Order Code RL31796
Report for Congress
Received through the CRS Web
The Endangered Species Act
and Claims of Property Rights “Takings”:
A Summary of the Court Decisions
March 10, 2003
Robert Meltz
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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The Endangered Species Act and Claims of Property
Rights “Takings”: A Summary of the Court Decisions
Summary
The federal Endangered Species Act (ESA) has long been one of the major flash
points in the “property rights” debate. This report compiles the court decisions in
cases challenging ESA-based measures as a “taking” of property under the Fifth
Amendment. The cases address four kinds of ESA measures: (1) prohibitions on
land uses that might adversely affect species listed as endangered or threatened; (2)
reductions in water delivery to preserve instream flows needed by listed fish; (3)
limits on the defensive measures a property owner may take to protect his/her
property from listed animals; and (4) limits on commercial dealings in members of
species acquired prior to listing as endangered or threatened. To date, only one of
these decisions has found a taking, and that decision is still subject to appeal.

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Contents
I. Prohibitions on uses of privately owned land that might adversely affect listed
species
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Reductions in water delivery in order to preserve instream flows needed by listed
species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. Limits on the defensive measures a property owner may take to protect his/her
property from harm by animals of a listed species . . . . . . . . . . . . . . . . . . . . . 7
IV. Limits on commercial dealings in species acquired prior to listing . . . . . . . . . 8

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The Endangered Species Act
and Claims of Property Rights “Takings”:
A Summary of the Court Decisions
The federal Endangered Species Act (ESA),1 along with its state counterparts,
has long been among the major flash points in the “property rights” debate. In the
ESA context, the debate has at least two components. First, to what extent must or
should implementation of the ESA include restrictions on the use of privately owned
property? And second, given that such restrictions are imposed, to what extent does
the Constitution, specifically the Takings Clause of the Fifth Amendment,2 demand
that compensation be paid to the property owner? This second question is our focus
here.

Much has been written about what impacts on property owners by wildlife
protection laws such as the ESA must, constitutionally, be compensated as
“takings.”3 CRS provided a comprehensive analytic review in 1993 on how the
takings issue has played out under the ESA and other federal and state wildlife
protections.4 This new report simply compiles the ESA takings court decisions to
date, with brief comment. Renewed congressional interest has been prompted by the
recent, highly significant decision of the U.S. Court of Federal Claims in Tulare Lake
Basin Water Storage District v. United States,5 holding that federal water use
restrictions imposed under the ESA constituted a taking. This is the only time that
any ESA-mandated measure has been held by a court to be a taking, and the decision
may yet be appealed. Legislative activity may also be prompted by the ascension to
116 U.S.C. §§ 1531-1544.
2The Takings Clause of the Fifth Amendment states: [N]or shall private property be taken
for public use, without just compensation.”
3See, e.g., Glenn P. Sugameli, The ESA and Takings of Private Property, in Donald C. Baur
and Wm. Robert Irvin (eds.), THE ENDANGERED SPECIES ACT: LAW, POLICY AND
PERSPECTIVES (American Bar Ass’n, 2002); Comment, Denial of Permission to “Take” an
Endangered Species Will Amount to a “Taking” Under the Fifth Amendment in Limited
Situations, 21 U. ARK. LITTLE ROCK L. REV. 519 (1999); Blaine I. Green, The Endangered
Species Act and Fifth Amendment Takings: Constitutional Limits of Species Protection, 15
YALE J. ON REG. 329 (1998).
4Robert Meltz, The Endangered Species Act and Private Property: A Legal Primer, CRS
Report 93-346 A (March 7, 1993).
5See discussion of this decision on page 6.

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committee leadership posts of Members of Congress with longtime interest in the
private property impacts of the ESA.6
This report does not delve significantly into the nuances of Fifth Amendment
takings law, a complex and rapidly evolving field. Nonetheless, the reader may find
his/her understanding of the cases here enriched by some background reading, such
as CRS Report RS20741 (The Constitutional Law of Property Rights “Takings”: A
Primer).
The ESA takings decisions address four types of impacts that the Act has had
on private property owners, as follows.
I. Prohibitions on uses of privately owned land that
might adversely affect listed species

