Fifth Amendment Takings and the ESA

• Author: Lawrence R. Liebesman/Rafe Petersen
• Pages: 135-140

Page 135

Chapter XVI

Fifth Amendment Takings and the ESA

The Takings Clause of the Fifth Amend-

ment prohibits the government from tak-

ing property for public use without “ just

compensation.”1 is prohibition under the Fifth

Amendment must be distinguished from “taking”

of a listed species under §9 of the ESA.2 Implemen-

tation of the ESA and other statutes and regulations

that protect wildlife also presents many situations

that raise the question of whether such a Fifth

Amendment taking has occurred. ese wildlife

protection-related situations seldom arise f rom an

attempt by the federal or state authorities to con-

demn properties utilizing their power of eminent

domain. More commonly, these issues originate

from situations in which agencies, in implement-

ing the ESA (or some other wildlife regulation),

arguably may have appropriated private property.

is distinction may lead to diculties for prop-

erty owners. A “taking” may more readily be found

when the interference with property can be charac-

terized as a physical invasion by government, than

when interference arises from some public program

adjusting the benets and burdens of economic

life to promote the common good.3 Indeed, the

Supreme Court has recognized two general types

of takings. First, where the government encroaches

upon or occupies private land for its own proposed

use, the Court has held that even a minimal perma-

nent physical occupation of real property requires

compensation under the Fifth Amendment.4 Sec-

1. U.S. C. amend. V.

2. 16 U.S.C. §1538, ELR S. ESA §9. e ESA §9 prohibition

on “taking” of a listed species is premised on the statutory de-

nition of “take” to mean “to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage

in any such conduct.” 16 U.S.C. §1532(19), ELR S. ESA

§3(19).

3. See, e. g., United States v. Causby, 328 U.S. 256 (1946).

4. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 427 (1982).

ond, a taking also occurs where a government regu-

lation, although not encroaching upon or occupy-

ing property, simply “goes too far.”5

In mak ing the determination a s to whether

such a “taking” has occurred, a court will engage

in a two-step process. First, a court determines

whether the plainti possesses a valid interest in

the property aected by the governmental action,

i.e., whether the plainti  possessed a “stick in the

bundle of property rights.” If so, the court proceeds

to the second step, determining whether the gov-

ernmental action at issue constituted a taking of

that “stick.”6

A. What Is the Property Interest?

In the rst instance, a court will consider whet her

a prospective plainti claims a valid property inter-

est that is potentially subject to protection. W hile

it is normally clear in cases where entire parcels a re

condemned for public use that such an ownership

right exists, such a conclusion is often not as clear

in situations involving the protection of wildlife.

Such situations generally involve the restrict ion of

an owner’s right to utilize his property.

It has been held that such an alleged right will

not be protected if it is not consistent with the

restrictions that “background principles of the

State’s law of property and nuisance already place

upon land ownership.”7 is means that, in order

to be protected, the property owner’s anticipated

use of the property must be one that has been (or

would be) recognized under existing law as being

appropriately subject to protection.

5. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

6. Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1374, 30

ELR 20565 (Fed. Cir. 2000) (internal citation omitted).

7. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029,

22 ELR 21104, 21111 (1992).