Order Code RL31796
CRS Report for Congress
Received through the CRS Web
The Endangered Species Act and
Claims of Property Rights “Takings”
Updated October 14, 2005
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”
Summary
The federal Endangered Species Act (ESA) has long been one of the major flash
points in the “property rights” debate. This report first outlines the ESA provisions
most relevant to the act’s impacts on private property, and then surveys the major
ESA-relevant principles of Fifth Amendment takings law. The report then proceeds
to its core topic: the court decisions adjudicating whether government measures
based on the ESA effect a taking of property under the Fifth Amendment. The cases
address four kinds of ESA measures: (1) restrictions on land uses that might
adversely affect species listed as endangered or threatened; (2) reductions in water
delivery to preserve lake levels or instream flows needed by listed fish; (3)
restrictions on the defensive measures a property owner may take to protect his/her
property from listed animals; and (4) restrictions on commercial dealings in members
of listed species. To date, only one of the 14 ESA-based takings decisions revealed
by research has found a taking.

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Contents
I. ESA Features Pertinent to Private Property Use . . . . . . . . . . . . . . . . . . . . . . . . 2
Listing and Critical Habitat Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 9 Prohibitions; Section 10 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 7 and Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Administrative Reforms, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. ESA-Relevant Principles of Takings Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preliminary Thresholds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Takings Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. Restrictions on Private Uses of Land That Might Adversely Affect
Listed Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IV. Reductions in Water Delivery in Order to Preserve Instream Flows
Needed by Listed Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
V. Restrictions on Defensive Measures
That a Property Owner May Use to Protect Property from ESA-Listed
Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VI. Restrictions on Commercial Dealings in Species . . . . . . . . . . . . . . . . . . . . . 19

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The Endangered Species Act
and Claims of Property Rights “Takings”
The federal Endangered Species Act (ESA),1 along with its state counterparts,
has long been a major flash point in the “property rights” debate. In the ESA context,
the debate has had at least two parts. First, to what extent should, and to what extent
does, the ESA restrict the use of privately owned land? Second, given that
restrictions on land uses and other property-related activities are imposed under the
ESA, to what extent does the Takings Clause of the Fifth Amendment2 demand
compensation of the property owner? This second question — the “takings”
implications of the ESA — is our subject here.

Much has been written about which, if any, impacts on property owners by
wildlife protection laws such as the ESA must be compensated as Fifth Amendment
takings.3 In 1993, CRS provided a comprehensive analytic review of how the takings
issue had played out under the ESA and other federal and state wildlife laws.4 This
new report, reviewing the takings court decisions involving the ESA, was done for
two reasons. First, there has been a burst of judicial activity in recent years
adjudicating takings challenges to the ESA. One case in particular, Tulare Lake
Basin Water Storage District v. United States (discussed in Section IV), garnered
national headlines amid controversy over the United States’ decision to settle
following the trial court’s widely questioned ruling that a taking occurred —
particularly given the important issues in the case. Second, recent political shifts in
the Congress enhance the likelihood that the 109th Congress may see enactment of
1 16 U.S.C. §§ 1531-1544.
2 “[N]or shall private property be taken for public use, without just compensation.”
3 See, e.g., John D. Echeverria and Julie Lurman, “Perfectly Astounding” Public Rights:
Wildlife Protection and the Takings Clause, 16 TULANE ENVTL. L. J. 331 (2003); Rebecca
E. Harrison, Comment, When Animals Invade and Occupy: Physical Takings and the
Endangered Species Act, 78 WASH. L. REV. 867 (2003); 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);
Monica L. Mason, 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); Robin L. Rivett, Why There Are So Few Takings Cases Under the Endangered
Species Act, or Some Major Obstacles to Takings Liabilities, course materials prepared for
1998 ALI-ABA conference on Inverse Condemnation and Related Government Liability.
4 CRS Report 93-346, The Endangered Species Act and Private Property: A Legal Primer,
by Robert Meltz.

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ESA amendments addressing, among other things, the act’s private property impacts.5
The cases reviewed in this report illustrate the types of private property impacts
that occur under the ESA and how takings law regards them. This review is not a
reliable indicator of the cumulative private property impacts of the ESA program.
Almost certainly, many landowners who are restricted in some way under the act do
not bother to sue. Of the filed suits, CRS has no systematic way of discovering those
that were resolved without published decision (as by settlement or voluntary
dismissal). And finally, court decisions under the Takings Clause do not exhaust the
universe of decisions stemming from the ESA’s private property impacts — other
legal theories may be invoked. Indeed, one such non-takings case, making a breach
of contract argument, was decided recently by the Supreme Court.6

Section I and II of the report give basic background: the ESA features pertinent
to its impact on private property and ESA-relevant principles of takings law,
respectively. Sections III through VI are the heart of the report: reviews of ESA
takings decisions grouped by type of property impact involved. The decisions herein
comprise all those of which CRS is aware, reported and unreported, from the highest
court to rule on the taking issue in the case.7 Of the 14 decisions reviewed in this
report, only one, the aforementioned Tulare Lake, found a taking.
I. ESA Features Pertinent to Private Property Use
Listing and Critical Habitat Designation
Under the ESA, the possibility of private property impacts begins when the
Secretary of the Interior, through the Fish and Wildlife Service (FWS), lists a species
5 Rep. Richard W. Pombo, chairman of the House Committee on Resources (with
jurisdiction over the ESA), reportedly has said that revising the ESA will be his “top
priority” in the 109th Congress. CQ Weekly, Jan. 3, 2005, page 16. On September 29, 2005,
the House passed the Pombo-sponsored H.R. 3824, the Threatened and Endangered Species
Recovery Act of 2005. Section 13 of the bill requires the Secretary of the Interior to pay
“financial conservation aid” to landowners forced to forego certain uses of their property
owing to the act, in the amount of the fair market value of that use.
6 Orff v. United States, 125 S. Ct. 2606 (2005) (farmers could not maintain breach of
contract suit against Bureau of Reclamation based on ESA-required cutbacks in water
delivered by Bureau, since pertinent statute did not waive sovereign immunity for such
suits).
7 An exception is Concerned Shrimpers of America, Inc. v. Mosbacher, No. CA C-90-39
(S.D. Tex. Mar. 8, 1990), omitted because CRS has been unable to obtain a copy of the
unpublished decision. This case reportedly was a taking challenge to an agency requirement
under the ESA that shrimp trawlers use “turtle excluder devices” in their nets to minimize
unintended catch of endangered and threatened sea turtles. The case, again reportedly, was
dismissed on the ground that it was filed in the wrong court.