Seiber v. United States, 53 Fed. Cl. 570 (2002)
Plaintiffs owned a 200-acre tract, almost all timberlands (the rest, plaintiffs’
homestead). In 1994, Oregon designated 40 acres of the tract as spotted owl nesting
habitat. This designation barred timber harvesting on the 40 acres, unless plaintiffs
obtained an “incidental take permit” (ITP)7 under the ESA (the United States had
designated the spotted owl a threatened species). The U.S. Fish and Wildlife Service
(FWS) found plaintiffs’ ITP application inadequate, but said it was willing to work
with the plaintiffs. The plaintiffs rejected this offer, and the application was denied.
The denial letter indicated, however, that several approvable alternatives were
available to plaintiffs. Again, plaintiffs chose not to work with the FWS, but simply
applied for reconsideration of the denial, which was denied. In 2002, the FWS found
that the owls had moved away, so an ITP was no longer needed to log the 40 acres.
The plaintiffs seeks compensation for a temporary taking, for the period 1994-2002.
Held, because FWS had the discretion and indicated willingness to consider a
modified timber harvest plan, but plaintiffs did not ask the government to exercise
that discretion, the permit denial was not a final decision. Thus, plaintiffs’ taking
claim is not ripe. Even if the claim had been ripe, plaintiffs would have failed. There
6For example, Rep. Richard W. Pombo was designated chairman of the House Committee
on Resources in January, 2003. The new chairman “is well-known as an outspoken
champion of private property rights .... He “has frequently complained that ... the ESA ...
drastically interferes with landowners’ rights to use their property.” According to an aide,
“improving the Endangered Species Act” will be one of his key priorities. Congressional
Green Sheets, Green Sheets Express, Jan. 13, 2003 (e-mail version only).
7The word “take” is used by the ESA in a manner entirely different from its use in the Fifth
Amendment’s Takings Clause. In the ESA, “take” means to “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect” an animal. ESA § 3(19). The Act makes it
unlawful for any person to “take” a listed endangered animal, ESA § 9(a)(1)(B)-(C), but
provides for certain exceptions, as when the person first obtains an “incidental take permit”
under ESA § 10(a)(1)(B). By contrast, “take” in the Fifth Amendment refers to government
actions that so severely impinge on private property rights as to “take” the property.

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is no taking by permanent physical occupation of the owls, since coexistence with the
owls did not deprive the plaintiffs of their right to possess, or control the use of, their
property. Nor is there a regulatory taking, since the 40 acres of timber must be
regarded together with the remainder of the merchantable timber on the tract.
Comment: This case puts in high relief the ubiquitous takings-
law issue of how to define the “relevant parcel” – that is, the
precise property interest that the court will look at in assessing
the impact of the government’s action on the plaintiff. It does
so in two ways. First, it requires that the 40 acres be evaluated
together with the remaining 160 acres on the parcel. This was
noncontroversial – squarely in line with precedent. Second, the
court was willing to sever the timber on the near-200 acres from
the land on which it grew. This was more debatable, since the
Supreme Court has held that fractionated interests in land should
generally be consolidated for purposes of takings analysis.
The Seibers also sued the state of Oregon in state court for
a taking based on the 40-acre designation. The trial court
dismissed the physical taking claim with prejudice and the
regulatory taking claim without prejudice (unpublished opinion).
The Seibers appealed the dismissal of the physical taking claim,
but the appellate court affirmed, 47 P.3d 486 (table entry), and
the state and federal supreme courts denied review. The Seibers
have since filed a new regulatory taking claim in state trial court,
asserting that they now have a ripe claim.
Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002), cert. denied,
71 U.S.L.W. ____ (March 10, 2003) (No. 02-862)
The FWS determined that allowing Boise Cascade to log its 65-acre old-growth
tract in Oregon might harm spotted owls that would otherwise nest there.
Subsequently, in October, 1998, a district court permanently enjoined the logging
until Boise obtained an ITP. While Boise’s ITP application was pending, however,
an owl living on the tract was found dead and surveys found no owls in the area, so
the FWS said an ITP was no longer required. Accordingly, the district court, in
August, 1999, lifted the injunction. Boise seeks compensation for the temporary
taking of its merchantable timber, which it was prevented from logging during the
court injunction.
Held, the injunction cannot support a regulatory taking claim, because the FWS
never denied Boise’s ITP. Boise was enjoined only from logging without a permit.
The mere imposition of a permit requirement by a regulatory agency does not, by
itself, effect a regulatory taking. Nor is there a per se physical taking by the owls;
the government is only regulating the use of the tract due to the incidental location
of the owls there. The state has no control over where the owls choose to nest.
Finally, no per se physical taking was caused by the requirement that Boise allow
government officials to enter its land to conduct owl surveys. The visits were brief,
nonexclusive, and approved by the district court.

