201d).<\/p>\n\n\n\n

[97]<\/a> 505 U.S., at 1016, n.7.<\/p>\n\n\n\n

[98]<\/a> 137 S.Ct., at 1945.<\/p>\n\n\n\n

[99]<\/a> Id.<\/em> at 1955 (Roberts, C.J., dissenting).<\/p>\n","protected":false},"excerpt":{"rendered":"

Of Takes and Takings: How the Endangered Species Act Interacts with the Fifth Amendment Takings Clause Kyle Eiswald* Introduction In 1973, the Endangered Species Act (hereinafter \u201cESA\u201d or \u201cAct\u201d) was \u201cthe most comprehensive legislation for the preservation of endangered species ever enacted by any nation.\u201d[1] Its stated purposes are broad: \u201cto provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved\u201d and to \u201cprovide a program for the 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