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as endangered or threatened.8 The Secretary of Commerce, through the National
Marine Fisheries Service (NMFS, popularly called NOAA Fisheries), administers the
ESA for marine species.
Important here, listing is to be done “solely on the basis of the best scientific and
commercial data available” to the pertinent Secretary,9 without reference to economic
costs or private property impacts. In sharp contrast, such costs and impacts may be
considered in devising agency responses to the determination of endangered or
threatened status. For example, at the time of a listing, the Secretary is required,
when “prudent and determinable,” to designate the “critical habitat” of the species
— areas essential to its conservation.10 A critical habitat designation is to be based
both on scientific data and “economic impact and any other relevant impact,”11
presumably allowing impacts on private property to be weighed. This distinction
between listing and subsequent agency responses such as critical habitat designation
was made by Congress quite deliberately.12
Section 9 Prohibitions; Section 10 Permits
Listing and critical habitat designation trigger the ESA provisions that may
interfere with private property use. Chief among these is Section 9, prohibiting
certain acts in connection with endangered animals and plants.13 Section 9’s
prohibitions apply to both private and public land, and apply regardless of whether
critical habitat has been designated. For endangered animals, prohibited acts include
(a) the “taking” of an animal, (b) possessing, selling or transporting an animal
obtained by an unlawful “take,” (c) transporting an animal interstate in the course of
commercial activity, and (d) selling an animal interstate, or importing/exporting
same. For endangered plants, the list is narrower — we do not describe it here since
there appear to be no Fifth Amendment takings decisions involving listed plants.
The term “take” is a key ESA concept, not to be confused with Fifth
Amendment takings. It is expansively defined by the statute to include almost any
act adversely affecting a species member — including “to harass, harm, pursue,
hunt, ... capture, or collect” a listed animal.14 Central to the ESA’s impact on private
land owners, the FWS defines “harm” to include indirect harm to listed species
8 ESA § 4; 16 U.S.C. § 1533.
9 ESA § 4(b)(1)(A); 16 U.S.C. § 1533(b)(1)(A).
10 ESA§ 4(a)(3); 16 U.S.C. § 1533(a)(3).
11 ESA § 4(b)(2); 16 U.S.C.§ 1533(b)(2).
12 See H.Rept. 97- 567, 97th Cong., 2d Sess. 12 (1982); H.Rept. 97- 835, 97th Cong., 2d Sess.
19 (1982).
13 16 U.S.C. § 1538.
14 ESA § 3(19); 16 U.S.C. § 1532(19).

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members through certain significant habitat modifications.15 This agency definition
has been upheld by the Supreme Court as a reasonable interpretation of the statute.16
By general rule, the FWS has extended almost all of the endangered species
prohibitions just discussed to threatened animals and plants.17 “Special rules,”
withdrawing particular threatened species from aspects of the general regime, have
been promulgated for those species with atypical management needs.18 The NMFS,
on the other hand, adopts Section 9’s endangered species prohibitions for threatened
species only on a case-by-case basis. “Experimental populations” of listed species
generally are treated as threatened species.19
To minimize its constraints on economic growth, the ESA in Section 10 allows
a much-used exemption from section 9’s taking prohibitions. The exemption
authorizes the appropriate Secretary to permit any taking incidental to, and not the
purpose of, otherwise lawful activity20 — allowing some projects to proceed even if
they harm individuals of a listed species. Such “incidental taking permits” (ITPs)
may be issued to non-federal entities after the landowner submits a habitat
conservation plan (HCP) including proposed mitigation measures and the considered
but rejected alternatives to the proposed action. The purpose of the HCP is to ensure
that the proposed action does not appreciably reduce the survival and recovery
prospects of the species.
In an enforcement action for violating the ESA, the statute allows an affirmative
defense for offenses committed in the good faith belief that the defendant was acting
to protect persons from bodily harm.21 The ESA makes no mention, however, of a
similar defense for acts to protect property. The absence of a property-protection
defense in the ESA itself has been largely offset — as to threatened species and
experimental populations, but not endangered species — by administrative
regulation.22
Section 7 and Federal Agencies
Another ESA provision with obvious property rights implications is Section 7.23
This section comes into play only when a project has a federal nexus — as when a
15 50 C.F.R. § 17.3.
16 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
17 50 C.F.R. § 17.31 (wildlife), § 17.71 (plants).
18 50 C.F.R. §§ 17.40-17.48 (wildlife); 50 C.F.R. §§ 17.73-17.78 (plants).
19 ESA § 10(j)(2)(C); 16 U.S.C. § 1539(j)(2)(C). See special rules for experimental
populations at 50 C.F.R. §§ 17.84-17.86.
20 ESA § 10(a)(1)(B); 16 U.S.C. § 1539(a)(1)(B).
21 ESA § 11(a)(3), 16 U.S.C. § 1540(a)(3) (civil enforcement actions); ESA § 11(b)(3), 16
U.S.C. § 1540(b)(3) (criminal enforcement actions).
22 See notes 31-33 infra and accompanying text.
23 16 U.S.C. § 1536.