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Comment: The court’s refusal to regard the presence of the
spotted owls on the plaintiff’s land as a physical taking is in
accord with almost every prior decision addressing such
challenges to wildlife protections. Rather, the logging
restriction was regarded as at most a regulatory taking.
Generally, plaintiffs prefer to cast their claims as a physical,
rather than regulatory, taking, since the former are tested under
a more plaintiff-friendly standard.
Boise Cascade also sued the state of Oregon in state court
for a taking based on the logging ban imposed by a state agency
while a mating pair of owls occupied the tract (prior to the FWS’
involvement). This case has been up and down several times in
the Oregon courts, the latest round being decided just a month
ago. Boise Cascade Corp. v. Oregon State Bd. of Forestry,
2003 Westlaw 292305 (Or. App. Feb. 12, 2003) (reversing trial
court and remanding).
Taylor v. United States, No. 99-131 L (Fed. Cl. June 20, 2001) (unpublished)
The plaintiff planned to build a house on his residential-zoned lot. After he
bought the lot, a pair of nesting bald eagles moved onto the adjacent lot, within 90
feet of the planned house. The FWS informed the plaintiff that land clearing and
construction on his property likely would render the area unusable by the eagles, and
that abandonment of the nest would be considered a “take” pursuant to the ESA. The
agency further informed him that he could apply for an ITP, which would allow the
house construction to proceed. However, when he applied, the FWS insisted that
plaintiff agree to all the required mitigation before it would process the application.
Plaintiff declined, believing the demanded mitigation to be overly restrictive. In an
unpublished decision filed August 18, 1999, the court held that notwithstanding the
absence of a formal denial of the permit application, the FWS’ insistent position
ripened the taking claim.
Held, there is no “total taking” because the development restrictions imposed
under the ESA here do not deprive plaintiff’s property of all economic value. The
parties must present additional evidence, however, before this court can determine
whether a regulatory taking occurred based on the takings test for less-than-complete
deprivations of property value. Therefore, the parties’ motions for summary
judgment must be denied.
Comment: Ultimately, an ITP was issued to Mr. Taylor, meaning
that at most he had a temporary taking claim. The case settled
in April, 2002.

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Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 529 U.S. 1053
(2000)
In 1973, plaintiff bought a 40-acre, mostly wetlands tract in the Florida Keys,
and in 1980 began efforts to secure the federal, state, and local permits needed to
construct a residential subdivision there. Though the Corps of Engineers issued
wetlands permits twice, construction did not begin because of state and local
permitting, and ESA, problems. Both of the Corps permits expired. Plaintiff’s final
application to the Corps, at issue here, was denied in 1994 on the ground that the
proposed project would endanger the continued existence of the Lower Keys marsh
rabbit and the silver rice rat, listed as endangered in 1990 and 1991 respectively.
Held, there was no taking of plaintiff’s tract. Plaintiff claims that the effect of
the Corps’ action was to completely eliminate any economic use of his property –
known in takings law as a Lucas “total taking.”8 Even with a total taking claim,
however, a property owner must show that his reasonable investment-backed
expectations were frustrated. Plaintiff here could not have had a reasonable
investment-backed expectation when he bought the property in 1973 that he would
obtain approval to fill the wetland. By that year, the Corps had begun to deny
dredge-and-fill permits solely on environmental grounds. And at the time he bought
the property, plaintiff acknowledged in the sales contract the difficulty of obtaining
the necessary permits. Finally, plaintiff waited seven years after purchasing the
property before applying for permits, as wetlands protection and endangered species
laws became increasingly stringent. While these developments do not bar the taking
claim, they reduce plaintiff’s ability to claim surprise when the permit application
was denied.
Comment: The Good decision takes a broad view of the “notice
rule” – the case law doctrine that no regulatory taking occurs
when the government restricts a property use under a law
existing when the property was acquired, or even, as in Good’s
case, under a law whose adoption after the property was
acquired could have been foreseen. Mr. Good bought his
wetlands before the ESA was enacted in its modern form, and
17-18 years before the species that triggered the permit denial
were listed.
The Good holding that a property buyer’s investment-
backed expectations are relevant even to total-taking claims was
contravened later by an opposite holding of another Federal
Circuit panel. Palm Beach Isles Assocs. v. United States, 208
F.3d 1374, 1379 n.3 (Fed. Cir.), and on petition for rehearing,
231 F.3d 1354 (Fed. Cir. 2000). In addition, the notice rule is no
longer viewed as an absolute bar to a taking claim. In Palazzolo
v. Rhode Island, 533 U.S. 606 (2001), the Supreme Court held
that the mere fact that a restriction was in place prior to the
acquisition of a parcel does not prohibit its owner from
8See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

