DIFFERENT KIND OF "REGULATORY TAKING": WHEN DOES NONFEDERAL REGULATORY ACTION CAUSE TAKE OF LISTED SPECIES?
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A DIFFERENT KIND OF "REGULATORY TAKING": WHEN DOES NONFEDERAL REGULATORY ACTION CAUSE TAKE OF LISTED SPECIES? 1
General Counsel
American Forest Resource Council
Portland, OR
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LAWSON FITE, General Counsel, American Forest Resource Council, Portland, OR
I. Introduction
The phrase "regulatory taking" ordinarily conjures up thoughts about development restrictions, zoning ordinances, and the like.3 It signifies abstract action-the issuance of restrictions on how a property may be used or developed-having significant enough real-world impact that compensation may be due. Practitioners under the Endangered Species Act (ESA)4 have become familiar with "regulatory taking" as a particular type of alleged violation of Section 9 of the Act.5 Over the four-plus decades since the Act's passage, a line of cases has developed where nonfederal actors, largely state agencies, are adjudged to violate the Act because of the manner in which they have-or have not-exercised regulatory authority.
These type of regulatory taking cases present particular problems of causation, federalism, policy, and fidelity to the statute. Parallel developments in other areas of the law, including Fifth Amendment takings law, foreshadow potential narrowing of liability for regulatory take.
II. Regulatory Taking of Private Property
Despite the homograph, Fifth Amendment regulatory takings at first glance have little nothing to do with ESA take. However, Fifth Amendment cases have established causation principles, including preclusion of liability for inaction, which are helpful in understanding how ESA section 9 interpretations may develop. The Supreme Court has long recognized that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."6 Lucas v. South Carolina Coastal Council left open the possibility that regulations precluding all development might not be "confiscatory" if they do not prohibit "all economically productive or beneficial uses of land."7 Absent those extraordinary circumstances, "a taking
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may [still] be found based on 'a complex of factors,' including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.'"8 Although such cases may raise difficult causation issues, the Court has had little to say about causation. Some Justices have suggested that "ordinary principles of proximate cause govern the causation inquiry for takings claims."9 Courts of Appeals have proceeded in this vein, applying equivalents of a proximate-cause standard including a foreseeability component.10 In Moden v. United States, the Federal Circuit held an inverse condemnation (takings) plaintiff "must show either that the government intended to invade a protected property interest or that the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the activity."11 The plaintiff also "must prove that the government should have predicted or foreseen the resulting injury."12 Thus, "unless the government intends to make an invasion, proximate causation requires that the government had or should have foreseen the type of harm that a plaintiff suffers."13
When can we state with confidence that causation is absent? For one, when the government has not acted. "[T]akings liability does not arise from government inaction or failure to act."14 "Takings liability must be premised on affirmative government acts."15 The Federal Circuit rested these conclusions in St. Bernard Parish v. United States on two prior decisions. First, the Supreme Court, in United States v. Sponenbarger,16 held there was no taking where the government built a flood control system but failed to adequately protect the plaintiff's property. The Court held "[w]hen undertaking to safeguard a large area from existing
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flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect."17 The Court reasoned that "[t]he Government has not subjected respondent's land to any additional flooding, above what would occur if the Government had not acted; and the Fifth Amendment does not make the Government an insurer that the evil of floods be stamped out universally before the evil can be attacked at all."18 In Georgia Power Co. v. United States,19 the Court of Claims panel relied on a discretionary-function rationale to find the government had no affirmative duty to preclude recreational boating masts from impinging on the plaintiff's aerial easement. "[W]e feel the issuance of such regulations is merely a discretionary act, and a taking may not result from this discretionary inaction."20 In these instances, the courts appear to be drawing on the ordinary tort principle that a party generally does not have a duty to act, absent a special relationship.21
There is not much caselaw on the other side of the coin-whether actions mandated by the ESA can constitute a Fifth Amendment taking. In the case of physical invasions, the answer is yes. In Casitas Water District v. United States, the Federal Circuit imposed Fifth Amendment liability on the Bureau of Reclamation for diverting already-appropriated water to comply with the ESA.22 "[T]here is little doubt," the court held, "that the preservation of the habitat of an endangered species is for government and third party use-the public-which serves a public purpose."23 As such, physical deprivations at the command of the ESA are exercises of eminent domain which must be compensated. Refusals to permit private actions which could cause ESA take may also cause a regulatory taking under Penn Central.24
III. Regulatory Take Under the ESA.
ESA section 9 prohibits the "take" of any endangered species "within the United States or the territorial sea of the United States"25 or upon the high seas.26 It does not directly prohibit take of threatened species, though section 4(d) permits the relevant secretary to extend the take prohibition to threatened species.27 The National Marine Fisheries Service (NMFS) has issued
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such rules for most such species under its jurisdiction.28 The Fish & Wildlife Service (FWS) formerly applied a "blanket" rule extending the take prohibition to all threatened species.29 New regulations remove the blanket rule prospectively for species listed after September 26, 2019.30
The statute defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."31 "Harm in the definition of 'take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."32
Like Fifth Amendment takings, ESA take is subject to the requirements of proximate cause.33 The Supreme Court first weighed in on this in Sweet Home, where the Court upheld the regulatory definition of harm, which incorporated habitat modifications that actually kill or injure wildlife.34 The Court read the regulation "to incorporate ordinary requirements of proximate causation and foreseeability."35 In her concurrence, Justice O'Connor expanded on the point, stating categorically that "the regulation's application is limited by ordinary principles of proximate causation, which introduce notions of foreseeability."36 "Proximate causation," she acknowledged, "is not a concept susceptible of precise definition."37 However, it normally "eliminates the bizarre" and "depends to a great extent on considerations of the fairness of imposing liability for remote consequences."38
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Litigation on potential take has generally addressed fairly direct impacts, such as logging nest trees,39 trapping the species,40 or hitting it with a train.41 But proving that a private actor has committed a take is an onerous task, particularly compared to suing a public agency, which will be subject to public records laws and political pressure. Unsurprisingly, a line of cases has developed which argue that (nonfederal) agency action,42 or even inaction, constitutes a take. In some respects, courts have determined to fill an enforcement gap which they see as essential to fulfilling the purposes of the statute.
IV. Expansion and Retrenchment of Regulatory Take Liability.
The leading cases on take by nonfederal regulators are the Ninth Circuit's Palila decisions and the First Circuit's Strahan case.43 These cases indicate the extreme lengths to which courts have stretched section 9, in furtherance (or perhaps more) of legislative history stating that "'"[t]ake" is defined ... in the broadest possible manner'" or "'the broadest possible terms'".44 In Strahan, the Massachusetts Division of Marine Fisheries (MDMF) issued licenses and permits authorizing gillnet and lobster pot fishing.45 Northern right whales, a critically endangered species, would become entangled in fishing gear, being injured or killed.46 The district court issued an injunction requiring the MDMF to "apply for an incidental take permit... for Northern Right whales" and to "develop and prepare a proposal ... to restrict, modify or eliminate the use of fixed-fishing gear in coastal waters of Massachusetts ... in order to minimize the likelihood additional whales will actually be harmed by such gear."47
The First Circuit affirmed the that ESA section 9 will "apply to acts by third parties that allow or authorize acts that exact a taking and that, but for the permitting process, could not take place."48 In light of proposed federal regulations that would have imposed much...
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