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non-federal project requires a federal permit or is being federally funded, or the
federal agency itself is carrying out the project. Section 7’s mandate is that each
federal agency consult with the FWS or NMFS, depending on the listed species
involved, to ensure that its actions are “not likely to jeopardize the continued
existence of any endangered species or threatened species, or result in the destruction
or adverse modification of” designated critical habitat.24 (Note the focus on the
species, in contrast with section 9’s focus on individual members of the species.)
Once consulted, FWS or NMFS must, if listed species might be affected,
prepare a biological opinion to determine the actual impact of the proposed action.25
If “jeopardy” of species or “destruction or adverse modification” of critical habitat
(see preceding quote) is found, the FWS or NMFS must suggest “reasonable and
prudent alternatives” to the proposed activity that would not violate the section 7
mandate. If the agency agrees to these or other reasonable and prudent alternatives
consistent with the section 7 mandate and approved by FWS or NMFS — and if,
further, any incidental takes satisfy that mandate, and other conditions are met —
then the FWS or NMFS issues an incidental take statement and the activity may go
forward consistent with its terms.26 The incidental take analysis under section 7 is
the same as for section 10 ITPs, and compliance with the mitigating measures in the
biological opinion confers the same exemption from section 9 prohibitions as an ITP
does on non-federal entities.
A federal action may be exempted from the section 7 mandate, despite the
possibility of extinction, by an Endangered Species Committee of high-ranking
federal officials (popularly called the God Squad).27 The Committee must find,
among other things, that there are no reasonable and prudent alternatives to the
agency action, and that the action’s benefits clearly outweigh the benefits of
alternatives that would conserve the species or its critical habitat. The Endangered
Species Committee exemption process is generally considered burdensome and is
rarely used.
Administrative Reforms, Etc.
Several administrative reforms were adopted in the Clinton Administration,
under claimed authority in the ESA, to enhance the program’s flexibility in dealing
with property owners. Joint FWS and NMFS policies streamlined permit procedures
for small landowners, and other initiatives encouraged landowners to increase
protection for listed species on their land. Under “safe harbor agreements,”
landowners who increase species habitat can return to baseline conditions without
penalty.28 And “no surprises agreements” assure a landowner that if he/she
24 ESA § 7(a)(2); 16 U.S.C. § 1536(a)(2).
25 ESA § 7(b)(3)(A); 16 U.S.C. § 1536(b)(3)(A).
26 ESA § 7(b)(4); 16 U.S.C. § 1536(b)(4).
27 ESA § 7(e); 16 U.S.C. § 1536(e).
28 FWS and NMFS published a joint Final Safe Harbor Policy at 64 Fed. Reg. 32,717 (June
(continued...)

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implements an HCP, there will be no further costs or land use restrictions to benefit
species covered by the HCP (with minor exceptions).29
Federal managers also attempted, where consistent with the facts, to tilt toward
threatened rather than endangered designations, to allow use of the more flexible
ESA provisions governing threatened species.30 Use of threatened status has allowed
the FWS, through “special rules,” to authorize takes of members of specified species
causing depredations of private property (livestock, domestic animals, crops).31
Usually, such takes of problem animals must be carried out by government officials,
rather than the aggrieved property owner. FWS regulations governing private
property depredations by members of experimental populations more often allow
takes by both government agents and private landowners.32
Despite these impact-softening mechanisms in the ESA and in administrative
reforms, the act at times may frustrate the economic desires of owners of land or
other property. This fact has long been a rallying cry for the ESA’s detractors, who
argue that restrictions under the act routinely “take” property in the constitutional
sense. This brings us to Section II.
II. ESA-Relevant Principles of Takings Law
The Fifth Amendment of the U.S. Constitution ends with 12 deceptively simple
words: “[N]or shall private property be taken for public use, without just
compensation.” Long a constitutional sleeper, this Takings Clause has been thrust
into the limelight in recent decades by increased government land use controls (such
as under the ESA) combined with a more conservative judiciary interested in greater
protections for property owners. The Clause seeks to strike a balance between these
two interests — more broadly, between society’s needs, as effected by government,
28 (...continued)
17, 1999). Implementing regulations are at 50 C.F.R. §§ 17.22(c), 17.32(c).
29 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5) (FWS); 50 C.F.R. § 222.307(g) (NMFS).
30 ESA section 4(d), governing threatened species, contains no detailed list of prohibited
acts, as does section 9 for endangered species. Rather, it requires only that regulations on
threatened species “provide for the conservation of such species.” 16 U.S.C. § 1533(d).
31 See, e.g., 50 C.F.R. § 17.40(b)(1)(i)(C) (government agents may remove grizzly bears
causing depredations to lawfully present livestock, crops, or beehives); 50 C.F.R. §
17.40(d)(2)(i)(B)(4) (government agents may take Minnesota gray wolves causing
depredations of lawfully present domestic animals). FWS regulations contain a very broad
authority for takes of the Utah prairie dog in that state, through state permits apparently
issuable to private parties. 50 C.F.R. § 17.40(g)(2).
32 For example, regarding the experimental population of red wolves in North Carolina and
Tennessee, see 50 C.F.R. §§ 17.84(c)(4)(iii) (private landowner may take red wolves in the
act of killing livestock or pets), 17.84(c)(4)(iv) (private landowner may harass red wolves
found on owner’s land), and 17.84(c)(5) (government agents may take red wolves causing
depredations of lawfully present domestic animals or other personal property).