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maintaining a taking claim. A year later, in Tahoe-Sierra
Preservation Council v. Tahoe Regional Planning Agency, 122
S. Ct. 1465 (2002), the Court clarified that pre-acquisition law
remains relevant to the regulatory taking analysis, even if not
determinative.
Four Points Utility Joint Venture v. United States, 40 Env’t Rep. Cas. (BNA) 1509
(W.D. Tex. 1994)
Plaintiffs-developers allege that to protect endangered and threatened species
in the area, the United States “by coercion and by threatening criminal penalties”
attempted to prevent the building of a multi-use development in Austin, Texas.
Plaintiffs believe that no “take” of a protected species under the ESA will occur,9 and
therefore did not apply for an “incidental take permit.”
Held, plaintiffs must apply for an incidental take permit before the court may
properly consider the merits of plaintiffs’ claims. Until the Fish and Wildlife Service
(FWS) rules on such an application, the Fifth Amendment taking claim is not ripe.
Parenthetically, the Service has not taken any definitive action to block the
development.
Comment: Observers have noted that the number of takings
claims based on ESA restrictions is rather small given the
decibel level of the property rights debate that the statute has
long inspired. Some have suggested that one reason for the case
law scarcity might be the difficulty in ripening a takings claim
under the ESA.10
II. Reductions in water delivery in order to preserve
instream flows needed by listed species

Tulare Lake Basin Water Storage District v. United States, No. 98-101 L (Fed. Cl.
April 30, 2001)
In 1992-1994, the federal government reduced the amount of water pumped
from the Sacramento-San Joaquin Delta in California, in order to ensure river flow
sufficient to protect two species of fish protected under the ESA. The result of the
reduced pumping was to cut the amount of water made available to the California
State Water Project, which, in turn, reduced the amount of water delivered to two of
the plaintiffs, the Tulare Lake Basin WSD and the Kern County Water Agency.
Other plaintiffs in the case received less water by virtue of being subcontractors to
Tulare and Kern.
9See note 7 supra.
10 James Rosen, Private Property and the Endangered Species Act: Has the Doctrine of
Ripeness Stymied Legitimate Takings Claims?, 6 HASTINGS W.-N.W. J. ENV’L L. & POL’Y
(1999).

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Held, there was a taking of plaintiffs’ right to use the water, in the amount of the
reduction. Plaintiffs’ contracts conferred a right to the exclusive use of prescribed
quantities of water. Thus, a mere restriction on use (as to the water not delivered)
completely eviscerates the right, and constitutes a physical taking. The government
has essentially substituted itself as the beneficiary of the contract right and totally
displaced the contract holder. And the terms of plaintiffs’ contracts held harmless
for reduced water delivery only the state, not the federal government. Finally,
background principles of state law (public trust doctrine, doctrine of reasonable use,
and nuisance law) do not limit plaintiffs’ right to use the water, since that right was
defined by their contracts and the state’s water allocation scheme. The state may
change the contracts and its water allocation scheme to reflect these state-law
background principles, but critically here, it chose not to do so in the 1992-1994
period.
Comment: This decision may be appealed by the United States, thus
its permanence is unclear. If not appealed, or if affirmed on appeal,
the question will be to what extent it generalizes to users of water
from other federal projects.
III. Limits on the defensive measures a property
owner may take to protect his/her property from
harm by animals of a listed species
Gordon v. Norton, No. 01-8102 (10th Cir. Feb. 25, 2003)
In 1994, the Secretary of the Interior adopted an updated Northern Rocky
Mountain Wolf Recovery Plan, under which gray wolves were introduced near
plaintiff’s ranch. From 1997 to 1998, and despite the efforts of FWS and state
officials, a number of cattle, and some dogs, were killed by wolves at plaintiff’s
ranch.
Held, because compensation for any taking by the United States is available in
the U.S. Court of Federal Claims under the Tucker Act, the district court below
lacked jurisdiction to hear plaintiff’s taking claim. The Supreme Court decision in
Eastern Enterprises, in which a plurality approved district court jurisdiction over a
taking claim against the United States, is easily distinguished as involving an alleged
taking based on monetary liability. Here, by contrast, we deal with an alleged taking
of physical things; hence, there is no reason to reverse the presumption of Tucker Act
availability.
Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989)
In 1982, grizzly bears began attacking Christy’s herd of sheep, which he grazed
on leased land in Montana. By July 9, the bears had killed about 20 sheep. That
evening, Christy shot and killed a grizzly bear moving toward his herd. FWS efforts
to catch the bears were unsuccessful, with the result that Christy lost a total of 84
sheep to the bears by the time he removed his sheep from the leased land. The
Department of the Interior assessed a $3,000 civil penalty against Christy for killing