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and the burdens that satisfying those needs may impose on individual property
owners.
Here we scan the law developed by the courts for deciding which government
actions work a Fifth Amendment taking of private property, requiring the owner to
be compensated. We include only the principles most relevant to the ESA.
Preliminary Thresholds
Before a court can even get to a plaintiff’s taking claim, some initial hurdles,
both procedural and substantive, must be surmounted. Procedurally, a taking claim
against the United States (the likely defendant if suing because of the ESA) must be
filed in the U.S. Court of Federal Claims, if plaintiff seeks more than $10,000.33 It
must also, under that court’s statute of limitations, be filed within six years of the
date of the alleged taking.34
Most daunting of all the procedural hurdles, the taking claim must be ripe —
that is, the dispute must have reached a sufficient maturity to be suitable for judicial
resolution. In cases against the United States, this means chiefly that the property
owner must have obtained a “final decision” from the government agency in question
as to the nature and extent of the restrictions on the property.35 “Final decision” is
a much-litigated term of art. To get a final decision, it may be necessary for the
property owner, after his/her initial development proposal is rejected, to reapply with
scaled-down or reconfigured proposals. In the ESA context, the final decision
requirement has been held to mean that the taking claim is not ripe until an ITP has
been applied for and, usually, denied. Denial of the ITP is not necessary for ripeness
where further negotiations with the federal agency are not needed to indicate what
degree of development the government will allow on the parcel, where further
negotiations would otherwise be pointless (“futility exception”), or where plaintiff
is claiming that an agency’s delay in granting or denying the ITP is “extraordinary.”
But as yet, no court has been willing to excuse a plaintiff’s failure to even apply for
an ITP.
An agency’s determination simply that the property owner’s proposal requires
an ITP application cannot itself be a taking. The reason is clear: that determination
leaves open the possibility that the permit, if applied for, will be granted.36
Most important of the substantive threshold hurdles is the Takings Clause
demand that the thing alleged to have been taken is “property” as used in the Clause.
Almost all common interests in land — fee simple absolutes, leases, easements, etc.
— are indisputably property, as are water rights, making this threshold an easily
surmounted one in ESA takings cases. However, takings law is cognizant of only
33 28 U.S.C. §§ 1346(a), 1491. On the rare occasion that an ESA taking claim seeks $10,000
or less, the claim may be filed either in the Court of Federal Claims or in district court.
34 28 U.S.C. § 2501.
35 Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).
36 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985).

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direct impacts on the property. For example, the denial of an ITP for a residential
subdivision may, in proper circumstances, take the tract for which the permit is
sought. However, a taking claim will not be entertained as to the nearby
commercially zoned parcel whose value is greatly reduced because no residential
subdivision, hence no potential customers, will come to the ITP-denied lot.
Takings Principles
There are three fairly distinct types of takings claims, each evaluated under a
different Supreme Court-created test. Each, potentially, might arise in an ESA-based
taking claim.
A regulatory taking claim asserts that a government action has taken property
merely by restricting its use. The idea of the regulatory taking concept is that even
in the absence of an obvious government taking of property — as by appropriation
of title or physical occupation — use restrictions may be sufficiently severe to
amount to the same thing. Regulatory takings claims break down into two
subcategories, depending on whether the regulation is alleged to have caused a total
elimination of the land’s use or value, called a total taking claim, or a less-than-total
elimination, called a partial regulatory taking claim.
The first category, total elimination of use or value, is held to be a per se taking,
with at least one big exception. If the government restriction was implicit in
“background principles” of property or nuisance law existing when the property was
acquired, there is no taking.37 The rationale for this exception is that the government
has not taken away any right the property owner ever had. There is limited case-law
support for the argument that the states’ historic ownership of wildlife and
responsibility for wildlife protection as a trust obligation to the public constitute a
background principle that forecloses takings claim based on such protections.
However, this defense has yet to be addressed in an ESA-based takings decision.
Claims in the second category, less-than-total losses, are far more common, and
are evaluated quite differently. Instead of a per se test, courts use a fact-intensive,
case-by-case approach applying the “Penn Central balancing test.” Under this
approach, the government action is assessed for its economic impact, the degree of
interference with investment-backed expectations, and its “character.”38 These vague
factors have been explicated only minimally by the Supreme Court, leading many
commentators to complain that the test is muddled and easily manipulated. Still, it
is at least clear that the impact on the property owner must be severe, with the result
that the large majority of regulatory takings claims tested under Penn Central are
rejected. This government-friendly pattern has been replicated in the ESA-takings
cases raising Penn Central claims, even though takings courts have not accorded the
37 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
38 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).