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the bear, grizzlies being a listed threatened species under the ESA. A Department
administrative law judge reduced the fine to $2,500.
Held, there was no taking of the sheep. Undoubtedly, the bears had physically
taken them, but such takings cannot be attributed to the federal government. Case
law generally rejects the proposition that the government is answerable for the
conduct of protected wildlife – that is, prior to their being reduced to possession by
capture, which did not occur here. Neither is there a regulatory taking; the losses
sustained by plaintiffs are the incidental result of reasonable regulation in the public
interest.
Comment. Christy remains the leading case for the proposition
that government limits on the defensive measures available to
property owners against marauding animals do not constitute
takings. In lone dissent from the denial of certiorari, Justice
White asked whether “a Government edict barring one from
resisting the loss of one’s property is the constitutional
equivalent of an edict taking such property in the first place.”
490 U.S. at 1115-1116.
IV. Limits on commercial dealings in species
acquired prior to listing
United States v. Kepler, 531 F.2d 796, 797 (6th Cir. 1976)
As of the effective date of the ESA in 1973, Kepler allegedly held several
animals for lawful purposes under the ESA. Thereafter, he transported two of them,
a cougar and a leopard, from Florida to the “Dogpatch Zoo” in Kentucky – where he
was arrested and the animals seized by Department of the Interior agents. He was
later convicted of violating the ESA ban against interstate transport of endangered
species in the course of a commercial activity.11
Held, there is no taking by virtue of plaintiff’s animals being seized and his
being subject to criminal prosecution for the attempted sale of them. The ESA does
not prevent all sales of endangered wildlife, only those in interstate or foreign
commerce. The Act does not reach intrastate sales, and presumably Kepler could
have sold the animals in Florida. In addition, ESA section 10 allows the interstate
transport or sale of endangered animals if the Secretary of the Interior approves it for
scientific purposes. These remaining uses of the animals deflect the taking claim.
United States v. Hill, 896 F. Supp. 1057 (D. Colo. 1995)
A criminal indictment charged Hill with the sale of parts of various endangered
species (black rhinoceros, tiger, clouded leopard, and snow leopard), in violation of
the ESA.
11ESA § 9(a)(1)(E).

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Held, there was no taking of Hill’s property interest in these animal parts. Hill
has not been denied all economic use of his property, since personal property may
have value or generate income in ways other than by sale. Further, the ESA permits
one to sell endangered and threatened species if one obtains a permit under section
10 of the Act. Finally, at the time Hill acquired the animal parts in the early 1980s,
they were already subject to the ESA proscriptions at issue here. Therefore, he
obtained no property right to sell the animals and so lost no right for which he can
claim compensation.
Comment. The Hill decision relies heavily on Andrus v. Allard,
444 U.S. 51 (1979), the only U.S. Supreme Court takings
decision that directly deals with wildlife protection. Andrus
addressed the Eagle Protection Act and Migratory Bird Treaty
Act, which ban commercial transactions in bird parts even if
they were lawfully acquired prior to the ban. The Court found
no taking, explaining that while the ban foreclosed the most
profitable use of the bird parts (sale), other uses, including
possession, transport, donation, or exhibition for an admissions
charge, remained to the plaintiffs.

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