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species-preservation goal of the ESA any special status (at least explicitly) in the
takings calculus.39
With either total or partial regulatory takings claims, the court must define the
“parcel as a whole” (aka “relevant parcel”) as to which the impact of the government
action will be measured. The relevant parcel notion is needed because takings law
looks at the economic impact and interference with expectations factors in a relative,
rather than absolute, sense. As to economic impact, for example, what counts in the
takings analysis is not that the plaintiff’s land lost X dollars in value due to a
government restriction, but rather that the loss constituted a high percentage of the
pre-restriction value of the parcel as a whole.
The relevant parcel generally is defined to include the entire contiguous lot in
the same ownership, with noncontiguous lots held by the same owner thrown in if
part of an integrated development. Importantly, the relevant parcel cannot be limited
to the portion of the property subject to the challenged use restriction, at least not
solely on that basis. Thus, a regulation that severely reduces use or value on only a
portion of a tract is unlikely to be a taking. For this reason, it is almost certain that
the relevant parcel factor has held down the number of ESA-based takings claims;
many property owners restricted on a portion of their land still have economic use of
the remainder. Beyond the regulated/nonregulated rule, however, the Supreme Court
has left unresolved many issues that arise in defining the relevant parcel.
Also for both total and partial takings claims, the Supreme Court recently
rejected the absolute version of the “notice rule,” under which lower courts once held
that restrictions imposed under laws existing when the property was acquired cannot
be a taking.40 The pre-acquisition existence of the law in question carries some
weight in the takings analysis, but does not bar the taking claim outright.41 This
easing of the notice rule is highly significant for the ESA, which was enacted so long
ago (1973) that most landowners today, by virtue of having bought since enactment,
might be barred from claiming takings under the former, absolute rule.
Finally, regulatory takings claims are treated differently depending on whether
the restriction giving rise to the alleged taking was initially deemed to be permanent
(of indefinite duration) or temporary. If an initially permanent government
restriction is ultimately withdrawn or judicially invalidated, the analysis of whether
it worked a taking while on the books is unaffected. The termination of the
restriction nominally changes the permanent taking claim to a temporary one, but its
only real effect is to limit the amount of compensation. A few ESA cases present this
scenario: land use restrictions were lifted once listed birds were found no longer
39 According to the Supreme Court, Congress in the ESA elevated the government’s interest
in species preservation to the “highest of priorities.” TVA v. Hill, 437 U.S. 153, 174 (1978).
Were this vaunted status to enter the takings analysis as something to be balanced against
the burden imposed on the property owner, it would presumably do so through the
“character of the government action” factor in the Penn Central test.
40 Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
41 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S.
302 (2002).

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present in an area. By contrast, the very same land use restriction may not cause a
taking if initially designated as temporary (such as a development moratorium),
because of the likelihood that the restriction will be lifted after a defined period.42
A physical taking claim asserts that the government has taken property by
causing, or authorizing, a physical invasion. Such claims come in two types:
permanent physical occupations and temporary physical invasions. Permanent
physical occupations are almost invariably held to be takings,43 because they infringe
upon one of the most essential attributes of property ownership: the right to exclude
others. Thus in assessing physical occupation claims the courts will not inquire into
the extent of the occupation, the magnitude of the economic impact, or the
importance of the underlying public purpose — key ingredients of a regulatory
takings analysis. Indeed, even the parcel as a whole rule does not apply, so that an
occupation of only a minuscule portion of a tract is a taking. Not surprisingly,
takings plaintiffs always try to bring a physical occupation claim, among others, if
the facts permit.
Temporary physical invasions, the lesser degree of interference, are regarded
quite differently. They are tested under the Penn Central balancing test and generally
are held nontakings.
Physical takings claims are common in ESA cases — the property owner
pointing to the listed animals whose physical presence on his/her land must be
tolerated, or the consumption of livestock by listed predators because the livestock
owner was barred by the ESA from taking stronger measures (e.g., shooting) against
the marauding animals, or the temporary presence on the owner’s property of federal
investigators. As the decisions described herein show, no physical taking claim
based on these physical acts has been successful. Ironically, in the one ESA/takings
case where the plaintiff prevailed, Tulare Lake (Section IV), a physical taking was
found in the absence of any physical invasion, based on the appropriation perceived
by the court of a water right.
The exaction taking claim asserts a taking on the basis of an exaction demanded
by a land regulatory agency as a condition of approving a development proposal. In
order not to be a taking, the exaction condition must meet two criteria. First, there
must be an “essential nexus” between the condition and an underlying purpose of the
permit or other approval to which the condition is attached.44 Second, the burden
imposed on the property owner by the exaction must be no greater than “roughly
proportional” to the impact of the proposed development on the community.45
Moreover, the burden of proving rough proportionality is on the government. This
two-prong test places greater burden on the government defendant than the test for
regulatory takings and is referred to as “heightened scrutiny.”
42 Id.
43 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
44 Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).
45 Dolan v. City of Tigard, 512 U.S. 374 (1994).

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CRS-11
The Supreme Court has clarified that not any condition attached to a
development permit can ground an exaction taking claim. Rather, the Court
particularly has in mind conditions requiring that the permit applicant dedicate land
to a specific purpose — as by recorded easement. Lower courts have split on
whether an exaction taking claim can be based, in addition, on a monetary exaction
— when government requires a payment as a condition for development approval.
At least potentially, the conditions that landowners opt for in their submitted
HCPs could be subject to exaction taking challenge. Such conditions have at times
included dedications of acreage on the ITP applicant’s land, or commitment by the
applicant to purchase mitigation credits. If the ITP applicant realistically had no
choice but to adopt one of these options to meet the statutory criteria for ITP
issuance, and the condition lacks an essential nexus or rough proportionality, an
exaction taking claim becomes possible. We have no information on how often this
happens in practice, but can note that even after three decades of ESA
implementation, there appear to be no court decisions adjudicating exaction takings
challenges to HCP conditions.
III. Restrictions on Private Uses of Land That Might
Adversely Affect Listed Species
Restrictions on timber harvesting for personal use: Morris v. United
States, 392 F.3d 1372 (Fed. Cir. 2004)
The plaintiffs own a half-acre lot, on which they seek to cut down old-growth
redwood trees for lumber to build on another lot they own. They allege that owing
to state and county land-use restrictions, harvesting timber is the lot’s only economic
use. In 2001, the NMFS told plaintiffs the harvest would violate the ESA by harming
listed salmon in the river bordering the lot. The NMFS later said they could apply
for an ITP, requiring them to prepare a HCP. However, plaintiffs’ research led them
to believe that the cost of applying for an ITP and preparing a HCP would be greater
than the modest value of their trees and property. Hence, they did neither and instead
filed a taking claim.
Held, claim is not ripe. Plaintiffs challenge the cost of the administrative
process, rather than any use restrictions that may result from it. But there has been
no final agency decision that has sufficiently fixed the cost of the application, and the
agency has discretion to assist plaintiffs with their application (indeed, a NMFS
handbook instructs field offices to assist ITP applicants). Because the court has no
way to predict what influence the wielding of that discretion will have on plaintiffs’
costs, this case cannot be ripe. Therefore, the court will not reach plaintiffs’ “novel
theory” that a taking can result from the cost of complying with a valid regulatory
process, where the government has never actually restricted the use of the property.
Comment: This decision is but the latest manifestation of the longstanding
judicial insistence that to ripen a taking claim based on a federal permit
requirement, the landowner must at least begin the permit application and
negotiation process. Various takings-law ripeness doctrines may indeed excuse

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the plaintiff’s failure to pursue the process all the way to a formal permit denial
— the general minimum prerequisite for a ripe taking claim — but to
demonstrate their applicability the process must at least be engaged.
Restrictions on commercial timber harvesting: Seiber v. United States, 364
F.3d 1356 (Fed. Cir.), cert. denied, 125 S. Ct. 113 (2004).
Plaintiffs owned a 200-acre tract, almost all timberlands. In 1994, Oregon
designated 40 acres of the tract as spotted owl nesting habitat. By state law, this
designation barred timber harvesting on the 40 acres, unless plaintiffs obtained an
ITP under the federal ESA (the United States had designated the spotted owl a
threatened species). The FWS found plaintiffs’ ITP application inadequate, but said
it was willing to work with them. The plaintiffs rejected this offer, and in 2000 the
application was denied. The denial letter indicated, however, that several approvable
alternatives (including selective harvesting) were available to plaintiffs. Plaintiffs
simply applied for reconsideration of the denial, which was denied. In 2001, Oregon
informed the plaintiffs that it no longer opposed timbering because the owls had
moved away, and in 2002, the FWS found that an ITP was no longer needed for the
same reason. The plaintiffs seek compensation for a temporary taking, from 2000 to
2002.
Held, claim is ripe, but no taking. For purposes of this decision, the court
assumes that the federal ESA barred logging during the period of the alleged taking,
without which there can be no federal taking. The taking claim was ripe, even
though the FWS identified approvable alternatives that the plaintiffs declined to
pursue. The FWS did not say it lacked enough information to grant or deny the
permit; rather, it formally denied the permit and did not allow further reconsideration.
On the merits, there was no physical taking by the presence of the owls. Nor was
there a regulatory taking: the government action did not deprive the relevant parcel
(whether defined as the 200-acre parcel, or solely the trees on the 200-acre parcel)
of all economic value, and indeed, plaintiffs made no showing of any economic
injury caused by the temporary taking. Further, there was no regulatory taking by the
alternative test: failure to substantially advance a legitimate government interest.
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 raised, but did not resolve,
the issue whether the timber on the 200 acres could be regarded separately, prior
to harvesting, from the land on which it grew.
The Seibers also sued Oregon in state court, under the state and federal
constitutions, for a taking based on the 40-acre designation. On December 27,
2004, the trial court entered judgment for plaintiffs for a temporary taking of the
timber on the 40 acres. Judgment was in the amount of $75,00046 plus interest,
46 This amount was the difference between the value of the 40 acres at the beginning of the
(continued...)

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CRS-13
attorney’s fees and court costs. Appeals have since been filed. The prospects for
a no-taking ruling on appeal were recently enhanced by the decision of the state
supreme court in Coasl Range Conifers, LLC v. Oregon State Bd. of Forestry,
117 P.3d 990 (Or. 2005), holding that the state constitution recognizes a relevant
parcel doctrine. This decision will allow the state to argue that the trial court’s
regulatory takings analysis should have been based (as it was in the federal case)
on the entire 200-acre tract, not merely the 40 restricted acres.
Restrictions on commercial timber harvesting: Boise Cascade Corp. v.
United States, 296 F.3d 1339 (Fed. Cir. 2002), cert. denied, 538 U.S. 906
(2003)
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 other 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, no taking. The FWS never denied Boise’s ITP; the company 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 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.

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 deemed to be at most a regulatory taking. As noted, takings
plaintiffs prefer to cast their claims as physical, rather than regulatory, takings,
since the former are tested under a more plaintiff-friendly standard.
Boise Cascade also sued Oregon in state court for a temporary taking under
the state constitution, based on the logging ban imposed by the state while a
mating pair of owls occupied the tract (prior to the FWS’ involvement). On
November 17, 2004, the trial court entered judgment for plaintiffs for a
temporary taking of the timber, in the amount of $25,47 plus costs. Both parties
have filed appeals. The prospects for a no-taking ruling on appeal may have
been enhanced recently by the decision of the state supreme court in Coasl
46 (...continued)
temporary taking in 1994, and the end of the temporary taking in 2001.
47 This amount was the difference between the value of the property at the beginning of the
temporary taking in 1993, and the end of the temporary taking in 1997.

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CRS-14
Range Conifers, LLC v. Oregon State Bd. of Forestry, 117 P.3d 990 (Or. 2005),
holding that the state constitution recognizes a relevant parcel doctrine. This
will allow the state to argue that the trial court’s regulatory takings analysis
should have been based on the entire 65 acres, not merely the 56 acres to which
the logging prohibition applied. Plainly, however, these numbers are not as
favorable to the state as in Seiber (only 40 out of 200).
Restrictions on land clearing and construction of home for personal use:
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 parcel, 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 a resulting abandonment of the nest would be a “take” pursuant to the ESA. The
agency further told him that he could apply for an ITP, which would allow the house
construction to proceed. However, when the plaintiff applied, the FWS insisted he
agree to all the required mitigation before it would process the application. Plaintiff
declined, believing the demanded mitigation to be overly restrictive.
Held, claim is ripe, but no “total taking.” In an unpublished prior decision, the
court held that despite the absence of a formal denial of the permit application, the
FWS’ insistent position ripened the taking claim. In the decision here, the court
holds that there is no total taking because the ESA development restrictions do not
deprive plaintiff’s property of all economic value. The parties must present
additional evidence, however, before the court can determine whether a partial
regulatory taking occurred based on the takings test for less-than-complete loss of
property value. Therefore, the parties’ motions for summary judgment are 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.
Restrictions on filling in wetlands for commercial home construction:
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, no taking. The plaintiff claims that the effect of the Corps’ action was
to completely bar economic use of his property — effecting a per se total taking.
Even with a total taking claim, however, a property owner must show that his
reasonable investment-backed expectations were frustrated. The plaintiff could not

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CRS-15
have had reasonable expectations 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 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, during which 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. However, as mentioned in Section II, the notice rule is no
longer viewed as an absolute bar to a taking claim.
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). Since the decisions in Palm Beach Isles, the Court
of Federal Claims and Federal Circuit generally have followed its approach.
Deletion of area from timber sale contract: Janicki Logging Co. v. United
States, 36 Fed. Cl. 338 (1996), affirmed without published opinion, 124 F.3d
226 (Fed. Cir. 1997)
Plaintiff entered into a contract with the U.S. Forest Service allowing plaintiff
to remove timber from areas within a national forest. Subsequently, the Forest
Service deleted an area from the contract, citing the discovery of a northern spotted
owl nest there. Plaintiffs claim a taking of its contract right.
Held, no taking. The Forest Service did not abrogate or repudiate any of its
obligations under the contract, nor impair plaintiff’s rights to enforce such
obligations. Rather, the Service, acting in a proprietary rather than sovereign
capacity, sought to exercise its rights under the contract and never suggested it was
not bound by the contract. Thus, this case is “nothing more than a garden variety
contract dispute.” (Elsewhere in the opinion, the contract claim was dismissed as
untimely.)
Restrictions on commercial construction: Four Points Utility Joint Venture
v. United States, 40 Env’t Rep. Cas. (BNA) 1509 (W.D. Tex. 1994)
Plaintiffs-developers alleged that to protect endangered and threatened birds 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. (The
FWS took no formal action to block the development.) Plaintiffs believed that no
ESA take of a protected species would occur, and so did not apply for an ITP. They
assert a Fifth Amendment taking.

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CRS-16
Held, claim is not ripe. The plaintiffs must apply for an ITP and receive a final
determination before the court may consider their claims. What plaintiffs really seek
is a court determination that their development will not involve an ESA take, and an
injunction barring the United States from blocking it. This court will not preempt the
FWS’ responsibility to make the initial ruling regarding species protection under the
ESA.
IV. Reductions in Water Delivery in Order to
Preserve Instream Flows Needed by Listed Species
Reduction in irrigation contract water delivered by United States:
Klamath Irrigation District v. United States, 67 Fed. Cl. 504 (2005)
During a drought in 2001, the U.S. Bureau of Reclamation terminated delivery
of irrigation water from its Klamath Project in northern California and southern
Oregon, to ensure lake levels and river flows sufficient to protect three fish species
listed under the ESA. Plaintiffs, various agricultural landowners and water, drainage,
or irrigation districts in the Klamath River Basin, all had been receiving water from
the Project.
Held, no taking. There was no taking of plaintiffs’ water rights. Plaintiffs’
interests in Klamath Project water fall into two broad categories. As to those based
on water delivery contracts with the Bureau of Reclamation, the traditional reasons
for favoring a breach of contract approach over a takings approach apply — the
United States acted in its proprietary, not sovereign, capacity in entering into the
contracts, and the plaintiffs retain the full panoply of remedies to vindicate their
contract rights. Because the individual-irrigator plaintiffs are third-party
beneficiaries of the contracts with the water districts, their claims, too, sound in
contract, not takings. (While not resolving the contract claims in this decision, the
court suggested reasons why they were unlikely to succeed.)
The remaining water rights asserted by plaintiffs are based on patent deeds from
the United States for federal land in Oregon, and state water permits from Oregon.
However, these rights, assuming they exist, were established well after the 1905
appropriation of the Klamath waters by the United States. The United States is thus
the senior right holder under the prior appropriation doctrine used in Oregon,
allowing it to insist that junior right holders, such as the plaintiffs, curtail their use
as necessary for the United States to satisfy its senior rights.

Reduction in irrigation contract water delivered by state: Tulare Lake
Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001)
During a drought in 1992-1994, the U.S. Bureau of Reclamation reduced the
amount of water pumped from the Sacramento-San Joaquin Delta in California, in
order to ensure flows sufficient to protect two fish species listed under the ESA. The
result of the reduced pumping was to reduce the water available to the interconnected
California State Water Project — which project, in turn, reduced the water delivered
to two of the plaintiffs, who had water-delivery contracts with the state. Other

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CRS-17
plaintiffs in the case received less water under their water-delivery contracts with
these two plaintiffs.
Held, a taking. There was a taking of the plaintiffs’ right to use the water, in
the amount of the reduction. The plaintiffs’ contracts with the state 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 to that amount of
water, and constitutes a physical taking. The federal government has essentially
substituted itself as the beneficiary of the contract right and totally displaced the
contract holder. And plaintiffs’ state contracts hold harmless for reduced water
delivery only the state, not the United States. 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: In December, 2004, plaintiffs and the United States settled the case
for $16.7 million. The settlement agreement provides that it “shall not be
construed as an admission by Defendant of any ... liability as to any or all of the
Plaintiff’s claims for liability.”
Tulare Lake generated headlines for several reasons. First, it involves
ESA-based cutbacks in delivery of irrigation water, a highly emotional issue in
the West and one that has generated other takings suits.48 Moreover, it is the
only court decision involving any ESA circumstance to find a taking. Second,
the court’s rationale included some controversial conclusions — e.g., that a
regulatory restriction effected a physical taking, and that the plaintiffs acquired
greater rights against the U.S. under their contracts with the state than they had
against the state. Third (and related to the second), the Department of Justice
had received at least four letters from other government agencies — two from the
National Marine Fisheries Service, and one each from the California Attorney
General’s Office and the California Water Resources Control Board — urging
the Department not to settle, but to appeal. The California letters additionally
asserted that Tulare Lake mischaracterized the state’s water law, and urged
Justice on appeal to request certification of the state water law issues in the case
to the California high court. Finally, several Members of California’s
congressional delegation took public positions on the proper course of action for
the Department of Justice — whether to settle or appeal.
Quite recently, another judge of the same court criticized the Tulare
Lake decision as “wrong on some counts, incomplete in others ....”
Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504, 538 (2005).
48 In addition to the other decisions reported in this section, there is pending litigation in
Casitas Municipal Water Dist. v. United States, No. 05-168 L (Fed. Cl. filed Jan. 26, 2005).
There, the water district alleges that the Bureau of Reclamation ordered the district to
construct at its own expense a fish diversion facility at a dam operated by the district, and
to maintain bypass flows — both for the protection of an endangered fish. The plaintiff
asserts a taking of its contract right to use of the bypass flow, and a breach of contract in
being required to pay for the diversion facility. No amount of damages is specified in the
complaint.

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CRS-18
Reduction in irrigation contract water delivered by United States:
Barcellos and Wolfsen, Inc. v. Westlands Water Dist., 849 F. Supp. 717
(E.D. Cal. 1993), affirmed sub nom. O’Neill v. United States, 50 F.3d 677
(9th Cir.), cert. denied, 516 U.S. 1028 (1995).
During a drought in 1993-1994, the U.S. Bureau of Reclamation reduced the
amount of water pumped to certain water users from the Sacramento-San Joaquin
Delta in California, in part to ensure flows sufficient to protect two fish species listed
under the ESA. The result of the reduced pumping was that plaintiffs, landowners
and water users within the Westlands Water District, received up to 50% less water
than the amount otherwise available under Westlands’ contract with the United
States.
Held, no taking.49 The fact that the Westlands contract was entered into before
enactment of the ESA and another statute does not mean that application of those
statutes to modify the contract was a taking of contract rights and violation of due
process. (These issues were not reached in the decision on appeal.)
V. Restrictions on Defensive Measures
That a Property Owner May Use to Protect Property
from ESA-Listed Animals
Livestock killed by listed predators: Gordon v. Norton, 322 F.3d 1213
(10th Cir. 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, no jurisdiction. Because compensation for any taking by the United
States is available in the U.S. Court of Federal Claims under the Tucker Act,50 the
district court below lacked jurisdiction to hear plaintiff’s taking claim. The Supreme
Court decision in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), 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.
Livestock killed by listed predators: Christy v. Hodel, 857 F.2d 1324 (9th
Cir. 1988), cert. denied, 490 U.S. 1114 (1989)
49 849 F. Supp. at 730. It is not entirely clear from the court’s brief discussion that the
plaintiffs were raising a taking claim in addition to their due process claim.
50 28 U.S.C. § 1491.

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CRS-19
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. The 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
the bear, grizzlies being a threatened species under the ESA. A Department
administrative law judge reduced the fine to $2,500.
Held, no taking. Undoubtedly, the bears had physically taken the sheep, 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 prior to their being reduced to possession by capture, which did not occur
here. Neither is there a regulatory taking: the losses sustained by the plaintiffs are
merely the incidental result of reasonable regulation.
Comment: Christy remains the leading decision for the proposition that
government limits on the defensive measures available to protect one’s property
against marauding animals are not takings. Property rights advocates were
heartened by Justice White’s dissent from the denial of certiorari, in which he
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. However, later court decisions have not
picked up on Justice White’s line of analysis.
VI. Restrictions on Commercial Dealings in Species
Interstate commercial transport of endangered species: 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 purposes lawful 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.51
Held, no taking. 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.
51 ESA § 9(a)(1)(E).

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Sale of endangered species parts: 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 and other wildlife protection statutes. He moved to dismiss all counts on
the ground that the ESA and the other statutes are, as applied here, an
unconstitutional taking under the Fifth Amendment.
Held, no taking. There was no taking of Hill’s property interest in these animal
parts. He 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(a) of the act.52 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: This decision relies in part on Andrus v. Allard, 444 U.S. 51 (1979),
the only U.S. Supreme Court Fifth Amendment takings decision that directly
deals with wildlife protection. Andrus involved 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.
52 16 U.S.C. § 1539(a).

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